STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.416 of 2010)

                                                                   Date of Institution:15.11.2010

                                                                   Date of Decision  :09.03.2011

PHD CHAMBERS OF COMMERCE AND INDUSTRY, PHD House, Sector 31-A, Chandigarh through its authorized representative Sh. Dalip Sharma, Regional Director, Chandigarh.

……Appellant/Complainant.

V e r s u s

1.     M/s OTIS Elevator Company (India) Limited, Head Office:- 9^th Floor, Mangus Tower, Mindspace, Link Road Malad, West Mumbai.

2.      M/s OTIS Elevator Company (India) Limited, Regional Office:- 504-505, Rectangle 1, T-4, Saket Place, Saket, New Delhi –110001.

3.     M/s OTIS Elevator Company (India) Limited, SCO No.223, 1^st Floor, Sector 37-C, Chandigarh.

              ....Respondents/OPs.

BEFORE:            HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:            Sh. Sandeep Bhardwaj, Advocate for the appellant.

                    Sh. Neeraj Sharma, Advocate for the respondents.

PER  JAGROOP  SINGH  MAHAL, MEMBER.

1.                 This appeal under Section 15 of Consumer Protection Act, 1986 (hereinafter to be referred as the Act) has been filed by the complainant against the order dated 6.10.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) vide which the complaint filed by the complainant (appellant) was dismissed.

2.                 Briefly stated the case of the complainant company is that it had accepted the tender of the OPs for supply, installation and commissioning of an Elevator at its newly constructed regional office at Chandigarh. After detailed correspondence between the parties, OPs sent their quotation of Hydraulic Lift vide letter dated 2.8.2000 and a price of Rs.9,45,000/- was quoted for erection and installation of the machine at the site. It was assured by the OPs that the equipment offered was indigenously manufactured and all its spare parts were readily available with them at Mumbai and Chandigarh and that the normal life of the lift as per the CPWD norms was 25 years. It was averred that the OPs gave final quotation for Rs.9,10,000/- and an order was placed by the complainant with the OPs for providing installation and commissioning of the elevator vide letter dated 29.1.2001 and an amount of Rs.91,000/- being 10% of the net price was paid as an advance vide letter dated 28.3.2001. The complainant vide letter dated 17.1.2002 requested the OPs to defer the dispatch of material by three months as there was some delay in execution of the civil work.  The material was delivered at the site by the OPs and the complainant released Rs.7,28,000/- vide their letter dated 7.5.2002. The remaining 10% i.e. Rs.91,000/- was to be paid only on the commissioning of the elevator. It was next averred that the elevator was installed in the building of the complainant in the year 2002. After completion of the building, the complainant in 2007 approached the OPs to make the lift operational as the power supply by that time was available. As the building was to be inaugurated on 20.5.2007 by the then Hon’ble Governor of Punjab & Administrator, UT of Chandigarh, the complainant requested the OPs vide letter/reminders dated 21.6.2007 and 5.7.2007 to make the lift in order and operation but no reply was forthcoming from the OPs. The complainant company was shocked to receive Email dated 24.8.2007 form the OPs informing that they have discontinued the manufacturing of hydraulic lift and thus, the lift in question could not be made operational.  Faced with this situation, the complainant served a legal notice dated 23.3.2009 upon the OPs asking them to make the elevator functional within 30 days or to refund Rs.8.19 Lacs along with interest @24% per annum besides Rs.10 Lacs as damages. Alleging the aforesaid acts of OPs as deficiency in service on their part, the complainant filed the present complaint.

3.                 In their joint reply, OPs took some preliminary objections as regards the maintainability of the complaint; the complainant being involved in commercial business and the complaint being barred by time. However, on merits, it was pleaded that the elevator was duly installed in the premises of the complainant in May 2002 and the commissioning of the said lift could not take place for want of electric supply and completion of the building. It was next pleaded that till the installation in the month of May 2002, the said lift was in the exclusive custody and possession of the complainant and upon inspection on the request of the complainant, it was found in the month of August 2007 i.e. after 5 years that the said machine had been rendered useless by the damage caused to it by the floods and other water based damage during the intervening period. As per the OPs, this damage to the elevator was caused between the month of May 2002 and August 2007. It was next asserted that the complainant itself had admitted that the commencing of the lift failed on account of lack of power supply, which was the sole prerogative of the complainant. As per the OPs, the warranty of 18 months of the lift had already expired in the month of September 2003 as per the provisions of Clause 12 from the delivery of the material on site. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

4.                 The parties led evidence in support of their contentions. 

5.                 After hearing the learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint vide the impugned order dated 6.10.2010 as already mentioned in the opening para of the judgment.

