BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 15/10/2010

Date of Order : 28/09/2010

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 548/2010

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :-

The complainant is doing hotel business for lively hood. For the convenience of the hotel, she decided to erect an elevator. As per the quotation dated 04-11-2008 submitted by the opposite party, the complainant placed an order to erect an elevator at a cost of Rs. 5,85,000/-. The complainant paid the amount to the opposite party. At the instance of the opposite party, the complainant paid a sum of Rs. 95,900/- to take back the door with another advanced model. Though the opposite party claims that he has erected the elevator, it never worked as promised. In the mean time, the lift broke and fell down and three workers of the hotel sustained injuries. At that juncture, the complainant requested the opposite party to take back the elevator and to refund the money. In spite of repeated reminders, the opposite party failed to do so. The complainant is entitled to get refund of the cost of the elevator together with compensation of Rs. 1 lakh and costs of the proceedings. This complaint hence.

2. The version filed by the opposite party is as follows :-

The complainant is not a consumer as defined in the Consumer Protection Act. Since the lift was installed in the hotel which was used for commercial activities. As per the agreement on 03-11-2008 between the parties, the opposite party installed the lift in March 2009 without completing the floor work and fan inside the cabin. After the installation of the lift, the complainant started work of the roof garden and so the opposite party could not complete the work as scheduled. The opposite party had to suffer loss due to the damages caused to the lift by the transportation of heavy construction materials to the roof top. However, the opposite party could cure all the defects caused by the complainant's workers and the opposite party completed the work of the lift in December 2009. At the request of the complainant, the opposite party fixed the lift with a heavy duty imported door mechanism. There arose some minor complaints for the lift due to the non-stop commercial use of the same, however, the opposite party promptly rendered the necessary service to rectify the complaints. Since there were voltage fluctuation, the opposite party installed UPS system at their cost. The opposite party is rendering free service to the lift and the same is now in good working condition. The complainant is not entitled to get any of the reliefs as claimed for.

3. The witnesses for the complainant were examined as PW's 1 and 2 and Exts. A1 to A10 were marked on her side. The expert commissioner's report was marked as Ext. C1. Neither oral nor documentary evidence was adduced by the opposite party. Heard the learned counsel for the opposite party.

4. The points that came up for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the opposite party is liable to refund the cost of the elevator to the complainant?

3. Whether the opposite party is liable to pay costs of the proceedings to the complainant?

5. Point No. i. :- According to the opposite party, the complainant is the Managing Partner of a partnership firm which is running a hotel for commercial purpose. The opposite party maintains that the complainant has installed the lift in the hotel for commercial purpose and so the complainant is not a consumer within the purview of the Consumer Protection Act. The learned counsel relied on the following decisions rendered by the Higher Judiciary :

1. Laxmi Engineering Works Vs. PSG Industrial Institute 1995 (3) SCC 583.

2. M/s. MCS Computer Services (P) Ltd. Vs. M/s. Allena Auto Industries Pvt. Ltd. 2012 (2) CPR 68 (NC).

3. Sarwinder Kumar, Gurbaksh Logistic India Vs. Action Construction Equipments Ltd., Crane Division, Jagru & Anr. 2012 (2) CPR 72 (NC).

7. On the contrary, the learned counsel for the complainant contended that the complainant is conducting the hotel for earning her livelihood by means of self-employment and the purchase of the lift cannot be termed as a commercial purpose as per Section 2 (1) (d) of the Consumer Protection Act. The learned counsel relied on a decision rendered by the Hon'ble Kerala State Consumer Disputed Redressal Commission in K.L. Antony Vs. M.J. Sebastian FA No. A/11/266 dated 26-05-2012.

8. Section 2 (1) (m) of the Consumer Protection Act defines a person which reads as follows :

“Person” includes -

(i) a firm whether registered or not;

(ii) a Hindu undivided family;

(iii) a Co-operative society;

(iv) every other association of persons whether registered under

the Societies Registration Act, 1860 (21 of 1860) or not.

Explanation to Section 2 (1)(d) (ii) of the Consumer Protection Act is as follows :-

“For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”

9. In the instant case, no evidence is on record to show it otherwise. A person as defined in Section 2 (1) (m), who avails any service or purchases any product for their livelihood even if for commercial purpose, they are consumers with the ambit of the Consumer Protection Act.

10. The Hon'ble Supreme Court had an occasion to consider all these points and rendered an elaborate verdict in Karnataka Power Transmission Corporation and Another Vs. Ashok Iron Works Pvt. Ltd. 2009 CTJ 233 (Supreme Court) (CP). Since we are relying in the above decision, we are not to place reliance on the decision cited by the opposite party, since the same is covered.

