Haryana

Panchkula

CC/469/2019

RAJEEV GUPTA. - Complainant(s)

Versus

KONE ELEVATORS INDIA PVT.LTD. - Opp.Party(s)

TARUN GUPTA & DR.NEETU GUPTA.

12 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

 

                                                       

Consumer Complaint No	:	469 of 2019
Date of Institution	:	14.08.2019
Date of Decision	:	12.06.2023

 

1.     Rajeev Gupta, S/o Sh. Tek Chand Garg, r/o H.No.137, Sector-25,      Panchkula.

2.     Ritu Gupta w/o Rajeev Gupta, r/o H.No.137, Sector-25,    Panchkula.                                                                                                                                                  ..….Complainants

Versus                                                                  

Kone  Elevators India Pvt. Ltd. AKG Towers, Sector #15, Part # II, Adjacent Crossroads Hotel, Gurugram through its authorized representative.

2^ndAddress:-No.50, Vanagaram Road, Ayanambakkam, Chennai-600095

3^rd Address:-7^th floor, Aggarwal Corporate Heights, A7, Netaji Subhash Place, Delhi-110034.

4^th Address:- Phase-XI, Mohali-160065.

                                                                       ……Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Complainant no.1 along with Sh. Tarun Gupta, Advocate.

                        Sh. N.P.Sharma, Advocate for the OP.

 

ORDER

(Satpal, President)

