Tamil Nadu

North Chennai

CC/42/2017

Tmt.Shanthi w/o.sankar Late - Complainant(s)

Versus

The Electrical Eng chennai south Division - Opp.Party(s)

S.Mani

30 Sep 2019

ORDER

 

                                                            Complaint presented on: 27.03.2017

                                                               Order pronounced on:  30.09.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

MONDAY THE 30^th  DAY OF SEPTEMBER 2019

 

C.C.NO.42/2017

 

1.Tmt.Shanthi,

W/o. Shankar (late)

 

2.S.Praveen Kumar, Minor,

S/o. Shankar (Late)

 

3.S.Prasanth Kumar, Minor,

S/o. Shankar (Late)

Minors are rep.by their Mother,

All residing at No.54, South Street,

Paranur Village, Thirukovilur Taluk,

Villupuram District.

 

                                                                                        …..Complainants

..Vs..

1.The Electrical Inspector,

Chennai South Division,

Thiru.Vi.ka.Industrial Estate,

Guindy, Chennai – 600 032.

 

2.M/s.Chitra Avenue Flat Owners Welfare Association,

Chitra Avenue,

No.9, Choolaimedu High Road,

Chennai – 600 094,

Now Represented by its Administrator.

 

3.Thiru.S.Suresh Kumar,

Advocate,

No.271, New Additional Law Chambers,

High Court Buildings,

Chennai – 600 104.

 

4.Tmt.Dr.Shantha,

Flat No.304, Shopping Inn Block,

Chitra Avenue, No.09, Choolaimedu High Road,

Chennai – 600 094.

.....Opposite Parties

Counsel for Complainant                     : Mr.S.Mani

 

Counsel for 1^st opposite party                 : Mr.T.Ravikumar

 

Counsel for 2^nd & 3^rd  opposite parties    : Mr.S.Dhayaleswaran

 

Counsel for 4^th  opposite party                      : Party in Person 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

 

          This complaint is filed by the complainant to direct the opposite parties jointly or severally to pay the complainants a sum of Rs.16,40,000/- towards the unnatural and accidental death of one Sankar with interest at the rate of 12% from the date of this complaint with cost u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

 

The first complainant is the widow of the deceased Thiru.Sankar. who was  trapped and fell into the lift pit resulted in his unnatural death on 07.09.2015 in a multi storied residential building at Chitra avenue, No.9, Choolaimedu High Road, Chennai – 94. The other two complainants are her minor sons. The first complainant’s husband Shankar was a  Civil Masonry Assistant. On 07.09.2015 the 4^th opposite party who is a flat owner in shopping-in  block of  Chitra Avenue, Choolaimedu engaged the services of  Mason Arumugam and helpers to carry out alteration work in the bathroom of her flat. The deceased Shankar was doing his work under the said Mason Arumugam and after lunch break he was not seen. He had not returned home and his body was found the  next day morning in the lift pit of the apartment which was erected for the movement of the lift up to seven floors. A complaint was lodged before  Choolaimedu Police Station  and registered in Crime No/2519/15 u/s 174  CrPC  on 08.09.2015 and  the investigation is pending. On investigation with respect to function of the lift it was found that  no license have been obtained  and the lift was allowed to operate without any license at the time of accident and the lift is outdated and not safe for human life. On 14.09.2015 the lift was stopped operating after communication being given by the 1^st opposite party. If the 1^st opposite party had taken steps to discharge his statutory duties by preventing the operation of the unlicensed lift in a residential complex the accidental death could have been avoided. Under the Tamilnadu Lifts Act 1997 sec 2(h)(iv) the owner includes  any person or authority to whom the control or possession is entrusted. The 3^rd opposite party has been appointed as the administrator by the Madras High Court to look after the day to day affairs of the 2^nd opposite party’s association and the 4^th opposite party paying maintenance charges to 3^rd opposite party.   Hence the 2^nd & 3^rd opposite parties are liable and answerable. The incident happened due to gross negligence and failure to obtain license for the lift installation.  The 1^st opposite party had failed to take  appropriate action  against the operation of unlicensed lift and  failed to discharge his statutory function. Notice to that effect and also the rejoinder after the reply is received from opposite parties 1 to 3  are given by the complainant. The lift entry is for public also.  Hence the deceased cannot be termed as a trespasser. Hence opposite parties  1 to 3 are jointly or severally liable for the act.  Hence the complaint.

