ADV. RAVI SUSHA, MEMBER

            Complainant’s case is that  the complainant is a charitable hospital, that the chairman of the hospital has filed the complaint alleging deficiency of service by the opp.party in maintaining and servicing the lifts installed by the opp.parties, as per the annual maintenance contract executed between the complainant and opp.parties, that the complainant is a charitable organization operating the hospital, that the complainant has purchased and installed 4 elevators from the opp.party in the hospital for the purpose of their own purpose of the establishment, that after installation of the said lifts the complainant and the opp.parties entered into a Annual maintenance contract [AMC] , that accordingly the opp.parties were bound to carry out all maintenance works and services during the active period of the contact, that the first AMC was entered in 16..11.2006, that the numbers of the lifts are 17833, 17834 ,17835 and 17836, that during the active period of the AMC the lifts 17824 and 17835 showed regular breakdown, that the complainant contacted the opp.parties on several occasions through telephone but the opp.parties failed to locate the fault and the break down continued, that the repeated breakdowns of the lifts were caused due to the improper servicing by the opp.parties, that the parts like  ropes, rollers and other mechanical parts were not serviced and charged in proper time resulting in the recurrent breakdowns, that the maintenance service personals arranged by the opp.parties were also not qualified to detect and repair the defects, that  the complainant informed the matters on 26.6.2007 through letter that again an advocate notice was sent to the opp.parties on 17..8..2007 , that again a notice was served on 17..1..2008, in spite of all these reminders the opp.parties failed to carry out all the necessary repairs to the lifts, as a result, the complainant was compelled to arrange alternative arrangements for carrying patients,  resulting in heavy expenses and losses, that due to the said deficiency in service of the opp.parties , that the complainant suffered heavy losses.  Hence the complaint.

          Opp.parties filed version contending that, the complaint is not maintainable either in law or on facts and hence liable to be dismissed, that the complainant is not entitled to get any reliefs as prayed for in the complaint, that  at present there is no maintenance contract exists between the complainant and the opp.parties and hence there is no privity of contract between the complainant and this opp.parties and this Hon’ble Forum does not has the jurisdiction to try this complaint, that it is true that this opp.parties had installed elevators bearing No.17833,17835 and 17836 in the premises of the complainant hospital, that the said elevators are purchased and used in the complainant hospital and nursing school, that it is true that the complainant had entered into an AMC  with the opp.party on 16.11.2006, that after the expiry of the said contract, the complainant desisted from renewing the AMC for the oncoming years and hence the opp.party had reminded the complainant many times to renew the AMC, that  the opp.parties failed to locate the fault and repair the elevators, properly, resulting, in repeated breakdown is all false and hence denied, that the maintenance personnel of the opp.parties pares are fully trained to trouble shoot any of the defects occurring in the equipments of the opp.parties, that the further allegation that repeated breakdown of the equipment resulted from the failure to locate the fault and repair lthe same are false and hence denied, that the allegation that  the allegation the unserviceable spare parts including rope, rollers and other mechanical parts were not replaced during the appropriate time, resulting in recurrent breakdown of the elevator are false and hence denied, that all the replacements were done in time and the elevators were made fully functional, that the complainant had caused to issue a lawyer notice to the opp.parties on 17..8..2007 calling upon to rectify the defects occurred to left No.17833 and 17834, that the technicians of the opp.party immediately attended to the complaint s made by the complainant, that on visiting the premises of the complainant, the technicians of the opp.party witnessed that all the lift’s machine room has been kept in unlocked condition which is against the contract, that by keeping the machines room left open can cause anybody to have free access to the machineries and cause damages to the Electrical circuitries in the left’s controller resulting in break down of the lifts, that on finding the said serious shortfail on the part of the complainant, the opp.party had invited the attention of her complainant to keep the machine room and other accessories in safe condition, that this fact is informed in the breakdown report of the opp.party dated 13.3.2007, that the complainant had paid least attention to the said directions of the opp.parties, that the opp.parties had rectified all the defects of the lefts according to the satisfaction of the complainant, that this opp.party is in store with evidence to prove many material replacements made with customer signed copies.  Hence no deficiency in service can be attributed to this opp.parties, that this opp.party is ignorant of the allegation in para No.4 that the complainant was compelled to approach other party to carry out the maintenance and repair work of the said elevators, that if the complainant had entrusted some outside agency to maintain and  repair the elevators who are not the authorized original equipment manufacturer, then it would have certainly damage the components of the left for which the complainant itself is liable, that they did not renew the AMC with this opp.party, that the opp.party at last on 11.12.2007, had informed the complainant about the non-renewal in black and white,  but even then the complainant was not ready to renew the AMC, that there is no deficiency in service or unfair trade practice on the part of the opp.parties, the opp.parties are not under any legal obligation to compensate the complainant. Complaint is filed for getting compensation and cost from the side of opp.party for the negligence and deficiency in service committing by the opp.parties.

          Points that would arise for consideration are:

1.     Whether the complaint is maintainable or not?

2.     Whether there is deficiency in service on the side of opp.parties?

3.     Reliefs and costs?

For the complainant PW.1 was examined and Ext. P1 to P8 were marked

For the opp.party DW.1 was examined and Ext. D1 to D12 were marked.

