Tamil Nadu

North Chennai

CC/26/2015

The Secretary, Paramount Pearls Apartments Welfare Association - Complainant(s)

Versus

The Manager, Johnson Lifts Pvt Ltd., - Opp.Party(s)

Retnaswamy.S

10 May 2017

ORDER

 

                                                            Complaint presented on:  02.02.2015

                                                                Order pronounced on:  10.05.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 10^th   DAY OF MAY 2017

 

C.C.NO.26/2015

 

 

The secretary,

Paramount Pearls Apartments  Welfare Association,

Dr.Seetharam Nagar,

Tambaram Velacherry A Main Road,

Velacherry,

Chennai – 600 042.

                                                                                   ….. Complainant

 

..Vs..

Johnson Lifts Private Limited,

Represented by its Manager,

No.1, East Main Road,

Anna Nagar Western Extension,

Chennai – 600 101.

.....Opposite Party

Date of complaint                                 : 04.02.2015

Counsel for Complainant                      : S.Retnaswamy

Counsel for   Opposite Party                   : T.Suresh, Neelamber

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Party to refund a sum of Rs.68,000/- towards replacement of VVVF unit and compensation for mental agony with costs of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

The Complainant  is the Secretary of the Paramount Pearls Apartments Welfare Association situated at Dr.Seetharam Nagar, Tambaram Velacherry A Main Road, Velacherry, Chennai – 600 042. There are seven lifts installed by the Opposite Party in the flats situated at Paramount Pearls Apartment:

1. L-A 2701
2. L-A 2702
3. L-A 2703
4. L-A 2704
5. L-A 2705
6. L-A 2706
7. L-A 2707         

The Association had entered into AMC with the Opposite Party for maintenance of all the seven lifts above. The Complainant also entered into contract in this regard with the Opposite Party since 2005. The Complainant states that the Association had entered into AMC with the Opposite Party for the period from 01.08.2013 to 31.07.2014 by paying an amount of Rs.1,67,321/-. As per the terms and conditions of the AMC, the Opposite Party has to maintain the lifts in good condition free of cost replacing all the spare part making VVVF Unit free of cost. The Association had renewed the AMC for the current year also i.e from 01.08.2014 to 31.07.2015 by paying an amount of Rs.1,84,058/-.

2. The Opposite Party service engineer after checking the lift demanded a sum of Rs.90,000/-  that the existing VVVF unit  has to be replaced. After hard bargaining, the Opposite Party finally settled down for Rs.68,000/-.  The Complainant could not get time to go into various terms and conditions of the Annual Maintenance Contract or its legal implications. The Complainant had to get the lift repaired immediately.

3. The Complainant wrote a letter dated 24.05.2014 to the Opposite Party that in view of the AMC the repair should have been done at free of cost and hence he has sought refund of Rs.68,000/- paid by him. The Opposite Party gave reply dated 12.06.2014 stating that the VVVF unit has become obsolete  and same is not available with the manufacturer and even as per the terms of contract the Complainant is liable to pay the amount for replacement of parts or assemblies. Therefore the Opposite Party has rightly collected the amount for replacement of VVVF unit and hence the Opposite Party has not committed any deficiency in service  and prays to dismiss the Complaint with costs.        

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

The Opposite Party received a Complaint that the Lift No.A-2703 which was handed over possession on 31.02.2004 did not function. This Opposite Party immediately sent its personnel to attend to the said Complaint. On inspection of the Lift, it was found by the Service Engineer that the existing VVVF unit was not functioning and it was not repairable. The said unit had also become obsolete and the manufacturer had also stopped production of the said model. It was under this circumstances that the Service Engineer had informed the Complainant that since the said part has become obsolete, it is not possible to repair the same and the Complainant has to pay for the replacement as per the terms and conditions of the contract.

5. This Opposite Party had offered to settle from Rs.68,000/- only because the Complainant was a long standing customer and has been servicing the lift regularly through this Opposite Party. It is also not correct to state that the Complainant could not get time to go into various terms and conditions of the Annual Maintenance Contract or its legal implications as the Lift had to be repaired immediately. It is pertinent to note here that the Complainant has been in this contract for almost a decade and has signed the contract which is in a printed format with open eyes and it is not open to him now to plead ignorance of the terms and conditions of the contract. It is true that the Complainant had addressed a letter dated 24.05.2014 requesting for the repair of the lift to be treated as free of cost. However, this Opposite Party replied to the said letter on 12.06.2014 informing their inability to accede to the request in view of Section 1 clause 11(f) of the AMC contract which was extracted therein.

6. It is also to be seen that the said part was installed in the year 2004 which is almost a decade ago and like all the electronic parts it has outlived its utility and the Opposite Party had reduced the charges after discussion.  This Opposite Party has at no point of time been indifferent or negligent and has been servicing the lifts as per the terms and conditions of the AMC and it is further denied that the act of the Opposite Party has created mental agony, inconvenience and hardship to the Complainant.  Hence this Opposite Party prays to dismiss the Complaint with cost.

7. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

The admitted facts are that the Opposite Party have installed 7 lifts in the Complainant Paramount Pearls Apartments and the Complainant also entered  into AMC periodically  and Ex.A8 is the renewal AMC for the period 01.08.2013 to 31.07.2014 and Ex.A10 is the other renewed AMC for the period 01.08.2014 to 31.07.2015  and one of the lift No. L-A 2703 did not function  during the renewed period and after made Complaint to the Opposite Party, he did repair by changing the spare VVVF unit and also demanded for such work of replacement of part an amount of Rs.90,000/- and after bargaining the  both have agreed and the Complainant paid final amount of Rs.68,000/-.

9. The contention of the Complainant that as per the AMC the Opposite Party should have replaced the spare and also repaired the lift at free of cost and therefore the Complainant association president wrote Ex.A1 & Ex.A2 letters to the Opposite Party to refund the sum of Rs.68,000/- paid by them and failure to pay the amount the Opposite Party has committed deficiency in service.

10. The contention of the Opposite Party is that his service engineer found that the existing VVVF unit was not functioning and it was not repairable and the unit had also become obsolete and the manufacturer had also stopped production of the said model and further as per the terms of the warranty  the spares which have become obsolete  and repairing  with some other spare, the Consumer is liable to pay the amount and in this case also the Complainant paid the amount after satisfying himself and therefore this Opposite Party has not committed any deficiency in service  and the Complainant is not entitled for refund of the said amount.

11. Admittedly the Opposite Party quoted a sum of Rs.90,000/- to replace the VVVF unit  and after bargaining the Complainant agreed to pay a sum of Rs.68,000/- for such work and  after getting the consent of the Complainant only the VVVF of unit was changed by the Opposite Party and  the Complainant also paid sum of Rs.68,000/- after satisfying himself for the replacement of the  unit.

12. It is relevant to extract some of the terms of clause of the AMC in Ex.A8 renewed for the period 01.08.2014 to 31.07.2015 as follows:

Section :1

9. Not be liable for repairing or replacing any lift parts which in our opinion is damaged or broken due to accident or negligence or misuse or willfully damaged by the users or third party or due to reasons over which the company has no control.

10. Replace any components or parts of the, lift, if it becomes necessary, on account of the reasons quoted under clause No.9, such work will be carried out after obtaining your consent and the cost of the same will be to your account, in addition to the contract charges.

11 By notice in writing to the customer forthwith terminate this contract and/or not be liable for any loss and/ or not make replacements and repairs free of charge, in any of the following circumstances:

     11(f) Where materials, components, parts or assemblies are no longer available due to obsolescence or if they are permanently taken out of production by the original supplier, when the supply and use of alternative replacement materials, components, parts or assemblies (as the case may be) shall be at the cost of the customer. In the event, the company considers themselves unable to supply any materials or parts for the purpose of this agreement, this agreement shall forthwith terminate without prejudice to the company’s accrued rights and without any liability to the company for such termination.

The lift was installed in the year 2004 and it was working for more than a decade. As per the above mentioned clause 10 replacement of work will be carried out after obtaining the consent and the cost of the same will be at Consumer Account in addition to the contract charges.  This clause clears that the Consumer has to pay the amount apart from the AMC amount paid by him. Further as per clause 11 (f) parts or assemblies are no longer available due to obsolescence or if they are permanently taken out of production by the original supplier the cost shall be borne by the customer. 

13. The Opposite Party specifically pleaded in the written version that VVVF unit had also became obsolete and the manufacturer had also stopped production of the said model.  This fact was not denied by the Complainant in his proof affidavit which was filed after filing of the written version.  The case of the Opposite Party clearly attracts clause 11(f) of the AMC contract that the VVVF unit become obsolete and manufacturer also stopped the production. In such circumstances the Opposite Party has to arrange the spare unit for replacement from the other companies and to repair the lift. This Opposite Party also replaced the unit with some other company unit Toshiba make and repaired the lift. Further the Complainant only after bargaining the amount paid the same to the Opposite Party. Therefore, in view of the terms of AMC contract, the unit replaced was Toshiba make and the Complainant also bargained and paid the amount of Rs.68,000/- to the Opposite Party, it is held that the Opposite Party has not committed any deficiency in service. 

14. POINT NO:2

Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 10^th day of May 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 24.05.2014                   Letter written by the Complainant

Ex.A2 dated 30.06.2014                   Letter written by the Complainant

Ex.A3 dated 12.06.2014                   Letter written by the Opposite Party

Ex.A4 dated 12.07.2014                   Letter written by the Opposite Party

Ex.A5 dated 18.08.2014                   Advocate Notice

Ex.A6 dated 27.08.2014                   Reply to Advocate Notice

Ex.A7 dated 14.10.2014                   Letter written by the Opposite Party

Ex.A8 dated NIL                     AMC for the period from 01.08.2013 to

                                                   31.07.2014

 

Ex.A9 dated 03.07.2013                   Letter written by the Opposite Party

Ex.A10 dated 24.06.2014                 AMC Renewal for the period from 01.08.2014 to

                                                   31.07.2015

 

Ex.A11 dated NIL                             Registration of the Association

Ex.A12 dated 09.04.2014                 Letter written by the Opposite Party

Ex.A13 dated 01.11.2014                 (PPF0A) Committee Member’s Signatures

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated 31.03.2015                   TOSHIBA Letters

 

 

 

MEMBER – II                                                               PRESIDENT