2. WRITTEN VERSION OF THE   1^st OPPOSITE PARTY IN BRIEF:

 

The lift  is meant for the travel of passengers only and  not meant for the transportation of materials. The agency which carried out the maintenance of the lift  installation has been approved by this opposite party. Finding of dead body inside the lift  pit is not sufficient evidence to claim it to be accident due to malfunctioning of the lift and the complainant admits that investigation is still pending. The complainants could not be consumer entitled to service  within the ambit of the Consumer Protection Act.

 

3.WRITTEN VERSION OF THE 2^nd OPPOSITE PARTY IN BRIEF:

 

The 2^nd & 3^rd opposite parties are the appointed Administrator by the Hon’ble High Court  and discharging the functions on behalf of the association. Since the 4^th opposite party had engaged the deceased for mason work,  it is for the complainants to work out their remedy against 4^th opposite party  and  cannot invoke the provisions of Consumer Protection Act and they have to work out their remedy under the scheme of workmen compensation act. The deceased Shankar is a third party and this third party had no dealings with 2^nd opposite party and 4^th opposite party had not obtained permission from the 2^nd opposite party to carry out repair work. The deceased Shankar is not a Consumer Under Sec 2(b) of Consumer Protection Act 1985 and the complaint is not maintainable. There is no object in the by-laws of the association regarding lifts.

4. WRITTEN VERSION OF THE   3^rd OPPOSITE PARTY IN BRIEF:

 

The 3^rd opposite party is the appointed administrator by Hon’ble High court and performing duties entrusted to him by Hon’ble High court. Complainants have to prove all the allegations put forth by them. Hon’ble High court was pleased to permit the lifts to be operated from 29.10.2015 and insurance to cover the lift and accidental risk of its users is not mandatory. This opposite party is not liable for any untoward incident that took place. Strangers, outsiders, and trespassers are not allowed to use lifts in private multi storied residential complexes. Use of lifts by unauthorised persons is not only prohibited but is offensive one. The alleged entry of the deceased into the complex as well as in the lift is without permission, intimation, and identity can be termed as trespasser and unauthorised entry. No service is offered to the deceased or the complainants so as to plead deficiency in service. There is no guaranteed or promised service and no deficiency in service.

5.WRITTEN VERSION OF THE 4^th  OPPOSITE PARTY IN BRIEF:

 

On the advice given by the plumber 4^th opposite party  had engaged the services of one Arumugam maistry doing the renovation work in the bath rooms on 07.09.2015 and he seems to have engaged the deceased  as assistant and the name and details is not known to this opposite party  and only later she came to know about it. It is the responsibility of the association to obtain license for the lift from the 1^st opposite party. Being a flat owner, this opposite party had no role to play in the day to day affairs. This opposite party is paying maintenance to the 2^nd opposite party and now it is being managed by the 3^rd opposite party as per High Court Order. The 4^th opposite party is added as a formal party without any relief prayed for. The complaint is not maintainable and the complaint is to be dismissed.

06. All the opposite parties have filed their written version, and proof affidavit except the 4^th opposite party.

07. POINTS FOR CONSIDERATION:

 

1.Whether deceased Shankar comes under the definition of consumer  and    

    is the complaint  maintainable by the complainants?

 

2. Whether there is deficiency in service on the part of the opposite

     Parties 1 to 3?

 

          3. Whether the complainants  are entitled to any relief? If so to what extent?

 

08. POINT NO :1        

 

