THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present:

Sri. Santhosh Kesavanath P., President

Smt. Bindhu M. Thomas, Member

Sri. K.N. Radhakrishnan, Member

CC. No. 22/2009

Friday, the 30th day of October, 2009.

Petitioner : The Desire Supreme,

Apartments Owners

Association Muttambalam

Kottayam.

Reptd by K.P Varghese,

President of Association.

(By Adv. P.A Mathew)

Vs.

Opposite parties : 1) M/s. Desire Homes,

CSI Commercial Buildings,

Baker Jn., Kottayam

Reptd by M.M. Philip

Managing Partner.

(By Adv. Siby Chenappady)

2. M/s. Jove Elevators,

Maniamkulam Buildings,

Near Chinmaya L.P School,

Puthenangady Road, Kottayam

Reptd. By Gheevarghese,

Managing Partner.

(By Adv. P.N Ashokbabu)

O R D E R

Sri. Santhosh Kesavanath P., President.

Case of the petitioner is as follows:

Petitioner is a Registered Association of the members of the Apartment complex known by the name Desire Supreme Apartments at Muttambalam. Under its bylaws its president is entitled to represent in legal proceedings and in this case it is represented by its present president K.P Varghese. The apartment is a housing project set up by the first opposite party in the land owned by it at Muttambalam with the approval of the Kottayam Muncipal council and the Kottayam Development Authority. On formation of

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the project first opposite party entered in to agreement with members of the petitioner for construction of the apartment complex for their residence. Pursuant to the agreement so entered first opposite party constructed a six storied Apartment Building consisting of eighteen Apartments for the members of the petitioner. As per the agreement first opposite party had to made available common facilities like water supply, Electric Connection, Elevator etc. Utilizing the amount collected by first opposite party from the apartment owners. The Elevator agreed to be installed in the building was a standard Elevator manufactured by reputed manufacturer having the capacity to carry eight persons. The first opposite party entrusted the construction and installation work of the Elevator to the second opposite party. First and second opposite parties completed installation work of the elevator in the petitioners apartment and handed over as per delivering letter Dtd: 24..7..2007. The Elevator assembled and installed was a manual elevator. Petitioner on using the elevator found that it was not serviceable and convinced that fact to the opposite parties . They thereon agreed to replace the manual elevator by an pay automatic elevator manufactured by a reputed company. They dismantled manual elevator installed in the building and installed in its place an automatic elevator assembled by them by April 2008. The first opposite party intimated the petitioner by its letter Dtd: 24..4..2008 that up gradation work of the elevator has been completed successfully and break down if occurred on using it may be reported to second opposite party. The petitioner on using the up gradated elevator met with break down and accident on several occasions and reported in those incident to first opposite party. On 15..7..2008 petitioner was trapped in the elevator for about 4 hours and was rescued

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from the Elevator by calling technicians. On 27..11..2008 an inmate of one of the apartment suffered grievous injuries to his leg, since the door of the elevator closed, before he stepped out from the elevator. On 9..12..2008 first opposite party was trapped in the elevator for about 3 hours by breakdown of the elevator and he was taken out by the service technicians. On 12..12..2008 a technician suffered electric shock from it. On the requisition of the petitioner , technicians deputed by 1^st and second opposite party attended and repaired the elevator installed in the building several times but the defect of the elevator not rectified Petitioner requested the first opposite party to dismantle the up gradated elevator and to install in its place an elevator with ISI Mark manufacturer by a reputed manufacturer or to reimburse the amount met for the installation of the elevator. First opposite party gave a reply for the demand of the petitioner stating that elevator is being used it has to be attended by service person periodically and advising the petitioner to enter in to annual maintenance contract with the second opposite party. According to the petitioner due to manufacturing defect of the elevator. Elevator become mal functioning Components and materials used for assembling the elevator are of poor quality and workmanship. Petitioner issued a lawyers notice on 22..12..2008 and demanded the opposite party to dismantle and remove the upgraded elevator installed by them and to install in its place an elevator manufactured with ISI mark. Opposite party received the notice but they did not complied with the notice. Break down of the elevator occurs whenever it is attempted to be used. The doors of the elevator will not open or close in its normal way. If the elevator is used in its present condition it will cause danger to the members of the petitioner and their families

