BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

18^th DAY OF MARCH 2020

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs.1 to 3 to remove the two passenger life/Elevator Cabin installed by the OPs and install four passenger lift/elevator cabin in the building premises of the complainant as per terms and conditions of quotation dated 20.01.2015, to rectify the defects in operating the lift and issue life completion report and furnish all tax paid bills in the name of the complainant or in the alternative to direct the OPs to remove the two passenger lift/elevator cabin installed by the OP in the building premises of the complainant and jointly and severally refund Rs.7,50,000/- with interest at 20% p.a from 27.05.2015 till payment, to pay Rs.5,00,000/- towards compensation for hardship, inconvenience caused to the complainant due to the deficiency in service by the OPs, to pay cost of the proceedings and grant such other reliefs.

2. The brief allegations made in the complaint are as under:

OP-1 is a private limited company.  OP-2 is the Managing Director of OP-1 Company and OP-3 is the Director of OP-1 Company.  OP-1 represented by OP-2 & 3 is a company engaged in erection, commissioning and service including annual maintenance of Escalators and Elevators both for residential and commercial facilities.

Complainant further submitted that complainant has put up construction of a new building complex consisting of ground plus three floors on the property owned by the complainant at # 53, 2^nd Main, Bairappa Road, Netaji Nagar, Jalahalli Cross, Bangalore.  The residential house of the complainant is on the third floor of the building.  The complainant is residing in the third floor house along with his wife.

Complainant is an Ex-service men.  The complainant served in the Indian Air Force and is a disabled soldier now aged 81 years.  The complainant is partially paralyzed below the neck on the right side of his body.  The complainant has been taking treatment since last three years at Command Hospital and BGS Global hospital and has undergone bilateral total knee replacement at BGS Global Hospital at Kengeri.  The complainant is unable to walk properly and always requires the support of stick/walker to walk along with one attendant to support him while walking or standing as per doctors’ advice.

Complainant further submitted that in June 2014 when the construction of the building was in progress the sales officer of the OPs Sri.Harsha Gowda, visited the construction site and contacted the complainant.  When the Sales Officer came to know that a four passenger lift is required for the building he gave the companies pamphlet to the complainant and requested the complainant to come to their office.  That in the pamphlet the OPs have advertised that the OPs have a very deep understanding and experience in vertical transport system and that the OPs lay lot of emphasis in safety aspect and crises management and give top priority to both installation and maintenance.  OPs have established technical collaboration with world’s major and renowned equipment suppliers in the matter of installation and maintenance of lift.

Complainant further submitted that the OPs also represented that they possess a dedicated team of Elevator Engineers having sufficient experience and the quality of machinery and installation expertise will be on par with the leading Elevator Companies of India.  The OPs also represented that they undertake Erection, commissioning and service including annual maintenance of elevators both for residential and commercial facilities and that the OPs motto is to deliver world class products to the customer and ensure maximum safety conditions.  That since the complainant is a aged and unable to walk properly and unable to climb the staircase to his house on the third floor.  The complainant, his son Mr.Nitin Mechant, building Contractor Mr.Robert and Site Engineer Mr.Vikas, visited the office and workshop of OPs and made enquiry with the OPs for installation of four passenger elevator/lift at the building owned by the complainant.

Complainant further submitted that after visiting the office and workshop of OPs several times where the OPs have shown how a four passenger life can be installed in 4 feet x 4 feet area at the spot marked for lift in the building of the complainant.  That after going through the pamphlet and honestly believing the representation made by the OPs and their sale officer and after explaining all the disabilities faced by the complainant in walking and standing to the OPs and on assurance of the staff of the OPs who have inspected the complainants construction site and agreed to undertake installation of a four passenger elevator having 272 kgs capacity in 4’x4’ built up area the complainant placed orders with the OPs for erection of four passengers elevator/lift at the complainants building complex.

