Andhra Pradesh

Chittoor-II at triputi

CC/45/2016

M/s Abhi Constructions, Represented by its Proprietrix Smt Nellore Silpa, W/o Nellore Balaji Abhinav, Represented by her General Power of Attorney Holder Adam Ramalinga Reddy, S/o Adam Chenchu Reddy, - Complainant(s)

Versus

The Managing Director, M/s Green Elevators Private Limited - Opp.Party(s)

D.Srikanth

29 Oct 2016

ORDER

Filing Date: 03.03.2016

Order Date:29.10.2016

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

SATURDAY THE TWENTY NINTH DAY OF OCTOBER, TWO THOUSAND AND SIXTEEN

 

 

 

C.C.No.45/2016

 

 

Between

 

 

M/s. Abhi Constructions,

Rep. by its Proprietrix Smt.N.Silpa, Canada,

She is represented by her General Power of Attorney

Holder Adam Ramalinga Reddy,

S/o. Adam Chenchu Reddy,

D.No.6-132/A, Akkarampalli,

Tirupati,

Chittoor District,

Andhra Pradesh.                                                                               … Complainant

 

 

 

And

 

 

The Managing Director,

M/s. Green Elevators Private Limited,

D.No.112, Eldorado Building,

7-A, 7^th Floor, Numgambakam High Road,

Nungambakam,

Chennai.

 

And also having office and business at

No.43/37, Bazaar Road, 1^st Lane, Mylapore,

Chennai.                                                                                            …  Opposite party.

 

 

 

 

           

This complaint coming on before us for final hearing on 21.10.16 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.N.Ravi Kumar, counsel for complainant, and Sri.G.Ramaiah Pillai, counsel for the opposite party, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Sections – 12 and 14 of C.P.Act 1986, by the complainant M/s. Abhi Constructions, represented by its proprietrix Smt.Nellore Silpa, Canada, represented by her General Power of Attorney Holder Adam Ramalinga Reddy, against the opposite party for the following reliefs 1) to direct the opposite party to pay a sum of Rs.5,00,000/- towards damages for the mental agony, torture caused by the opposite party, 2) to direct the opposite party to pay a sum of Rs.3,00,000/- towards expenses for the balance work incurred by the complainant, and 3) to pay the costs of the complaint.  

            2.  The averments of the complaint in brief are:-  that the complainant Smt.N.Silpa,  is shown as owner of the property (?) that situated in survey No.11/2B/2A2 in Upadhyaya Nagar residential and has been constructing the residential flats in the property got by her, by obtaining approval on 09.06.2013 in B.A.No.229/G2/2013 from the Commissioner, Municipal Corporation, Tirupati, by paying necessary fee to them, under the name and style of Sri Krishna Residency Apartment.

            3.  That the opposite party approached the complainant and represented that they are specialists in providing elevators and escalators and has got manpower and machinery for that purpose. On negotiations, the opposite party agreed to provide two elevators (lifts) for a total cost of Rs.10,00,000/- (each Rs.5,00,000/-). Terms of payment agreed upon by both the parties are that the complainant has to pay 30% on or before 02.04.2015; 25% on or before 31.07.2015; 25% on or before September 2015 and the remaining amount of 20% will be paid after functioning of two lifts in good condition. Opposite party also undertook to provide proper service / maintenance for one year free of cost. That the complainant paid amounts under 1,2 & 3^rd conditions within the stipulated time and also ready to pay the remaining amount as and when the two elevators started functioning as per the terms. The opposite party fixed one elevator, which was functioned only for some period as trial run and thereafter not functioning. The 2^nd elevator is not erected so far though material was dumped.

            4.  That almost all the flats were sold by the complainant to the respective families, as many as 40 families have occupied their respective flats in all floors (stilt + five upper floors) and living therein. The complainant since September 2015 approached the opposite party repeatedly and opposite party is postponing the same on some pretext or the other up to January 2016, and later opposite party did not lift the phone. Purchasers of the flats facing lot of problems and some of them are trying to move before this Hon’ble Forum for deficiency in service on the part of the complainant, for not providing the amenities. Complainant got issued legal notice to the opposite party on 21.12.2015, calling upon the opposite party, to fix the elevators within one week from the date of this notice. Opposite party received the notice and failed to comply with.

