This complaint petition is filed by one Shri Pradip Kumar Ganeriwala, S/o late Biswanath Ganeriwala, “Karta” of Bishwanath Ganeriwala (HUF) of 16/B, Ganeriwala Court, Rowland Row, P.S. – Ballygunge, Kolkata – 700020 against M/s. Schindler India Pvt. Ltd., having Regional office at DN – 12, 7th Floor, Sector – 5, Salt Lake City, Kolkata – 700091 as sole Opposite party for gross acts of negligence, deficiency of services and unfair trade practices u/s (12) of the Consumer Protection Act, 1986.
The case of the complainant as averred in a concise form is that the complainant required replacement of the existing elevator of their residential building namely Ganeriwala Court and accordingly awarded the job to the OP company for supply and installation of the new 8 passenger automatic door lift car. The business development manager of the OP company visited the work site along with engineer for inspection of the existing elevator shaft to take measurement and after undertaking complete inspection and measurement of the elevator shaft confirmed feasibility of the installation of that 8 passenger automatic door lift car. The complainant on good faith and belief placed order for supply and installation of the said equipment on the OP company by signing (as per Sl 3 of complaint petition) and making an advance payment of Rs. 1,51,000/- out of total order value of Rs. 13,90,040/- after the technical inspection. Upon receipt of advance payment, the OP sent e-mail to complainant disclosing that the said lift can be installed only after chipping of 100 mm space inside the elevator duct, either in front or rear of the existing wall. Thereafter the OP recommended the complainant an alternative, to modify that 8 passenger elevator installation to a 7 passenger elevator instead, for the convenience and suitability of OP. The complainant consulted structural consultant internally who later advised not to proceed with such amount of cutting and chipping of the walls of the elevator shaft, being the building structure more than 50 years old and dangerous on structural instability. The complainant obtained copy of building plan from Kolkata Municipal Corporation on 01.02.2019 and 26.02.2019 for this purpose and accordingly decided not to accept the suggestion of the OP for cutting and chipping of the existing duct wall, being the job technically not feasible for installation of a desired capacity of elevator of 8 passenger automatic door lift, although the OP company conducted a technical survey of the existing lift shaft/duct before accepting the order and advance payment from the complainant. On 27.04.2018, the OP company sent e-mail to complainant to consider the additional chipping issue and confirmation thereof by the complainant to proceed with a 7 passenger elevator instead of 8 passenger elevator. But the complainant replied to the OP company on 04.07.2019 to cancel the said order. Again on 09.05.2019, the OP company sent another e-mail stating that since chipping of additional 100 mm in the shaft wall not getting possible, hence to wait for sometime till the proposed work gets customized by their design department. Thereafter, on 04.07.2019, the complainant sent another e-mail asking the OP to cancel the order for aforesaid operational reasons and refund of advance amount of Rs. 1,51,000/- to which the OP company provided an alternative solution to install a 8 passenger lift but of a different cabin size being smaller than the original cabin size as per original order which might require a reduced chipping of 30 mm instead of 100 mm along with a fresh proposal for acceptance of the modified order and balance payment thereof. But the complainant stuck to cancellation of order, being advised by their structural architect about not to go with any kind of chipping, considering age of the building which may cause further damage. Accordingly complainant once again refused OP company’s proposal for 30 mm chipping in the elevator shaft wall and reiterated about cancellation of order. On 08.09.2019 (erroneously mentioned as 08.09.2018 in complainant’s letter to OP) in reply to the request for cancellation of order and refund of advance amount, the OP sent e-mail on 12.07.2019 treating the order as cancelled and sent a claim of Rs. 57,500/- as balance due, out of a total cancellation cost of Rs. 2, 08,500/- after adjustment of Rs. 1, 51,000/- already advanced. Although the complainant opposed the move of the OP company but the OPs, in spite of undertaking inspection, survey and measurement of the work site and having confirmed the feasibility of installation of that 8 passenger elevator, malafidely and to encash the advanced amount and to meet sales target, came up with a proposal of installation of a lower capacity elevator to justify their deceitful intention. The Ld. Advocate of the complainant during final arguments, denied having executed any agreement by endorsing on the agreement paper. The complainant prayed for a refund of the advance amount of Rs. 1, 51,000/- along with an interest @ 12% per annum from the date of payment along with Rs. 50,000/- for deficiency of services to compensate mental agony etc. and being the complainant a senior citizen, along with a litigation cost of another Rs. 50,000/- along with reimbursement of Rs. 17,200/- that was spent to procure approved structural plan from KMC.
