State Consumer Disputes Redressal Commission
Schindler India Pvt. Ltd. vs Raj Kumar Aggarwal on 18 April, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.407 of 2021
Date of Institution : 22.11.2021
Reserved on : 17.03.2022
Date of decision : 18.04.2022
Schindler India Pvt. Ltd., having its Corporate Office at
Chandigarh, having its Office at Plot No.595, 2nd Floor, Sector 66,
Opp. Bestech Square Industrial Area Phase-9, Mohali, Punjab
(through its Authorized Representative)
Also at:
Schindler House, Main Street Hiranandani Gardens, Powai,
Mumbai-400076.
.......Appellant/Opposite Party
Versus
Mr.Raj Kumar Aggarwal, Authorized Person, ATAM Gunwanti
Paramanand Charitable Society (Regd.), C-2552, Ranjit Avenue,
Amritsar.
.......Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against
the order dated 04.10.2021 of the District
Consumer Disputes Redressal
Commission, Amritsar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Alok Tripathi, Advocate For the respondent : Sh. Sachit Khurana, Advocate F.A. No.407 of 2021 2 MRS.URVASHI AGNIHOTRI, MEMBER Appellant-Schindler India Pvt. Ltd., has filed the present appeal against the Order dated 04.10.2021 passed by the District Consumer Disputes Redressal Commission Amritsar, (in short, "The District Commission"), whereby the complaint filed by complainant-Raj Kumar Aggarwal against Schindler India Pvt. Ltd.- opposite party (in short "OP") has been allowed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly stated, complainant-Atam Gunwanti Paramanand Charitable Society (herein after referred as 'Society') filed the complaint before the District Commission, through authorized person Raj Kumar Aggarwal. It was mentioned in the complaint that said Society wanted to get install elevator in the building of said Society. The sole purpose of the said elevator was to serve humanity. The complainant approached OP and placed an order to install elevator on 06.06.2018. The total settled amount of the elevator was Rs.9,75,000/-. The complainant made the payment of Rs.5,90,000/- and Rs.2,90,500/- as agreed and also when demanded by the OP. However, even after receiving the above said amount, OP did not install the elevator at the site of the complainant. However, the complainant approached OP several times to install the elevator as the senior citizens as well as other F.A. No.407 of 2021 3 persons were facing the difficulty, but all in vain. The aforesaid act of the OP in not installing the elevator even after receiving the substantial amount is an act of 'Deficiency in Service' and 'Unfair Trade Practice'. Feeling aggrieved by the action and inaction of the OP, the complainant filed said complaint before the District Commission.
4. On receipt of notice, issued by the District Commission, OP appeared through counsel and filed written statement by raising certain preliminary objections like frivolous, vague and false averments made in the complaint. It was further mentioned that the complainant did not approach the District Commission with clean hands. The District Commission was not competent to try the complaint in view of Clause 19 (Arbitration Clause) in the Agreement dated 03.05.2018 and accordingly the matter was required to be referred to the Sole Arbitrator for arbitration proceedings. Objection of territorial jurisdiction was also raised as the Agreement was executed in Branch Office of the OP at Mohali. Complainant-Atam Gunwanti Parmanand Charitable Society approached the OP and executed agreement dated 03.05.2018 for installation of 1 Units elevator, Model Schindler 3100 IN Gearless and machine room was less for their project. The complainant had agreed to pay Rs.9,75,000/- as per schedule as mentioned below:-
Sr.No. Percentage of Total Even/Particulars Amount
1. 30% On order reception
2. 60% Before start of manufacturing F.A. No.407 of 2021 4
3. 10% On end of installation It was further submitted that the complainant agreed to complete civil and electrical work as mentioned in the agreement under heading scope of work but failed to complete the same. The complainant agreed to pay 30% (Rs.2,92,500/-) on acceptance of above said order. The complainant paid an amount of Rs.2,90,500/- on 24.05.2018 instead of Rs.2,92,500/- and assured to pay the remaining amount within one week. After the expiry of the date i.e. 30.06.2018, the complainant paid Rs.5,88,000/-
through RTGS on 17.08.2018 but without informing the OP and it came to the knowledge of OP on the date of account verification i.e. 30.10.2018. On the date of checking i.e. 27.06.2018, it was found that civil requirements specially shaft size areas was not complete as per agreement. As such Clause 12 of the Agreement the elevator could not be installed due to negligence of the complainant himself. It was denied that there was deficiency in service and unfair trade practice on the part of OP and as such the complainant was not liable to any compensation.
