Order-16.
Date-30/12/2015.
In this complaint Complainant Dr. Sudhir Chandra Sur Degree Engineering College by filing this complaint has submitted that complainant is an educational institution imparting education in the field of engineering and allied field and op is a firm providing technical service in the field of fitting of lift, elevators and air conditioners.
In or about May, 2011 complainant decided to install a lift/elevator G+4/Manual/10 passenger etc. at their college premises and op after due deliberation with the complainant agreed to install the lift/elevator G+4/Manual/10 passenger etc. at the college premises on certain terms written in the purchase order dated 07.05.2011 issued by the complainant in favour of the op.The total item value for the installation of the lift was fixed at Rs. 5,50,000/- and in terms of the said purchase order dated 07.05.2011 the op obliged to deliver and fit the elevator at 540, Cossipore Dum Dum Road, Kolkata- 700074 as per specification within four months from the date of receipt of the said purchase order and the payment was stipulated to be made according to progress of the work and payment details are annexed there.
Op took 90 percent of the payment but did not complete the job assigned to them and they left the lift with a number of defects and the lift is not in working condition.Complainant engaged M/s. Gee Elevators to assess the defects in the lift and M/s. Gee Elevators inspected the installed lift by the op and pointed out a number of defects and suggested not to use the lift.But op despite repeated requests did not complete the job and asked for balance payment along with additional payment.But as per terms and conditions of the purchase order the op is not entitled to get the remaining 10 percent of the total value at the time of handing over of license and considering such sort of unfair trade practice and for deceitful manner of trade and also for not rendering proper service, complainant has filed this case because complainant has suffered much for non-installation of lift in time.
On the other hand op by filing written statement stated that this complaint is not maintainable as complainant is not a consumer in terms of C.P. Act, 1986 amended upto date.It is specifically mentioned that after receiving the first cheque bearing No. 726928 dated 19.12.2011, op was eagerly waiting to complete the job and was ready to send necessary materials for erection of the elevator.But unfortunately the second stage of payment was made by the complainant through cheque bearing No. 594664 dated 23.05.2012 i.e. after lapse of nearly five months from the earlier payment in terms of the purchase order the delivery and fitting of the elevator within four months from the date of receipt of the order signed by the complainant on 11.06.2011 and it is pertinent to mention that through the second stage of payment was received by the op after a lapse of five months from the earlier first payment, immediately the materials which were ready long back for sending of the same to the premises of the complainant and when the said work is progressed satisfactorily the op is entitled to get 25 percent of the total costs but after a hectic attempt made by the op only after a lapse of six months from the earlier 2nd stage of payment, a cheque bearing No. 055701 dated 20.11.2012 was issued and in the meantime, in spite of several requests and written representations on behalf of the op, the necessary civil and electrical works required for the purpose of erection of the elevator to be done by the complainant as per the purchase order was performed by the complainant after a long delay, the op lost a lot of valuable time to complete the entire job within the stipulated period of four months as have been done in all other cases in the meantime after a lapse of about four years from the date of purchase order, the cost of materials and labour charges increased up to 15-20 percent of the earlier value and the op took all possible necessary steps to handover the license when 10 percent of the earlier contacted amount was necessary to be paid and the complainant intentionally kept it pending in order to put the op into peril and took all the measures to harass the op from the very beginning to complete the job and in that way, complainant is himself responsible for the delay caused by him for their own wish and several times, the complainant was intimated by the op the every progress of the job and since the additional costs was incurred during the last four years when the complainant took time to make part payment which in terms of purchase order to be completed within four months and further stated by the op that he completed the installation of the lift and only minor finishing work required to be completed for which the complainant is wholly responsible for not making payment in a proper manner and schedule and not cooperate with the op and the preliminary form of license i.e. Form – A license was already prepared by the Electrical Inspector, Directorate of Electricity Government of West Bengal and that was handed over to the complainant because complainant did not allow to inspect personnel of Directorate of Electricity, Government of West Bengal to inspect the premises before issuing Final license and for which it is the laches of the complainant and there was no laches on the part of the op for which the present complaint should be dismissed.
Decision with reasons
In the present case after hearing the Ld. Lawyer for the op and the complainant, it is found that op has challenged the maintainability of the case on the ground that complainant is not a consumer as per C.P. Act, 1986 and their only allegation is that complainant is an Engineering college for imparting education and other technical education by charging fees from different candidates for different wings.But there is no document to show that the activities of the college are purely for charitable purpose without making any profit motive or commercial purpose and it is clearly established that the college is being run for imparting education and other technical education by charging fees from different candidate for its servicing and in the circumstances the present college is a commercial unit and activities performed by the college is of commercial in nature so the private institution that is complainant cannot be termed as complainant and in support of that op has referred one ruling reported in 2013(I) CPR 49 (NC).But then complainant’s Ld. Lawyer submitted that it is clearly an institution for imparting education and other technical education no doubt by charging fees from different candidates.But noway college cannot be termed as commercial establishment but it is an educations establishment to run education and to teach the students and for that purpose the amount is paid by the students as service charges and those students cannot be treated as a consumer under the complainant and complainant has been running their institution for the benefit of the students and the present lift was going to be installed in the college building for the benefit of the students and for their easy access to the different floor during college hours and in fact engineering college education cannot be treated as commercial unit and the said ruling is not applicable in the present case.
Considering the entire fact and circumstances and materials and the purpose of the college, it is clear that no engineering or general college cannot be treated as commercial establishment.In fact a college is affiliated by the WB University of Technology and their purpose is to run education and imparting education and research work and so college cannot be called as commercial unit.But it is proved that this college is established by JIS Foundation of Educational Trust who is not a charitable institution and the college does not impart education free of cost and the purpose of the college and their Administration is not for any charitable purpose.But indirectly JIS Foundation of Educational Trust for the benefit of their trustees have been running those colleges including the present complainant’s college.So, the entire purpose of the college is for earning money by taking fees etc. and this college is under the control of the JIS Foundation of Educational Trust and its purpose is of commercial in nature invariably by setting academic and other educational institution for imparting education and other education by charging fees.So, in the eye of law the present college cannot be the consumer under the op and in the above circumstances and also relying upon the ruling reported in 2013(I) CPR 51 (NC) we are convinced to hold that the present complainant is not a consumer under the op.But no doubt there is a contract and it is a civil contract and complainant may file such a case before the Civil Court but under any circumstances the present complaint is not maintainable as complainant is not a consumer under the op as per C.P. Act, 1986.
In the result, this complaint fails.
Hence, it is
Ordered,
That the complaint be and the same is dismissed on contest without any cost against the op.