1.             Briefly stated, the facts, as alleged in the present complaint, are that the complainants intending to get installation of elevator at their residence i.e. house no.137, Sector-25, Panchkula contacted the OP, whose representatives visited the office of complainant no.1 i.e.  SCO-403, Sector-20, Panchkula and projected to be having expertise in elevators and assured safety and quality. The complainant no.1 acting upon the assurances and promises of OP, decided to get an elevator installed at their residence; an agreement was signed between the parties detailing out the description of work and terms and conditions. Thereafter, the team of the OP visited the residence of the complainants to check whether the dimensions provided for civil construction is as per approved drawing or not. The team was satisfied with the dimensions and gave a site communication report on 19.06.2018. It is stated that the elevator was handed over to the complainants on 16.08.2018 and the same was having a warranty of 12 months from the date of handing over to the complainants. The complainants paid an amount of Rs.10,41,000/- in consideration of elevator installation. It is stated that the issue of noise had erupted at the time of installation also but the same was resolved and it was assured that the problem would not occur again. It is averred that after the service done on 22.05.2018, the elevator installed by the OP started making noise, which was conveyed to the OP on 28.05.2019 and in response thereto, the technical staff visited the premises of the complainants but even after various visits, the issue has not been resolved till date. The elevator is still making noise than the permissible level. This fact has also been admitted by the officials of the OP i.e. Mr.Rajpal and Mr. Prince, who had visited to check the complaint made by the complainants. The complainants have been time and again requesting the OP to remove the defect in the elevator but except from giving false assurances and promises, nothing is being done on their part. A legal notice was sent on 16.07.2019 to OP seeking removal of defects. It is stated that on 04.08.2019, there was a breakdown in the elevator due to which the complainant no.2 got stuck in the elevator. A complaint was made to the OP and the representatives came after half an hour but in the meantime, the family members of the complainant no.2 rescued the complainant no.2 with great efforts. The drive of the elevators was got changed by the OP. And the reason of failure of drive of elevator was given as ‘building power down’ in the report even though no such power down failure was there in the area. It is further stated that on 10.08.2019, when the technical team of the OP visited the premises of the complainants to check the working of the elevator, it again broke down, while it was being used by the complainant no.2. It seems that a defective piece has been installed by the OP and now lame excuses are being made so as to pass the warranty period. It is further stated that the product sold to the complainants is of inferior quality.  The complainants and their family members are unable to use the elevator as they apprehend that the same might break down any time. The elevator is also making loud noise, if the same is used. It is stated that the parents of complainant no.1 are aged persons and the primary reason for the installation of the elevator was the comfort of the parents of the complainant no.1. But now the entire purpose, for which the elevator was installed, has got defeated and any unfortunate event due to elevator breakdown might prove fatal. The complainants are facing mental as well as financial harassment. Due to the act and conduct on the part of the OP, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OP has appeared through its counsel and filed written statement contesting the complaint by raising preliminary objection mentioning that the complainants have raised the issue of noise emanating from the Elevator while in operation, which is personal and subjective opinion of the complainant/OP, which is not corroborated by any scientific evidence of any kind. It is submitted that the issue of noise emanating from the elevator has been got checked and verified while operating the machine by its technical expert, which is found within the permissible and tolerance limits; that there is no expert opinion substantiating the allegations of the complainant qua noise in the elevator. It is submitted that the elevator has been installed at residential accommodation, wherein, admittedly, the background noise   levels are recorded as negligible. The present complaint is not maintainable and is liable to be dismissed as this Commission lacks the territorial jurisdiction to entertain and decide the present complaint. It is further submitted that as per agreement dated 28.11.2017 executed between the parties dispute, if any, is liable to be referred to arbitrator and thus, the present complaint is not maintainable on this ground. It is submitted that the reliefs as prayed for in the present complaint are against the terms and conditions of the warranty as applicable to the elevator in question vide agreement dated 28.11.2017, wherein refund of the price of the elevator as well as its replacement with new one is not permissible. It is submitted that the elevator was successfully installed, commissioned and handed over to the complainants on 16.08.2018 and the warranty was of 12 months w.e.f. 16.08.2018-18.08.2019. The first complaint with regard to the noise emanating from the elevator was received only on 29.05.2019 i.e. after the usage period of over 287 days’ time (warranty 365 days only). The OP No.1 sent its trained personnel to the site and no abnormal noise was found vide the service report no.10568926 and after the next visit was made by the Noise Audit Team of the OP on 05.06.2019, vide service report no.689600170; when the said team utilized  specialized  noise Measurement  Equipment  for checking  the noise, the Dt-6 Device was used, which already was calibrated  for such measurement, vide certificate dated 28.07.2017. The noise  was measured inside  the Cabin  of the elevator in both, UP and Down directions of movement of the cabin, which proved  beyond an iota of doubt  that the elevator was functioning well below the Maximum Noise Levels as mandated by the OP; thus, it was evident to the complainants that their false allegation fell flat  on its face, hence, they  refused  to receive  the Test Reports on the premise that some Pooja was going  on at their home. Thereinafter, the next monthly service was done on the elevator in question on 18.07.2019, vide service report no. 691884263 and no issues of any kind were reported by the complainant. Thus, it is evident from the records as filed by the OP, that there is no issue of any noise emanating from the elevator at all.

                On merits, the averment made in para no.7 of the preliminary objections have been reiterated,  it is denied that the Ops technical team  had given false and incorrect report qua noise  in the elevator while in operation. It is submitted that on 04.08.2019, the OP received a voice call on their helpline number from one Rashul at 01.56 pm that there was an entrapment on the site of the complainants, the concerned first responder of the OP reached the site at about 02.07 pm, and found no such entrapment at all; the elevator was examined and it was found that some minor part had malfunctioned, which was replaced and the elevator handed over to the complainants, which was received by them without any ado. On 10.08.2019 the elevator was again found in OK condition. It is denied that the elevator in any manner is a defective piece of equipment at all and mere breakdown of the Elevator, on only 02 occasions is no ground for claiming the refund of the price paid  by the complainants, more so, when the warranty contract forbids any other relief save for replacement of Defective Parts, strictly per the Technical opinion of the OP, presently the Elevator is outside of warranty, which expired with the efflux of time on 15.08.2019 and till date, the OP has no personal knowledge of the levels of maintenance of all elevator, which is a sine qua non for the smooth performance of an elevator, being a complex synthesis of various mechanical and electronic systems and components. It is submitted that the assertions of the complainant are based on surmises and conjectures and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed.