          The first complainant is the wife and the other complainants are  minor sons of  deceased Mr.Shankar, who fell into the lift pit resulted in death on 07.09.2015 in a multi-storeyed residential complex at  Chitra Avenue,  Choolaimedu  High Road, Chennai - 94. The 4^th opposite party who is one of the flat owners in shopping inn block at Chitra Avenue engaged the services of a Mason Viz. Arumugam to carry out alteration/renovation work in the bathroom of her flat. The deceased was engaged by the Mason Arumugam as his helper to attend  the work on 07.09.2015. Since he did not return home his wife went in search of him and came to know that her husband’s body was found in the lift pit. The matter was informed to F-5, Choolaimedu Police Station and FIR was registered in Crime No.2519/15 under section 174 Crl.PC and the copy of the same is Ex.A2. The death report  and post-mortem certificates are Ex.A3 & Ex.A4. Ex.A1 notice is given by the 3^rd opposite party to the residents of  Chitra Avenue  to make known to them of the appointment of Administrator/Advocate Commissioner for the purpose of  looking after  the functions of association as per order of the Hon’ble High Court in Contempt petition No.3040/15 in MP.2/11 in CRP 3955/10  and administrator had taken charge on 25.04.2015.

09. The 1^st opposite party had inspected the site after information received from the police with reference to installation and maintenance of lift. On inspection it was found that there is no license as per the requirement of Tamil Nadu Lifts Act 1997. Ex.A5 proceedings dated 14.09.2015 was given  by the 1^st opposite party to the residents of Chitra Avenue to stop operating the lifts and to obtain license for the same. Based on Ex.A5,  a  notice was issued by the 3^rd opposite party as an administrator to the residents of Chitra avenue in Ex.A6. Death certificate of the deceased Shankar is Ex.A7.  Ex.A8 is the reply by Electrical Inspector to the complainant. Ex.A9 notice dated 30.01.2017 was issued by complainant to Chief Electrical Inspector, Electrical Inspector and Administrator, Chitra Avenue residents association claiming damages for the death of the deceased Shankar with acknowledgments and reply  by the 3^rd opposite party and rejoinder by the complainant is submitted in Ex.10 & Ex.A11.Status of Registered FIR is under investigation displayed in Ex.A12.

         10. The contention of the complainant is that the first opposite party is the licensing regulating authority nominated under the Tamilnadu Lifts Act 1997 and he  is empowered to take action against the operation of the unlicensed and ill- maintained lifts in South Chennai. But, he failed to take action and if he had discharged his duty conferred on him diligently, the accidental death could have been avoided. The 2^nd opposite party is the association of flat owners having control of operating the  lift in the apartment for the residents/visitors/workers and they have not maintained  and failed in their duty and the very same duty is cast upon the 3^rd opposite party since he is collecting maintenance charges  on behalf of the association and also  as per section 2(h)(iv) of Tamilnadu Lifts Act 1997, the 3^rd opposite party collecting the maintenance on behalf of association is to be treated as owner. The 4^th opposite party being a flat owner is contributing her maintenance  charges for the lift  to the association.  As per section 2(1)(d) the person engaged by the 4^th opposite party is also  beneficiary to avail the services on her behalf.  Hence the deceased comes under the definition of consumer and the legal heirs  are entitled to get the benefit under the consumer protection act for deficiency in service by 1 to 3 opposite parties.

11. The learned counsel for the complainant produced the following citations to  support his argument with reference to the deceased is a Consumer Under Consumer Protection Act.

1. I (2014) CPJ 344 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

RASHMI HANDA & ORS

565.  

OTIS ELEVATOR COMPANY (INDIA) LTD. & ORS

 

2. 2017 (3) CPJ 402:2017 (3) CPR 405:2017 NCJ847 :2017 (4) CLT 56

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

C.SUKIMARAN & ANR. R/O ANGODE HOUSE, KIZHAKKANCHERRY MANKAD, ALATHUR TALUK PALAKKAD KERALA – COMPLAINANTS

565.  

M/S.PARASVNATH DEVELOPERS LTD. & ANR. THROUGH ITS MD, 6^TH FLOOR, “ARUNACHAL” 19, BARAKHAMBA ROAD NEW DELHI – 110 001 – OPPOSITE PARTIES

 

3. 2019 (1) CWC 900

IN THE HIGH COURT OF MADRAS

•  
•  

CHAIRMAN, TAMIL NADU ELECTRICITY BOARD

 

4. I (2015) CPJ 662 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

•  
•  

CARE ELEVATORS ENGG.CO.PVT.LTD. & ORS

 

The opposite parties 1 to 3 would contend that the deceased is not a consumer under Consumer Protection Act along with other points.

