BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/12/2009

Date of Order : 31/12/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 664/2009

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant’s case leading to this complaint are as follows :

The complainant is the owners association viz. Nagarjuna Pearl Bay Apartment Owner’s Association, an apartment complex with 208 units in 4 blocks of the 14 and 12 storied units. The opposite party is engaged in the manufacture, erection and maintenance of passenger lifts and elevators. The builder of the apartment entered into a contract with the opposite party for the supply and erection of 4 lifts each having capacity of 8 persons and 13 persons respectively. On formation of the association in January 2009, the common facilities including the lifts were handed over to the complainant. After the warranty period, the opposite party had quoted an amount of Rs. 2,62,923/- for entering into an annual maintenance contract for the lifts. However, the AMC was given to M/s. Kone Elevators, since they quoted the lowest amount. At that juncture, the opposite party removed the digital operator (key pads) from the HPV 600 magnetek VVVF drive control units of the lifts and the said Kone Elevators found it difficult to conduct the maintenance without the digital operator properly. The complainant requested the opposite party vide letter dated 18-10-2009 to return the same to which the opposite party replied raising untenable contentions. The callous and indifferent attitude of the opposite party towards the complainant has resulted in the complainant not being able to carry out the proper maintenance resulting in risk to life and limb of residents and further causing monetary loss, mental agony and damages to the complainant. Thus, the complainant is before us seeking direction against the opposite party to put in place the 8 digital operator key pads and to pay compensation and costs of the proceedings.

2. The contentions of the opposite party are as under :-

The opposite party supplied, erected, commissioned and handed over 8 passenger lifts in the apartment complex to the builder M/s. Nagarjuna Construction Company. Warranty has been provided for one year to the builder. After the warranty period, the AMC of the lifts were not given to the opposite party. The opposite party has not removed the tool from the lifts. M/s. Kone Elevators is not a competent party for the service and maintenance of the lifts, because it has its own specification and technology. The digital operator is only a tool like a multi-meter and it is available in open market. The said tool is not purchased by the purchaser/complainant from the opposite party. The opposite party has not removed any part or tool from the VVVF units as alleged in the complaint. In this case, the key pads were manufactured by Magnetek. A single digital operator can be used for programming any number of HPV 600 magnetek VVVF. The said builder is a necessary party to the proceedings and the complaint is barred for non-joinder of necessary parties. The said lifts were handed over to the builder by the opposite party in June 2007 and the present complaint is barred by limitation. There is no privity of contract between the complainant and the opposite party. The complainant is not entitled to get any of the reliefs as prayed for.

3. The complainant was examined as PW1 and Exts. A1 to A10 were marked. The witnesses for the opposite party were examined as DW’s 1 to 3. Ext. B1 was marked on the part of the opposite party. The expert commissioner’s report was marked as Ext. C1. This Forum vide order dated 31-12-2011 allowed the complaint and directed as follows :

“i. The opposite parties shall hand over 8 digital operator key pads to the complainant as per the specification stated in Exts. A2 and A3.

ii. The opposite parties shall pay a sum of Rs. 5,000/- (Rupees Five thousand only) to the complainant towards costs of the proceedings.”

4. Aggrieved by the said order, the opposite party preferred Appeal before the Hon’ble Kerala State Consumer Disputes Redressal Commission. The Hon’ble State Commission passed the following order dated 16-03-2012 in Appeal No. 220/2012, Paragraph 9 is as follows :-

“In the result, this appeal is allowed in part and set aside the impugned order passed by the Forum below. This case is remand back to the Forum below for fresh disposal after given proper opportunity to both parties for take any steps for amendment or to implead any necessary party or parties and to adduce any other evidence. The Forum below is directed to consider and decide the maintainability of the complaint as an important point. The stay petition is disposed along with this appeal and the order passed by the Forum below is set aside. In the circumstance, there is no question of stay of the further proceedings. The stay petition is also disposed of accordingly.”

5. In furtherance of the above order, the opposite party filed I.A.
No. 590/2012 to amend their pleadings in their version, which was allowed on 05-11-2012. Neither parties adduced any further evidence in spite. Thereafter, heard the counsel for the parties.