 3.            To prove the case, the learned counsel for the complainant has tendered affidavits as Annexure C-A along with document Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP has tendered affidavit Annexure R-1/A, R-1/B, R1/C, R-1/D, R-1/E & R-1/F along with documents as Annexure- R-1/1 to R-1/9 and closed the evidence.

              During the pendency of the complaint, the learned counsel for the complainant has placed on record the test report dated 09.11.2020 which is taken on record as Mark ‘A’ for the adjudication of the present complaint in a proper and fair manner. 

4.             We have heard the learned counsels for both the parties, complainant and gone through the entire record including the written arguments filed by the OP, minutely and carefully.

5.             The Kone lift was supplied, installed, tested, commissioned and handed over in satisfactory working condition on 16.08.2018 at the residence of the complainant by the OP(Annexure C-3). The equipment was having warranty period of 12 months from the date of handing over i.e. from 16.08.2018.

6.             The only grouse of the complainant regarding working of the lift is its unusual loud noise emanating from it while in operation. During arguments, the learned counsel on behalf of the complainant reiterating the averments as made in the complaint as also in the affidavit of the complainant( Annexure C-A) contended that the unusual excessive  sound is emanating  from the elevator in question during its operation. It is contended that the Op’s engineer have visited the site and inspected the lift/elevator in question but have failed to rectify the defects and thus, the complaint  is liable to be accepted by granting  the relief as claimed  for in the complaint. Reliance has been placed upon the test report(Mark ‘A’), wherein the noise level of sound  has been shown as 74.4 against  the maximum permissible limit of 55DB(A).

7.             The OP has contested the complaint, apart from merits, by raising several preliminary objections:-  

a.             Vide first preliminary objection, the territorial jurisdiction of the Commission has been disputed. It is contended that the office of OP is located at Gurugram/Delhi which falls outside the jurisdiction of this Commission. In support of this objection, the learned counsel has placed reliance on the law laid down by the Hon’ble Apex Court in the case title as Sonic Surgical Vs. NIC Limited cited as IV(2009) CPJ 40(SC).

                The above objection is totally baseless and meritless and is hereby rejected in view of the fact that the elevator in question was, admittedly, installed at house no.137, Sector-25, Panchkula.

b.             The next objection is that in the presence of an arbitration clause in the agreement, the dispute, if any, between the parties is liable to be referred to the arbitrator. The learned counsel contended that the agreement dated 28.11.2017 executed between the parties has an arbitration clause, which provides the dispute resolution mechanism and thus, the complaint is not maintainable.

                This objection is also not tenable in view of the well settled legal proposition of law that the remedy under the CP Act, 1986/2019 is in addition to other remedies available to a consumer under the law. In this regard, the position of law is evident as per provisions contained in Section 3 of the CP Act, 1986 & Section 100 of the CP Act, 2019. The law laid down by the Hon’ble Punjab and Haryana High Court in CWP No.22121 of 2014 decided on 21.09.2015 in case titled as Puma Realtors Pvt. Ltd.(M/s) Vs. Union of India as relied upon by the complainant is fully applicable in the present matter and therefore, this objection is also rejected.

c.      The next objection taken by the OP seeking dismissal of the complaint is that no relief beyond the explicit terms of the warranty is admissible to the complainant.

d.     The last plea taken by OP is that there is no expert opinion corroborating and substantiating the allegations of the complainant qua the manufacturing defect in the elevator. It is contended that the onus to prove the allegations lies upon the complainant. In this regard, the learned counsel has placed reliance upon the following case laws:-

1. Maruti Udyog  Limited Vs. Sushil Kumar Gabgotra, II(2006) CPJ 3(SC)

     

2. Omprabha Malviya Vs. Godrej Photo-Me Limited & Others, I (2012)CPJ 14(NC).

 

3. Jansatta Sahkari Awas Samiti Limited Vs. Kone Elevators  India Private Limited, I(2016) CPJ 190(NC).

 

4. Pritul Machinery & Another Vs. Anand Bahuguna & Another, III (2018) CPJ 285(NC).

 

                The objection taken above at serial no.c & d shall be discussed hereinafter in the later para of this order.

