PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the reliefs of issuing directions to the Opposite Party to complete the work of installation of lift or to pay damages Rs.8,00,000/- and interest on the advance amount paid to Opposite Party Rs.6,07,000/- @ 18% from 14/10/2010, Rs.10,00,000/- compensation towards the hardship and cost of litigation Rs.50,000/-.

2)        The case of Complainant is that M/s. Anjuman I Islam High School is registered body under the provisions of the Bombay Charity Trust Act.  The Opposite Party is a Company engaged in manufacturing and supplying elevators and passengers lift at Mumbai.  The Complainant had placed an order for up-gradation and placement of lift to install at their school.  An agreement took place between the parties to that effect on 18/10/2010 for total sum of Rs.6,75,000/- being the cost of material, machinery and installation of the elevator.  Opposite Party had agreed to complete the entire installation within 16 weeks from the date of release of the order alongwith advance and settling of all techno commercial details.  The Complainant has paid to the Opposite Party Rs.6,07,500/- by way of advance by the cheque on 14/10/2010.

 3)        The further case of the complaint is that, Opposite Party failed to fulfill it’s obligation of installation of the lift within stipulated period of 16 weeks as agreed upon.  The Complainant called-upon the Opposite Party and asked for installation of lift by the letters 19/05/2011, 19/12/2011 & 07/01/2012.  There was also continuous discussion with the representatives of the Opposite Party but had no effect. Due to inordinate delay in the installation of lift the parents of student and staff member becomes aggressive.  They are not in position to climb up the staircase.  There is continued mental tension and inconvenience to all concerned.  Lastly on 17/04/2012 the Complainant issued through advocate legal notice to the Opposite Party but that went on without any heed. There is deficiency of service and unfair trade practice on the part of the Opposite Party.  Hence, this complaint.

4)        The Opposite Party failed to file written statement hence, no written statement order passed against Opposite Party on 16/05/2013.  The said order is in existence.

5)        The Complainant in support of his case submitted affidavit of evidence of Shri. Shaikh Khalid, Project Engineer and documents. Opposite Party has submitted written notes of argument and documents on 02/05/2014. The Complainant has also submitted written arguments on 03/01/2011.

6)        We have considered the documents filed on record.  We heard the arguments  of Shri.S.I. Kazi, Ld.Advocate for the Complainant and Smt. Krishna Baruah, Ld. Advocate for Opposite Party. Following points arise for determination and our findings thereon are noted against each of them for the reasons given below -

                                    Points                                                                         Findings         

1.      Whether there is relation between the Complainant

         & Opposite Party as consumer & service provider ?                                   Affirmative   

2.      Whether that there is deficiency in service rendered 

         by the Opposite Party ?                                                                          Affirmative

3.      Whether Complainant is entitled to the amount as                              Only Rs.1,00,000/-

         Claimed ?                                                                                      towards the hardship

       & cost of complaint.

4.      What order ?                                                                                 As per final order.

Reasons :-

7) Point Nos.1:  Smt. Kishna Baruah, Ld.Advocate for the Opposite Party has argued that, the Complainant is not a consumer as laid down under Sec.2(1)(d) of the Consumer Protection Act, 1986.  The Complainant is a School, run by a institution and hence, it’s purpose is commercial.  The advocate for Opposite Party in support of her argument relied on the judgment reported in 2000 (3) Bom.C.R.536 (Supreme Court) Kalpavruksha Charitable Trust V/s. Toshniwal Brothers (Bombay) Pvt. Ltd.   In the said case Complainant/Appellant had purchased C.T. Scan Machine.  Every patient who was referred to the diagnostic centre of the Appellant/Complainant and who takes advantage of the C.T. Scan had to pay for it and the service rendered by the Complainant/Appellant to the patient was not free. Only ten percent of the patient were provided free service. In the said case the Hon’ble Supreme Court hold that -

“the “goods” (machine) obtained by the Appellant/ Complainant were being used for commercial purpose and he cannot be termed as a consumer.”

            In the present case the Complainant School is not charging any amount to the student and their parent, teaching and non-teaching staff for the use of lift installed in the building.  The Complainant has not installed the lift for the purpose of earning profit.  The lift in question has no close nexus with the alleged commercial activities of the Complainant.  Hence, the citation relied by the Opposite Party does not help him.

8)        Shri. S.I. Kazi, Ld.Advocate for the Complainant has argued that M/s. Anjuman I Islam High School is not run for earning profit. The advocate for Complainant in support of his argument relied on the judgment reported in AIR 2009 SC (Supp) 2736, Madan Kumar Singh (deceased by L.RS) V/s. Dist. Magistrate, Sultanpur.  In the said case Appellant/ Complainant was the auction purchaser of the truck on account of default in payment of installments of bank loan committed by the previous owner.  The documents of truck was not handed over him hence, he had filed consumer complaint. The District Consumer Forum dismissed the complaint by holding that Complainant is not consumer. The said complaint reached up to the Hon’ble Supreme Court.  In the said case the Hon’ble Supreme Court observed that -

“Apart from the above, it may also be seen that the purchase of the truck by the appellant would also be covered under explanation to Section 2(1)(d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used, exclusively by him for the purpose of earning his livelihood, by means of self-employment.  Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case as even then appellant would have continued to earn his livelihood from it and of course, by means of self-employment.  Furthermore, there is nothing on record to show that he wanted to use the truck for any commercial purpose.” 