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and others who may used it. There is a guarantee period of 1 ½ years from 24..7..2007 for the proper working of the elevator. Petitioner has reported the complaints to the opposite party within the guarantee period. But the opposite party did not comply with request of the petitioner. The second opposite party received the cost of the Elevator from the petitioner through the first opposite party. So, both the opposite parties have the liability and the obligation to replace the defective elevator installed in the building or repay to the petitioner the cost of the elevator received by them and also to compensate the petitioner for inconvenience offered by them. According to the petitioner members of the complainant Association purchased flat from the first opposite party paying the sale consideration mutually agreed. Sale consideration paid was inclusive of the cost of the elevator to be provide to the building . Original manual elevator was provided and its cost was Rs. 5.75 lakhs. The manual elevator installed in the building was not serviceable so the opposite parties up graded the elevator providing an automatic door system. First opposite party in its version stated that additional amount of Rs. 1.5 lakhs was paid for the up gradation work of the elevator. The up gradated elevator provided by the opposite party is also not serviceable. So, the petitioner prays for a direction to the opposite party to pay an amount of Rs. 7,25,000/- to the petitioner. Petitioner also claim Rs. 1 lakh as compensation and cost of the proceedings.

First opposite party filed version contenting that the petition is not maintainable. According to the first opposite party M/s. Jove Elevators, Kottayam undertaking

installation and maintenance work of lifts to the building constructed by the first opposite party. Second opposite party made believe that they are one of the leading

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manufacturers and suppliers of lift in Kerala and they successfully installed many lift through out the state. First opposite party believing the words and after enquiry about their credibility and experience of second opposite party given order to supply and install a lift of 8 passengers capacity with manual door operation system for a sum of Rs. 5,75,000/-. The order was place on 19..8..2006 with condition that entire work would be completed and lift would be commissioned within 60 days from the date of order. Second opposite party failed to meet the deadline of commission of the lift as per the agreement. Second opposite party installed and handed over the lift on 24..7..2007, after a prolonged delay of 11 months. Ever since the handing over the lift, it did not work properly. Second opposite party suggested that problem could be solved permanently by converting the lift to automatic door system. Left with no other choice first opposite party agreed with-conversion of lift to automatic system by paying an additional sum of Rs. 1,50,000/- to second opposite party. Order for conversion had been issued to second opposite party on January 2008 with a condition to complete the work within one month. After conversion to automatic system lift have been handed over on 21..5..2008 with a warranty period ending 20..5..2009. Second opposite party agreed that they will be responsible for failure of the lift due to make of units and installation faults during the warranty period. The lift worked without major problems for a couple of week . But it started to problem second opposite party had been informed about the problem they and their technicians visit the site and spent their time helplessly . Immediately after technicians leave lift would stop working. First opposite party had asked second opposite party replaced the lift with immediate effect but they did not do so. First

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opposite party is not competent to install and maintain a lift and lift installed by them are not at all safe to use. Finally the lift is non- operational and second opposite party is not interested in attending the problem. Since the second opposite party utterly failed in keeping the lift operational . Second opposite party is liable to refund Rs. 7,25,000/- paid to them by Desire Homes and dismantle and remove the lift from the apartment. According to the first opposite party there is no deficiency in service on their part and whenever any complaints occurred the first opposite party informed second opposite party with the constant follow ups. But they failed to rectify the defects satisfactorily. So, according to the first opposite party petition is to be dismissed with their costs.

Second opposite party entered appearance and filed version contenting that since the transaction is a commercial transaction petition is not maintainable before the Forum they contented that there is no privity of contract between the petition and second opposite party. According to the second opposite party it was erected as per the agreement between first opposite party and second opposite and lift was installed at the desire apartment and was handed over in satisfactory working condition on 24..7..2007. The capacity to elevator was for 8 passengers. There after on the request of the first opposite party, the second opposite party changed the manual system to automatic door system and was being used successfully. The elevator its door etc. were purchased from reputed firms and were of superior quality to avoid any room for any complaint. Whenever the service of the second opposite party was called for expert personals of the second opposite party visited the premises and rendered their service. Complaints were caused due to rough handling of the system and due to over load there was voltage

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fluctuations in the area and the petitioners were reluctant to install a voltage stabilizer. The minor complaint if any is by the normal wear and tear of the elevator. When the technicians of the second opposite party visited the premises of the petitioners apartment they were manhandled by the occupants several times and the second opposite party informed about the same to the first opposite party. The second opposite party is ready to rectify the defects, if any, at its own expense by the qualified service personnel. The allegation of break down and accidents by the petitioner according to the second opposite party is utter falsehood.. The second opposite party contented that they had installed elevators of similar type to several persons and it is being used satisfactorily

without any complaint. So second opposite party contented that no notice were served to them. According to the second opposite party 17 defects noticed as alleged with the petitioner in the petition is false. So, they contented that there is no deficiency in service on their part. So, they pray for dismissal of the petition with their costs.

Points for determinations are:

1. Whether the petition is maintainable or not?

2. Whether there is deficiency in service on the part of the opposite party?

3. Relief and cost?

Evidence in this case consists of Ext. A1 to A9 documents on the side of the petitioner and Ext. B1 to B 22 documents on the side of the opposite party and deposition of PW1 and DW1.