            5.  The complainant is a N.R.I. working as Software Engineer in Canada. Due to ill-acts of the opposite party, the flat owners are questioning her father, who is her GPA holder, a senior citizen, as such he has suffered from severe mental agony, torture and feel ashamed before the purchasers of the flats. Thus, the complainant herein estimated the mental agony and torture to a tune of Rs.5,00,000/- besides court expenses. The opposite party has committed deficiency in service and failed to comply with the terms in respect of fixing the elevators. Hence the complaint.

            6.  The opposite party filed his written version, specifically contending that there is no buyer / seller relationship between the opposite party and the complainant. The opposite party never met the complainant, at any point of time either in Chennai or in Tirupati. The agreement was signed at Chennai between N.Balaji Abhinav, the husband of the complainant. M/s. Abhi Constructions is represented by Smt.N.Silpa, to prove her ownership, she has not filed any document. M/s. Abhi Constructions delegated its power to Mrs.Silpa, as such she cannot re-delegate power to her father or whomsoever in the complaint. The opposite party has already initiated criminal case against the complainant and her husband, father and father-in-law before the XIV Metropolitan Magistrate Court, Chennai, under Section-206, 420 and 500 IPC r/w 120B IPC and the present complaint is to thwart the action of the opposite party. There is no deficiency in service on the part of the opposite party. It is an admitted fact that Balaji Abhinav came to Chennai and ordered two lifts for Rs.10,00,000/- and he has given Rs.8,00,000/- totally. One lift was handed-over on 22.12.2015 and the other lift was erected, only motor has to be fixed which cost only Rs.50,000/-. Mr.Balaji Abhinav, is still holding Rs.2,00,000/- of the opposite party. For non-functioning of the 1^st lift, no complaint made to customer care till date either by the promoters or the actual users of the lift i.e. the residents, call history is evident that no complaint is lodged so far. The complaint has been filed only against M.D. of the Company without name and it cannot be prosecuted. 

            7.  During the last week of March 2015, N.Balaji Abhinav contacted the opposite party through some known sources and came to his office at Nungambakkam and represented that he is a NRI and wanted to construct quality houses and offer the same to the downtrodden without any profit and he requested the opposite party to provide elevators only on cost basis, believing his representation, the opposite party agreed to forego his profit and installed the lifts only on actual cost. The manual lift cost starts from Rs.7 lakhs, but the opposite party agreed to install 2 lifts at Rs.5 lakhs each, as he thought that the benefit would go to poor. Opposite party received a cheque for Rs.3,00,000/- from Abhinav Balaji at Chennai, and further two payments of Rs.2.5 lakhs each on 31.07.2015 and 07.09.2015 respectively, totaling a sum of Rs.8 lakhs, and started installation of two lifts. There was delay from the complainant in providing basic amenities for the installation of the lifts, which caused huge loss to the opposite party. One N.Raghu Rami Reddy, the father of Abhinav Balaji, who signed in the hand-over letter was fully satisfied along with other family members about the operation of the lift. The opposite party had explained the procedure for operation of the lift to the complainant and other persons in the vicinity. Further he has attached a permanent batch in the lift itself which indicate 24X7 Customer Care Phone No.0091-9841015660 to be called in case of emergency. Till date the Customer Care has not received any call either from the house owners or from the promoters regarding the malfunctioning of the lift.

