The present appeal has been filed against the order dated 08.11.2012 of the State Commission in complaint No.4 of 2007 of the appellant whereby the complaint was allowed and following directions were issued : “Having considered the facts and circumstances of the case, we accept this complaint and issue directions to the opposite parties to provide the amenities to the complainant- welfare society as per the agreement executed between the parties without any further delay, with further direction to pay compensation of Rs.10,000/- to the complainant within a period of 60 days from the date of passing of this order, failing which the awarded compensation shall carry interest @ 9% per annum till its realization.” Aggrieved by the directions to pay compensation of Rs.10,000/-, the present appeal has been filed for its enhancement. It is submitted that in terms of the -2- agreement for installation of the elevators, the lifts were to be installed by 31.03.2006. Vide agreement dated 27.09.2005, GAD was to be supplied by 15.11.2005. It is submitted that the installation was completed by the respondent on different dates during the pendency of the complaint i.e. after delay of approximately 9 months and hence the compensation of 10,000/- which is awarded by the State Commission is not proportionate to the loss suffered by the complainant for this delay. Notice of this appeal was issued to the respondents. The respondents although did not file the written version before the State Commission. It is argued that the compensation awarded by the State Commission in the facts and circumstances of this case is appropriate. It is submitted that there was no deficiency on the part of the respondent. It is submitted that certain obligations under the agreement were imposed upon the appellant which appellant is silent about in their complaint as well as in affidavit as to whether they had fulfilled those obligations and if yes then on which date. It is argued that the delay had occurred only on account of the delay on the part of the appellant to fulfil its part of the obligations under the agreement. It is argued that the completion period of the installation of the lift was to be reckoned from the date of the receipt of the approved GAD and only when the complainant had ensured that there was a three phase power supply available at the site. It is submitted that in the complaint itself, the appellant has admitted that there was no power supply in the building by alleging that they had been using generators in the building and claiming refund of the rent towards those generators. It is further argued that even in the appeal there are no averments that the three phase power supply was available at the site. It is submitted that even for preparation of GAD (General Arrangement Drawing) in terms of Clause 8 of the contract, the complainant were required to furnish certain -3- information and that such information was not furnished within time and, therefore, GAD could not be prepared within stipulated time period and that there is no averment either in the complaint or in the appeal disclosing the dates on which the compliance of Clause 8 of the contract was made by the complainant. It is further submitted that under Clause 8 (Sub clause 4), the complainant was required to provide certain amenities to the respondents like information regarding completion of the civil work, adequate lighting and properly lighted and ventilated machine room, Storage room and single phase V power and three-phase, 415 V AC power testing and commissioning the Elevator machine room which were not made available by the appellant to the respondent for substantial period. Hence the delay of 19 months cannot solely be attributed to the respondents. It is submitted that in the facts and circumstances of the case the delay has occurred due to non-compliance by the complainant of their part of the obligations under the agreement and that is why the complainant is silent about these facts in their complaint, affidavit and in the appeal. Learned counsel for the appellant has submitted that the respondent has nowhere stated that the complainant had not completed their part of obligations under the agreement or that there has been a delay in such compliance. Learned counsel for the respondent has submitted that they did not file the written version and, therefore, they cannot take this plea before this Commission. I have heard the arguments and perused the relevant record. Admittedly, there was an agreement dated 27.09.2005 between the parties whereby the respondent was required to install six elevators in the subject building. The conditions under which the parties had to work had been enumerated in the said agreement. Clause 1 of agreement requires that GAD (General Arrangement Drawing) were to be furnished by the respondent. However before the drawings -4- (GAD) were to be furnished, the complainant was required to provide the following information in terms of clause 8 :- Customer’s Contract Obligations Site Details “Furnish required information within a week from the date of order for us to prepare the General Arrangement Drawing (GAD). The required information will essentially consist of the following. Clear Elevator well dimensions with construction details. Details of interferences, projections, if any. Elevation of the Elevator shaft showing clear heights. Size and location of Elevator columns in the Elevator well, if any. Depth of Elevator pit. Clear height of the machine room. Plan view of the machine room. If you wish to obtain the site details after a field check, we will be happy to do so.”
When the complainant alleges that there is a delay on the part of the opposite party to prepare GAD, it is his duty to inform to the Commission that it had fulfilled its part of obligation and despite fulfilment of the same under the contract, the GAD was not prepared by the respondent. There is no such averment in the complaint or in the appeal that as to on which date the complainant had furnished required information under this clause for preparation of GAD. Also for the installation of the elevators, the complainants were under obligation to complete following task as per clause 8 sub clause 4 : -5- Installation “You agree to furnish us the following free of cost : Before we depute our installation crew, you must confirm, in writing, that the entire civil work complete in accordance with the drawing submitted by us. Clean the Elevator pit and keep it dry. Adequate lighting and ventilation in the Elevator shaft and machine room during the erection. A safe, easily accessible, covered, weather-proof and lockable storage room facility of approximately 40 sq. metres area per Elevator at ground floor near the Elevator shaft in the building.The storage Room should be made available to our installation crew until the Elevator is handed over.Note that you should have the storage room available to store the materials upon arrival at. Single-phase, 230 V power required for operation of our tools, hoists, etc. at ground floor Elevator shaft and three-phase 415 V AC Power for testing and commissioning the Elevator machine-room. Three-phase, 415 V and single-phase, 230 V power supply at the machine room with suitable switches for power as per our requirements and light circuit-breakers, lightning arresters, earthing leads to machine room and other electrical protective devices necessary to meet requirements. Provide suitable accommodation free of cost for our installation crew. It is important that the above are furnished by you so as not to cause any delays to our crew. We reserve the option to charge you for delays resulting due to lapse on your part in us all the required facilities.”
The complainants have not come forward and disclosed anywhere as to on which date they had fulfilled their part of obligations. The completion period is to be reckoned as per clause 3. The said clause reads as under : -6- Completion Period “Compliance of payment terms, we shall deliver the materials for each Elevator by the end of ……….months from the date of receipt of approved GAD provided the elevator shaft, entrance, machine room including 3 phase power supply are made available as per the agreed terms On compliance of the above, we shall complete the installation by the end of ……..month. In the event of site not made ready as per the contract, we reserve the right to defer the date of despatch material and subsequent erection. However, the revised schedule of despatch and erection shall be finally on mutually agreed terms. Completion period promised would be deemed to have been fulfilled, if the elevator is presented for the inspection after completing all the work on or before the promised dated. The time taken to rectify any def. or adjustments during and after the inspection shall be construed as extension. We cannot accept responsibility for delayed delivery and/or installation of the Elevator in the following : If the terms of payment are not complied with. If the preparatory building works excluded from our contract and necessary structure, support frame, etc. are not completed by the client in time. If permanent three phase power supply along with double earthing, etc., is not given in time the machine room. If formalities are delayed due to non-payment of licence fees or if necessary technical details missing.”
Before the period of six months for the completion of the contract is to be reckoned, it was essential on the part of the complainants to provide three phase power supply besides completing the other obligations under Clause 8 (4) of the Contract. The complainant has nowhere disclosed as to on which date three phase power supply was installed in the building or on which date the electric connection was installed in the building. Even in their complaint they have nowhere stated that the building was having electric connection whether phase one or phase three. -7- Rather they had contended that they had been using generators which necessarily imply that there was no electric connection in the building even on the date when the complaint was filed. In view of this, it cannot be said that the delay of 19 months in installation of the six elevators is attributable solely upon the respondent. In the facts and circumstances of this case, I find no reasons to enhance the compensation awarded to the complainant. The appeal, therefore, has no merit and the same is dismissed. | 
