National Consumer Disputes Redressal
Ambience Island Apartment Owners vs Raj Singh Gehlot & Ors. on 19 March, 2014
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 93 OF 2004 Ambience Island Apartment Owners : 1. Mr. Gopal Agarwal S/o Sh. D.P.Agarwal R/o H 902, Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 2. Mrs. Uma Agarwal W/o Sh. Ram Chandra Agarwal R/o F 904 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 3. Mr. Sanjay Badshah S/o Sh. B.N. Badshah R/o E 902 Ambience Island NH-8, Gurgaon, Haryana 4. Mrs. Anuradha Balaram W/o Sh. Ajit Balaram R/o C 704 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 5. Capt. Sandipan Banerjee S/o Lte Sh. Rash Mohan Banerjee R/o C 902 Ambience Island Lagoon Apartments, NH-8, Gurgaon, Haryana 6. Mr. J.S. Bhasin S/o Sh. Gurcharan Singh R/o E 801 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 7. Mrs. Meena Bhogal W/o Late Wg. Cd. B.S. Bohtal R/o E 401 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 8. Mr. Jayant Budhiraja S/o Sh. Ram Prakash R/o E 301 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 9. Capt. J.S. Chaudhary S/o Sh. Harnam Singh R/o C 402 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 10. Mr. Pawan Chaudhary S/o Sh. K.G.K. Chaudhary R/o F 401 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 11. Mr. Pradeep Chowdhary S/o Sh. B.D. Chowdhary R/o F 801 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 12. Mr. Ankan Dabral S/o Sh. Prateek Dabral R/o C 601 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 13. Capt. Sanjay Dey S/o Brig. S.K. Dey R/o C 003 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 14. Lt. Gen. G.K. Duggal S/o Late Sh. C.L. Duggal R/o C 201 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 15. Col. D.S. Goel (Retd.) S/o Sh. Shyam Lal R/o F 304 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 16. Mr. Dipak Goyal S/o Sh. J.M. Goyal R/o H 602 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 17. Capt. G.P.S. Grewal S/o Late Sh. K.S. Grewal R/o H 604 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 18. Mr. A.C. Gupta S/o Late Sh. H.C. Gupta R/o H 601 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 19. Mrs. Sushma Gupta W/o Sh. R.K. Gupta R/o H 503 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 20. Mrs. Indira Haran W/o Dr. E.G.P. Haran R/o H 201 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 21. Air Marshal S.G. Inamdar (Retd.) S/o Sh. G.R. Inamdar R/o E 002 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 22. Mrs. Anchal Jain W/o Sh. A.K. Jain R/o H 803 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 23. Mrs-. Anil K. Jain S/o Sh. R.S. Jain R/o C 501 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 24. Mr. Hitesh Jain S/o Sh. M.K. Jain R/o H 102 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 25. Mr. Saket Kanoi S/o Sh. N.P. Kanoi R/o F 504 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 26. Mr. A.K. Khanna S/o Late Sh. K.D. Khanna R/o H 101 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 27. Mrs. Meera Khanna W/o Lt. Gen. A.S. Khanna R/o C 502 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 28. Mr. Jatin Khetarpal S/o Sh. Raj Kumar Khetarpal R/o E 804 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 29. Major Gen. G.S. Kohli S/o Sh. S.G. Kohli R/o H 404 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 30. Mr. Anurag Kumar S/o Sh. A.P. Singh R/o F 704 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 31. Mr. Yogesh Kumar S/o Late Sh. B.M. Sharma R/o H 703 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 32. Mr. A.K. Madhur S/o Late Sh. B.M. Madhur R/o F 601 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 33. Mr. Kamlendra Maliah S/o Sh. Pushpendra Maliah R/o E 903 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 34. Mr. Pushpinder Malik S/o Sh. M.S. Malik R/o C 604 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 35. Mrs. Hemali Nangia w/o Sh. Rajesh Nangia R/o F 103 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 36. Mr. Manoj Pahwa S/o Sh. C.D.Pahwa R/o E 403 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 37. Mr. R.K. Parimoo S/o Sh. B.M. Parimoo R/o E 302 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 38. Mr. Ashwani Prabhakar S/o Late Sh. Om Prakash Prabhakar R/o H 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 39. Mr. Shiney Prasad S/o Sh. Hemand Prasad R/o F 701 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 40. Lt. Gen. A.K. Puri S/o Late Sh. D.R. Puri R/o F 903 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 41. Dr. Ashok Rattan S/o Sh. H.R. Rattan R/o C 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 