6. The points that came up for consideration are as follows :-

1. Whether the complainant is a consumer within the ambit of the Consumer Protection Act?

2. Whether the complaint is barred for non-joinder of necessary parties?

3. Whether the complaint is barred by limitation?

4. Whether the opposite party is liable to install the 8 digital operator key pads in the VVVF units?

5. Whether the complainant is entitled to get compensation and costs of the proceedings from the opposite party?

7. Point No. i. :- According to the opposite party, M/s. Nagarjuna Construction Company Ltd. is the purchaser of the passenger lifts. It is stated that the opposite party has no relationship with the complainant and the opposite party is not liable to the complainant in any way and not liable to give any service or tool or product to them. Admittedly, M/s. Nagarjuna Construction Company was the builder of the apartment complex and they purchased the lifts from the opposite party and later it was handed over to the complainant. Indisputably, the complainant is the beneficiary of the services availed by the builder from the opposite party. We need not traverse any further on the issue except rely upon the authoritative pronouncement of the Hon’ble National Consumer Disputes Redressal Commission in Madhya Pradesh Audyogik Kendra Vikas Nigam Vs. Raj Lok Hospital Research Institute III (2007) CPJ 406 (NC) and in Southern Petrochemical Industries Corpn. Ltd. & Anr. Vs. British Airways World Cargo I (2007) CPJ 74 (NC). Where, it was indisputably held that a beneficiary of a service is also a consumer for reasons stated therein.

8. Point No. ii. :- The opposite party vehemently contended that since the original purchaser the builder M/s. Nagarjuna Construction Company Ltd. is not in the party array, the complaint is barred for non-joinder of necessary parties. We are not to agree with the above contention of the opposite party, especially when the moment when the complainant assumes possession of the lifts the right of the builder if any over the same extinguishes. Primarily, because the manufacturer himself is responsible for continuity. The non-impleadment of the builder in the party array will not in any way affect the rights and responsibilities of the opposite party. So, such a contention is vague and lacking in veracity.

9. Point No. iii. :- The opposite party muted another point for our consideration that the complaint is barred by limitation. They maintain that the complainant accepted the possession of the lifts in June 2007 and preferred the complaint only on 21-12-2009, which is beyond the period of limitation prescribed in Section 24 A of the Consumer Protection Act. PW1 the Secretary of the complainant association deposed that the complainant took possession of common amenities in the apartment complex together with the lifts subsequent to the formation of the association on 03-01-2009, and thereafter, the registration on 28-01-2009 evident from Ext. A1 certificate. It is not controverted that they had no responsibility during that period. To make clearer the averments above, the opposite party had been maintaining the lifts as per AMC, till the expiry of AMC in may 2008 evident from Ext. A8. So, nothing precludes us to hold that the complainant has preferred this complaint within the time as mandated in Section 24 A of the Consumer Protection Act. It is worthwhile to note that the Consumer Protection Act basically and radically changes from the well affirmed norms of law, because it involves different persons with different attitudes seriousness and convictions. This Act is only to maintain a lee-way not to hurt either, but to find earnest efforts of justice. As in many cases, adjudications have to be read between the lines especially in the Consumer Protection Act. Matters being so, for reasons stated above, the plea of limitation does not hold water.

10. Point No. iv. :- Admittedly, at the instance of the builder of the apartment complex, the opposite party erected 8 lifts in the apartment complex. After the formation of the owners association, the complainant is looking after the affairs of the lifts.

11. According to the complainant, the opposite party purposefully removed the digital operator key pads in VVVF drive units which is meant for the programming of the lift drive before it is commissioned as well as for detection of the defects, if any and for reprogramming the drive when the lift is in use. It is also contended that the key pad helps the maintenance crew to visualize any drive related faults which can occur during the function.

12. The opposite party contended that neither have they supplied the digital key pads along with the VVVF unit nor have they removed the same as alleged by the complainant. The opposite party maintains that digital key pad is only a tool like a multi meter, which is available in open market and the same is not an essential component for the operation and function of the lifts.

13. Exts. A2 and A3 are the technical manual of HPV 600 AC Elevator Drive of the lifts erected by the opposite party. In Ext. A3, it is stated as follows :

“FULL FUNCTION REMOVABLE DIGITAL OPERATOR.