            8.  Mr. Balaji Abhinav, has sold almost all the flats on exorbitant rates and gained heavy profit. The moment the opposite party came to know about the unethical illegal, dubious intention of Balaji and his associates, the opposite party stopped the 2^nd lift work in which only motor has to be fixed and questioned it and demanded Rs.4,00,000/- more than the fixed price because he sustained heavy loss towards the wages, and for not providing the required amenities to install the lifts which consumed lot of time. The 1^st lift is in full operation and in the 2^nd lift only a motor has to be fixed and the outstanding amount as per the agreement is Rs.2 lakhs. But Abhinav Balaji, though he is an Indian, now in Canada, started abusing the opposite party by degrading the integrity and thereby caused very much damage to the opposite party. The opposite party sent notice on 27.01.2016 through his lawyer to Balaji and other persons claiming a sum of Rs.50 lakhs as compensation and to tender unconditional apology. Only Ramalinga Reddy received the notice and all others refused to receive the same, as such they were returned. On 30.01.2016 Mrs. Silpa, who is in Canada, sent a notice through her advocate to the opposite party admitting that, in the 2^nd lift only the motor was not fixed for operation. The opposite party sent reply on 10.02.2016 to the advocate narrating all the facts with the copy of the first notice dt:27.01.2016. Then on 09.02.2016 Mrs.Silpa and her father sent a reply through their counsel stating that Abhinav Balaji never sent the e-mail to 15 persons and he never scolded the opposite party. That there is no deficiency in service on the part of the opposite party and infact the delay is due to complainant’s attitude and this complaint is filed against the opposite party to go out of the criminal case in Chennai against the complainant, that the complainant is not a consumer, as the lifts were engaged for commercial purpose and prays the Forum to dismiss the complaint with costs.                                

            9.  For the complainant, her GPA holder filed his evidence affidavit as P.W.1, and got marked Exs.A1 to A7. For the opposite party R.W.1 filed his chief affidavit and got marked Exs.B1 to B5. Both the parties have filed their respective written arguments.

           

 

10.  Now the points for consideration are:-

            (i).  Whether the complainant is a consumer?

 

            (ii)  Whether there is any agreement between the complainant and the opposite

        party for fixing the elevators?

(iii)  Whether there is any deficiency in service on the part of the opposite

        party?

(iv)  Whether the complainant is entitled to the reliefs sought for?

(v)   To what relief?

11.  Point No.(i):-  Admittedly, the complainant Mrs.Nellore Silpa, is working as Software Engineer and staying at Canada. Her father Ramalinga Reddy is resident of Tirupati, residing at D.No.6-132/A, Akkarampalli, Tirupati, Chittoor District. The complainant Silpa is actually permanent resident of D.No.16-3-124, 2^nd street, Ramalingapuram, near Chaitanya college, Nellore, that she got property in S.No.11/2B/2A2 in Upadhyaya Nagar residential and has been constructing residential flats in the property after observing all formalities. The residential flats were constructed in the said land in survey number referred to above, and those residential flats were sold to number of persons, that residential apartment is 5 storied one, about 40 families have purchased the flats in the said residential apartment and residing therein. For the said apartment two lifts were ordered from opposite party at the cost of Rs.5,00,000/- each, totaling a sum of Rs.10,00,000/-, to accommodate the residents of the apartment. On these facts, whether the complainant come within the scope of consumer. Now, it is pertinent to mention definition of consumer. Section-2(1)(d) of C.P.Act 1986 defines the word consumer as follows:     

      “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 purpose] [Explanation of Section-2(1)(d) further contends that 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”

 

            12.  It is not the case of the complainant that they have availed the services of opposite party for installation of two lifts for the purpose of eeking her livelihood. Construction of 5 storied apartment, selling of 40 flats to various persons / families and providing lifts for their usage, certainly amounts to commercial purpose. Neither the complainant nor her GPA holder were staying in any one of the flats in Sri Krishna Residency Apartment Therefore, it can be safely held that the complainant has purchased the lifts only for the commercial purpose. As such the complainant is not a consumer within the meaning of Section-2(1)(d) of C.P.Act 1986. Accordingly, this point is answered.

