ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1. This is the Complaintfiled by the Complainantunder Section 12 of Consumer Protection Act 1986, against the Opposite Parties(herein referred in short as O.Ps) alleging the deficiency in service in not maintaining the lift properly and for refund of Rs.10,40,000/- being the value of the lift, for Rs.5,00,000/- towards damages for causing loss, hardship, mental agony, inconvenience, injury on account of deficit service and to pass such otherreliefs as this forum deems fit.

2.     The brief facts of the complaint are that: OP.No.1 and 2 are engaging in business of manufacturing, installing and servicing lift to the buildings and apartment. Complainant is the owner of four storied building, subletting first three floors to various tenants and residing in the fourth floor.  He entered into a contract with OP.No.1 for supply of one KONE six passenger automatic elevator (lift) on 17.02.2014 for Rs.10,40,000/- which includes transportation, erection, commission, servicing and excise duty and other charges.  The said lift is only for the purpose of their personal use, due to the health condition of the husband of the complainant who is also GPA holder. OP after inspection of the spot, gave a detailed report and their concerned officials also visited the spot and afterwards on 26.04.2014, agreed to execute the work and complainant agreed to pay 75% of the contracted value i.e. Rs.7,80,000/- and paid the same through cheque.  On 21.02.2015, the lift was commissioned and installation certificate was issued by the complainant after verifying and satisfying himself regarding supply, installation, and test of the elevator. After the installation of the elevator, the complainant started facing several issues in respect of the functionof the elevator and write letter to OP.No.1. The paint of the lift peeled off, the elevator was making lot of noise and not orderly functioning, there were lot of vibration and the fan button was not working. There were so many defects.

3.     There was delay in installation of the lift. OP.No.1 and 2 were lacking in professionalism expertise from the very beginning. There were some screeching noise in the elevator.  On 17.02.2015 OPs pressurized the complainant to sign the commission report by taking away the key of the engine room,on the ground that, they wanted to carryout services in respect of the safety aspect. There was no response from the OPs regarding the same. After lot of persuasion, and informing that the husband of the complainant was not in a position to climb the stairs upto fourth floor due to health problem, OP carried out repair two hours later. 

4.     On 25.05.2015, OP responded to the letter of the complainant and assured that there will not be any defect and requested complainant make  payment of Rs.1,04,000/- which was due on account of work and the same was paid through the cheque. He also affixed his signature to the documents relating to the completion of the work and commission of the same. There was constant vibration, and noise, and OP No.1 further assured the replacement of entrust panel. The same was not done and the concerned officials of Op.No.1 were not carrying authorization letter from the company to carryout the painting work and the repair work. They threatened the son of the complainant also. Annual maintenance contract was also entered into by paying the annual maintenance fee of Rs.22,000/- and Rs.22,420/- for a period of two years.

5.     Based on the terms and conditions of the annual contract, the OP has carried out the maintenance.  Inspite of it, there are many defects in the elevator.  There were no regular\updates from the Op regarding maintaining of the elevator.  The conduct of OP.No.1 amounts to unfair trade practice and deficiency in service which has caused mental agony, inconvenience and injury and hence liable to pay damages as claimed.

6.     The husband of the complainant is a senior citizen and sufferance and suffering from various health concern such as brain stroke, heart attack, vertigo problem and undergone neurological and cardiological treatment. In view of the OP not attending to the lift work, it has caused immense problem for him and the very purpose of installing the elevatorwas defeated and hence there is deficiency in service and prayed the forum to allow the complaint.

7.     Upon the service of notice,OP appeared before the forum through their advocate. By filing version, denied each and every allegations made against it in each and every para of the complaint. It has agreed that the complainant got installed the elevator to his building. The shaft was handed over by the complainant to OP for carrying work on 05.09.2014 only and there is delay of three months.  It was agreed that the cladding work was to be done  bycomplainant which almost took two more months, during which, the landing doors were damaged by the complainant’s by applying POP to the door frames. The same was brought to the notice of the complainant immediately. There was delay in providing power supply and it was only given in the month January-2015, and only on 17.01.2015 the elevator was commissioned. Inspite of it, the complainant did not come forward to take delivery of the commissioned elevator for her own reason and finally took over the same on 26.02.2015.   The complainant completely abused OP and the customer carrying man handling installing in the year.  The painting issue was due to applying POP by the complainant without consulting them which resulted in the pealing of the paint. Inspite of it OP got the work done.