            The Hon’ble Supreme court further observed in para No.24 of their judgment that -

“A further reading of the aforesaid definition of ‘consumer’ makes it clear that Parliament wanted to exclude from the scope of the definition the persons, who obtain goods for resale and also those who purchase goods with a view to use such goods for carrying on any activity for earning.  The immediate purpose as distinct from the ultimate purpose of purchase, sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction – whether it is for a “commercial purpose” or not.  Thus, buyers of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act.”

9)        In the present case it is true lift has not been installed by the Complainant for self employment.  However, it is clear that the Complainant has not purchased the good (lift) with a view to use such goods for carrying on any activity for earning.  The lift in question has no direct nexus with the profit or loss of the activities of the school.  The lift has not been installed for exclusive use of the student and their parents.  The teaching, and non teaching staff, executives of the Society, other public who visit the school for admission of children would take enjoyment of the lift in question for their convenience and comfort.  Under these circumstances it cannot be said that the lift in question has been purchased by the Complainant for commercial purpose. 

10)      Shri. S.I. Kazir, Ld.Advocate for the Complainant has also relied on the judgment reported in AIR 1993 Supreme Court 2178 (I) Unni Krishnan, J.P. and Others V/s. State of A.P. and others. The said case was under Article 19(1)(g) of the constitution of India.  The present case is under the Consumer Protection Act, hence, said citation does not help to the Complainant.  The advocate for Complainant also relied on the judgment reported in AIR 2010 Supreme Court 93, Bhiar School Examination Board V/s. Suresh Prasad Sinha.  In the said case one party of the consumer complaint was School Examination Board.  In the present case examination board is not the party but a school is the party.  The Examination Board is different than the School run by the Society. The duties and activities of the Examination Board and School are different  hence, said citation does not help to the Complainant. The Complainant has not purchased the lift in question for the purpose of earning profit and it is not for exclusive use of the student and their parent. Hence, it is obvious that, the Complainant is a consumer as laid down under Sec.2(1)(d) of the Consumer Protection Act, 1986.  Hence, point no.1 is answered in the affirmative.

11) Point Nos.2 & 3:  From the written and oral argument of the advocate for Opposite Party and pleadings of the Complainant it appears following facts are not in dispute, on 18/10/2010 written agreement took place between the Complainant and Opposite Party.  The Opposite Party agreed for installation of lift in the building of the school of the Complainant for total amount Rs.6,75,000/-.  Opposite Party had also agreed for completion of said work within 16 weeks from the date of release of order.  The Complainant paid amount Rs.6,07,500/- to the Opposite Party by way of advance  on 14/10/2010.  Opposite Party has installed new lift at the Complainant’s site during pendency of this complaint on 17/09/2012.

12)      The evidence of Complainant shows that Opposite Party was required to install and put the elevator in operation before 28/02/2011 but Opposite Party failed to fulfill its promise.  The Complainant sent e-mails to the Opposite Party on 19/05/2011 & 19/12/2011.  The Opposite Party has mentioned in para no.5 of the written argument that, as per the agreement, permission of Inspector of lift P.W.D. was to be taken for installation of lift and also license for the use of new lift thus, the Opposite Party could not have commenced any execution of work at the site, without the permission of P.W.D. Inspector of lift.  The Opposite Party had also sent to the complaint reminder by e-mails and asked for compliance of Form A on 04/05/2011 & 20/05/2011.  Opposite Party received the Form A on 14/06/2011 i.e. four months after the contract.  From the above agreement it appears, permission of P.W.D. Inspector of lift was required for installation of lift at the site of the Complainant. The Complainant was to submit an application to the said department for such permission in Form A and some documents were to be submitted alongwith said application. It appears the Complainant has submitted said application with the Opposite Party in Form A on 14/06/2011.  The period/days of submission of Form A were included in the total period of 16 weeks.  There was delay on the part of the Complainant in submission of form ‘A’ for obtaining permission of P.W.D. Inspector of Lift.  The Complainant has completed the formalities of Form ‘A’ on 14/06/2011 hence, the period of completion of 16 weeks has been automatically extended and it starts from the date 14/06/2011.

13)      As per the agreement, the Opposite Party was to complete work within 16 weeks from the date of contract i.e. by the end of 28/02/2011.  Now the said period of 16 weeks starts from the date of submission of Form ‘A’ i.e. 14/06/2011.  In the above circumstances the Opposite Party was to complete the work or installation of lift by the end of October, 2011. The Opposite Party has completed said work on 17/09/2012. It appears there is delay of about 11 months for installation of lift in question. 

