State Consumer Disputes Redressal Commission
Kseb,Rep.By Secretary vs M/S.Omega Elevators on 28 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM Complaint Case No. CC/07/6 1. KSEB,Rep.by Secretary Vydyuthi Bhavanam,Pattom,Tvpm 2. The Chief Engineer (Civil Construction) South KSEB, Vydyuthi Bhavanam, Pattom, Tvpm Kerala ...........Complainant(s) Versus 1. M/s.Omega Elevators 4,Kurien Tower,3rd Floor,Banerjee Road,Kochi 2. Kumar.M.Desai Omega Elevators, H.O.Omega, New Sharda Mandir Road, Paldi, Ahemadabad ............Opp.Party(s) BEFORE: HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI PRESIDENT SRI. V. V. JOSE MEMBER For the Complainant: For the Opp. Party: Dated : 28 Mar 2017 Final Order / Judgement '\THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. COMPLAINT . NO- 06/2007 JUDGMENT DATED. 28-03-2017 PRESENT:- JUSTICE. SRI. P.Q. BARKATH ALI : PRESIDENT SRI. V.V.JOSE : MEMBER COMPLAINANTS: The Kerala State Electricity Board Represented by its Secretary, Vydyuthi Bhavanam, Pattom, The Chief Engineer ( Civil - Construction) South, KSE Board, Vydyuthi Bhavanam, Pattom, Thiruvananthapuram. (By Adv. B. Sakthidharan Nair) V/S OPPOSITE PARTIES: M/s. Omega Elevators, 4, Kurien Tower, Mr. Kumar. M. Desai, Omega Elevators, " H.O. Omega" , New Sharda Mandir Road, Paldi, Ahemedabad- 380007. (By Adv. Poovappally Rama chandran Nair , C.S.Rajmohan and others) (2) JUDGMENT
JUSTICE. SRI. P.Q.BARKATH ALI: PRESIDENT This is a complaint filed by the complainant M/s. KSEB claiming compensation for the defective lift supplied by the opposite parties. First complainant is KSEB represented by its secretary and second complainant is its Chief Engineer ( Civil Construction) Vydhyuthi Bhavan, Pattom.
The case of the complainants as detailed in the complaint in brief is this.
The Head office of the Board is functioning at Vydyuthi Bhavan, Pattom, Thiruvananthapuram in building having 10 floors and lift 1 to 5. Five ' Beacon' make passenger lifts were installed during July 1985. Due to frequent complainant in 1999 board by its order dated December 30, 2003 decided to replace lifts 4 & 5 and by order dated January 13, 2005 decided to replace the lift No. 1,2 and 3.
(3)For replacement for lift 4 &5 Tender was invited on June 12, 2003 and for replacement for lift 1 ,2 and 3 tender was invited on October 7, 2004. For the replacement of lift 4 & 5 the rate was Rs. 25lakhs for supply and erection and Rs. 10,50,000/- for annual comprehensive maintenance contract for 5 years. The guarantee period was for one year. For the replacement of lift 1 ,2, and 3 rate was Rs. 38, 16,000/- for supply and erection and Rs. 8,25,000/- for the annual maintenance for 5 years. On May 29, 2004 after completion of supply and erection of lifts 4 & 5 Rs. 25 lakhs was paid to the first opposite party and on completion of supply and erection of lifts 1 ,2 and 3 on October 31, 2005 Rs. 38, 16,000/- was paid to the first opposite party. Clause 17 of the agreement provides a guarantee period 12 months from the date of commissioning . The guarantee period of lifts 4 & 5 is May 28, 2005 and that of lifts 1,2 is 3 October 30, 2006. After installation the lifts were not properly functioning. The technicians of the opposite parties failed to rectify the defect. The lift (4) have manufacturing defect even during the warranty period which amounts to deficiency in service. The lift have to be repaired 141 times till May 14, 2007. Therefore complainant filed the complaint claiming refund of Rs. 63,16,000/- being the cost of the lifts or in the alternative to repair the same. Complainant has also claimed a compensation of Rs. 25 lakhs.
Opposite parties are M/s Omega Elevators , Kochi represented by one Mr. Reghu and second opposite party is Kumar M. Desai who is having a valid license for installing the lift of first opposite party. They in their version contended thus: It is true that an agreement was entered into between the complainant and opposite parties to replace the old lifts ( 1,2,3,4 &5) using the old damaged guide rails at Vydyuthi Bhavan with a guarantee period of one year. The guarantee period of lift No. 1,2,3 was over on October 13, 2006. Warranty period of lifts No. 4 & 5 was over on May 28, 2005. Thereafter annual maintainance (5) comprehensive contract was being done. As per the agreement the installation work of replacing the old lifts using the old guide rails with a new one was over within the stipulate time. It was inspected thoroughly by the electrical inspectorate and clearance certificate was obtained. After taking possession of the lifts complainant approached the opposite parties several times for several modifications. After executing the work the electrical inspector inspected the lift of the complainant before handing over possession of the lifts. If there are any minor defects opposite parties are prepared to rectify the same. The lift technicians have instructed the complainant to replace the old guide rails and faulty ELCB used in lifts. There is no lift operator in all there lifts. The components of the lifts are all very sophisticated electronic component which could be damaged by the misuse of these lifts by the officials, employees and public who are unaware of using the lifts in Vyduthi Bhavan. Therefore there is no deficiency of service (6) on the part of the opposite parties. Complainant is also barred by limitation as agreement was executed in 2003 and the complainant has taken possession of lifts in 2004. Therefore complaint has to be dismissed.