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Point No. 1

According to the second opposite party since the transaction between the petitioner and the opposite party is a commercial transaction petition is not maintainable. The second opposite party also placed decision of the Hon’ble Supreme Court in Lakshmi Engineering Works Vs. PSG Industrial Institute (reported in AIR 1995 S.C 1428). Petitioner stated that in the said decision the Supreme Court stated that as per section 2 (d) persons, who buys goods and used them himself, exclusively for the purpose of earning his livelihood is a consumer and if the purpose for which the person buys goods for commercial purpose then he is not a consumer.

In our view here the lift installed and supplied by the opposite party is not subject for the commercial transaction of the petitioners apartment. In other words, lift is not

selling by the petitioners. Admittedly the petitioner and the residence of the apartment is using the lift for their ingress and aggress. So, in our view the service availed had not been used in any activity directly intented to generate profit and we have no hesitation to state that petition is maintainable before the Forum. The second opposite party during the time of argument submitted that since the petitioners son is the owner of the apartment and the petitioner has not produced any document to prove that the son of the petitioner authorized petitioner to file the petition before the forum. So, petition is not maintainable. Admittedly the petitioner is the president of the apartment owners association and is a beneficiary to the service availed by the opposite party. As per section 2 (d) 2 consumer includes any beneficiary or service other than the person who

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hires or avails the service for consideration. So in our view the petitioner is a consumer and the petition is maintainable before the Forum.

Point No. 2

Admittedly in para 8,9,10 of the version first opposite party admitted that the lift is mal functioning. In para 6,7, 8, 9 and 10 of the version opposite party admitted that elevator was non functional not operational and is not at all safe to use. Commissioner was appointed by the Forum for determining condition of the elevator the commission report is marked as Ext. C1. The commissioner was examined as PW2. Commissioner in his report stated that on inspection it is found that the inhabitants in the apartments is facing series difficulties and they will not able to travel with the installed elevator. 50 % materials used are good quality but the installation of the elevator is total defective . Installment of the elevator was not done confirmative with engineering standard and commissioner recommended for rectification of defect or replacement of the elevator. PW2 commissioner deposed in page No. 5 of his deposition that since the elevator was constructed without following engineering techniques and by using sub standard materials the lift become non operative. . So, by the admissions of the first opposite party and from the report of the commissioner it can be seen that the elevator is not in use and suitable or serviceable and is made of sub standard quality materials without following the engineering standards. According to the first opposite party he had intimated the second opposite party with regard to the complaints when ever it occurred from time to time with constant follow ups and the second opposite party failed to rectify the defects satisfactorily . Second opposite party produced the letter issued by the second

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opposite party to the first opposite party. Said document is marked as Ext. B10. As per Ext. B10 letter second opposite party offered the first opposite party special elevators with customer requirement in a most economical defective and efficient manner. First opposite party produced the copy of warranty certificate issued by the second opposite party and said document is marked as Ext. B12. As per Ext. B12 warranty issued is 1 ½ years from the commission date. The mal functioning of the lift was started from 2 months after the installation of the elevator. First opposite party produced a letter issued by the first opposite party to the second opposite party on 10..8..2007 informing with regard to the mal functioning of the lift installed at desire apartment and said document is marked as Ext. B13. First opposite party produced communications of the first opposite party to the second opposite party Dtd: 17..9..2007, 7..12..2007, 28..12..2007, 1..3..2008, 11..12..2008, 21..5..2008 and 6..1..2009 said documents are marked as Ext. B14, B16, B18, B19, B21, B20, B22. From this document it can be seen that the first opposite party is constantly informing the second opposite party about the pathetic condition of the elevator. As per B17 letter 2^nd opposite party suggested for an automatic elevator in place of the mechanical elevator and insisted the opposite party to pay an amount of Rs. 1,50,000/- as revised price for modernization of the lift. Opposite party as per Ext. B18 agree for the same. As per Ext. B20 second opposite party offered a prompt after service for the automatic elevator. Section 2 (d) of the Consumer Protection Act defines “deficiency” as any fault, imperfection, short coming in the quality , quantity potency , purity or standard which is required to be maintained by or under any law or any contract express or implied. From Ext. B10, B11, B13, B14, B16,

