MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the appellants/complainants against the order, dated 5.10.2010 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 207 of 2010, vide which, it dismissed the complaint.

2.         Briefly stated, the facts of the case, are that the dispute relates to the installation of lifts in flats situated at Goodwill Enclave, Sector 49-C, Chandigarh. The Goodwill Enclave consists of three societies namely Oriental Insurance Employees Coop. H.B. Society Ltd., Railway Employees Coop. Society and  Private Teacher Coop. H.B. Society Ltd. It was stated that the Enclave consists of 09 blocks having 81 flats, having provision of 9 lifts, out of which 7 were functioning and 2 were non-working. Flats No.2339-2347 are without any lift. It was further stated that payment of Rs.90,776/- was made by complainants No.1 and 2 and payment of Rs.90,776/- was made by complainant No.3 to the OPs for installation and commissioning of lifts. However, the lift was not installed in the block of the complainants. The complainants requested the OPs, time and again, to install the lift, in their block, but they did nothing to redress their grievances. It was further stated that the residents of the block of the complainants, made a request to the concerned Company i.e. Otis Elevator Company (India) Ltd. to install the lift, in their block, but they received the reply dated 14.1.2010 from the concerned Company that out of 6 elevators, two had already been installed and the rest of the elevators could not be installed, due to non-availability of payment of balance 4 elevators. It was further stated that the members of the society had already made payments to the OPs, including the payment for the installation/commissioning of lifts but the lift was not installed in the block of the complainants, as a result whereof they and their family members had been put to a lot of inconvenience and harassment. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by OP No.1, wherein, the factual matrix of the case was admitted. It was stated that civil work of the lifts was to be got done by the complainants, which they failed to get it done ; due to which, the lifts were not installed in their block. It was further stated that OP No.1 issued final legal notice dated 24.7.2010 to the members, requesting them to deposit their respective amounts. Moreover, a letters dated 31.5.2009 and 18.8.2009 were also written to the members to deposit their share for completion of the lift work, but to no avail. It was further stated that the Society had no funds of its own. It was further stated that OP No.1 was trying his level best to install the remaining two lifts for the facility and convenience of the members. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on its part.

4.         Reply was filed by OP No.2, wherein, the factual aspects of the case were admitted.  It was stated that at the time of purchase of flats by the complainants, there was no lift installed. Only the  provision for installation of lift was provided. It was further stated that the Managing Committee of OP No.3 had convened a meeting on 13.2.2010, in which, the ex-President i.e. OP No.2 intimated the society that they had already made payment of their share, to OP No.1, for installation of lift, in the block of the complainants, vide cheque No.249637 dated 17.9.2007 for Rs.1,60,000/-.  OP No.1 did not deposit his own full share with M/s Otis. It was further stated that the committee of OP No.3 had written letters to the OP No.1 for installation of lift, as early as possible and also made several requests, but all in vain. It was further stated that there was no lapse on the part of OP No.2, as he had already paid his share to OP No.1 and it was the duty of OP No.1, to install the lift, in the block of the complainants. All other allegations, levelled by the complainants, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of OP No.2.

5.            Separate reply was filed by OP No.3, wherein, he took up similar pleas, as were taken up by OP No.2, in his written statement.

6.         Reply was filed by OP No.4, wherein, he admitted the factual matrix of the case. It was stated that the lifts, which have been installed in the blocks of the OP Society, were already working. It was further stated that Oriental Society had already taken the payment of Rs.1,03,437/-, in excess, towards installation of lift. It was further stated that since Oriental Society did not install the lift, a letter was written to refund, even the aforesaid amount, as it had no right to retain the same, unless it installed the lifts. It was further stated that the delay and deficiency, if any, in paying the charges or even in the installation of the requisite lift, was only on the part of Oriental Society and there was no delay or deficiency on the part of OP No.4. It was further stated that only a balance of Rs.56,563/- was due, which would be paid to the Oriental Society, the moment it starts work for installation of lift. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of OP No.4.

7.         The parties led evidence, in support of their case.

8.         The learned District Forum, dismissed the complaint, in the manner, referred to, in the opening para of this order.  

9.            Aggrieved by the order, passed by the learned District Forum, the appellants/complainants, filed the instant appeal.

10.       We have heard Sh.Gaurav Bhardwaj, Advocate, for the appellants, respondents No.2 and 3, in person, and have perused the record, carefully.

11.       The learned Counsel for the appellants/complainants contended that the learned District Forum failed to appreciate the fact that the reply and the annexures filed by respondent No.1 did find mention of the name of the complainants. Respondent No.1 annexed one list with Annexure R-1 of the members from whom the money was demanded for the completion of civil work of the lift. It was further contended that the learned District Forum came to the wrong conclusion that respondent No.1 was trying its level best to install the lift but due to non-payment of the amount by the residents, the lift could not be installed. It was further submitted that the learned District Forum failed to take notice of the fact that respondents No.2 to 4 clearly stated in their reply that they made full payment to the respondent No.1, and wrote many letters with regard to the non-installation of lift but respondent No.1 did not pay any heed to their request. It was further contended that the learned District Forum gave an erroneous finding that no replication or rejoinder was filed by the complainants, to controvert the fact of non-payment by 25 members. While passing the impugned order, the learned District Forum came to the wrong conclusion that the balance payment to the OTIS could not be made by respondent No.1, due to non-payment by 25 members. It was further contended that the complainants paid due share and 25 other members had not made the payment and, thus, there was deficiency in service on the part of respondent No.1.

12.            Respondents/OPs No.2 and 3 contended that at the time of purchase of flats by the complainants, no lift was provided. Only a provision for installation of lift was there. It was further contended that the Managing Committee of OP No.3 convened a meeting on 13.2.2010, wherein ex-President of OP No.2, intimated the society that they had already made the payment of their share, to OP No.1 for installation of lift in the block of the complainants, vide Cheque dated 17.9.2007 for Rs.1,60,000/-, but OP No.1 did not deposit his full share with M/s OTIS.  It was further contended that there was no lapse, on their part, as they paid their share to OP No.1 and it was the duty of OP No.1, to install the lift in the block of the complainants.

13.       It is an admitted fact that the members/residents of Goodwill Enclave consisting of 3 societies, comprising 9 blocks, have 81 flats. The residents of flats collectively hired the services of OTIS Company for the installation of 9 lifts. Admittedly, the expenses which were to be incurred for the installation of lifts, were to be contributed by all the members of the Society. After the collection of money, from the members of the society, it was handed over to OP No.1. OP No.1 paid the same to the OTIS Company and in lieu of that the OTIS Company installed 7 lifts out of 9. Remaining two lifts could not be installed, due to the non-payment of amount by the 25 Members. In order to collect this amount the OPs wrote letters on 31.5.2009 (Annexure R-2) and 18.8.2009 (Annexure R-3) respectively to the defaulting Members and, ultimately, on 24.7.2010 a legal notice (Annexure R-1) along with the list of the Members who had not deposited their respective shares, was issued vide which the OPs requested the defaulting members to deposit their respective shares, so that the amount for the installation of the remaining two lifts could be deposited with the OTIS Company. 25 members, however, did not deposit the amount for the installation of remaining two lifts.  From all these facts, it is evident that the OPs made all out efforts for the installation of the lifts. Despite every possible effort of the OPs, the lifts could not be installed, due to non-payment, by the defaulting members.

14.       It is true that all the complainants duly made the payment towards installation of the lifts, but, at the same time, it cannot be ignored that 25 Members of the Enclave did not deposit their respective shares. The expenses for the installation of lifts were to be borne by all the members collectively and the OPs had no other sources to bear the expenses except to collect it from all the members of the society.  In this situation, we are of the considered view, that the OPs were not at fault for not installing the remaining two lifts. We concur with the order passed by the District Forum.

15.       In view of the above discussion, the appeal filed by the complainants is dismissed, being devoid of merit, and the order passed by the learned District Forum is upheld.

16.       The parties are left to bear their own costs.

17.            Copies of this order be sent to the parties, free of cost. 

Pronounced.                                                                        

13^th September, 2011.