Date of Filing: 21/11/2011
Date of Order: 18/01/2012
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 18th DAY OF JANUARY 2012
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
C.C. NO.2107 OF 2011
Mr.Chethan, Aged About 32 years,
S/o. Mr.T.M.Jayadeva,
R/at: # 2, Srikantan Layout,
Crescent Road, High Grounds,
BANGALORE-560001.
(Rep. by Sri.K.S.Ganesh, Advocate) …. Complainant.
V/s
Schindler India (P) Limited,
Axis Sai Jyothi, # 785, 3rd Floor,
J.P.Nagar 1st Phase, (JP Nagar Ring Road,
Near Sindoor Conventional Hall,
Bangalore-560 078.
(Rep. by Satish Zachariah)
(Rep. by Sri.A.K.Vasanth, Advocate) …. Opposite Party.
BY H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay the sum of Rs.1,40,995/- with interest at the rate of 10%, are necessary:-
The complainant has placed an order with the opposite party for erection, installation and maintenance of Schindler passenger elevator (Model No. S3300) on 23.09.2009 and paid Rs.11,58,718-45 paise which was erected on 15.11.2010 and also the officials of the Government electrical Inspectrate inspected the spot and issued license in this regard. But the opposite party did not deliver the passenger elevator. The complainant wrote to the opposite party on 18.12.2010. On 27.12.2010, the opposite party handed over the elevator to the use of the complainant. The opposite party has to maintain the same free of cost between 28.12.2010 and 27.12.2011. On 24.05.2011 the elevator broke down and it was informed to the opposite party. The service engineer visited the place on 25.05.2011 verified the same and said that because of high flow of voltage it was damaged and the complainant has to place an order for repair and pay for it. The complainant asked the concerned that when the other lifts and other electrical and electronic components in the building is still working how this particular elevator alone could be damaged, because of alleged high flow of voltage and further asked if there is high voltage of electricity all other electrical and electronic items of the entire complex should have been damaged. There was no answer. Having no option left, considering the necessity of the elevator, under force, and circumstances the complainant wrote to the opposite party on 16.06.2011 placing the order and the complainant was made to pay of Rs.1,40,995/- for repair and hence the complainant issued notice to the opposite party on 13.07.2011 seeking refund the same but it has not been paid. Hence the complaint.
2. In brief the version of the opposite party are:-
The placing of the order, manufacturing of the elevator, fixing it, handing over possession are all admitted. There was no delay in handing over possession of the elevator to the complainant, is as per the terms of the agreement that has been entered in to between the parties. Receiving information about the breakdown of the lift/elevator on 24.05.2011 the engineer visited the place are all admitted. The engineer found that due to the high flow of electricity the SMIC (Printed Circuit Board), SDIC (Printed Circuit Board), SCOP (Printed Circuit Board), Fermator Door Module, Encoder for Main Motor are damaged. Hence as per Clause-3 of the agreement the said damage cannot be repaired free of costs and the complainant has to pay for it and to place a work order. Though the entire repair charges was Rs.1,91,430/- to keep the complainant in good hummer they charged Rs.1,40,995/- and repaired it. All the allegations to the contrary are denied.
3. To substantiate their respective cases, the parties have filed their respective affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant has placed an order for erection, installation and maintenance of Schindler Passenger elevator Model No.S3300 on 23.09.2009 for his 4 storied apartments and paid Rs.11,58,718-45 paise. It was erected in the building of the complainant on 15.11.2010 and was inspected by the Government Electrical Inspectrate who issued license in this regard. As the opposite party did not handed over the passenger elevator as per the schedule, the complainant wrote to the opposite party on 18.12.2010 and the opposite party handed over the lift to the complainant on 27.12.2010 and as per the agreement the opposite party itself has to maintain the elevator between 28.12.2010 to 27.12.2011 free of costs.
7. It is also an admitted fact that on 24.05.2011 within five months from the date of handing over possession of the elevator, it broke down and the SMIC (printed Circuit Board), SDIC (printed circuit board), SCOP (printed circuit board) Fermator Door Module (Door Drive) Encoder for Main Motor was damaged as inspected by the engineer of the opposite party on 25.05.2011.
