Tamil Nadu

StateCommission

A/20/2017

Supriya Elevator India Pvt. Ltd.,Rep. by its Managing Director & 3 Ors. - Complainant(s)

Versus

Dr. T.Kumaraguru - Opp.Party(s)

M/s.Hari Radha Krishnan

02 Dec 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

Present:          Hon’ble Thiru.Justice R.SUBBIAH                   PRESIDENT

              TMT.Dr.S.M.LATHA MAHESWARI                          MEMBER

 

F.A.No.20/2017

[Against the order passed in CC.No.14/2004, dated 24.03.2015  on the file of the District Commission, Vellore]     

DATED THE  2^nd  DAY OF DECEMBER 2021.                                                 

1.Supriya Elevator (India) Private Limited,

   Chennai – Rep by its Managing Director,

   Office at No.51 Murthinagar Street,

   Vysarpadi, Chennai – 600 039.

 

2.The Managing Director,

   Supriya Elevator (India) Private Limited,

   Office at No.51. Murthinagar Street,

   Vysarpadi, Chennai – 600 039.

 

3.The General Manager,

   Supriya Elevator (India) Private Limited,

   Office at No.51 Murthinagar Street,

   Vysarpadi, Chennai – 600 039.

 

4.J. Kannan, Deputy General Manager / Operations,

   Supriya Elevator (India) Private Limited,

   Office at No.51, Murthinagar Street,

   Vysarpadi, Chennai – 600 039.                             :: Appellants /Opposite parties

Vs.

  Dr. T. Kumaraguru,

  S/o, Thanji Goundar,

  Kumaran Hospital,

  Viruthampattu, Katpadi Road,

   Katpadi Taluk,

   Vellore District – 632006.                                   :: Respondent /Complainant

 

Counsel for Appellant                  :  M/s. Hari Radha Krishnan

Counsel for Respondent              :  M/s. R.Mahadev Singh

             This appeal is coming before us for final hearing on 18.11.2021  and on hearing the arguments of appellant  and upon perusing the material records, this Commission made the following:- 

ORDER

1.TMT.Dr.S.M.LATHA MAHESWARI, MEMBER

 

The complaint was filed alleging deficiency in service on the part of the opposite parties in the matter of installation of lift services along with a prayer to refund a sum of Rs.4,75,000/- and to pay Rs.2,50,000/- towards compensation.

2.       It was the case of the complainant that he was the Director of Kumaran Millennium Plaza, Business Complex located at Thirunagrar, Katpadi Road, Vellore and the complex comprises of Hotel, Restaurant, Club, Lodge, Provision & fancy Stores etc., and it was a business complex in the locality. The complainant had entered into an agreement with the opposite parties to install lift in the business complex & pursuant to the same he had paid Rs.4,75,700/- towards cost of the lift installation. The installation of the lift had  started on 27.11.2000 & completed on 12.03.2003. The Lift from the day one of its installation was not satisfactorily working and had various problems like failure of sensor, elevator was noisy, door was not smooth etc and every time on complaint the opposite partie’s technicians rectified the defect. When it was repaired on 18.03.2003, the person who attended the repairs reported that the failure of censor could not be rectified as it had manufacturing defect and it was continuously giving trouble. Thus the installation of elevator was not upto the specification and standard and had both manufacturing defect as well as there was  deficiency of service on the part of opposite parties. Thus after issuance of legal notice, the complaint was filed alleging deficiency in service on the part of the opposite parties with a prayer to refund Rs.4,75,700/- after removing the elevator and to pay a compensation of Rs.2,50,000/- along with cost of the proceedings.

3.       In the written version filed by the opposite parties the business transaction between the complainant & the opposite parties was admitted. However the allegations in the complaint was disputed contending inter alia that the work of installation of the elevator was done in several stages because of the complainant’s requirement for installation of automatic door opening system and other modern equipment which were not originally agreed to be installed by the  opposite parties. All troubles were due to problem in supply of electricity. There was a balance payment of Rs.25,000/- to be paid by the  complainant. It is admitted that the lift was under service guarantee  period and whenever there was some fault the complainant instead of calling the opposite parties tried to rectify the faults themselves and blamed the opposite parties for the faults occurred due to mishandling. All the service requests were attended promptly. As per the provision of the Tamil Nadu Lift Act, 1997, the lift was inspected by the District Electrical Inspector and License was issued which proves that the lift was properly installed. Further the complainant is not a consumer as per Sec 2 (1) (d) (1) & (ii) of the Consumer Protection Act, 1986 as he had purchased the lift for the purpose of installation in his commercial complex named “Kumaran Millennium Plaza” a Business Complex which consists  of Hotel, Restaurant, Club, Lodge, Stores etc., Thus it was clear that the purpose of purchase of lift was for “Commercial  Purpose” and hence does not fall under the explanation to section 2 (1) (d) as the question of the purchase of goods for earning livelihood by means of self employment does not arise. Thus they sought for dismissal of the  complaint as not maintainable since complainant was not a consumer in view of the amendment in Consumer Protection Act, 2002.       