42. Mrs. Anita Rawal W/o Sh. Samvit Rawal R/o C 403 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 43. Mr. Jasdeep Singh Sahota S/o Sh. Kuldeep Singh Sahota R/o F 804 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 44. Mr. Ishan Mohan Sandhu S/o Shri Pankaj Mohan R/p E 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 45. Mr. A.K. Saxena S/o Late Sh. H.K. Saxena R/o F 301 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 46. Mr. S.R. Sehgal S/o Late Sh. Sita Ram R/o H 403 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 47. Mr. Sumit Sehgal S/o Sh. S.N. Sehgal R/o F 901 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 48. Dr. Amitabha Sen S/o Late Sh. Ashataru Sen R/o E 103 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 49. Mr. Bharat B. Sharma S/o Sh. Raj Kumar Sharma R/o E 802 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 50. Mrs. Priya Sharma W/o Wg. Cdr. Neeraj Sharma (Retd.) R/o C 503 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 51. Mr. Jasbir Singh Sidhu S/o Sh. G.S. Sidhu R/o F 203 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 52. Dr. H. Singh S/o Capt. Ranjit Singh R/o F 602 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 53. Mrs. Jasmine Singh W/o Sh.Joginder Singh R/o E 101 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 54. Mr. Abhishek Singhania S/o Sh. K.N. Agarwal R/o C 703 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 55. Mr. Shailendra K. Singh S/o Sh. K.N. Singh R/o F 404 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 56. Mr. Vijay Sirse S/o Sh. Murgeppa Sirse R/o E 703 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 57. Mr. B.S. Soin S/o Sh. O.P. Single R/o C 503 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 58. Mr. O.P. Sud S/o Late Sh. N.R. Sud R/o E 502 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 59. Cl. R.P. Suhag S/o Col. KS. Suhag R/o H 401 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 60. Mr. R. Suryanarayan S/o Sh. V. Rajagopal R/o F 603 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 61. Mr. Pawan Swarup S/o Sh. R. Swarup R/o F 204 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 62. Dr. (Col.) Subhash Chandra Talwar S/o Late Sh. R.P. Talwar R/o F 803 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 63. Mr. Anil Uppal S/o Sh. S.K. Uppal R/o E 204 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 64. Mr. Suresh Varma S/o Sh. P.M. Ramesan R/o C 803 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 65. Capt. Vipen Vig S/o Late Brig. O.P. Vig R/o E 203 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana 66. Mrs. K. Yadav W/o Capt. D. Yadav R/o H 702 Ambience Island Lagoon Apartments NH-8, Gurgaon, Haryana Complainants Versus 1. Mr. Raj Singh Gehlot L-4 Green Park Extension New Delhi- 110016 2. M/s HLF Enterprises Private Limited L-4, Green Park Extension New Delhi- 110016 3. M/s Ambience Infrastructure Private Limited L-4, Green Park Extension New Delhi- 110016 4. M/s Scan Elevators K-127, Krishna Park Extension New Delhi -110 018 ... Opposite Parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For all the 66 Complainants : Dr. Amitaba Sen, Advocate With Ms. Aditi Pandey, Ms. Geetanjali Sethi, Mr.Nihit Nagpal, Mr.Puneet Dhawan, Ms. Malyashree Sridharan & Ms. Pragati Aneja, Advocates For OPs 1 to 3 : Mr.Sumit Gehlawat, Advocate With Mr. T.S.Thakraon, Advocate. For OP No.4 : Mr. Ajay Sharma, Advocate With Ms. Poonam Lau, Advocate PRONOUNCED ON _19TH MARCH, 2014 ORDER
PER JUSTICE J.M. MALIK
1. The grievance of 66 Flat Owners of Ambience Island Apartment, the complainants, has two prongs against its Builder, Promoter, Mr.Raj Singh Gehlot, who represents Opposite Party Nos. 1, 2 & 3. Firstly, the OPs 1, 2 & 3 did not install the full numbers of Elevators, as promised and piled on the agony of the Flat Owners, by not maintaining the already installed lifts throughout the Apartment Complex and more particularly, in Block Nos. C, E, F and H, by M/s. Scan Elevators, OP4.
2. The OPs 1, 2 & 3 advertised through Newspapers regarding the above said Apartment Complex. The advertisement had captivating features, one of them being, high-speed Elevators, with one lift for every ten Apartments, thereby implying that four Elevators would be provided for each of the four Blocks, i.e., C, E, F & H, housing 40 Apartments each, i.e. total 16 Elevators for four Blocks. Further the OPs despite having chutes for four Lifts, provided two Elevators in each of the above said four Blocks. Copy of the advertisement and other promotional media affirming the same have been placed on record as Annexure 1, thru 3.