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B18, B19, B20 ,B21 and B22 documents it can be seen that the first opposite party informed the second opposite party and try their earnest efforts, whenever the complaints occurred, from time to time with constant follow up.. From the available evidence it can be seen that act of the second opposite party is a clear deficiency in service. Admittedly the second opposite party received an amount of Rs. 7,25,000/- from the first opposite party for the installation and erection of the elevator in the premises of the Desire Homes Apartments.. The commissioner stated that by inspecting the maintenance register it is seen that the elevator was repaired 70 times. Second opposite party during his cross examination admitted that during the first 9 months of the installation he had gone to the elevator for repairing one times in a month. Second opposite party further deposed that for the last 10 month the elevator is completely non functional. DW2 in page No. 5 of his deposition stated that many flats of the apartment were not in occupation. So, in our view replacement or rectification of the elevator will not meet the ends of justice allowing the refund of the amount accepted by the second opposite party from the first opposite party, to the petitioners, is just and proper. The act of the second opposite party by installing a defective lift without following the engineering standard and with inferior quality material is a clear deficiency in service. So, point No. 2 is found accordingly.

Point No. 3

In view of finding point No. 1 and 2. Second opposite party is ordered to pay the petitioner an amount of Rs. 7,25,000/- received by the second opposite party from the first opposite party for providing elevator to the petitioner. Second opposite party is also ordered to pay an amount of Rs. 25,000/- as compensation for the loss and sufferings

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caused to the petitioner. Petitioner is also entitled for an amount of Rs. 5,000/- as cost of the proceedings from the 2^nd opposite party. Provided on getting the amount petitioner association shall permit the 2^nd opposite party for dismantling and take back the installed elevator. The order shall be complied with within one month. If the order is not complied within time petitioner is entitled for an interest at the rate of 12% from the date of order till realization.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 30^th day of October, 2009.

Sri. Santhosh Kesavanath P. President Sd/-

Smt. Bindhu M. Thomas, Member Sd/-

Sri. K.N. Radhakrishnan, Member Sd/-

APPENDIX

Document for the Petitioner

Ext. A1: Handing over certificate

Ext. A2: Copy of lawyers notice Dtd: 22..12..2008

Ext. A3: Postal A/D Card

Ext. A3(a) Postal A/D Card

Ext. A4: Letter from desire homes to Jove elevators Dtd: 24..4..2008

Ext. A5: Letter Dtd: 5..12..2008 from desire homes to the petitioner

Ext. A6: Register maintained by the petitioner

Ext. A7: Register maintained by the petitioner

Ext. A8: Letter Dtd: 11..9..2009 proposal and installation of lift.

Ext. A9: Copy of letter Dtd: 23..9..2009 from petitioner to Sri. M.M. Philip

Documents for the opposite party:

Ext. B1: Letter Dtd: 23..2..2006 from Jove Elevators to desire homes.

Ext. B2: Handing over certificate Dtd: Nil.

Ext. B3: Proceeding of the electric Inspector Dtd: 30..6..2007

Ext. B4: Letter Dtd: 24..2..2007 from Jove Elevators to desire homes.

Ext. B5: Copy of Ltr. Dtd: 28..12..2007 from Desire Homes to Jove Elevators.

Ext. B6: Copy of letter Dtd: 28..12..2007 from Desire Homes to the Petitioner.

Ext. B7: Copy of letter from Desire Homes to Jove Elevators Dtd: 24..4..2008

Ext. B8: Agreement Dtd: 10..2..2006 between Desire Homes and Jove elevators.

Ext. B9: Agreement Dtd: 10..2..2006 between M.M. Philip and John Chandy.

Ext. B10: Letter Dtd: 23..2..2006 from Jove Elevator to Desire Homes.

Ext. B11: Agreement between Jove Elevator and Desire Homes.

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Ext. B12: Copy of handing over certificate.

Ext. B13: Copy of letter Dtd: 10..8..2007 from Jove elevators to Desire Homes.

Ext. B14: Copy of letter Dtd: 17..8..2007 from Desire Homes to Jove elevators

Ext. B15: Copy of letter from Jove elevators to desire Homes Dtd: 15..11..2007

Ext. B16: Copy of letter Dtd: 7..12..2007 from Desire Homes to Jove elevators.

Ext. B17: Copy of letter from Jove elevators to Desire Homes.

Ext. B18: Copy of letter Dtd: 28..12..2007 from Desire Homes to Jove Elevators.

Ext. B19: Copy of letter Dtd: 1..3..2008 from Desire Homes to Jove Elevators.

Ext. B20: Copy of letter Dtd: 21..5..2008 from Jove elevators top desire Homes

Ext. B21: Copy of letter Dtd: 11..12..2008 from Desire Homes to Jove Elevators .

Ext. B22: Copy of letter from Desire Homes to Jove elevators Dtd: 6..1..2009.

C1: Commission report

Deposition:

PW1: Petitioner, K.P Varghese

PW2: Manojkumar V.A, Commissioner

DW1: 2^nd Opposite party, Gheevarghese.

By Order,

Senior Superintendent.

amp/ 5 cs.