The OP company during final hearing argued about maintainability of the complaint petition on the ground that the contract has been executed between Biswanath Ganeriwala (HUF) and OP but Pradip Kumar Ganeriwala filed complain as ‘karta’ of that HUF and not in the name of HUF wherein ‘karta’ of a HUF is not a ‘consumer’ as per definition u/s 2(7) of the CP Act 2019. The OP company also in their W/V denied and disputed all the charges levelled against, regarding negligence, deficiency in services and/or unfair trade practices. The Ld. Advocate filed BNA and also argued that on 28.03.2018 contract was executed but prior to that an initial site inspection was conducted when complainant was clearly communicated about the existing lift that it is a manual door lift and chipping would be required for 8 passenger lift installation, to which the complainant agreed. The OP reiterated that the scope of all Civil and Electrical work, as per signed contract, remains under the scope of the complainant to which they failed to comply with and therefore was in breach of contract. OP also alleged that the complainant kept on insisting to get the 8 passenger lift adjusted in the existing shaft as the required chipping could not be done citing reason that the building being quite old. Being a customer oriented company, the OP started reworking with alternative solutions by customizing either with a 7 passenger lift or by a minimum chipping of 30 mm for a 8 passenger lift not requiring chipping but with an escalated cost for Rs.16,28,400/-. But the complainant did not agree to the alternatives advanced by OP by email dated 09.05.2018 and 29.04.2019 and rather stuck to the decision on cancellation of work order vide emails dated 28.06.2018, 04.07.2018, 31.08.2018, 02.06.2019 and 12.06.2019 alongwith rounds of verbal discussions. Accordingly the OP company vide email dated 12.06.2019 confirmed the cancellation of order and claimed the balance of cancellation amount from complainant for Rs. 57,500/- to close the accounts. The OP claims that the complainant failed to exhibit any document about any agreement persisting between parties depicting that the OP was supposed to install the 8 passenger lift in the old duct of the existing building without any chipping. The complainant was also allegedly aware about the prerequisite chipping work requirement, as per his answer to question 2(d) stating that ‘a little change be made if required’. Thereby OP denied all the charges and argued interalia that the complainant’s petition is not supported by any factual proof and devoid of merit and hence be rejected. Therefore the summary of the stand of OP taken are
(1) the complaint is not maintainable being the complainant as HUF whereas the complaint was not filed not in the name of HUF but in the name of Karta who is not a consumer u/s 2(7) of the CP Act, 1986
(2) Cancellation cost is strictly as per the contract
(3) the complainant after placing order and signing contract adopted the cancellation process but refusing to comply with the clause of termination of contract
(4) the complainant failed to provide any cogent reason showing that the OP was supposed to install 8 passenger lift in the old duct without any chipping. Rather the agreement says that the complainant was responsible for all civil work. Though the OP agreed to install the elevator as per contract but the complainant kept on making unreasonable grounds to cancel the contracts and even refused customization of the job work as per their own whims. Hence the complainant is liable for cancellation charges as per agreement.
The final arguments of both sides were heard in full and documents perused. All the points are taken up together to avoid repetition.
This complaint is filed by a Hindu Undivided Family through it’s ‘karta’. The reinstallation work of 8 passenger elevator is proposed at a building named as Ganeriwala Court which is a prominent residential multistoried apartment. HUF is a consumer within the definition of the CP Act 1986 for buying any goods or services and the definition of a ‘person’ includes a HuF u/s 2(31)(iii) of Consumer Protection Act. It may now be adverted to the provisions of the Act laying down as to who is the Consumer. The principal question swirls around the controversy in this case is whether the purchase is for self use or not. The decision in the cited Judgement by the OP herein, in the matter of Arun Kumar Gupta vs. Suncity projects Ltd. does not really militate against this conclusion. It deals with the question that whether Karta of a HUF, though a consumer, but cannot be treated to have purchased property for self use, to be within the ambit of Section 2 of the CP Act 1986. The immovable property proposed to purchased is obviously for a purpose other than self use. The point of consideration there was that whether the immovable property proposed to be purchased was for self use or otherwise. As such, the complainant could not be treated as a consumer. But for the case in hand, it is based on identical or similar fact but rather on a different footing. In this case the services the complainant was having an existing facility and looking for replacement by reinstallation of elevator at his residential building. A person who buys a car and uses them for personal use is certainly a consumer but a person who buys a typewriter or a car for typing others work, for consideration or for plying the car as a taxi, can said to be using the typewriter/car for a commercial purpose. This replacement work of lift in a residential building can no way be imagined something, except for self use (may be in part or full). Hence there is a disproportionate diversion between the cited example of the referred judgement by the OP and the instant case does not fit in there. As such, the case of the complainant is quite maintainable as a consumer as per Consumer protection Act 1986 or 2019.