3. The crux of the whole problem is that, from day one, the lifts were very slow and prone to frequent breakdowns. Due to lack of any maintenance at all, most of the features of the lifts, including, but not limited to the alternate power source have become totally dysfunctional. In the event of power failure, the lifts are therefore plunged into darkness till the back-up of power source takes over, thus making it a harrowing experience for the people stuck in the lifts during power cuts. The whole problem relating to the lifts is compounded because of the intentional neglect on the part of the OPs to maintain the safety and operation of the lifts.
4. The lifts in the Blocks C, E, F & H lack the automatic rescue device, the mechanism which takes the Elevators to the nearest floor enabling the occupants thereof to alight safely in the event of a power failure. The absence of this automatic rescue device in the Elevators in the said Blocks means that the occupants of a lift are frequently stuck between floors in the event of a power failure. OP4 has throughout failed miserably to perform its duties during one year warranty period or subsequent maintenance of the lifts. The lifts were not maintained properly. In absence of proper maintenance there have been instances where the Elevators have come to stop after failing freely for several floors.
There have been occasions when the lifts have, instead of stopping at the proper landing, came to a stop, couple of feet above the landing, thereby leaving the occupants therein with no option but to jump out of the lift to alight and in the process hurting themselves.
5. The complainants have lodged various complaints and correspondence and representations were exchanged between the parties, but these did not ring the bell. The correspondence has been appended on record as Annexure 5. M/s. Scan Elevators Ltd., OP4 was to provide 16 lifts, however, Eight lifts were not installed. The OPs, by not installing the eight lifts, enriched themselves to the tune of Rs.1,28,00,000/- , the same being determined from the Quotation received from OTIS, which has been placed on record as Annexure No.6.
The OPs are liable to pay interest @ 21% p.a. from April, 2001, to the date of filing of the complaint. Consequently, this complaint was filed before this Commission, on 08.11.2004, with the following prayers:-
a. Direct the Respondents to install two additional express elevators with recognized and reputable brand, each in the blocks of C, E, F & H. b.
Direct the Respondents to replace the existing elevators with recognized and reputable brands in the Apartment Blocks, C, E, F & H and ensure that they work efficiently.
c.
Direct the Respondents to pay interest @ 12% on Rs.88,00,000/- from April, 2001 to the date of filing of this complaint.
d.
Direct the Respondents to pay cost of the present complaint.
e. Direct the Respondents to pay appropriate compensation to each Complainant towards the mental agony, suffering, torture and damages that each of the complainants have had to undergo because of the deficient lifts provided by the Respondents.
f.
Any other and/or further relief which this Honble Commission may be pleased to grant in the light of the facts of the present complaint.
6. OPs 1 to 3 have enumerated the following defences in their support. There is no deficiency on the part of the OPs. All the lifts installed therein are of good quality. The lifts were installed before the possession and the occupation certificate which was received on 31.12.2001 from Town & Country Planning, Haryana, Chandigarh. The Complainants were fully aware on and before the booking of the flats regarding the quality of the lifts in question and the same were installed and maintained by OP4. No complaint or representation regarding the above said defects were made to the OPs. The counsel for the complainant, Dr. Amitabha Sen, is one of the residents of the said Apartments Complex residing at No.E-303. He has filed several false and frivolous cases against the OPs. Again, Complainant Nos.
3, 12, 13, 14, 21, 22, 23, 29, 30, 34, 38, 41, 42 and 54 have given statements and affidavits that they have carried out unauthorized construction in their Apartments. They have violated building bye-laws and other norms of parking and representative blocks of the residents. The OP2 received a notice from the Director, Town & Country Planning, Haryana, Chandigarh against the complainants who have violated the building bye-laws. Those documents have been annexed as AnnexureD. Complainant Nos. 9, 12, 22, 23, 24 & 52 did not purchase the flat from OPs. Like-wise, complainant Nos. 2 & 6, did not have any right, title or interest in the subject matter of the complaint. Again, this case is barred by limitation. Most of the complainants applied and were allotted the apartments in question prior to November,2002. The present complaint was filed in this Commission, on 08.11.2004.
7. The allottees were informed at the time of booking that there was provision for four lifts, in each Block, i.e. C, E, F & H and two lifts have been provided in each Block and it was agreed that Allottees can get the additional lift(s) installed at their own cost. The agreement of sale is clear in this respect.
8. OP4 listed the following defences. It has got no privity of contract with the complainants. It is neither an agent nor in any way connected with the management of OPs 1 to 3. Dealings, transactions between OP4 and OPs 1 to 3 on the other hand, were on principal- to- principal basis, wherein, the former had complied with/honoured the contract given by OPs 1 to 3, strictly in accordance with the requirements and specification stipulated in the letter dated 18.12.2000 and the offer letter dated 21.11.2000, during the warranty period only. It is explained that there was no condition for installing the lifts with the promise or any condition stipulated in the Agreement for high-speed Elevators. The OP 4 has even stationed its Engineers and team of Technicians permanently in the building and were providing 24 hours call-back service, though, the same was never stipulated in the terms and conditions of the contract.