8.On merits, the learned counsel on behalf of the OP reiterating the averments as made in the written statement as also in the affidavit Annexure R-1/B to R-1/F has contended that the working of the elevator in question was checked by the qualified engineers on several dates but no noise beyond the permissible limit as alleged by the complainant was found. It is vehemently contended that the noise level was found by the engineers during their inspection within the permissible limit. The learned counsel contended that the reports given by the OP’s engineer are duly corroborated by their affidavits. It is contended that no issues were found by the engineers during their visits and that elevator was found fully functional and thus, the complaint is liable to be dismissed. 

9.The aforementioned submissions made by the learned counsel on behalf of the OP rebutting the contention of the complainant qua the defects in the lift causing excessive sound during its operation are not tenable as discussed hereinafter.

10.Pertinently, the incident of break-down of elevator occurred twice, i.e. on 04.09.2019 & 10.08.2019 during the warranty period, which had necessitated the changing of the parts i.e. KDL 16 L drive and door contract and magnet on 04.08.2019 & 10.08.2019 respectively. Sh.Manoj Kumar engineer had started the repair of elevator on 04.08.2019 at 10:47 and completed the same on 05.08.2019 at 19:06; as such, he took about 33hours in carrying out the necessary repairs, which clearly indicate towards some major defects in the elevator. This fact is further corroborated and substantiated vide remarks made by Sh. Anil Kumar, Engineer vide job-sheet(Annexure R-1/9), wherein the reason of breakdown was specifically given as “Technical Failure”.

11.Further, said Anil Kumar, Engineer had described the condition of elevator vide said job-sheet(Annexure R-1/9) as “running noisy”. Surprisingly, the said Anil Kumar vide his affidavit Annexure R-1/F has stated that no noise was found emanating from the lift during its operation as alleged by the complainants. As such, said Anil Kumar vide his said affidavit Annexure R-1/F has tried to mislead the commission by filing an affidavit containing false and incorrect facts thereby making himself liable for commission of offence punishable under Section 193 of IPC.  

12.Similarly, the affidavit(Annexure R-1/E)  filed by Sh.Manoj Kumar regarding his visit at the house of complainant on 04.08.2019 is found containing incorrect facts being contrary to factual position as stated in job-sheet(Annexure R-1/8). As per job-sheet(Annexure R-1/8) we find the remarks under the failure description as “entraped and rescued” but it is not so stated vide his affidavit(Annexure R-1/E). Therefore, the version of the OP, based on the affidavit of its engineer as well as the job-sheet, is found full of contradictions, discrepancies and major short comings.

13.Further, it is pertinent to mention here that that the monthly service of the elevator in question was done by Sh.Jai Parkash Verma on 18.07.2019 certifying vide job-sheet(Annexure R-1/7) that the monthly service was done and the elevator was working ‘OK’. On 04.8.2019 i.e. after a period of 16 days, the incident of breakdown occurred, wherein the complainant no.2 was entrapped and thereafter, she was rescued. Needless to mention here that breakdown of the elevator on 04.08.2019 had put the life of the complainant no.2 in serious danger. The break-down of the elevator on 04.8.2019 just after the gap of 16 days after its service on 18.07.2019 by Sh.Jai Parkash Verma make it evident that either the service of the elevator on 18.07.2019 was not done properly by Jai Parkash Verma or he was not qualified engineer having wide experience. As such, OP had been deficient while rendering services to the complainants.  

14.Further, Sh. Rajender Kumar vide his affidavit Annexure R-1/D has stated that the sound level during his visit on 05.06.2019 was found as 44.30 DB(A), whereas according to email dated 18.06.2019 (Annexure C-5 & C-5(Colly)), which was sent by OP to the complainant’s son, the sound level was 48.5, thus,  the version of OP itself was not consistent qua sound level.

