DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __564_ _ OF ___2014
DATE OF FILING :_21.11.2014 DATE OF PASSING JUDGEMENT: 22.11.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jagdish Chandra Barman
COMPLAINANT : 1. Sri Archa Kumar Banerjee, son of late Ranjit Banerjee at Sonatore Para, P.O and P.S Suri, Dist. Birbhum , at present residing at 872, Rajdanga Main Road, Block-ED6, Sector-E, Kolkata-107.
2. Aishwarya Construction & Projects, represented by its partner Archa Kumar Banerjee at 872, , Rajdanga Main Road, Block-ED6, Sector-E, Kolkata-107.
O.P/O.Ps :1. Kingfisher India Elevator And Aircondition Industries, Malaypur, P.O Raghunathpur, P.S Baduria, Dist. North 24-Parganas, Pin-743401.
2. Md. Firoze Mondal, Manager of Kingfisher India Elevator And Aircondition Industries, Malaypur, P.O Raghunathpur, P.S Baduria, Dist. North 24-Parganas, Pin-743401.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
An agreement was reached between the complainant no.1 and O.P-2 and it was agreed by that agreement that O.p-2 would install a lift in the building of complainant no.1 at a marginal cost of Rs.4,50,000/- including all incidental charges. In pursuance of that agreement, complainant no.1 paid Rs.50,000/- to O.P-2 on 24.5.2011, Rs.1,50,000/- on 28.7.2011 and Rs.2 lac on 23.8.2011. Following instruction of O.P-2, he also paid some money to another company i.e Servo Tech company for supply of some parts of the lift. In this way, the complainant no.1 paid Rs.4,75,643/- in aggregate to the O.Ps for installation of the lift in his building. Lift was to be installed by 20.1.2012. The work of installation has not yet been completed. That apart, O.P-2 has no license for installation of elevator . No VAT is paid by him. According to the said complainant , O.P-2 is a fake company and the complainant has been fully deceived by him. Alleging unfair trade practice and deficiency in service on the part of the O.Ps, the complainant no.1 has filed the instant case, praying for refund of Rs.4,75,643/- paid to the O.Ps and also for compensation etc. Hence, this case.
O.Ps have been contesting the case by filing written version, wherein it is contended inter alia that the work order for installation of the elevator was issued to O.P-2 on 24.5.2011 . The said O.P accepted the order and agreed to install the same at marginal cost of Rs.5 lac including installation charge and labour charge. Work of installation was completed to the extent of 80% and the remaining work was not completed for reasons mentioned below:-
1) Pit depth is below the necessary depth i.e 1500 mm.
2) Many electrical wires were passing through the pit of elevator – which may cause fatal accident at any moment.
3) Complainants’ desire to keep the control panel , power pack and main switch at the back side of the building, which may prove disastrous at any time.
4) Complainant did not take permission as required under section 4 of West Bengal Lifts and Escalators Act, 1955.
5) They have no sanction plan from Municipality for installation of the lift.
6) Hydraulic power pack and hydraulic cylinder were supplied by Servo Tech company to the complainants beyond the scope of agreement reached between the parties and those parts did not fit at all in the elevator suitably.
There is no negligence whatsoever on the part of the O.Ps. This negligence and malafide intentions of the complainants stood in the way of completion of installation work. The complainants are ,therefore, not entitled to relief as prayed for.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law?
- Are the O.Ps guilty of unlawful trade practice and deficiency in service as alleged by the complainant?
- Are the complainants entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by both the parties. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1:
It is argued on behalf of the complainants that O.Ps challenged the case on the ground of maintainability and the Hon’ble National Commission has kept the issue of maintainability open to be decided on merits at the time of passing the judgment. But, on perusal of the materials on record, it is found that the above issue has already been put at rest and it has no longer remained open for decision by this Forum.
The Hon’ble State Commission on 4.9.2018 in F.A no. A/1067/2015 has already come to a conclusion that the complainants are consumers and that the case is maintainable by the complainants. So, in the circumstances, the issue on maintainability appears to be no longer open to this Forum for decision , as it has already been decided by the Hon’ble State Commission.
Point no.1 is thus answered in favour of the complainants.
Point no.1& 2 :
In this case, the main allegation of the complainant no.1 is that he paid money to the O.P company for installation of an elevator in his building and the O.P company has not completed the work of installation of the lift within the prescribed time. This is a deficiency in service as alleged by the complainants.
On the other hand, it is the version of the O.P company that he has already completed 80% of installation work and the remaining work of installation of the lift has not been completed for the reasons that the complainant no.1 has not secured necessary permission from the Municipality and the competent authority for installation of the lift in his building.
In the context of submission and counter submissions of the parties as aforesaid, it is to be seen whether there is any kind of deficiency in service on the part of the O.P company in so far as the installation of lift in the building of the complainant no.1 is concerned. It is true that complainant no.1 has not obtained clearance from the concerned municipality for installation of lift in the building. It is true that complainant no.1 has not secured any permission for installation of lift in his building.
