Karnataka

Bangalore 4th Additional

CC/15/34

C. Channakeshava - Complainant(s)

Versus

M/s. Nikon Elevators (P) Ltd - Opp.Party(s)

17 Feb 2018

ORDER

Complaint filed on: 08.01.2015

                                                      Disposed on: 17.02.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.34/2015

DATED THIS THE 17^th FEBRUARY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

C.Channakeshava

S/o Late Aswathnarayan,

Aged 63 years,

R/at no.8, Appaji Rao

Lane, CT Street Cross, Bengaluru-02.

 

By Adv.Sri.H.Thimmappa     

 

V/s

Opposite party/s

Respondent/s:-

 

M/s.Nikon Elevators (P) ltd., No.B-4, Sristhi No.1761,

36^th cross, East End ‘A’

Main Road, 9^th Block,

Jayanagar,

Bengaluru-69.

Rep. by its Manager

 

By Adv.Sri.Nagaraja

 

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party (herein after referred as Op) seeking issuance of direction to complete the installation of elevator as per agreed specification and to receive the balance payment. Further direct to pay Rs.3 lakhs compensation per month till the installation of the elevator to the satisfaction of the Complainant with cost and to pass such other orders deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that Op is a private limited company carrying on dealing with the installation and maintenance of elevator business. The Complainant has entered in to an agreement with Op on 25.01.14 for the installation of a 4 passengers type elevator to his newly constructed building at a cost of Rs.8,80,000/-. As per the agreement dtd.25.01.14 among other specifications the Op has agreed to install the elevator of the platform size to be provided is above 900 mm wide x 800 m m deep with 1 year free service and seven years guarantee. The period fixed for the completion of the said work is 12 months. The Complainant further submits that he has so far paid totally an amount of Rs.6 lakhs and balance amount to be paid by the Complainant is only Rs.2,80,000/-. In addition to this, the Complainant had obtained necessary permission from the competent authority in connection with erection of the elevator. In spite of this, the Op had dumped certain materials at site for the installation of elevator during the end of June 2014. The civil and electrical works with regard to installation of elevator were have been carried out in accordance with direction and supervision of technical persons of Op. The platform size set by the Op is far below the standard of agreed specification. When the Complainant had objected to this, Op has not bothered and stopped the work abruptly in the 3^rd week of August 2014. On account of sudden stoppage of elevator, the Complainant could not let out the premises for rental purpose. On account of this the Complainant lost nearly Rs.3 lakhs towards rent per month as the construction put up by the Complainant is a commercial complex consisting of 5 floors with each floor comprising a flinth area of 650 sq.ft in the heart of the city Bengaluru. The Complainant further submits that inspite of several request over telephones and personal visits the Op has not completed the balance work. In this context, the legal notice dtd.12.11.14 was issued to Op. But Op neither replied nor executed the balance work. Hence prays to allow the complaint

 

3. On receipt of the notice, Op did appear and filed version except admitting the agreement entered between the parties for erection of the lift and denied rest of the allegations made in the complaint. It is the contention of the Op that, as per the agreed terms & conditions the platform should be 900mm x 800mm which means 7,20,000 sq.mm and when the work to be started the technical staff of the Op took the actual measurement and it is found the size of place where the lift is to be erected is not according to the standard. Because of the fact that the Complainant did not provide place in the building to suit to the size of platform in the lift as agreed to. This matter was discussed in detail with the Complainant and was agreed to complete the work with suitable modifications. The lift shaft provided as existed could suit to set up a platform of 850mm x 850 mm after taking plum measurement. The lift shaft provided by the Complainant is only 1250x1250mm as against providing 1300mm x 1300mm in width and depth. Hence lift of odd size to suit to the available place was tailor made and installed. By this adjustment Complainant has gained an additional 2500 sqmm. Hence it cannot be accepted that the platform is below the standard agreed specification and is perfect as explained above in the available situation. The Op further submits that, as narrated above the lift was tailor made to suit to the available place and structure as per the plum measurement and also as agreed to the parties. The work was also carried out under technical supervision. The Op further submits that, the Complainant has not paid 70% of the total value of the contract inspite of intimating on 16.06.14. Even though the Complainant did not adhere to the conditions of the agreement though the Op took a lenient view and completed 80% of the installation work. Without following the terms & conditions of the agreement the Complainant cannot depend only on telephone talks to get the matter settled amicably. The Op further submits that, a complaint in CC.No.2574/2010 filed before 2^nd Addl., DCDRF, Bengaluru, it has held that, in a net shall, the transaction made for a commercial purpose does not come under the purview of consumer dispute. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents Ex-A1 to A19. The Manager in Op company filed affidavit evidence and got marked the documents Ex-B1 to B10. Both filed written arguments and additional written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether the Complainant is the consumer within the definition of Section 2(1)d of CP Act ?
2. Whether is there any deficiency of service on the part of Op, if so, whether the Complainant entitled for the relief sought for ?  
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative  

Point no.2: Does not survive for consideration 

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  During the course of argument, learned counsel for the Op urged before us stating that the Complainant is not a consumer in view of his own admission at para 5 of his complaint, wherein he has specifically pleaded as

“On account of sudden stoppage of elevator, the Complainant could not let out the premises for rental purpose. On account of this the Complainant lost nearly Rs.3 lakhs towards rent per month as the construction put up by the Complainant is a commercial complex consisting of 5 floors with each floor comprising a flinth area of 650 sq.ft in the heart of the city Bengaluru”.

Emphasis supplied by us.