From the exhibits, sequence of events and plethora of replies exchanged between contesting parties, it is apparent that an agreement was executed between parties on 28.03.2018 which is admitted fact by complainant in complaint petition as well as per copy of exhibit from both the sides. The Ld. Advocate during final argument denied about executed agreement, in absence of signature from the complainant side but the same is not plausible having adequate direct and indirect evidences about acceptance of the said agreement by either party and one signed copy of agreement exhibited by OP. Advance payment was made by complainant around or before that date only, since agreement already executed, though both sides are conspicuous in abstaining to mention advance payment date. There is nothing on record about the date of initial site visit or inspection records either. As per exhibits, it transpires that the actual site work including referring the work to the design department of the OP company started flowing on or before 27.04.2018, when the OP company after site visit, sent the site measurements for preparation of drawing for 8 passenger lift with 100mm chipping requirement of elevator duct. When it appeared to OP that 100mm chipping might be difficult considering the existing construction, an alternative proposal for a 7 passenger car was suggested to complainant to avoid complications with reduced cubicle size. The proposal of OP was sent on 27.04.2018 by e-mail to the complainant for acceptance so that upon confirmation, OP would finalise drawing for approval and procure new lift material at site. But the complainant refused by reply dated 30.04.2018 and cancelled the order. The OP reminded complainant about their initial agreeing for chipping of front wall and suggested alternative by minimum chipping of 30-40mm. The complainant again refused vide e-mail dated 28.06.2018 and 04.07.2018. Again vide e-mail dated 05.07.2018, the OP company suggested further alternative with a change in design b 30 mm chipping, but the complainant again vide e-mail dated 05.07.2018 intimated OP that having discussed with the structural architect about the suggested chipping, it would not be possible for chipping of any thickness at the back wall (being only 4 inches) in the duct of the building structure with 60 + years age and refused the option offered by the OP. The complainant further took up with OP for cancellation of the order due to non-viability at work site and operational reasons vide various mails dated 09.08.2018, 31.08.2018 and 21.01.2019. At this juncture the OP vide e-mail dated 08.09.2018 accepted cancellation of the said order invoking cancellation clause. The complainant vide e-mail dated 21.01.2019 refuted having the order placed subsequent to inspection and assurance about installation with a claim of refund of the advanced amount. However the OP company resisted the move and disputed the contention of the complainant vide e-mail dated 21.01.2019 and insisted upon settlement of account by refund or to adopt the second option as offered by the OP company. The complainant sent a letter on 15.03.2019 enumerating the advent of the dispute and claimed that OP company having sent e-mail dated 09.05.2018 to complainant (erroneously written as 09.05.2019) claiming that the second option of chipping wall for minimum 30-40mm to accommodate a 8 passenger car was referred to the design department of the OP. The complainant also refused the OP company‘s contention by reply e-mail dated 08.09.2018 (erroneously mentioned as 08.09.2017) about cancellation cost @15% on the total work order value.
It is evident that both complainant and OP on 28.03.2018 signed agreement for ‘replacement of elevator (including supply and installation)’ and as per the salient features of the technical data sheet therein, it appears that order was placed for machine room less 8 passenger 1100mm X 1300mm X 2135mm car size of 800mm door width. The sales order included prerequisites at the work site which is under the scope of complainant vide clause no. I (1) of General Contract Requirement (minor civil work requirements) that ‘all minor builder work related to the installation of the elevator’. The sales order also includes that OP company role would be limited to coordination for inspection that is required as per statutory norms as applicable. The price schedule, cancellation cause and termination of contract clause were also included were signed by the. As per 1st. para of Cl (III) under heading of Financial Justification, it is categorically mentioned the ‘our proposition (OP Company) for the delivery, complete installation and testing of 1 Elevator as described in this tender will be undertaken at the following conditions….. etc. Therefore the OP company accepted the entire work or sales order till complete installation and testing. The work by OP was to be carried out includes to provide world class comfortable technology who is considered as global leader in that field. As per cl no. III 1st para of agreement dated 28.03.2018, it is the admitted position of the OP company that the job for which order was placed, includes delivery, complete installation and testing. This is not possible unless the technical bid in a tender (as mentioned by OP company) iqualifies and pending that price bid can’t be opened. In other words, unless a work is technically gets feasible, the price bid can’t be opened or even dealt. This is a well settled principle of Law. A works contract is entire and indivisible. It is in no sense, a sale of goods. When a work to be executed is, as in the present case, an elevator facility under the name and style of 8 passenger elevator, the construction and placement embedded on the guard rails mounted on the duct walls becomes accretion to it and it vests on the work merit. Hence the whole job work has to be seen in it’s entirety and not in piecemeal. U/s 2(12) of the Consumer Protection Act 1986, the ‘design’, in relation to a product means “-
‘the intended or known physical and material characteristics of such product and includes any intended or known formulation or content of such product and the usual result of the intended manufacturing or other process used to produce such products and the usual result of the intended manufacturing or other process used to produce such product’.
The OP is not a local company. The Opposite party who justifies it’s work as per the international standard is expected to put records for the list of prerequisites of compliances from their customers or the complainant, also in that level, for which they had accepted the order, knowing about it’s system and procedures. An automatic lift or elevator, either used for residential or commercial, includes its components as elevator car, doors, hoistway or shaft, control systems, auto rescue device, counterweights, guide rails, communication system, illumination, ventilation etc. In order to show deficiency of complainant to give pre-requisites, the OP company ought to have established the deficiency at the ‘point of sale’ requirements from complainant through strict proof thereof as the entire job included delivery and installation upto testing stage, which is otherwise impossible without ensuring technicafeasibility of the work site in respect of all parameters including support structure e.g hoists and mounting embedded on duct walls, and not only a mere sale of goods.
On the other hand, the Complainant voluntarily cancelled the agreement. Nowhere the Complainant stated that preparatory work mentioned in requirement list as part of agreement, was complied by him. The main logic of the complainant that though OP company physically inspected and measured the work site in respect of order booking and after accepting the advance payment and put forward alternate option after collection of the sales order due to technical unviability, does not hold good. Not only the site preparation was under the scope of complainant as per agreement, but also it is never possible to take up the erection, commissioning and testing of the equipments by the vendors unless the same is allowed by complainant. It is also evident from the date of procuring approved drawing of structural plan from Kolkata Municipal Corporation as averred by complainant, that the triggering point to cancel the agreement/order already executed/placed, leads to establish that the steps by complainant was carrying an element of afterthought. However it was never mandatory on the part of complainant to accept the alternative propositions of the OP company, either to customize the design or to accept new designs with an escalated cost of Rs. 16,28,400/- instead of the original cost of Rs. 13,90,040/-.
While the above discussions clearly show that number of requirements/obligations imposed on the Complainant does not empower the Complainant to unilaterally cancel the agreement on the ground of technical viability at a later stage after execution of agreement and though there has been an omission in the duty and breach on the part of the complainant which has materially contributed to the damage but on the other hand the OP company should have accepted the order and signed agreement after removing or at least dealing with the design defects at the stage of point of sale .
Therefore it is a failure on both the sides of the parties leading to ‘contributory negligence’. It is a defence under torts. As the complainant has also contributed to the damages by being negligent, then he is also guilty of contributory negligence alongwith the opposite party. The complainant is entitled to some relief. But the complainant has failed to produce any cogent documentary evidence in support of their claim that during making advance payment, the OP company did not mention about the site requirements that were falling under the scope of the customer cum complainant. specially when there is reflection of the same in the agreement between the parties and during question and reply between parties, to that effect. It has become quite difficult to assess the claim of having knowledge about prerequisites about site worthiness by either party at the outset in want of cogent evidence from their claim and counter claims. As per the legal doctrine of contributory negligence, it prohibits the affected person from recovery of compensation in a personal injury claim, if they are even minimally responsible for their own injury.
Hence we are of the view to apportion the loss between the parties as seems just and equitable.
In the facts and circumstances stated above the following order will meet the ends of justice.
Order
OP is directed to refund Rs, 1, 51,000/- to the complainant of the case, after deduction of taxes (if any, already paid) within 60 days from the date of this order.
There will be no order as to costs.
In default to comply with above Order, the amount shall carry simple interest @ 9% per annum from date of order till realisation
The Registrar of this Commission is directed to provide a copy of this order to the parties as per CPR.
Dictated and Corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