Section 3 and 4 of West Bengal Lifts and Escalators Act, 1955 runs as follows:-
“3. Application for permission to erect lift.- The owner of any premises intending to install a lift in such premises shall make an application to such officer as the State Government may authorize in this behalf for permission to install such lift. The application shall specify-
- The type of the lift.
- The contract speed of the lift,
- The contract load of the lift in kilograms,
- The maximum number of persons which the lift can carry,
- The total weight of the lift car including the contract load,
- The weight of the counterweight,
- The number, description weight and size of the suspension ropes,
- The pit depth,
- Such other details of construction as may be prescribed including in particular details regarding construction of the overhead arrangement and the weight and size of the beams,
- Such other particulars as may be prescribed.
4. Permission to erect lift- On receipt of an application made under section ,the Officer authorized under that section shall, after making such enquiry and enquiring the applicant to furnish such information (if any) as may be necessary and after giving him an opportunity of being heard, either grant or refuse the permission to install the lift. The permission granted under this section shall be valid for such period as may be prescribed, but may be renewed by the said officer from time to time on sufficient cause being shown”.
Section 3 of the aforesaid Act requires that the owner must make an application to the Officer as State Government may authorize in this behalf for permission of such lift. Section 4 thereof lays down that the said officer on receipt of application made by the owner of the premises shall make an enquiry and after giving an opportunity of being heard to the owner of the premises may either grant or refuse the permission to install the lift.
It is crystal clear from the aforesaid provisions of law that the owner of the premises must secure the permission of the government before erecting the lift. Rule 3 framed under the aforesaid Act provides that such permission can be granted by the Chief Electrical Inspector of the Government. No such permission has been taken by the complainant no.1; he has not been able to place on record any document that he has taken such permission from the competent officer of the State Government. If such permission is not taken in the manner as required by the Law, installation of the lift in the building will be unauthorised and unlawful.
That apart, sanction should also be taken from the concerned Municipality for installation of lift. Provisions for installation of lift must be there in the sanctioned plan of the building of complainant no.1. There is no provision for installation of lift. So, from this perspective , it is found that installation of lift in the building of the complainant no.1 is unauthorised and unlawful.
Now, the question which arises for consideration is whether the complainant may be allowed to execute unauthorised act in his building. It is alleged by the complainant no.1 that the O.P Company has committed deficiency in service. A service which is sought to be rendered by the O.P Company to the complainants must be a lawful one. If the service itself does not become lawful, the Court of Law cannot enforce it. The Forum cannot be an accomplice to the unlawful activities sought to be accomplished by the complainant no.1. The complainant must come before the Forum with clean hands. He must be like Caesar’s wife; he must be above all kinds of suspicion. He who does not come before the Forum or Court of Law with clean hands, is not entitled to get any relief from any court of law. The complainant no.1 wants to execute an unlawful and unauthorised installation of lift in his building, having bypassed the provisions of law. We do not know what thing they want to suppress by not securing the required permission and sanction from the competent authority.
Regards being had to all these, we are of the opinion that the complainants are not entitled to get relief from the Forum. Assuming for a moment that complainants are entitled to get relief, in that case, the Forum will have to issue an order directing the O.P company to complete the remaining 20% of the installation work of the lift in the building of the complainant no.1. If the O.P company is directed to accomplish the remaining installation work in the building of the complainant no.1, it will be tantamount to direct the O.P company to do an act which has no sanction under the provisions of Law. So, the Forum cannot pass any direction to any person to do what is unlawful and unauthorised.
From this perspective also, we do say that the complainants are not entitled to get relief as prayed for. It is argued on behalf of the complainants that the O.P company is a fake company and that it has no license for installation of the lift. The complainants collected information by filing RTI application and it is found from that report of RTI that O.P company had no license the time when the installation work of lift commenced. On the other hand, the O.P company has filed a certificate of registration for maintenance of lifts in Form II. From this certificate, it is seen that the O.P company has been authorized to maintain the lifts on and from 29.2.2012.
In the midst of such submission and counter submission, we do say that the fault of the complainant cannot be covered up by the fault of the O.Ps. We have already mentioned it clear that the complainant must act like Caesar’s wife and any kind of unfairness on his part will disentitle him from getting relief from the court of law. That apart, erection of lift and maintenance of lift are quite different things. Permission of erection of lift is to be taken by the complainant no.1 in accordance with the provisions under section 3 & 4 of the West Bengal Lifts and Escalators Act, 1955. Such permission is not required to be taken by the manufacturer of lift. Manufacture of lift is required to be taken license for maintenance of lift under Regulation 9(3) framed under the aforesaid Act. So, these 2 things are quite different,
Regards being had to all these aspects, we do say again that the complainants are not entitled to get any relief from this Forum.
In the result, the case fails .
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.Ps, but without any cost.
Let a certified copy of this order be given to the parties concerned free of cost at once by the Register-In-Charge of this Forum..
Member Member President
Dictated and corrected by me
President
8
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.Ps, but without any cost.
Let a certified copy of this order be given to the parties concerned free of cost at once by the Register-In-Charge of this Forum..
Member Member President