• Hand-held, push button

• Removable, fully programmable.

• LCD 2 x 16-character display.”

14. At the instance of the complainant, an expert commissioner was appointed to ascertain and report the nature of the lifts. The expert commissioner was examined as DW2 and his report was marked as Ext. C1. Ext. C1 reads as follows :

“The missing keypad is a vital integrated part of the elevator control display panel equipment and this helps the customer to visually read the parameters like the working voltage, current, frequency, power consumption, speed etc. Any malfunction can be noted from the display of the keypad and can be informed to the lift maintenance crew for corrections required. So basically this keypad is an instrument panel of the system without which the control panel is incomplete and the basic performance cannot be assessed. So the subject keypad must be replaced back in the blank space of the controller vvvf (V3F) mounting and where this is intended to be in good working condition and the working must be demonstrated.

Being a clip-on system the subject keypad can easily removed and installed as per design features and this does not affect the performance of the running elevator. But in times of elevator malfunction; “reprogramming”, “returning”, easy fault finding, the keypad unit is a must. Due to normal wear and tear of the different components the elevator need precise touch-ups and the subject keypad is the only reference which can facilitate as a “MONITOR” and so this is an essential part of the controller vvvf mounting.”

15. DW2 categorically deposed that digital key pad is an integral part of the VVVF unit and any fault of the elevator would be reflected in the key pad. DW3 was examined on the side of the opposite party to establish their contentions. But he himself admitted that he has neither primary education in lift technology nor experience in that field. There is no reason to disbelieve the opinion and evidence of DW2 who is having 35 years of experience in the field of elevators. DW1, the employee of the opposite party stated that they have not supplied the digital key pad along with the elevators. Exts. A2, A3 and Ext. C1 report go to show that the digital key pad is an important and essential device which forms part of the VVVF unit which the opposite party failed to supply for reasons unexplained. The non-supply of the same itself for whatever reasons amounts to deficiency in service and unfair trade practice, especially since the elevators are being used for the transportation of human lifes. The opposite party has no reasonable explanation for their default. It has come out in evidence that to ascertain and rectify the defects or default of the elevators digital keypad is an imperative.

16. Law is made for man and not man for law. Anything adjudicated which might be harmful or damaging to a consumer is not at all envisaged as good under the Consumer Protection Act confirming the conception of law. In a civilized situation, it is that “consumer is king”. He cannot be annoyed for whatever reasons, especially since, so as to explain it is only because of him that such canvass sustains. This is a situation which legally cannot be sustained by any measure, since it amounts to threat to the every day users. This by any stretch of imagination even going beyond law cannot be justified, since basic human rights for such reasons could be violated. This Forum is of the singular view that such a situation cannot simply ever be allowed, let alone be anticipated not to mention allowance of condonation whatever.

17. However, the present picture seems to present something different on the opposite party having removed certain key pads, which puts the consumer to untold difficulty which the intraction of the opposite party alone can reinstate. We do not go into the proved deficiency of the opposite party, unless they resurrect the original situation if not for which they would be unpardonably liable. When many lives could be at stake, a situation which is not seriously considered unless it sets in when it is beyond repair factually. In the above circumstances, we are of the firm view that the opposite party is legally and contractually liable to provide the digital key pads to the elevators 8 in numbers erected by them in the apartment complex.

18. Point No. v. :- Though the complainant has not sustained any loss, as of now due to the non-installation of the key pads the knowledge of the same has caused unforgivable mental agony and inconveniences to the complainant, which is answerable squarely by the opposite party for which they given no reasonable explanation. This Forum believes that a consumer cannot be belittled in such a situation. The agony has to be compensated. We fix the same at Rs. 10,000/- including the costs of the proceedings.

19. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall hand over 8 digital operator key pads to the complainant as per the specification stated in Exts. A2 and A3.

2. The opposite parties shall pay a sum of Rs. 10,000/- (Rupees Ten thousand only) to the complainant towards compensation and costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.

Pronounced in open Forum on this the 31^st day of December 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant’s Exhibits :-

Opposite party’s Exhibits :-

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