8.     After the installation, the complainant had been using the same though not having the license and permanent power supply.  The handing over certificate was also obtained.  Before that their personnel, tested,ensured that the elevator is in the manner as how it should.  The complainant ignored the advise of the OP No.1 not to use the lift without license and power supply. The delay in  installation was only due to the act of the complainant in not handing over the site in time.  They have not harassed the complainant in any manner and complainant himself man handled their men. 

9.     OP has extended the warranty by 1 ½ month from 25.02.2015 to 08.04.2016.  The painting was done prior to handing over the elevator to the complainant. They are in the profession for so many years, and have their reputation and never acted like an unprofessional. 

10.   OP informed the complainant after installation to have the AMC after the expiry of the warranty period.  Annual Maintenance contract where the customer can avail from OP for purely maintenance i.e. labour only without liable for parts, and another AMC is for annual maintenance as well as replacement of some of the specified parts of the elevators. The complainant chose AMC for maintenance only “KONE CARE STANDARD.” The said AMC was for one year, ended on 07.04.2017.  The complainant renewed the AMC from 10.11.2017 to 09.11.2019 at the agreed price of Rs.22,420/-. The AMC of elevator was not covered between 08.04.2017 to 10.11.2017

11.   On 22.08.2018, their personnel visited to carryout the maintenance.to carryout ERD was not in a working condition. Immediately the same was brought to the notice of the complainant and informed the need of its replacement. ERD got damage due the fluctuation of power supply and not for any reason. Instead of understanding the reason, complainant continued to operate the elevator and requested him to replace the ERD, despite knowing very well, that, the AMC do not cover the same.  Inspite of the advise, the complainant continued to use the elevator without the ERD. 

12.   On 25.02.2018, complainant called OPs with a concern, and their personnel attended the said call and found that controller inside the MCB tripped due to power supply problem. The complainant refused to sign the attendance of the staff. 

13.   It is contended that OPs are not aware of the medical and health conditions of the husband of the complainant and also donot aware whether he has to claimed the steps for fourth floor.  The allegations made are false, misleading, in order to gain the sympathy of the forum. Complainant has to obtain AMC for maintaining the high standard of the lift.  The problems arose due to not maintaining the lift properly. There are no manufacturing defects in the elevator and there is no deficiency in service on their part in maintaining the lift.  They have not practiced any unfair trade practice, nor there is any deficiency in service and they are not responsible for sufferance of the complainant. No damage has been caused to the complainant or her husband on their account. The delay is only due to the delay caused by the complainant. They are not liable to pay any amount or damages and hence prayed the forum to dismiss the complaint.

14.   It is further contended by the OPs that the complainant is having four, storied building and except the fourth floor he has rented the remaining portion of the building which amounts to commercial purpose, and hence she is not a consumer under the Consumer Protection Act and hence the complaint is liable to be dismissed. OPs prayed the forum to dismiss the complaint on this ground also.

15.   In order to prove the case,both parties have filed their affidavit evidence andproduced documents. Arguments Heard.The following points arise for our consideration:-

1) Whether the complainant is a consumer?

2) Whether the Complainant has proved

deficiency in service on the part of the

Opposite Parties?

3)  Whether the Complainant is entitled to

therelief prayed for in the complaint?

16.   We answer:-

POINT NO.1:            In the Affirmative

POINT NO.2& 3:      In the Negative.

                                For the following.

REASONS

POINT No.1:-

17.   On perusing the complaint, version,evidence and documents, filed and marked by the respective parties,it becomes clear that the complainant is the customer of OP.No.1 and 2 in purchasing the elevator (lift), getting it installed in her building.  There is relationship between the complainant and OP.No.1 and 2 as consumer and service provider.