12. Copy of the Hon’ble High Court orders are marked as Ex.B1 to Ex.B3 and the petition copies filed by the 3^rd opposite party  to strike out  his name in the complaint which is filed in his personal capacity  and its counter are produced as Ex.B4 & Ex.B5. Copy of the order for the appointment of second opposite party as Administrator is Ex.B6 & Ex.B7 is the order for the appointment of Mr.Natarajan Advocate  as Administrator after relieving 3^rd opposite party.

13. The 4^th opposite party had engaged the services of a Mason by name Arumugam and the deceased was engaged or brought by the said Mason Arumugam  as a helper. The  4^th opposite party had engaged Mason Arumugam in her individual capacity so far as the renovation of her  residential bathroom work is concerned. Section 2 (1)(d) of consumer protection act 1985 reads as follows;-

“Consumer means any person who-

(ii) (hires or avails of)  any services for consideration which has been paid or promised ,or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avail of ) the services for consideration paid or promised , or partly paid or partly promised , 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 purpose).

 On reading of the above it is clear that a person is a consumer who buys any goods or hires or avails of any services from someone for consideration. Therefore in order to succeed in the consumer complaint the complainant is required to prove that the alleged entry with authorised permission of the 4^th opposite party into the flat and then the deceased had offered services in consideration of the payment.  In this case the 4^th opposite party had availed the services of one Mason Arumugam, to do bathroom repair work for her flat exclusively. The allegation of information not given to 2^nd opposite party i.e. to the association is not denied by the 4^th opposite party. As per the written version of the 4^th opposite party, she came to know about the engagement of the deceased Shankar  by  Mason Arumugam as his helper  from the complaint.  Therefore the alleged entry into the apartment by the deceased  Shanker was without permission and unauthorised. Association was also not informed about the entry of the mason and to carryout repairs in one of the flat owned by the 4^th opposite party. However by engaging Mason for 4^th opposite party’s  personal work,  the contractual relationship exists between  4^th opposite party and  Mason Arumugam. Neither the association nor the other opposite parties are involved in the matter. The deceased  is said to be the worker who was hired by the said mason Arumugam to assist him as per the information given by brother of the deceased before the police to register FIR.   Even if the deceased had done some work as a helper for Arumugam, as argued on the side of the complainants the involvement of the work  done by the deceased cannot be construed as he is the beneficiary  under the 4^th opposite party in view of her paying  maintenance  to the association.  Reading of 2(O) services,  concerned Lift   in a multi-storied building would amount to rendering service within its meaning, but it has nothing to do with this case since the deceased is not considered as  a consumer. Hon’ble High Court of Madras  discharged the 3^rd opposite party  from being the administrator of the said apartment by its order dated 05.06.2017.  Then 3^rd opposite party had handed over the charges to the then appointed administrator and the order copy is produced and also the fact is known to the complainants. Therefore adding   3^rd opposite party as a party in his personal capacity is not correct and the complaint is also not maintainable for the above said reasons.

         14.  Investigation  regarding Criminal Case is still pending admittedly and also the  cause of death is  not revealed in Ex.A4 which is very relevant to this case. Even if the points put forth by the learned counsel for the complainants is taken into consideration it is admitted by the informant the brother of the deceased in Ex.A2 that the deceased Shankar had gone to work as “Siththal” under Mason Arumugam. The words incorporated in the complaint such as, “The deceased made an attempt to enter into the lift in the third floor to go down with a view to bring the materials  and the lift shutter doors were opened,  the basement did not reach its normal  place resulting in  an accidental fall into the pit” is only said under assumptions nobody has seen the incident and the cause of death is doubtful. Opposite parties 1 to 3  have not availed any service of Shankar, who is siththal under Mason  Arumugam. On the side of the 1^st opposite party it is pointed out  that the lift installed in the premises of the   2^nd opposite party were meant for the travel of passengers and not meant for the transportation of materials and finding a dead body inside the lift pit is not a sufficient evidence to claim it to be an accident due to malfunctioning of a lift is to be accepted, but here there is no contractual relationship exists between the deceased and opposite parties1 to 3. No claim is sought against the 4^th opposite party and she is said to be added as  a formal party to this case. The 4^th opposite party had also not filed any proof affidavit.