4.       The Complainant filed Proof affidavit & marked documents Ex.A1 to A17. The opposite parties filed proof affidavit but no documents were produced on their side. The Learned District Commission after considering the pleadings and documents allowed the complaint directing the opposite parties to either replace the lift or return back the purchase amount of Rs.4,75,000/- by taking back the lift along with cost of Rs.3000/-.

Aggrieved over the same the opposite parties had preferred the present appeal.

5.Points for consideration:

1.Whether the complainant is a consumer and whether the complaint is maintainable under the Consumer  Protection Act, 1986?

2.Whether any deficiency in service on the part of opposite parties is proved by the complainant and if so to what relief he is entitled?

6. Point No.1: Admitted facts:

1. That the complainant entered into business transaction with the opposite parties for installation of the Elevator at “Kumaran Milleuium Plaza” owned by the complainant;
2. That the Elevator  was installed on payment of Rs.4,75,700/- by the complainant on 27.11.2000 and after complete installation, the elevator was handed over to the complainant on 12.03.2003;
3. That the elevator was serviced by the opposite parties on complaints received from the complainant for which service report was filed;
4. That complaint was filed after issuance of lawyer notice alleging deficiency in service on the part of the opposite parties & for refund of the amount or replacement of the elevator which was allowed by the Learned District Commission.

7.            Heard the counsel for appellant. It was argued by the counsel for the appellant that the complaint itself is not maintainable as the service rendered is only for commercial purposes. It is submitted that the  District Commission failed to consider the decisions produced in support of their contentions with regard to the maintainability of the complaint. He also submitted  various decisions with regard to maintainability of complaint in case service is availed for commercial purposes. The respondent though appeared  initially by a counsel did not file any written arguments and also did not adduce any oral arguments.

8.       The counsel for the appellant / opposite parties had submitted a decision rendered by the NCDRC in CC.No.2121 / 2016, Dr. Hemanth Vs Mrs. Zenal Construction where in it has been held that when the complainant is a radiologist having a clinic with a staff of 10 members, then it amounts to running a  business and hence the earning by the concerned person does not amounts to earning livelihood but amounts to providing employment to 10 persons and in such case the complainant does not fall within the  explanation to section 2  (1) (d) of the CP, Act 1986.  Further he submitted the decision rendered in Trio Elevators Company (India ) Ltd Vs. Tansingh  Chouhan Reported in III (2013) CPJ 464 (NC), wherein the Hon’ble National Commission has held that when the elevator was installed in a commercial complex then the complainant will not come under the definition of a consumer. On perusal of the pleadings & hearing the submissions  it is seen that in the present case in para No.4 of the complaint, the complainant himself had stated that he is the Director of Kumaran Millenium Plaza Buiness Complex located at Thiru Nagar, Katpadi Road and the business complex comprisses of hotel, Restaurant, Club, Lodge, provision stores, fancy stores etc., and it is a  business complex in the locality. Therefore it is evident even as per the pleadings in complaint that the elevator installed at the business complex is for pure commercial purpose and the complainant who is the director of the said business complex could not be said to have  run the said business complex for earning his livelihood so as to come under that exceptions sec 2 (1) (d) of the Consumer Protection Act. Merely using the term business complex instead of commercial complex in the pleadings will not help the complainant to prove that he is not carrying on any commercial activity. The complainant therefore does not fall within the purview of consumer under the Act as the elevators by the opposite parties were installed in the business complex which clearly comes under the ambit of commercial purposes. The said view is supported further by the order of the Supreme Court in its decision passed in Saket Medical and Research Centre (Pvt.) Ltd. Vs M/s. Kone Elevators India (P) Ltd wherein the Supreme Court dismissed the special leave petition confirming the order of the National Commission holding that the complaint is not maintainable when the elevator is installed for commercial purposes. Thus we are of the view that the order of the District Commission holding that the complainant is a consumer and the service rendered is not for commercial purpose is liable to be set aside as the facts of the case clearly states that the elevator was installed in the business complex run by the complainant for commercial purposes. Thus point No.1 is answered against the complainant and in favour of the opposite parties holding that the complainant is not a consumer and hence the complaint is not maintainable before the Consumer Commission. The remedy for the complainant lies before the appropriate forum.

9.       Point No.2

          In view of the findings that the complaint is not maintainable before the Consumer Commission the discussions as to  whether the opposite parties had committed any deficiency in service and whether the complainant is entitled to any relief does not arise and hence answered against the complainant.

In the result the appeal is allowed. In the facts and circumstances of the case there is no order as to costs in this appeal. 

 

S.M.LATHAMAHESWARI                                                                               R.SUBBIAH

   MEMBER                                                                                                        PRESIDENT

 

 

 

 

 

INDEX:YES / NO

D/S/open court