18.   The point raised by the Op is that the complainant has let out three floor on rent, and has occupied the fourth floor and residing therein. Op has also has produced Ex R12 the photographs wherein it shows the front elevation of the complainant’s building and also there is a board mentioning the house is for rent.  It is admitted by complainant that he is residing in 4^th floor and has leased the remaining houses for rent. From that itself, it cannot be called as commercial purpose, we have to consider whether the lift purchased by the complainant has been used for earning purpose and earning money out of the use of the lift.  In this case complainant has also provided lift service to the residence of the houses in herbuilding. Hence this cannot be called the lift being put to commercial use.  Further he also availed the service of lift in going to his house and coming down for her own purpose. Hence it cannot be held that complainant is not a consumer and the complaint is not maintainable. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2 AND 3:

19.   It is an admitted fact that, the complainant purchased the lift from the OPs and got it installed  and serviced to his residential building.  There is no dispute regarding payment of money between the parties.  Though there is allegation and counter allegation regarding the delay in carrying out the work installation and commissioning of the lift, that is not the point in issue in this complaint. 

20.   On perusing the entire complaint and the version, it zeros down to non-maintenance of the lift and the pealing of the paint on the lift. The complainant has produced the photograph of the lift, door wherein the paint has come out at certain points. It is the bounden duty of the Op to maintain the lift properly as long as there is an annual maintenance contract.  It is also not in dispute that, the AMC has been renewed for the period of two years with a little gap in between. The AMC obtained by the complainant is only for the maintenance and not a comprehensive one as per the documents produced. Further there is no evidence produced by the complainant to show the malfunction of the lift or jerking in the lift, vibration in the lift or sudden stop due to manufacturing defect or technical defect. If at all there was such a problem in respect of the functioning of the lift the complainant ought to have got a technical person appointed in that respect to show the forum that there is manufacturing defect or inherent defect in the lift and also defect in carrying-out the usual maintenance by the OP.  Even she has not produced any medical records to show that her husband suffered injuries due to the jerk or vibration in the lift.

21.   Further the complainant himself has patted the OPs by mentioning in the complainant that during the maintenance contract, OPs haveattended the complaint. When such being the case, and in the absence of evidence to show that there is negligence on the part of OPs, we have come to the conclusion that the complainant has failed to prove either deficiency in service, negligence or unfair trade practice.  Hence we answer POINT NO.2 IN THE NEGATIVE and in the result complainant not entitle for any of the relief claimed in the complaint, and answer POINT NO.3 ALSO IN THE NEGATIVE. We hereby make it clear that, the complainant is at liberty to get the annual maintenance contract of his liking with OP or with anybody for upkeeping the operation of the lift. In view of the pealing of the paint in the door of the lift, we hereby direct the OP to get the entire lift inside and outside cleanly painted as a one timemeasure within 15 days from the date of this order. Hence pass the following:- 

ORDER

1. The Complaint is dismissed. Parties to bear their own cost.
2. OPNo.1 and 2 are hereby directed to carryout the painting of the lift inside and outside and doors of the lift on all the floors free of cost as one time measure within 15 days from the date of receipt of this order failing which to pay Rs.20,000/- being the cost of the painting.
3. O.Ps arehereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance’ report to this forum within 15 days thereafter Send a copy of this order to both parties free of cost.
4. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 22^ndNOVEMBER 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1 :General power of attorney.

Ex P2 :Copy of the contract agreement.

Ex P3 :Copy of the letter .

Ex P4 :Copy of the progress payment claim.

Ex P5 :Copy of the letter .C

Ex P6 :Copy of the handing over certificate.

Ex P7 :Copy of letter  for extent of warranty.

Ex P8 :Copy of the letter regarding inferior quality of elevator.

Ex P9 :Copy of the reply by OP.

Ex P10:Copy of letter by OP for nonrenewal for maintenance.

Ex P11:Copy of contract between the parties.

Ex P12:Copy of medical documents,

Ex P13:Copy of service/maintenance report.

Ex P14:Photographs.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:Sri Ashish Hanjura, Asst. General Manager of OPs.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Installation prestart check list dt 22.02.2014, 16.05.2014 &site communication report Dt:12.05.2014.

Ex R2: Coy of the letter dt 21.03.2016 along with executed AMC contract.

Ex R3: Copy of the letter dt 2.11.2017 along with executed AMC contract.

Ex R4: Copy of the maintenance visit record.

Ex R5: Copy of the call out record status closed

Ex R6: Copy of the maintenance visit record.

Ex R7: Copy of the maintenance report.

Ex R8: Copy of the call out record status.

Ex R9: Copy of the Tax Invoice.

Ex R10: Copy of the cheque.

Ex R11: Authorization letter.

Ex R12: Copy of the photographs.

Ex R13 : Copies of service reports.

MEMBER                        PRESIDENT

A*