On the side of the complainants PW1 Sri. Rajeev Kumar.K the Executive Engineer Civil Construction ( Construction south) KSEB, Vydyuthi Bhavan, Thiruvananthapuram was examined and Exbt.A1 to A36 were marked. On the side of the opposite parties Dw1 Sri. Reghu Raghavan the Branch Manager of the first opposite party was examined and Exbt.B1 to B7 were marked.
The following points arise for considerations Whether the complaint is maintainable?
Whether there is any deficiency of service on the part of the opposite parties?
What are the reliefs the complainants are entitled to?
(7)Point No.1 Opposite parties filed IA.683/2009 to amend the version raising the question of maintainability of the complaint on the ground that complainant is a commercial establishment. The said IA was allowed by order dated 29/07/2009. Thereafter the question of maintainability was heard as a preliminary point. By order dated October 29, 2009, this commission found the complaint is maintainable which was confirmed in appeal by National Commission in first appeal No. 5/2010 by Judgment dated January 22, 2010. Thus the said order has become final and therefore we hold that complaint is maintainable.
Point No.2:-
It is admitted that the lift Numbers 1,2,3, 4 and 5 installed in the Head office at Vydyuthi Bhavan, Pattom were replaced by the first opposite party in pursume to the tender , work orders and agreement executed by the complainants and the first opposite party. Exbt.A1 is the agreement dated January 12,2004 in respect of lift No. 4 &5.(8)
Exbt.A2 is the agreement dated March 1, 2005 in respect of lift No. 1,2 and 3. As per the schedule of Exbt.A1 the agreed rate of lift Numbers 4 & 5 was 25 lakhs for supplying and erection of lifts and Rs. 5,50,000/- for annual maintenance contract. As per the schedule of Exbt.A2 agreement the rate was Rs. 32,16,000/- for supply and erection of lift 1,2 and 3 Rs. 8,25,000/- for annual maintenance contract for 5 years. Exbt.A3 &A4 are the bills for Rs. 25 lakhs and Rs. 38 , 16,000/- issued by the opposite parties. Exbt.A5 is the possession of elevators certificate dated May 29, 2004 showing that the 4 lifts were commissioned on May 29, 2004 and warranty period was from May 29, 2004 to May 28,2005. Exbt.A6 is the possession of elevators certificate dated October 31, 2005 of lift No.5.
The case of the complainants as testified as Pw1 is that several times the lifts broke down and it was got repaired by the technicians of the opposite party. He alleged that the said lifts suffers from manufacturing defect and that therefore either opposite party is bound to (9) replace the same or refund its price. Complainants mainly relied on Exbt.A7 to A20 and A32 and Exbt.X1 and Exbt. X2 . Exbt.A7 are the true copies of the abstract of complainant log books . Exbt.A8 series are the lift complaint reports issued by the opposite parties. Exbt.X1 is the report of the expert commissioner showing the defects of the ' Lift'. Exbt.X2 is the additional report of the Commissioner. In Exbt.X1 the report the expert commissioner suggested replacement of lifts two and five and replacement of parts of lift one, three and four. In Exbt.X2 report commissioner have reported about the probable expenditure required for repairing lifts 1,3 and 4. The above documents prove beyond doubt that the lifts became defective during the warranty period itself and though the employees of the opposite parties attended the aforesaid defect they could not rectify the same. Exbt.A9 to A.29 are the letters sent by the complainants requesting the opposite parties to rectify the defects in the lifts which they did not do.(10)
In IA. 689/2009 on October 4, 2007 this commission directed the opposite parties to rectify the defect in 15 days which opposite parties did not do. Therefore on October31, 2007 this commission permitted the complainants to carry out the repairs at the risk of the opposite parties. In pursuance of the said order complainants spent about Rs.11,16,000/- for repairing lifts. Complainants have also replaced the lift 2 & 5 spending Rs. 47,91,960/-. Complainants produced statements showing the details of the amount spent. It is clear from the above that the lift suffer from manufacturing defects. Thus there is clear deficiency of service on the part of the opposite parties. It follows that complainants are entitled to refund of the price of the lift and compensation. They also entitled to get the amounts spend for replacing the lifts.