14)      The Opposite Party has mentioned in the written argument that as per the contract, there was responsibility on the Complainant of providing adequate safety and security measures to prevent any damage, theft and procurement of material during the erection period and the installation is over.  The said clause is appearing in the copy of contract dtd.18/10/2010 filed vide Exh.1 page no.20 (It is from page no.12 to 25 of the complaint). It has been further mentioned in the written argument that certain critical items went missing from the site, the Opposite Party had to procure such items once again from their plant.  They had informed to the Complainant fact of missing critical items by the e-mails dtd.17/11/2011.

15)      The Opposite Party has produced copy of e-mails dtd.17/11/2010, 23/11/2011 and copy of reply given to the notice of the Complainant.  The Opposite Party had informed to the Complainant by the e-mail dtd.17/11/2011 that, crosshead frame and one safety rod are missing and one rod is damaged which were at the site.  The Opposite Party did not mention in the e-mail dtd.17/11/2011 and.23/11/2011 that due to missing of above crosshead frame, damage of rod and missing of rod the work of installation of lift in question was held-up.  The Opposite Party has also not mentioned the value and size of above three items.  On the contrary Opposite Party had informed to the Complainant by the e-mail dtd.23/11/2011 that, they (Opposite Party) received incorrect sized car panels at the site and their Bangalore works have already started correction on the same. On 17/04/2012 the Complainant through advocate had issued notice to the Opposite Party for installation of elevator or for payment of compensation Rs.10,00,000/-.  The Opposite Party has replied the said notice on 27/04/2012.  Opposite Party has admitted in the said notice reply that, the installation of work got stalled due to want of balance materials from their Bangalore Factory which is currently undergoing major expansions.  It has not brought on record by the Opposite Party that, the missing damaged items were major part of lift in question. The above documents clearly goes to show that, installation work was held-up due incorrect sized car panels and not due to the missing of crosshead frame and rod.  Lastly the Opposite Party had given assurance to the Complainant for completing installation of lift before 31/05/2012.  The Opposite Party has installed the lift in question during the pendency of this complaint on 17/09/2012.  There is nothing on record to show that after 14/06/2011 the delay is caused in the installation of lift due to the negligence of the complaint.  The delay of 11 months is caused in installation of lift due to the negligence and activities of the Opposite Party.  The Opposite Party has not completed the installation lift in question by the end of October, 2011 within 16 weeks from 14/06/2011 therefore, Complainant is deprived from taking use of the lift during the period of November, 2011 to 17/09/2012.  Hence, Complainant is entitled to the compensation from the Opposite Party as the Complainant is deprived from using the lift in question during the above period. 

16)      The complainant has claimed amount from Opposite Party Rs.8,00,000/- for the failure of installation of lift and interest on the advance amount i.e. Rs.6,07,000/- @ 18% from the date of agreement, Rs.10,00,000/- towards the inconvenience & hardship caused to the Complainant and Rs.50,000/- cost of litigation.  The Opposite Party has installed the lift at the site of Complainant on 17/09/2012.  The Complainant has accepted the said unit under the protest by the acceptance letter dtd.17/09/2012 (filed alongwith written argument vide Exh.’E’) without prejudice of their claim of compensation. Under these circumstances in our view the Complainant is not entitled to the amount Rs.8,00,000/- as claimed as the installation work of lift in question has been completed. The Complainant has paid Rs.6,07,000/- to the Opposite Party as an advance for the work of installation of lift in question. The Opposite Party has completed the said work and as there was delay in providing required permission of certificate from the concerned authorities on the part of the Complainant, therefore, Complainant is not entitled to the interest on the amount paid as an advance.

17)      The Complainant has caused inconvenience and hardship due to delay in installation of the lift in question during the period of 11 months from November, 2011 to 17 September, 2012. There is thus, deficiency in service on the part of Opposite Party by not following it’s obligation therefore, Complainant is entitled to the compensation for the same and the cost of complaint. Taking into consideration the facts, circumstances and nature of the complaint we are of the opinion that lum-sum amount Rs.1,00,000/- should be granted to the Complainant for the inconvenience and hardship caused to the Complainant including cost of this complaint.  Hence, point no.2 is answered in affirmative and point no.3 accordingly.

            In the result complaint deserves to be partly allowed with cost therefore, we proceeds to pass following order –

O R D E R

i.          Complaint No.177/2012 is partly allowed against Opposite Party.

ii.         Opposite Party do pay to the Complainant lum-sum Rs.1,00,000/-(Rs.One Lakh Only) towards inconvenience and hardship

            caused to the Complainant including cost of litigation within 45 days from the date of receipt of this order.

iii.        Certified copies of this order be furnished to the parties.