Complainant further submitted that the OPs gave their quotation for installation of four passengers elevator along with technical data and price details to the complainant on 20.01.2015.  As per the said quotation the OPs agreed and undertook to install four passenger elevator, having 272 kgs capacity and quoted price for installation of our passenger elevator as follows:

Complainant submitted that the complainant agreed to the terms and conditions of the quotation dated 20.01.2015 offered by the OPs and paid Rs.5,00,000/- by demand draft No.795116, dated 20.01.2015 to the OPs and called upon the OPs to install the four passenger lift at the building complex owned by the complainant as per terms of the quotation.  That at the time of installation of the lift the complainant was admitted to Ramaiah Hospital and was bedridden.  Further the complainant’s son Mr.Nitin Merchant who is an NRI is working in Veatnam.  OPs as per their quotation has agreed to install four passenger lift at the complainants building premises but for reasons best known to them in the absence of the complainant and the OPs have installed two passenger lift/elevator cabin at the premises in violation of the terms and conditions of the quotation dated 20.01.2015 and started demanding for the price of four passengers lift from the complainant.  The complainant has paid Rs.2,50,000/- by DD No.794552 dated 27.05.2015 to the OPs and called upon the OPs to replace the two passenger life/elevator cabin and install the Four passenger lift cabin and then demand for the balance amount.

Complainant further submitted that OPs did not give any prior intimation to the complainant regarding installation of the lift and on the other hand the OPs after completion of installation of the lift informed the complainant that the installation work of the lift is completed and are now illegally demanding for the balance amount as per letter dated 17.06.2015 without complying with the complainant’s request to replace the two passenger lift cabin with four passenger lift cabin.

Complainant further submitted that the complainant orally called upon the OPs several times to remove the two passengers Lift/Elevator cabin put by the OPs and replace it with four passenger lift/elevator cabin.  Since the OPs failed to comply with the oral request made by the complainant, the complainant addressed a letter dated 07.07.2015 in this regard.  The letter dated 07.07.2015 issued to OP No.1 is acknowledged by OP-1.  The letter dated 07.07.2015 issued to OP-2 and OP-3 is returned with shara “Not Claimed”.  The OPs No.1 to 3 however neither complied with the request made in the letter dated 07.07.2015 nor sent any reply to the letter dated 07.07.2015.

The complainant further submitted that when the matter stood thus the OPs instead of complying with the request made by the complainant in the letter dated 07.07.2015 have sent a notice dated 03.08.2015 addressed to the son of the complainant and served on the complainant on 18.09.2015 taking all untenable pleas and stating that they have decided to stop their association with the lift until further notice.  That the complainant is unable to use the two passenger lift installed by the OPs as the two passenger lift cabin has very limited space.  The complainant who is aged about 81 years being disabled is unable to enter the two passenger lift cabin with stick/walker along with one attendant to support him due to limited space and congestion in the lift cabin.

The complainant further submitted that there are several defects in the lift installed by the OPs.  That during upward movement of the lift there is lot of sound and shaking of the lift.  When the complainant called upon the OPs to rectify the said defects the OPs have failed to comply with the same.  Hence the complainant got the lift installed by the OPs inspected through qualified lift Engineers.  After inspection of the lift on 20.08.2015 the complainant was informed of the following defects in the lift installed by the OPs.

a) Only two machine bed bolt have been put, whereas four machine bed bolts are required to be put.

b) Auto rescue device for which Rs.51,000/- is charged by the OP is not installed by the OPs.

c) On the ground Buffer Spring Main & Counter Side is to be fixed below the lift after putting one meter concrete before installing the lift, this has not been done by the OPs.

d) Landing Door Locking key is not working.

e) Car fan is not working.

f) All landing & Car door are not set properly.

g) Counter wait balancing is not set properly.

The complainant got the above defects rectified by installing the required equipments in the lift through qualified lift engineers by spending more than Rs.1,00,000/-.

The complainant further submitted that the OPs do not have trained technicians of their own.  For every work the OPs hire contract technicians as such there was delay and shabby, incomplete and defective work done by the OPs in installation of the lift.  That inspite of several oral requests and letter the OPs have neither replaced the two passenger lift cabin with four passenger lift cabin as per quotation terms and conditions agreed by the OPs nor have they rectified the defects in the lift.