In the result complaint is allowed. Opposite parties are directed to refund to the complainants Rs. 63,16,000/- being price of the lifts installed by the opposite parties. They are also entitled to recover from (11) the opposite parties Rs. 47,91,960/- spent for installing the new lifts 2 and 5 and Rs. 11,16,000/- being the cost incurred for repairing the lifts 1,3 &4. Instead of awarding compensation we feel that interest at the rate of 12% per annum from the date of complaint till realization would be reasonable. The complainants are entitled to a cost of Rs. 10,000/- in this complaint.
JUSTICE. P.Q.BARKATH ALI: PRESIDENT V.V.JOSE : MEMBER APPENDIX Witness for the complainant: Pw1: Sri. Rajeev Kumar.K. (12) Exbt.X1- Report of expert Commissioner dated on 01-02-2011. Exbt. X2- Additional report of expert Commissioner dated. 01/02/2011 Witness for the opposite parties: Dw1: Sri . Reghu Raghavan Exhbits for the complainants: Exbt. A1The copy of the agreement 2/ CECC/2004 dated. 12.01.2004 . Exbt.A2- Copy of the agreement 3/CECC/2005 dated. 01.03.2005. Exbt.A3- Copy of the Bill No. 27 dated. 28/02/2004. Exbt.A4-Copy of the Bill No. 13 dated . 31/10/2005. Exbt.A5- Copy of the possession of elevator certificate certificate dated. 29/05/2004. Exbt.A6- Copy of the possession of elevator certificate certificate dated. 31/10/2005. Exbt.A7- Abstract of log of complaints recorded (11 sheets) . Exbt.A8- Copy of lift complaint Reports ( 69 Nos). (13) Exbt.A9- Copy of letter send to the opposite party by the complainant dated. 08/02/2006. Exbt.A10-Copy of letter send to the opposite party by the complainant dated. 04/04/2006. Exbt.A11-Copy of letter send to the opposite party by the complainant dated. 04/05/2006. Exbt.A12- Copy of letter send to the opposite party by the complainant dated. 08/05/2006 Exbt.A13- Copy of letter send to the opposite party by the complainant dated. 12/05/2006. Exbt.A14-Copy of letter send to the opposite party by the complainant dated. 16/05/2006. Exbt.A15- Copy of letter send to the opposite party by the complainant dated. 22/05/2006. Exbt.A16-Copy of letter send to the opposite party by the complainant dated. 23.05.2006 Exbt.A17- Copy of letter send to the opposite party by the complainant dated 26.06.2006 Exbt.A18- Copy of letter send to the opposite party by the complainant dated. 30.06.2006 (14) Exbt.A19- Copy of letter send to the opposite party by the complainant dated. 30.06.2006 Exbt.A20- Copy of letter send to the opposite party by the complainant dated. 06/07/2006. Exbt.A21- Copy of letter send to the opposite party by the complainant dated. 07/07/2006 Exbt.A22- copy of letter send to the opposite party by the complainant dated. 15/07/2006 Exbt.A23- Copy of letter send to the opposite party by the complainant dated. 17/07/2006. Exbt.A24- Copy of letter send to the opposite party by the complainant dated. 18/09/2006. Exbt.A25- copy of letter send to the opposite party by the complainant dated. 30/09/2006 Exbt.A26- Copy of letter send to the opposite party by the complainant dated. 02-02-2007 Exbt.A27- Copy of letter send to the opposite party by the complainant dated. 28/03/2007. Exbt.A28- Copy of letter send to the opposite party by the complainant dated. 18/05/2007 (15) Exbt.A29-Copy of letter sent to the opposite party by the complainant dated. 25- 04-2007. Exbt.A30- Copy of letter dated. 15-03-2007 and Copy of postal receipt ExhibitA.30 series. Exbt.A31- Copy of the Attendance report . Exbt.A32- copy of the lift break down log. Exbt.A33- copy of the agreement dated. 30/10/2008 Exbt.A34- Copy of Agreement dated. 06/12/2007. Exbt.A35-Supplementary agreement dated. 14/01/2009. Exhbits for the opposite parties: Exbt.B1- Special Power of Attorney Exbt.B2- Routine maintainance card Exbt.B3- Proceeding of the electrical Inspector,Thiruvananthapuram . Exbt.B4- Letter given to the complainant by opposite party dated. 21-03-2007. Exbt.B5- The certificate issued to the opposite party by the complainant . (16) Exbt.B6- Letter given to the complainant by the opposite party dated. 05-09-2007. Exbt.B7- Letter given to complainant by opposite party dated. 06/04/2007. JUSTICE. P.Q.BARKATH ALI: PRESIDENT V.V.JOSE : MEMBER Sh/- [HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI] PRESIDENT [ SRI. V. V. JOSE] MEMBER