8. In this regard the complainant made queiry that except the concerned lift no other lifts in the building or no other electrical items or electronic items situated in the said complex was damaged as the engineer stated that because of the high inflow of the voltage these things were damaged; which was not accepted by the complainant. But however because of the urgency and necessity as per the demand of the opposite party the complainant paid the amount of Rs.1,40,995/- and got the elevator repaired. Now we have to see whether this is deficiency in service on the part of the opposite party or not.
9. The main contention of the opposite party is that as per Clause - 4.01 and 4.02 of the agreement the damage due to high inflow of the electricity voltage is excluded. These clauses reads thus:-
“4.01. - Costs of Call Backs and repairs necessitated by reason of negligence or misuse of the installation, or by reason of any cause except normal usage, shall be borne by the “Customer”. All damages due to rain, water, fire or any other calamity, acts of nature and God, Vandalism, Acts of Government, Strikes, Theft, Blasts, Explosions, Floods, Riots, Civil commotion, War, Malicious mischief, etc.
4.02. - Any work or replacement caused by interruption or variation of electrical current supply.”
There is no dispute that in case of any damage due to voltage the said repair will not come within the ambit and scope of free maintenance.
10. In this case if there is high voltage was there on 24.05.2011 naturally all other lifts in the said building, other electrical and electronic components, materials, gadgets in the building should have been damaged, but that has not been damaged, admittedly. Then how can the lift/elevator only got damaged? There is no answer.
11. The complainant has stated and sworn to thus:-
“The complainant has asked the engineers of the opponent the basis for their opinion that the some parts of the elevator were damaged due flow of high voltage. For which, the engineers of the opponent did not give specific answer to substantiate their finding. It is submitted that the complainant also showed to the engineers of the opponent that all his other electrical and electronic items were safe and if there is any high flow of voltage as opined by the engineers of the opponent, then all or at least some of his electrical and electronic items would also have been damaged and the complainant also brought to their notice that the Opponent is under an obligation to maintain the elevator for one year free of cost and requested the opponent to replace the damaged parts free of cost. It is further submitted that, the opponent refused to replace the damaged parts freely and in turn asked the complainant that unless and until, work order is issued, they will not replace the damaged parts of the elevator.”
This has not been specifically challenged or denied by the opposite party nor the engineer concerned has filed an affidavit in this regard. The person who has sworn to affidavit on behalf of the opposite party is Vinay Tuteja who is the head operations of the opposite party at Bangalore and he is the authorized signatory of the opposite party. He is not the engineer who visited the complainant’s premises on 25.05.2011. Then how this engineer came to the conclusion that because of high inflow of the electricity voltage the elevator/lift was broke down? There is no answer. When other materials, other electrical components, electronic components, gadget items, etc., in the entire building or 4 storied apartment were perfectly in order, how can only a particular lift/elevator erected by the opposite party alone could be damaged? There is no answer. When the complainant asked the same question to the opposite party’s engineer on 25.05.2011 he did not answer it at all. That means to take advantage of the Clause -4.02 of the agreement and to avoid their responsibility of free maintenance the opposite party has restored to this untenable action, as rightly contended. This is nothing but unfair trade practice and deficiency in service as rightly contended.
12. When the opposite party has collected lakhs of rupees from the complainant for the erection, installation and maintenance of the lift it was their bounden duty to maintain do the same free of costs, but when the lift broke-down within five months to avoid maintenance and to put the complainant in dilemma forced him to pay money for it, is nothing but unfair trade practice.
13. In business or in life ups and downs are there. The person who has to bear it has to bear it. If he does not do it is life or business that will be spoiled. The opposite party must bear this in mind. It has lost sanity in this regard. Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to pay Rs.1,40,595/- to the complainant together with interest thereon at the rate of 12% per annum from 16.06.2011 until payment within 30 days from the date of this order.
3. The opposite party is also directed to pay Rs.2,000/- towards costs of this litigation.
4. The opposite party is directed to send the amounts as ordered at Serial Nos.2 & 3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 18th Day of January 2012)
MEMBER PRESIDENT