Complainant further submitted that he has spent his hard earned money for the installation of four passenger lift.  The OPs have received Rs.7,50,000/- from the complainant for installation of four passenger lift cabin but instead have installed two passenger lift cabin in violation of the terms of the quotation dated 20.01.2015 which is of no use to the complainant.  The complainant has availed the service of OPs for installation of four passenger lift at his building for consideration.  There is deficiency in performance of service by the OPs.  The OPs have caused severe hardship, inconvenience, pain and suffering to the complainant.  Hence complainant issued legal notice dated 05.09.2015 to the OPs.  OPs replied to the notice.  Hence complainant approached this Forum.

3. In response to the notice issued, OP-1 to 3 appeared through their advocate and filed their version contending in brief, as under:

OPs submitted that the complainant approached the OPs in the month of October 2014 and made all enquires with regard to the installation of the passenger elevator/lift at the building premises owned by the complainant bearing No.53, 2^nd Main, Bairappa Road, Nethaji Nagar, Bangalore.  At the request of the complainant the OPs sent their officer Sri.Harsha Gowda to inspect the spot and discuss the matter with the complainant building contractor and site Engineer.  The officer of the OPs Mr.Harsha Gowda along with technical persons inspected the spot where the lift has to be installed as the complainant demanded.  Complainant submitted that the OPs having a good rapport with his clients in providing the quality and good maintenance.  He was also awarded as certified company in ISO 9001-2008 and OHSAS 18001 certified company.  The complainant is well aware that the OPs Company is having sufficient experience and quality of machinery and installation expertise on par with leading elevator companies of India.

OPs further submitted that the complainant demanded 4’x4’ passenger lift.  The complainant placed an order for the passenger elevator/lift to be erected in the complainant building.  In view of the complainant order the OP placed a quotation on 19.01.2015 with specification and details of elevators/lift.

OPs further submitted that in accordance with the quotation placed before the complainant the OPs with due care and diligence erected the lift at the presence of the complainant and client’s Engineer.  The complainant Engineer and complainant contractor very much satisfied with the OPs work and appreciated the workmanship and efficiency of the OPs and technicians who participated in the erection work.  The OPs further submitted OPs have installed a capacity of elevator and type of the elevator as explained in the quotation as 272 kg and 4 passenger type elevator.  In a normal standard, the weight of a person is considered as 68 kg and the capacity of the cabin is measured as per 4 persons.  These specific calculations are with the knowledge of the complainant and complainant’s Engineer.  The OPs further submitted that he has admitted that he has received Rs.7,50,000/- out of Rs.9,18,290/- as part payment from the complainant.

OPs further submitted that the complainant without the OPs permission and clearance certificate illegally put electricity connection and used the lift in accordance with his own whims and fancies.  Due to this inordinate, immature and illegal connection of electricity and illegal use of the lift by the complainant heavy damages and loss were caused which were amounting to Rs.3,00,000/-.  If the OPs are permitted to commission the lift installation and the damage caused by the complainant it is possible to assess correctly the damage caused by the complainant.  In this circumstances the OPs are liable to pay Rs.7,50,000/- along with interest but on the contrary complainant is liable to pay the damage caused to the lift by illegal usage which amounting to Rs.3,00,000/-.  Further the OP is submitted that he has installed the lift as per the complainant demand and accepted the quotation dated 19.01.2015.  Hence OPs prayed for dismissal of the complaint with cost.    

 4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OPs have produced certain documents.  Complainant and OPs have submitted written arguments.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Affirmative in part

Point No.2:  As per the order below

REASONS

7. Point No.1:- On perusal of the pleadings, evidence and documentary evidence produced by both the parties, complainant approached the OPs for installation of elevator/lift for his residential building No.53, 2^nd Main, Bairappa Road, Netaji Nagar, Jalahalli Cross, Bangalore.  After inspection of the spot and as per the demand made by the complainant the OPs have given a quotation for installation of 4 passenger elevator/lift having 272 kgs capacity for a sum of Rs.9,18,290/-.  It is also admitted fact that, the complainant paid Rs.7,50,000/- to the OPs for installation of the elevator.  The complainant alleged that as per quotation, OPs have not installed lift/elevator.  The OPs have installed 2 passenger’s lift by violating the terms of quotation and demanding to pay the balance amount.