11. Point No. ii. :- According to the complainant, the lift in question suffers from inherent defects and is hazardous to human life and despite repeated repairs, the opposite party could not repair the same. The opposite party vehemently refuted the contentions of the complainant and contended that the elevator supplied and erected by them is free from any defects.

12. At the instance of the complainant, an expert commissioner was appointed by this Forum. The expert commissioner was examined as PW1 and his report was marked as Ext. C1. Ext. C1 reads as follows :

“The 5 points mentioned in the I.A. No. of 2011 in C.C. No.548/2010 were given maximum importance as pointed out by the complainant and the comments are as follows :-

1) One of the quality control of the material used in the elevator is to carry out the Full load Safety Test in the contract speed. Today when this test was carried out manually with no load in the car; the Mechanical Safety was not gripping the guide rails and stopping the elevator car. This feature is a must for basic human safety in times of “Emergency”. As this feature was not actuating this is a violation in the safety norms.

2) While the elevator is in operation/moving up and down the series electrical safety chain must get cut off when the door is opened from any landing with the emergency unlocking device. As we opened the door in the 3^rd floor the elevator car was found moving with the open landing door. This is a total “UNSAFE” feature and unacceptable during the rescue operation of people getting stuck up in the elevator.

With the emergency unlocking device the doors were not opening in the other floors and so the above test was not possible. Also the unlocking device in the door assembly was found missing in the Ground floor which is highly required for the rescue operation and routine maintenance of the pit equipments.

3) Too much shaking, screeching, rubbing and knocking noises are observed while the elevator car is travelling up and down and the passengers can get panicky. Smooth ride is required.

4) Cables and wires are found lying open in the top machine room without any protection. This need to be protected with conduits/troughs to prevent crushing and there by causing electric shocks and circuit problems.

5) Also some more important points were observed during the inspection like :-

a) The control panel of the elevator is not bolted with the ground.

b) Too much rubbish in the machine room and need total clean up.

c) The elevator car top wiring is totally messy and dirty; need dressing up.

d) All the landing doors need realigning/plumbing as the gap in the bottom side is more and must be in a straight line from top to bottom longitudinally.

e) Floor position indicators, inside the car and in the landings are faulty and in some of the car and landing button fixtures are not illuminating.

f) Need to see the wiring diagram to check up the other electrical functions.

The COMPLAINANT/OWNER'S attention to attending to the following points to assist the maintenance crew for the quick and safe procedures during maintenance.

Top Machine room

1) Paint the machine room walls. 2) Fix Exhaust Fan for temperature control. 3) Way to the machine room need safer railing up by 2 to 3 feet height more and lighting in the walk way. 4) Make the way to the machine room through the staff rest room doors as at present there is a wall blocking. 5) Flooring/Tiling required in the machine room foor. 6) Identify Car lighting and shaft lighting in the machine room DB. 7) Machine room entry door is jammed up due to improper civil work in the hinges and need rigid fixing with concrete.

Cabin

The floor tiles in the cabin are cracked. Suggestion is to provide rust proof checker plates for long durability.

Pit

There is dirty water in the pit. Need water removal from the pit constantly as this is a “HEALTH HAZARD” also. The pit should be always dry so that the pit equipments won't get rusted due to moisture.”

13. The opposite party filed a detailed objection to Ext. C1. PW1 was cross-examined at length. However, nothing had been brought out in evidence to reject the findings of PW1 in Ext. C1. It is pertinent to note that PW1 did not come to a conclusion that the machine suffers from manufacturing defect. At the instance of the complainant, PW1 confirmed the present defects of the elevator system. Nothing is on record to show that the elevator system erected by the opposite party is not in an irrepairable condition. The Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (2006) 4 SCC 644, held that the manufacturer is only liable to replace the defective part of the vehicle not the vehicle as such. The dictum laid down by the Hon'ble Apex Court in the above, squarely applies in the instant case.

14. Point No. iii. :- The complainant has had to suffer inconveniences unnecessarily, which calls for costs of the proceedings. We fix it at Rs. 10,000/-.

15. In the result, we partly allow the complaint and direct as follows :-

1. The opposite party shall peremptorily rectify the defects of the elevator erected as reported in Ext. C1 and deposed by PW1 the expert commissioner, failing which the opposite party shall be liable to consequences and costs, for nothing less than Rs. 2 lakhs.

2. The opposite party shall pay a sum of Rs. 10,000/- to the complainant towards costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 28^th day of September 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/-C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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