6.                 The complainant has challenged the impugned order through this appeal.

7.                 We have heard the arguments of learned counsel for the parties and have perused the record.

8.                 The learned counsel for the complainant/appellant has argued that in view of Condition No.4 of the Technical Bid (Annexure C-3), the OPs/respondents were to provide 12 months free service from the date of completion of the elevator. As regards maintenance, this fact is again mentioned at Page No.4 of Annexure C-3 that the quotation includes 12 months free maintenance, which would commence from the date the installation is completed and offered for inspection. Admittedly, the elevator has been installed but it was not put to use due to non availability of electricity and the delay in issuance of Occupation Certificate by the Estate Office, U.T., Chandigarh. The learned counsel also argued that 10% of the price of the elevator has not so far been paid and therefore, in view of Clause 10 the Conditions of Contract, the title has not passed to the complainant and it continues to be the duty of the OPs to complete the commissioning of the elevator, which they have not done so far. As regards the non availability of the electricity or non completion of the building, the learned counsel for the complainant referred to Clause 23(c) of the Conditions of Contract according to which the OPs were to delay the final assembly of material and shipment to site so as to synchronize with the hoistway and machine room completion date. It is further provided that in such an event, a fresh completion date would be established depending upon minimum installation time indicated in Sub Clause (b) of Clause 23. The learned counsel, therefore, argued that it was the duty of the OPs who have obtained from the complainant/appellant 90% cost of the elevator to install and commission the same, which they have not done so far and it is, therefore, deficiency in service on their part.

9.                 The learned District Forum, however, rightly held that the lift could not be made operational due to the fault of the complainant itself. It is true that in view of Clause 23(c) referred to above, the completion of the elevator could be delayed by the OPs at their option. The OPs informed the complainant vide Annexure C-14 dated 3.1.2002 that the lift was scheduled for 19.1.2002 and the material was expected to reach the site in the second week of January 2002. The complainant was requested to complete the works such as hoistway, lightening etc. and make the payment and release the funds. The complainant, however, wrote a letter (Annexure C-15) dated 17.1.2002 that there was considerable delay in execution of civil work and the OPs were requested to defer despatch of the material by about three months say till April 2002. This is the only letter through which the complainant had informed about delay for postponing the work and not thereafter. The OPs, therefore, could anticipate that the complainant would execute the works, which as per the preparatory works (at Pages 34 and 35 of the District Forum’s file), was their duty to execute. The OPs, therefore, dispatched the material and installed the elevator in due course. It could not be commissioned due to the non availability of power supply and the non completion of the building, which was the fault of the complainant and not that of the OPs. As per the agreement, the complainant had given six months period for completion of the work from the date of acceptance as mentioned in Para 3.01 of Annexure C-2, which was extended to 36 weeks in view of Clause 23 of the Conditions of Contract. The said period expired in 2002 itself. If, there was any delay in the commissioning of the elevator, it was not due to the fault of the OPs and they cannot be accused of deficiency in service. We cannot expect the OPs to postpone the installation for five years especially when there was no request to that effect from the side of the complainant and they did not inform the OPs if they would not be getting power supply or completion of the building for such a long period.

10.               The complaint is also barred by time. As mentioned above, the completion period was 36 weeks, which was over in 2002. If the OPs were deficient in rendering any service, the complaint should have been filed within two years from that date. The present complaint filed in June 2009 is clearly barred by time.

11.               The learned counsel for the complainant has argued that there would be a continuing cause of action and therefore, the complaint is within time. We do not find any merit in this argument. The specific period had been fixed for installation and commissioning of the lift and if the OPs had not completed the job within that period, it gave a cause of action to the complainant to seek remedy under the Act. The complainant, however, did not ask the OPs for commissioning of the lift during a period of five years and now when the lift has become junk and cannot be made operative, the complainant cannot blame the OPs. The complaint is, therefore, barred by time.