8. On the contrary OPs submitted that as per the quotation OPs have installed 272 kg 4 passenger elevator.  In the normal standard the weight of a person is considered as 68 kgs.  68 kgs x 04 persons can use the elevator at a time to go to the 3^rd Floor.

9. The crux of the matter before us is whether the OPs have installed 4 passengers elevator as per the quotation given by the OPs dated 19.01.2015/Ex-A6.   On perusal of the quotation given by the OPs dated 19.01.2015 which reads here as under:

Type                     :         4 Passenger Elevator

Quantity              :         1 No.

Capacity              :         272 Kgs     

Speed                   :         About 0.66 Mtr/Sec

10. Further on perusal of the order sheet dated 01.09.2018 this Forum directed the OPs to inspect the spot in presence of the complainant.  OP’s Project and Erection Engineer inspected the spot in the presence of complainant and OPs and submitted detailed report.  The report dated 22.09.2018 which reads here as under:

1) ..

2) ..

5) The existing carpet area of the elevator is having the capacity of 272 Kgs.

6) It is possible to lift 04 persons weighing 68 Kgs.  I cannot ascertain that the complainant can stand inside the lift with his walker along with one attender.  Because I cannot say the width and length of the walker.  But I can say that if the walker is small in size he can stand inside the elevator cabin with one attender.

7) I submit that as the capacity of the elevator is 272 Kgs.  (68Kgs x 04 Persons) can use the elevator at a time to go to Third Floor of the building.

11. As per the report the OPs have admitted that the said elevator capacity is 272 kg and the complainant can stand inside with his walker along with one attender.  Further the complainant has produced measurement of the Elevator given by one Sri.S.B Sudarshan working as an Engineer in Chethana Consultants.  As per the sketch given by the Engineer Sri.S.B Sudarshan, the alleged Elevator measuring East to West 2 feet 3 inches (63 CMS) and North to South 2 feet 7 inches (78 CMS).  The said document has not been disputed by the OPs.  Hence it is proper to accept the report given by Sri.S.B Sudarshan.

12. Admittedly the OPs have installed a lift measuring 2 feet 3 inches and 2 feet 7 inches.  Though the quotation is given for installation of the elevator to carry 4 persons having total weight of 272 Kgs, it is wholly impossible for 4 persons to stand in the lift 2 feet 3 inches and 2 feet 7 inches.  OPs contented that the lift has been installed to carry of weight of 272 kgs, though it is acceptable the fact remains that 4 persons cannot be accommodated in the area measuring 2 feet 3 inches and 2 feet 7 inches by any stretch of imagination.  Therefore, we deem it proper to allow the complaint by directing the OP-1 to 3 jointly and severally to remove the two passenger lift/elevator cabin in the complainants building premises by re-installing a new lift which accommodates 4 person and issue lift completion report after collecting the balance remaining amount from the complainant as per the quotation within 45 days from the date of receipt of this order.  Failing which OP.1 to 3 are directed to refund the amount of Rs.7,50,000/- to the complainant along with 7% interest from the date of payment till the date of realization.  Further OPs have to be directed to pay compensation of Rs.20,000/- and litigation cost of Rs.20,000/- to the complainant.  Accordingly, we answer the point No.1 affirmative in part.

13. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:    

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed.

OP-1 to 3 jointly and severally directed to remove the two passenger lift/elevator cabin in the complainants building premises by re-installing a new lift which accommodates 4 persons and issue lift completion report after collecting the balance remaining amount from the complainant as per the quotation within 45 days from the date of receipt of this order.  Failing which OP.1 to 3 are directed to refund the amount of Rs.7,50,000/- to the complainant along with 7% interest from the date of payment till the date of realization.

  Further OP.1 to 3 directed to pay compensation of Rs.20,000/- and litigation cost of Rs.20,000/- to the complainant.

This order is to be complied by the OP.1 to 3 within 45 days from the date of receipt of this order. 

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 18^th day of March 2020)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Maruti Madhav Shetti.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs by way of affidavit:

Sri.Tharmaraj, who being the Managing Director, King Escalators & Elevators Pvt. Ltd.,

Copies of documents produced on behalf of Opposite Parties:

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