            13.  Point No.(ii):-  to answer this point, we have to state that neither of the parties filed the agreement between the complainant and opposite party. Ex.A1 is dt:27.03.2015, “subject” is mentioned as “Agreement”. But the document is “detailed specification of the 6 passenger elevator”. It is signed for Green Elevators Pvt. Ltd  (opposite party), for the complainant somebody signed whose name is not specific. Even assuming for a moment, the signature pertains to GPA holder of the complainant, it is only a “specification of the elevator”, but not the agreement between the complainant and opposite party. Similarly, Ex.B1 is a detailed specification of  6 passenger elevator dt:27.03.2015, which was signed by / on behalf of Green Elevators Pvt. Ltd (opposite party) and for M/s.Abhi Construction, N. Balaji Abhinav signed in it. Under Ex.A1 or B1, nowhere it is mentioned where this document was executed and the place where the elevators to be erected.  Neither the complainant nor her GPA holder were signed in any agreement in respect of erection of lifts  Under Ex.B1 one Balaji Abhinav has signed, but he is not a party to the proceedings. Therefore, when there is no agreement between the complainant and the opposite party, she cannot file the complaint for compliance of such non-available agreement, that apart as rightly pointed-out by the opposite party, the complainant has not filed any document to prove her ownership over the site in S.No.11/2B/2A1 in Upadhyaya Nagar residential, Tirupati. Simply, signing by the opposite party and Balaji Abhinav under Ex.B1, without the designation of said Balaji Abhinav. Similarly, signing by the opposite party and some one else, perhaps it may be Ramalinga Reddy under Ex.A1, when both the documents relating to the detailed specification of 6 passenger elevators, it cannot be said that there is agreement between the opposite party and complainant as mentioned in the complaint. That apart the General Power of Attorney, which is not marked as exhibit does not show that the complainant has authorized her father to sign on her behalf or to file any complaint or authorizing her father to execute any works in respect of the Clauses mentioned in Power of Attorney dt:21.10.2014 on behalf of the complainant. The word “appoint” is different from the word “authorize”. The complainant has filed the complaint through her agent / GPA holder. As per Rule-2(b) of A.P.State Consumer Protection Rules 1987 ‘agent’ means a person duly authorize by a party to present any complaint, appeal or reply on its behalf before the State Commission or District Forum. In this case, no specific authorization is given to the GPA holder of complainant by the complainant in her GPA. It prima facie appears that in the complaint, evidence affidavit of the complainant – GPA holder Ramalinga Reddy or in the written arguments filed on behalf of the complainant, the complainant is doing business and elevators were ordered only for the commercial purpose. In view of the absence of agreement between complainant and opposite party or between the opposite party and GPA holder of complainant, and in the absence of any specific authorization to the GPA of complainant by the complainant, and in view of the construction of the apartment, selling flats to various families and ordering the elevators for the use of residents in the apartment is certainly amounts to commercial purpose. In this regard, we are relying on a decision reported in III (2016) CPJ 389 (NC), Srei Equipment Finance Pvt. Ltd. & Ors. Vs. S.Natrajan, R.P.No.3474 of 2011 against order 01.04.2011 in Appeal No.589/2008 of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, decided on 29.01.2016, wherein their Lordships held that Consumer Protection Act 1986 - Section-2(1)(d), 21(b) – Consumer – Purchase of excavator- Commercial purpose – Work order given to complainant reveals that complainant was awarded contract for 200 hours and was asked to send machines at ‘Madurai’ – Nowhere in complaint it has been stated that he obtained loan for purchase of machine for earning livelihood by means of self-employment – Complainant is not a consumer. Work order dt:22.03.2004 given by Sri Amman machineries to the complainant was awarded contract for 200 hours and he was asked to send machine at Madurai. Complainant has nowhere in the complaint stated that he obtained loan for purchase of machine for earning livelihood by mans of self-employment and in such circumstances, complainant does not fall within purview of consumer under C.P.Act and complaint is liable to be dismissed. The facts of the above decision are squarely applicable to the facts of the case on hand. The learned counsel for opposite party relied on a decision reported in IV (2015) CPJ 649 (NC) – Kishore Kumar Kochhar Vs. State Bank of Bikaner & Jaipur, wherein their Lordships held that complainant himself admits in complaint that he is engaged in business of international trade of food grains etc. – Commercial purpose established – Complainant not consumer. Similarly, in this case also the complainant in the complaint itself mentioned that that she has been constructing the residential flats in the property and almost all the flats were occupied by the purchasers, as many as       40 families have occupied all the flats, stilt + 5 upper floors and living therein. It clearly shows that the construction of apartment and selling flats to other families for consideration amounts to commercial purpose. The order of elevators for the said apartment to accommodate the residents of the said apartment also certainly amounts to commercial purpose. Therefore, in the light of the above facts, we are of the opinion that there is no agreement between the complainant and opposite party as mentioned in the complaint. Accordingly this point is answered.