5. After hearing the arguments of both the parties and on going through the record of the case, the District Commission allowed the complaint vide order dated 04.10.2021, with the direction to the OP as mentioned below:
a) to refund Rs.8,80,500/- alongwith interest @ 9% p.a. from the date of filing of the complaint till realization; F.A. No.407 of 2021 5
b) to pay compensation to the tune of Rs.75,000/- out of which Rs.15,000/- be deposited in the Pingalwara Charitable Society of Bhagat Puran Singh, Amritsar and Rs.60,000/- be paid to the complainant; and
c) to pay litigation expenses to the tune of Rs.5000/- to the complainant".
6. Aggrieved by the aforesaid Order passed by the District Commission, the OP has filed the appeal before this Commission by raising arguments.
7. Mr. Alok Tripathi, Advocate learned counsel for the appellant submits that District Commission has failed to appreciate that it was nowhere disclosed in the complaint or in the arguments that lift was got installed at the premises of the complainant/respondent through some other service provider and refund of the amount clearly shows his malafide intention. Learned counsel further submits that the complainant firstly failed to pay the agreed amount within the prescribed period and secondly the shaft constructed by him was not as per the specifications. Learned counsel also submits that the complainant Society i.e. Atam Gunwanti Paramanand Charitable Society is not a Consumer within the definition of Consumer Protection Act, 2019. Learned counsel further submits that the appellant was/is always ready and willing to install the lift, but complainant himself did not want to avail the services and in installation of the lift. The District F.A. No.407 of 2021 6 Commission also failed to appreciate the fact that on the date of inspection i.e. 27.06.2018, it was found that the civil requirements specifically shaft size was not constructed by the complainant as per the specifications. As per the contractual terms and conditions, the rate was required to be re-negotiated after the expiry of validity period but the complainant refused to re-negotiate the rate, which clearly shows no 'deficiency in service' on the part of appellant/OP. At the end, learned counsel submits that the impugned order passed by the District Commission directing refund of the amount along with other directions is not based on proper appreciation of evidence and facts and the same is liable to be set aside.
8. Mr.Sachit Khurana, Advocate, learned counsel for the respondent/complainant submits that 'deficiency in service' on the part of appellant is apparent from the fact that the appellant did not fulfill its obligation to install the lift/elevator at the premises of the complainant Society despite receipt of huge amount from the complainant. Learned counsel further submits that the alleged inspection was not carried out in the premises by any person(s) on behalf of the Company. No affidavit of any such person, who conducted the alleged inspection, has been placed on record by the appellant. At the end, learned counsel submits that the District Commission after going through the entire record/evidence has F.A. No.407 of 2021 7 passed well reasoned order in favour of respondent/complainant and no interference is required.
9. We have heard the arguments of learned counsel for both the parties and have also perused the impugned Order dated 04.10.2021 passed by the District Commission as well as the written arguments filed by the respondent. However, the appellant has not filed its written arguments, despite opportunity afforded.
10. On perusal of the record and after having hearing the arguments of the learned counsel for the parties, we do not find any merit in the above contentions raised by the learned counsel for the appellant. It has been admitted by the OP that the complainant had paid Rs.8,80,500/- out of total amount of Rs.9,75,000/- and still he did not install the elevator as agreed. Moreover, the necessary provision of the shaft size of area was made and the complainant got installed the elevator at the same place but through some another service provider. In case the OP was not in a position to install the elevator, OP should not have accepted the amount from the complainant and should have refunded the same in case they failed to install the elevator for any reason. Therefore, merely a slight delay on the part of the complainant in making the payment of balance amount and too when the substantial amount had already been deposited with the appellant/OP. The appellant/OP could not penalize F.A. No.407 of 2021 8 complainant/respondent by retaining the amount received from him.
11. Consequently, we partly allow the appeal by modifying the impugned Order dated 04.10.2021 passed by the District Commission and directing the OP :-
a) to refund Rs.8,80,500/- alongwith interest @ 8% p.a. (instead of 9% p.a.) to the complainant from the date of filing of the complaint till realization, and
b) to pay lumpsum amount of compensation and litigation expenses to the tune of Rs.10,000/- to the complainant.
12. The appellant had deposited a sum of Rs.5,99,118/- at the time of filing of the appeal. The said amount along with interest accrued thereon if any shall be remitted by the Registry to the District Commission forthwith. The respondent/complainant may approach the District Commission for the release of the amount as per order of this Commission. The District Commission may pass appropriate order in this regard in accordance with law.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER April 18, 2022 (Rupinder 2) F.A. No.407 of 2021 9