15.Furthermore, we find as per email correspondence between the complainant’s son and Gaurav Sharma on behalf of the OP, that noise level was measured in the presence of Sh.Rajpal and Sh.Prince and proof of the same was shared with the said engineers but said Rajpal engineer has preferred to remain silent in his affidavit Annexure R-1/B qua the level of sound, which was measured in his presence. Moreover, there is no version in the shape of affidavit of alleged Sh. Prince, in whose presence, the sound level was measured as per email dated 20.06.2019(Annexure C-5 & C-5(colly)).

16.As per  the specific report given by the said Anil Kumar Engineer vide job-sheet(Annexure R-1/9) qua the noise as well as the reason of failure of lift as technical failure, the allegations of the complainant qua excessive noise coming out during the operation of the lift stands duly proved beyond any doubt.  

17.In addition to above, it is also relevant  to mention here that an application  was filed by the complainants through their counsel on 23.01.2020 for directing the OP to carry out the routine  maintenance/ service of lift without insisting for annual maintenance charges during the pendency of the present complaint.

18.The said application was contested by OP mainly on the ground that warranty period had expired on 15.08.2019. We have also found email dated 21.04.2023, 02.05.2023, 11.05.2023 sent by the complainant’s son to Gaurav Sharma lift service Manager of OP requesting for doing the AMC for the lift. There is no response from the OP’S side qua the said emails, which clearly establish indifferent, lackadaisical and callous attitude of the OP towards the genuine grievances of the consumer.

19.No doubt, the warranty of the elevator had expired on 15.08.2019 but as discussed above, the major problem in it, which is still continuing, had erupted during the warranty period. Therefore, the complainant has valid and genuine grievances against the OP, who has tried to run away from its liability by way of filing false affidavits and job-sheets, which is a Criminal Offence punishable under Section 193 of IPC. It is relevant to mention here that in the present case, we have a Pan India Company with wherewithal, on the one side and a common ordinary consumer, without wherewithal on the other side.

20.In the light of the above said discussion, the plea taken by the OP regarding the non availability of an expert report in favour of the complainant is rejected being baseless and meritless.

21.The aforementioned factual position leaves no doubt with us in any manner as to the lapses and deficiencies on the part of the OP while rendering services to the complainant; hence, the complainants are entitled to relief.

22.Coming to the relief, it is found that the complainants have claimed the refund of an amount of Rs.10,41,000/- along with interest which was paid by them before the installation of lift in question. Apart from it, a compensation of Rs.2,00,000/-  on account of mental agony and harassment and a compensation of Rs.22,000/- on account of litigations  has also been claimed.

23.During arguments, the complainant no.1 has stated that the grievances of the complainant would be redressed, if, the OP is directed to carry out the necessary repairs by replacing the “Hollow Guide Rails” with “Solid Guide Rails) free of cost. The learned counsel on behalf of the complainants has further prayed for the extension of the warranty period for another six months. In our considered opinion, the prayer of the complainants are reasonable, genuine and justified and accordingly, the present complaint is partly allowed with the following directions:-

1. The OP is directed to replace “Hollow Guide Rails” with “Solid Guide Rails” free of cost. The OP shall ensure the error free and hassle free operation of the lift irrespective of the fact whether the repair of the elevator/replacement of the parts falls under the category of consumable parts or non consumable parts. The OP shall provide their best professional services to the complainants to facilitate proper working of elevator in question to the entire satisfaction of the complainants.  

 

2. The warranty period of the lift in question stands extended for further period of six months from the date of receipt of the copy of this order.

 

3. The OP is directed to pay a compensation of Rs.20,000/- to the complainants on account of mental agony and harassment.

 

4. The OP is further burdened with cost of Rs.50,000/- as punitive damages to be paid to the complainants as the life of complainant no.2 was put in serious danger on 04.08.2019 while she was entrapped during the break down of the elevator.

 

5. The OP is further directed to pay a compensation of Rs.5,500/- to the complainants on account of litigation charges.

 

 

24.  The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainants shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:12.06.2023

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President