            14.  Point No.(iii):-  in view of our discussion on points 1 and 2 and in view of the specific contentions and admissions of the parties, that out of the two elevators, one elevator is already functioning and handed-over letter in respect of 1^st elevator under Ex.B2 shows that one elevator is functioning properly. So far as 2^nd elevator is concerned, the motor is to be fixed. However, the payments referred to in the complaint were admitted by the opposite party i.e., out of Rs.10,00,000/-, Rs.8,00,000/- was already paid and Rs.2,00,000/- is due. The opposite party is demanding damages and making more claim than the agreed amount, i.e. he is demanding Rs.4,00,000/- more apart from the amount due, because Mr.Balaji Abhinav, sold away the flats for huge amounts as against his promise that the flats will be sold to downtrodden, that is not the subject matter for this case to be discussed, once the opposite party accepted for a specific amount to install the elevators, he cannot specifically demand more money on various grounds. When the purpose is commercial and when the complainant is not a consumer, it needs no probe with regard to the attitude of the opposite party or the complainant in this case, and we are of the opinion that the question of deficiency in service cannot be tested, as the complaint is not a consumer case for this Forum within the purview of Section-2(1)(d) of the C.P.Act. Accordingly, this point is answered.

            15.  Point No.(iv):-  since the complainant is not a consumer, and the purpose for asking elevators is established to be a commercial purpose, the complainant in our opinion is not entitled to the reliefs sought for, and complaint is therefore liable to be dismissed.

            In the result, complaint is dismissed. No costs.  

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 29^th day of October, 2016.

 

      Sd/-                                                                                                                       Sd/-                       

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: A. Ramalinga Reddy (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: K.F. Kamaludeen (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Agreement (Original) between the Complainant and the Opposite Party. Dt: 27.03.2015.
	Office copy of the Legal Notice with receipts. Dt: 21.12.2015.
	Postal acknowledgement. Dt: 23.12.2015.
	Office copy of the legal notice issued to the opposite party by the complainant along with postal receipts. Dt: 30.01.2016.
	Notice issued by the Opposite Party to the Complainant. Dt: 27.01.2016.
	Office copy of reply notice issued to the Opposite Party by the complainant for legal notice dated.27.01.2016. Dt: 09.02.2016.
	Statements of account paid to Opposite Party copy in Original. Dt: 29.01.2016.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Agreement (Original) copy of Green Elevators Pvt. Ltd., (Opposite Party) to M/s. Abhi Construction (Complainant). Dt: 27.03.2015.
	Green Elevators Pvt. Ltd. Handing Over Certificate (Original). Dt: 22.12.2015
	Notice issued by Opposite Party to the Complainant. Dt: 27.01.2016.
	Notice to the Opposite Party by Complainant. Dt: 30.01.2016.
	Reply from Complainant (Abhi Construction) to the Opposite Party. Dt: 09.02.2016.

 

                                                                                                                                         

                                                                                                                                     Sd/-    

                                                                                                                                President

           

             // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

                 

 

Copies to:-     1.  The complainant.

                        2.  The opposite parties.