POINT:1

          The 1^st point to be decided is whether the complaint is maintainable.   According to the opp.party the complainant is not maintainable because the complainant’s hospital is running as a commercial establishment with profit motive.  Moreover there is no charity objective is running the hospital.  Hence the complainant’s hospital cannot be considered as a consumer under the provision of Consumer Protection Act.   Complainant’s pleading is that the complainant hospital is a charitable hospital.  So the complainant is a consumer.  Even though there is no evidence that the complainant is a charitable organization operating the hospital, there is an Annual maintenance contract b etween the complainant and the opp.party in respect of purchasing 4 elevators.   As per Ext. P1 the contract period is from December 2006 to November 2007.   Ext.P2 and P4 shows that the letter issued by the complainant institution to the opp.party with regard to the breakdown of the lift purchased from the opp.party, within the contract period.  Hence the complainant is maintainable and the complainant is a consumer under the provision of Consumer Protection Act.  Moreover according to the opp.party as per clause 9.9 of the Ext.P1 the matter shall be settled by an Arbitrator.  As per Consumer Protection Act Sec. 3 Act not in derogation of any other law.  On the basis of Sec. 3 of Consumer Protection Act, even though there is an Arbitration clause in Ext.P1, the matter can be agitated under CP Act.   The first point found accordingly

POINT :2

          The 2^nd point to be decided is whether there is deficiency in service on the side of opp.party.  Opp.parties admit that the disputed elevators No.17834, 17835 purchased from them and they had installed the elevators in the premises of the complainant hospital.  According to the complainant the lift bearing Nos.17834 and 17835 had developed frequent breakdown and the complainant therefore had contacted the opp.parties  telephonically on several day and informed them of the repeated break down.  But the  service technicians of the opp.parties could not locate the faults or rectify them.   Moreover the  unserviceable parts including the rope, rollers and other mechanical parts were not replaced by the opp.parties at the appropriate time.  Opp.parties denied the above said contention of the complainant and contended that all the replacements were done in time and the elevators were made fully functional.  On perusal of the exhibits Ext.P2 , P4 and P6 the letter issued by the complainant’s institutions to the opp.party shows that the left bearing No.17834 and 17835 showed a regular breakdown and the frequent  break down of the elevators is mainly due to the improper servicing done by the  opp.party and the unserviceable spare parts were not seen replace in time and the rope rollers and other mechanical parts were not replaced by new one in time.   Documents produced from the side of opp.party also show that the lift were breakdown frequently.   According to the opp.party all  the defects were cured in time.  But Ext.P2 show that the letter was sent on 12..10..2006 and in it it is  stated that in spite of informing the complaint many time, the opp.party was not  rectified the complaint

          According to the opp.parties the left were damaged frequently due to the voltage fluctuations of the establishments.  But the opp.party has not proved that there was voltage fluctuations of the complainant’s establishment.   The person who prepared Ext. D8 has not been examined before the Forum more over in DW.1’s deposition he deposed that the officer who prepared the Ext. D8 was not  present at the establishment when the Ext.D9 report was made.   From the side of opp.party 12 documents were produced showing that the lift were damaged frequently.  In only one document it is noted that there was voltage fluctuation,   More over the person who noted the voltage fluctuation has not been examined before the Forum.  Opp.parties have not sent any reply to the letter sent by complainant dated 17..7..2007 and 17..1..2008 ie. Ext. P4 and P6.  From Ext. D6 it can be seen that 12 number of polo washer has to be replaced.  But DW.1 categorically deposed that such a replacement was not made    The contention of the opp.party was that the AMC has been expired in 2007 and after that no contract existed and only on the request of the customer the services are done.  No request  letter has been produced and also no bill or charges were levied for the services made after the AMC period.   According to the opp.parties in order to maintain good customer  relationship, they have replaced the parts without charged the service charge.   That contention of the opp.parties cannot be accepted.  Moreover there is a specific condition in Ext.P1 that  the contract will be expired unless  express notice is sent by  any of the parties

          From all the evidence we are of the view that the lift have broken down continuously and it was due to the negligence and deficiency in service on the side of opp.party by faulty maintenance.  Hence the complainant is entitled to get compensation.

          In the result, the complaint is allowed.   The opp.parties are directed to pay Rs.1,50,000/- as compensation to the complainant and are also directed to pay Rs.5000/- as cost of this proceedings,   The order is to be complied with within one month from the date of receipt of this order and in default it will carry interest at the rate of 7.5% per annum from the date of order.

Dated this the   21^st day of February, 2012.

List of witnesses for the complainant

PW.1. –Rajith

List of documents for the complainant

P1. – Comprehensive maintenance contract

P2. – Notie

P3. – Acknowledgement card

P4. – Advocate notice

P5. – Acknowledgement car

P6. – Invoice

P7. – Acknowledgement card

P8. – Annual maintenance contract

List of witnesses for the opp.parties

DW.1. – Dhanesh kumar

List of documents for the opp.parties

D1. – Break down report dated 13..3..2007 [Job card]

D2. – Breakdown report dated 13.3.2007

D3. – Breakdown report dated 19..5..2007

D4. – Breakdown report26..6..07

D5. – Copy of agreement

D6. – Copy of service report

D7. – Breakdown report

D8. – Letter dated 6..11..2006 with courier receipt

D9. – Breakdown report dated 21..10..2006

D10. - Letter dated 27..11..2006

D11. – Letter dated  17..11..2008

D12. – Letter  dated 11.12.2007 with courier receipt

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