KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 220/12

JUDGMENT DATED : 16.03.2012

PRESENT:

SHRI. M.K. ABDULLA SONA                           :  MEMBER

M/s Johnson Lifts Private Limited,

CC Door No.38/352, ‘Shelby House,

Karithala Road, Manorama Junction,

Cochin – 682 016, Ernakulam Village,

Kanayannur Taluk, Ernakulam District

Represented by its power of attorney-

Holder Mr. Jos P Geo,S/o K. George,              :  APPELLANT            

Assistant Manager Sales of the above named

Company, residing at Powathil House,

Eroor Desom (Eroor West P.O., Pin 682 306)

Nadama Village, Kanayannur Taluk,

Ernakulam Dist.

(By Advs. Saji P. Joseph & Joseph George. A)

Vs

M/s Nagarjuna Pearl Bay Apartment-

Owners Association, Puthiya Road,

Off KP Vallon Road,

Kadavanthra, Cochin – 682 020,

Ernakulam represented by its

Secretary Dr. Firoz Rajan, S/o S. Rajan            : RESPONDENT

JUDGMENT

SHRI. M.K. ABDULLA SONA : MEMBER

          This appeal came before this commission for admission and heard the counsel for the appellant. This appeal filed along with a today moving petition before this commission. Taken up this matter in the open court for admission and hearing. The appeal filed along with the IA for a stay the further proceeding of the EP which is pending before the Forum below. Heard IA No. 415/12 and allowed. The appeal is admitted and heard along with the stay petition in detail.

2.      This appeal prefers from the order passed by the CDRF, Ernakulam in CC No. 664/2009 dated : 31.12.2011. The appellant is the opposite party and the respondent is the complainant in the above CC respectively.

3.      In brief, the complainant is the owners association of 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 allegation is that the builder of the apartment entered in to an 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 would find it difficult to conduct the maintenance without the digital operator. 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.

4.      The opposite party contended in their version that they supplied, erected, commissioned and handed over 8 passenger lifts in the apartment complex. Warranty has been provided for one year. 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 magnets VVV F. The complainant is not entitled to get any of the reliefs as sought for.

5.      The evidence consists of Exts. A1 to A10 were marked on the side of the complainant and marked commission report as Ext.C1. The complainant was examined as PW1, Dr. Firoz R. For the opposite party were examined as DW’s 1 to 3 and marked Ext. B1 power of attorney of the opposite party.

6.      The Forum below heard both sides and considered the evidence adduced by both sides and taken a view that the non supply of the same itself to 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 key pad in an imperative. So, the Forum below is of the firm view that the opposite party is contractually and legally liable to provide the digital key pads to the elevators 8 in numbers erected by them in the apartment complex.

1.                The Forum below allowed the complaint and directed opposite party 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.5,000/- to the complainant towards costs of the proceedings.

7.      The appellant prefers this appeal from that order of the Forum below. The counsel for the appellant submitted on the grounds of appeal memorandum that the appellant/opposite party taken a strong contention in their version that the respondent/complainant association is not a consumer under the purview of the C.P Act because they did not availed or purchased any goods or service from the appellant/opposite party. Without producing any cogent evidence regarding the respondent/complainant cannot be considered as a consumer and he has estopped for filing the above complaint. At a time of forming the association on 28.1.2009 the appellant was not in the picture, the appellant/opposite party’s service was expired on 31.12.2008. In the circumstance, the appellant is not bound to the respondent/complainant association or the purchaser. Hence it is very important to note that, the formation of the complainant association was only on 28.1.09. The service period was up to 31.12.08. From 01.01.2009 onwards the appellant herein have no connection with the service of the disputed subject matter. In between the formation and the expiry period of service contract there is a difference of 28 days. The respondent/complainant cannot deviate or back out from his own complaint. If the very substance of the complaint itself is not correct the complaint filed by the respondent/complainant is liable to be dismissed.

8.      I heard in detail and perused the order passed by the Forum below. It is seeing that the Forum below did not discuss and consider a very important question of law that whether the complainant is a consumer or not in accordance with the provisions of law. In the cause title of the judgment; it is seeing that Dr. Feroz R. represented as a secretary of the Nagarjuna Pearl Bay Apartment Owner’s Association. In the appendix of the order passed by the Forum below I am not seeing that any authorization or By the laws or any power of attorney which produced before the Forum below and marked by the complainant. Another illegality noted that the complainant did not put the builder and the Kone elevators either as parties in case or cited as witnesses in the witness memorandum. As per the Consumer Protection Act a recognized Voluntary Consumer Association or a person represented the similar interest of other consumers can be filed a consumer complaint before the Forum below. But here no were stated that this complainant is a consumer association which registered as per the provisions of the CP Act. I am not discarding the grievances of the complainants/consumers.  At the same time they bound to carry out sufficient amendments in their petition and to implead the necessary parties in their complaint. In patent it is seeing that the appellant/opposite party is not having any direct relation with the consumer/complainant. There are no such documents, agreement or any undertaking letters or memorandum of understanding seeing produced. In the circumstance, the order passed by the Forum below is not accordance with the provisions of law and evidence. It is the duty of the Forum below that to discuss and decide the maintainability of the petition at first it also necessary to implead the necessary parties in the complainant. The counsel for the appellant submitted that this commission shall remand this case back to the Forum below for adduce fresh evidence. I think this is a fit case to remand back to the Forum below for fresh disposal after given opportunity to both sides for taken any steps for amendment of the plant, to implead the necessary parties and to adduce any documentary or other evidence if necessary for the interest of justice. Otherwise it will retain before this commission for comply the formalities and at last it will be remanded back. It will cause unnecessary delay for realize the Justice. The Forum is a fact finding body.

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 direct 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.

          Both parties are direct to appear before the Forum below after receipt the notice from the Forum below.

          The points of the appeal discussed one by one and answered accordingly. No cost ordered.

M.K. ABDULLA SONA : MEMBER

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