          15. Complainants failed to establish that the opposite parties 1 to 3 had availed services of the deceased. There may be difficulties in running the lift due to various reasons but it is incumbent to prove that the deceased  was a Consumer under opposite parties 1 to 3 and also died due to the negligence of the above said parties. There is no consumer relationship and no privity of contract between opposite parties 1 to 3 and the deceased against whom the alleged deficiency in service is fixed by the complainants. Even the entry of the deceased inside the premises is without permission of Association. Complainants cannot sustain their claim against opposite parties 1 to 3 on basis of the discussions held above and also as the legal heirs of the deceased.

16. In the  cited cases by the complainants the defences listed depends upon the timings and opposite parties presence in the apartment as per schedule timings and the contact between the parties and the direct relationship among them as consumer and service providers between the parties. Here is a case where the consumer relationships does not exist between the deceased and  opposite parties 1 to 3.  In view of this various circumstances and basically consumer relationship do not exist  between the deceased and opposite parties 1 to 3 in the present case,  those cited cases relied upon  by the complainant are not applicable to the present case. Therefore the complainants cannot maintain their claim as the legal heirs of deceased Shankar   and the complaint fails and is liable to be dismissed. Point no.1 is answered accordingly.

17. POINT NO: 2

          It is decided in point No.1 there is no consumer relationship between the deceased  and opposite parties 1 to 3 and  it is also answered against the complainants.  Under such circumstance, it does not require any further discussions. Accordingly point No. 2 is answered.  

18.POINT NO: 3

          As per discussion held above the complainants are not entitled to any relief against opposite parties 1 to 3. The complaint deserves  to be dismissed and no relief is sought against the 4^th opposite party by the complainants.

          In the result, this complaint is dismissed. No costs.

                        

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 30^th  day of September 2019.

 

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

 

Ex.A1 dated 27.04.2015                            Notice by the third opposite party

 

Ex.A2 dated 08.09.2015                            Copy of the FIR in Crime No.2519/15 with

                                                              typed copy

 

 

 

Ex.A3 dated 08.09.2015                            Death Report

 

Ex.A4 dated 08.09.2015                            Post Mortem Report

 

Ex.A5 dated 14.09.2015                            Proceedings of the 1^st opposite party

 

Ex.A6 dated 21.09.2015                            Notice by  third opposite party

 

Ex.A7 dated 10.10.2015                            Death Certificate

 

Ex.A8 dated 24.11.2015                            Intimation by the Chief Electrical Inspector

 

Ex.A9 dated 30.01.2017                            Representation by the 1^st complainant with

                                                             Acknowledgements

 

Ex.A10 dated 06.02.2017                          Reply by the third opposite party

 

Ex.A11 dated 27.02.2017                          Rejoinder sent by the complainant

 

Ex.A12 dated 13.03.2017                          Status of the Criminal case

                  

LIST OF DOCUMENTS FILED BY THE  3^rd  OPPOSITE PARTY:

 

Ex.B1 dated 15.04.2015                             Copy of the order passed by the Hon’ble

                                                               Madras High Court in Contempt petition

                                                               No.3040 of 2014

 

Ex.B2 dated 29.10.2015                             Copy of the order passed by the Hon’ble

                                                           Madras High Court in Contempt petition

                                                              No.3040 of 2014

 

Ex.B3 dated 02.06.2017                   Copy of the High Court order in Contempt petition No.3040 of 2014

 

Ex.B4 dated 08.06.2017                   Copy of the petition to strike out the name of the 3^rd opposite party (CMP No.99/2017)

 

Ex.B5 dated 00.07.2017                   Counter in CMP No.99/2017

 

 

LIST OF DOCUMENTS FILED BY THE  2^nd   OPPOSITE PARTY:

 

 

Ex.B6 dated 05.06.2017                   Copy of the order passed by the Hon’ble Madras High Court in contempt petition No.3040 of 2014.

 

Ex.B7 dated 19.06.2017                   Copy of the order passed by the Hon’ble Madras High  court in contempt petition No.3040 of 2014.

 

LIST OF DOCUMENTS FILED BY THE  1^st & 4^th OPPOSITE PARTIES:

 

                                                ……. NIL ……

 

                                       

 

MEMBER – I                                                               PRESIDENT