 

But this fact has been denied by the Complainant. It is settled preposition of law that admitted fact need not be proved u/s.58 of Indian Evidence Act. In this context, the oral say of the Complainant stating that he is not using the said premises for the purpose of letting for monthly rent has no legs to stand, when the said building is being used for the commercial purpose, he cannot be come within the purview of the Sec.2(d) of the CP Act, which reads thus:

(d)  "consumer" means any person who—

(i)    buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; 

 

8. We placed reliance on the available materials on record with reference to the specific contention taken by the Complainant in para 5 of its complaint stating that “On account of sudden stoppage of elevator, he could not let out the premises for rental purpose. On account of this, he lost nearly Rs.3 lakhs towards rent per month as the construction put up by him is a commercial complex consisting of 5 floors.” There is no pleading in the complaint stating that he is eaking his livelihood by the income derived from the said building. When such being the fact very complaint filed by the Complainant is not maintainable before this forum. At the most, he can get redress his remedy before the competent court of law having got jurisdiction to try the same in view of the decision reported in I (2016) CPJ 87 (NC) in the case of Bengal Rowing Club vs. Kingfisher Elevator Industries pvt. ltd. & Anr., wherein it was held that:

Consumer Protection Act, 1986 – Sections 2(1)(d), 21(b) – Consumer – installation of elevator – defects – commercial purpose – State Commission rightly observed that the Complainant is a company and lift was used for commercial purpose – by no stretch of imagination Complainant can be said to be a consumer – Complaint not maintainable – liberty granted to seek redressal of its grievances before appropriate forum.

7) We see no merit in this argument. The said order was passed in absence of the Complainant/petitioner. No reason was given, why the Complainant could not appear on that day. However, when the State Commission found that the complaint is not maintainable, therefore, it did not commit any mistake in disposing of the matter at the threshold of the appeal. By no stretch of imagination, the Complainant can be said to be a ‘consumer’. The Complainant is a company and the lift was used for commercial purposes.

8) The Hon’ble Apex court in a recently reported authority in Tansingh Chauhan v. Trio Elevators co., India ltd., in special leave to Appeal (civil) no.37898 of 2013, decided on 03.01.14 upheld the order passed by this commission passed in Revision petition no.863 of 2013 dtd.22.07.13, wherein the Complainant was possessing Hotel Kalinga Palace at Barmer in which three elevators were to be installed by the Op, Trio elevators co., India ltd., It was alleged that there was delay in installation of the elevators which too, were not working properly, due to which the Complainant suffered a loss in the sum of Rs.10 lakhs. It was held that the Complainant did not fall within the purview of the definition ‘consumer’ as defined under the CP Act, 1986 and the complaint was dismissed.

9) The ratio of our judgment passed in CC.no.306/2014, titled Pharos solutions pvt. ltd., v. Tata Motors ltd., & Ars., IV (2014) CPJ 525 (NC) = decided on 01.09.14 which was also upheld by the Hon’ble Apex court fully dovetails with the facts of this case. We have discussed a number of authorities in that judgment.

10) We also took similar view in CC.No.486/2015 tilted M/s.Swo-India ltd., v. M/s. Raj Associates & Anr., decided on 10.07.15.

11) Consequently, the order passed by the State Commission is without flaw. The same is maintained, though it lacks clarity. The complaint is dismissed. However, the Complainant is at liberty to seek redressal of its greivances either before the Civil court or any other appropriate forum, as per law. It may also seek help from the law laid down in Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 (SLT soft) 632 = (1995) 3 Supreme Court cases 583, on the question of limitation.

 

9. In the light of the decision cited supra, we come to the conclusion that, complaint filed by the Complainant is not maintainable before this forum as he is not a consumer. However, the Complainant is at liberty to seek redressal of his grievances either before the Civil court or any other appropriate forum as per law. We are also of the opinion that, he may also seek help from the law laid down in Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly we answered the point no.1 in the negative.

 

10. Point no.2: In view of our findings on point no.1 holding that the Complainant is not a consumer, under such circumstances, this issue does not survive for consideration. Accordingly it is answered.  

 

11. Point no.3: In the result, we passed the following:

 

 

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed as not maintainable.  

 

          2. Anyhow, the Complainant is at liberty to seek redressal of his grievances either before the Civil court or any other appropriate forum as per law.

 

          3. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 17^th February 2018).

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Channakeshava.C, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Enquiry letter of the Complainant dtd.10.02.13
Ex-A2	Quotation dtd.13.02.13
Ex-A3	Agreement dtd.25.01.14
Ex-A4 & A5	Receipts dtd.12.02.14, 13.02.14
Ex-A6	DD dtd.28.07.14 Rs.1,50,000/-
Ex-A7	Receipt dtd.18.08.14
Ex-A8	Permission from Govt. for erection dtd.22.09.14
Ex-A9	Plan submitted to Govt.,
Ex-A10	Legal notice dtd.12.11.14
Ex-A11	Inspection report dtd.23.04.15
Ex-A12	Receipt
Ex-A13	ID and Address proof of Complainant
Ex-A14 to A16	Regulations
Ex-A17	Plan submitted to Govt
Ex-A18 & A19	Inspector’s Letter dtd.24.03.16 & 28.03.17

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.M.V.Naik, who being the Manager in Op company was examined.

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1 & B2	Sketches of lift size
Ex-B3 & B4	Letters dtd.16.06.14
Ex-B5	Order dtd.25.01.14
Ex-B6	Agreement of contract dtd.25.01.14
Ex-B7	Letters dtd.28.07.14, 01.11.14
Ex-B9	Letters dtd.08.11.14 along with postal receipt
Ex-B10	Commissioner report dtd.21.12.15

 

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT