DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.64/2013

Antriksh Apptt. RWA, (Regd.)

D-3, Sector-14, Extn., Rohini,

New Delhi - 110085                                                                                                                                                                                                                                                                                                   ….Complainant

Versus

M/s Otis Elevators Co. (India) Ltd.

504-505, Rectangle One,

D-4, Saket Dist. Centre,

Saket, New Delhi - 110017                                                                               

                                                                                                        ….Opposite Party

       Date of Institution    :         04.02.2013

       Date of Order            :         17.01.2022

Coram:

Ms. Monika A Srivastava, President

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The complainant has filed this complaint alleging deficiency in services on account of OP caused by delay in delivery of lifts.

The Complainant is a registered housing society and had placed an order for modernization of 6 nos. of OTIS Electric Traction Passenger Elevators (hereinafter referred to as Lifts) which were to be installed in Tower/block A,  and F.

It is the case of the complainant that the agreed cost of installation of Lifts was Rs.51,00,000/- which order was placed on OP on 31.05.2011. It was agreed that delivery and installation of lifts was to be completed within a period of twenty weeks from the date of advance payment. However, the OP had reserved another four weeks to deal with exigencies relating to delivery and installation. Complainant made first payment of Rs. 5,10,000/- being 10% of value of order on 19.05.2011, 80% of the agreed consideration value was paid on 31.05.2011. The complainant claims that the twenty weeks expired on 30.10.2011 and the further four weeks expired on 31.11.11. It is not disputed by the parties that the process of installing the lifts was completed only on 31.03.12.

The complainant has inter-alia prayed for compensation @ Rs. 100 per day for each of the 83 residents of block/Towers A and F for a period of 4 months from 01.12.2011 to 31.03.2012. It is also prayed that the complainant is also entitled to interest @ 1.5% per month for the period of delay on the advance paid to OP. Interest on a sum of Rs. 15,30,000/- is claimed on a delay of four months, which when calculated comes to Rs. 91,800/- Interestingly, the complainant has claimed a set off of balance 10% of consideration amount against the interest which they hope would be granted to them by this commission.

OP, amongst its defence, has pleaded that owing to existence of an arbitration clause between the parties, this Commission does not have jurisdiction to entertain the complaint. It is further pleaded that period of delivery is to be counted from the date of payment of advance of 80% total consideration amount. It is further stated that complainant has contributed to the delay hence OP cannot be solely held liable for the delay. Amongst the reasons for delay alleged by the OP is failure of the complainant to shut down the elevators and hand over the same to OP and request by complainant for installation of additional facilities not part of original agreement. As regards the defence of OP that period of delivery is to be counted from the date of payment of advance of 80% of consideration amount.

This Commission notes that OP, in para 5 of its preliminary submissions has admitted that it has offered to compensate the complainant for the slight delay in completion of the work order by offering extension of free service period to the complainant. On the face of admission of OP, the complainant was not required to prove anything further regarding factum of delay. This Commission is of the view that there has been a delay in installation and delivery of lifts by the OP.

As regards contributory delay by the complainant, in the opinion of this Commission, OP has not produced any evidence wherein they have communicated these difficulties to complainant. OP, at the time of placement of work order was aware that lifts had to be installed in buildings in occupation of residents and may encounter such difficulties. With regard to additional installations, this Commission is of the view that installation of additional features like voice synthesizer, wire for intercom and installation of a CCTV are standard add on features which does not change the nature of work order. In any case a delay of about 8 months cannot be attributed to it. This Commission therefore rejects these contentions as well.

As regards the plea the present complaint is barred on account of existence of arbitration clause between the parties, this Commission is of the view that the same is unsustainable because the Hon’ble Supreme Court has settled this issue in the matter of Emaar MGF Land Limited vs Aftab Singh (2019) 12 SCC 751 wherein the following has been held

“ This Court in the series of judgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of Act as noticed above”

This view was followed by the Hon’ble NCDRC in a recent judgment delivered on 16th December 2021 titled as Ansal API Megapolis Buyer's Association and Ors vs Ansal Hi-Tech Township Ltd, CC No. 1538/2015. This Commission therefore rejects the contention of OP that the present complaint is not maintainable on account of existence of an arbitration clause between the parties.

The first prayer pertaining to compensation of Rs. 100 per month per resident is rejected for the reason that OP had offered a compensation package of additional 12 months free of service maintenance to complainant. This Commission during the oral hearing had put this query to the counsel for the complainant who confirmed  that compensation package has been accepted and utilised by the complainant.

With regard to prayer B of the complainant claiming interest @ 18% per annum which amounts to Rs.91,800/-and set off against the balance sale consideration of Rs.5,10,000/- to be paid to the OP by the complainant. We grant interest only to the extent of Rs.91,800/- and permits it to be set off against the dues of OP.

File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.