12.               The contention of the complainant is that when the complainant wrote to the OPs in 2007 to make the lift operational, they did not do so and were, therefore, deficient in rendering service. The learned counsel for the OPs argued that in fact in 2007, the complainant could not file the complaint under the Act because by virtue of amendment of Sub Clause (ii) of Clause (d) of Section 2(1) of the Act, the complainant no longer remained a consumer. The learned counsel argued that the complainant is a company registered under the Companies Act as mentioned in Para No.1 of the complaint, it is running a commercial business and the goods purchased by it or the service to be rendered by the OPs were obtained for a commercial purpose. After the amendment referred to above made by Act No.62 of 2002, the services obtained for commercial purpose are excluded from the purview of the Act and the complainant is not a consumer after 15.3.2003 and therefore, cannot file a complaint before the Consumer Fora.

13.               The learned counsel for the OPs has argued that in view of Clause 12 of the Conditions of Contract, referred to above, the OPs gave a warranty of the material supplied and the workmanship of the elevator for a period of 18 months from the date of initial supply of material or 12 months from the date of completion of elevator, which ever is earlier. The material was supplied in March 2001. The complainant paid another 80% of the price of the elevator on 28.3.2001 vide Annexure C-8. The 18 months period, therefore, expired in September 2002. The complainant cannot file this complaint for rendering any service after the said period. Viewed from this angle also, the complaint is not maintainable.

14.               The learned counsel for the complainant has also referred to Annexure C-5 dated 1.1.2001 in Para No.3 of which the OPs assured that the equipment offered was indigenously manufactured and all the spare parts were readily available with them at Mumbai and Chandigarh. He also referred to Para No.1 of the letter dated 4.1.2001 (Annexure C-6) in which the OPs mentioned that the normal life of the lift was 25 years, however, the lifts, which were about 40 years old were also working satisfactorily. His contention is that subsequently when the installed lift went out of order, the OPs started alleging vide Annexure C-24 dated 9.12.2007 that the spares were not available and that the lift could not be repaired. His argument is that they are willing to get the lift repaired on payment basis and in view of the undertaking, OPs can be directed to repair the same at the expenses of the complainant. On the other hand, the learned counsel for the OPs has argued that the elevator was installed ten years back. It is hydraulic operated whereas the OPs have stopped manufacturing such like machines as mentioned in their Email (Annexure C-21). According to them, they are now manufacturing electric machines and were offering one to the complainant also at less than normal market price but the complainant did not agree. The contention of the complainant cannot be accepted as correct. The OPs were liable to maintain the machine only if they were given a maintenance contract for year to year or a specific period of time, which in the present case, had not been given. Moreover, the ordinary maintenance of a working elevator does not require total replacement of the equipment.

15.               The contention of the OPs is that the elevator has become beyond repairs because it remained unprotected for about five years and has been damaged by rains and water borne damage. A machine, which is not used for five years and no effort is made to protect it from rains and water borne damage, would go waste in five years. As per Condition No.5 of the Contract, referred to above, the OPs made it clear that if the complainant cannot provide electric power by the required date and the installation of the equipment has been completed, the complainant shall take over the elevator and make payments as they fall due in accordance with Clause No.6. There is no dispute about it that the installation had been completed and there was no power supply, the elevator was, therefore, to be protected by the complainant from rain and water borne damage. Annexure C-4 is the letter dated 3.10.2000 issued by the OP vide Para No.3 of which OP undertook to protect and guard the hoistway only during the installation of the lift. It, therefore, cannot be said if the lift was to be protected by the OPs from rain and water borne damage after the installation for about five years till the complainant asked for commissioning of the same.  The complainant, who was required to guard the machine and to properly maintain it and protect it from rains and water borne damage, cannot subsequently ask the OPs to put it in order after it has been damaged beyond repairs. The OPs, therefore, cannot be directed to supply the spare parts to make the machine workable.

16.               In view of the above discussion, we are of the opinion that the learned District Forum has rightly dismissed the complaint. The complainant is neither covered under the definition of “consumer” nor there is any deficiency in service or defect in goods supplied by the OPs. The entire problem arose due to the conduct of the complainant who placed the order and got the machine installed before hand knowing fully well that they had no electricity connection and the completion of the building would be inordinately delayed and they would not be able to protect the machine from the vagaries of nature. We, therefore, do not find any merit in this appeal and the same is accordingly dismissed with litigation costs of Rs.5,000/-.

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

Pronounced.

9^th March 2011.

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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STATE COMMISSION

(Appeal No.416 of 2010)

Argued by:            Sh. Sandeep Bhardwaj, Advocate for the appellant.

                    Sh. Gaurav Bhardwaj, Advocate proxy for

                    Sh. Neeraj Sharma, Advocate for the respondents.

Dated the 9^th day of March, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal has been dismissed with litigation costs of Rs.5,000/-.

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