9. After having subjected the evidence and written synopses to a closet scrutiny and having heard the counsel at length, we have come to the following conclusions.
A. Number of Lifts :
The main question revolves round the total number of lifts. According to the counsel for the complainants, they were taken for a ride. The attention of this Commission was invited towards the Advertisement, at C1, C2 & C3, marked as Annexure-2, reads :-
3.
Amenities & Facilities :
i) Ratio of one lift to no. of ] apartments in the block ] 1:
10 1:24 to 57.
[Emphasis supplied].
10. The brochure at Ex.C-4, shows that there would be four lifts, one each, for ten Flats.
11. We clap no value to these namby pamby pleas.
The evidence has to be viewed holistically. It has not to be read in vacua to the detriment of one and to the benefit of other. This has to be read as a whole as composite document. On the other hand, there is final agreement entered into between the parties. The other promises, advertisements, assurances given to the Buyers, pale into insignificance, when the matter is settled between the parties, through the Agreement. Para H of the Agreement, dated 01.11.2001, clearly, specifically and unequivocally mentions :-
H. AND WHEREAS, the Apartment Allottee acknowledges that the Company has readily provided all information, clarifications as required by him/her but that he/she has not relied upon and is not influenced by any architects plans, sales plans, sale brochures, advertisements, representations, warranties, statements or estimates of any nature, whatsoever, whether, written or oral, made by the company, its selling agents/brokers or otherwise, including, but not limited to any representations relating to description or physical condition of the property, the Building or the Apartment or the size or dimensions of the Apartment or the rooms therein or any other physical characteristics thereof, the services to be provided to the Apartment Allottees, the estimated facilities available to the Apartment Alolottees or any other data except as specifically represented in this Agreement and that the Apartment Allottees has relied solely on his/her own judgment and investigation in deciding to enter into this Agreement and to purchase the said Apartment. No oral or written representations or statements shall be considered to be part of this Agreement and that this Agreement is self-contained and complete in itself in all respects.
12. This clearly goes to show that the Agreement supercedes the Brochures, Advertisements, Representations, Sale Plans, etc. It was the duty of the complainants to go through the Agreement, thoroughly, line by line and word by word. They signed the papers with open eyes. They are educated people. They are represented by an Advocate, who, also resides there. Consequently, the Brochure and Sale Plans pale into insignificance. No compensation in respect of two lifts in the premises can be granted.
13. Moreover, the case of OPs 1 to 3 is that they have started selling Apartments in March, 2001. At the time of booking the Apartments, they were required to move into the flats and the lifts were installed and operational. The flats were inspected by the allottees. They were informed about the details of the lifts. They were informed of the number and quality of the lifts in question and the same were installed and maintained by Scan Elevators Ltd., OP4. It is also pointed out that the complainants have failed to provide any correspondences exchanged between the complainants and the OPs regarding installation of additional lifts made before filing the present complaint. The OPs have referred to the letters dated 19.04.2001, 26.01.2004 and 01.11.2006. Thus, the complainants were aware regarding the two lifts and not four lifts. On the contrary, if the complainants bought a pig in a poke, who can come to their rescue?. Their silence, for a long time, is pernicious.
14. Last, but not the least, the case of the complainants is barred by time, on this particular count. No date of cause of action was specified, when the lifts were not installed, at the very inception, in the year 2001, the complaint should have been filed somewhere, in the year 2003, itself.
B. The entire case is not barred by time :
15. The next submission made by the counsel for OPs 1 to 3 was that the case is barred by time. No date of cause of action was specified. The occupation certificate of the complainant was received on 21.12.2001 and the possession was handed over to the owners of the apartments. Most of the complainants applied and were allotted apartments, prior to November, 2002, i.e., two years prior to the filing of the complaint. The present complaint was filed on 08.11.2004 and it is barred by time.
The alleged figure disclosed by the complainants in the sum of Rs.3, 20,68,000/- is false and highly inflated.
16. His argument has force in a measure. By no stretch of imagination, it can be held that the case is entirely barred by time. The year of maintenance, changes with every year. Fresh cause of action arises with every year. The case may be barred for claiming the amount of lifts because it was filed two years after the lifts, were installed, but, rest of the case is, within the period of limitation.
C. Whether, all the complainants are interested in pursuing this case:-
17. The case of OPs 1, 2 and 3 is that the complainant Nos. 12, 13, 14, 21, 22, 23, 30, 34, 38, 41, 42 & 54 have given statements that they have got no concern with the present complaint and their signatures have been obtained by fraud and misrepresentation. It is prayed that this Commission should file contempt poceedings for filing the present complaint. Moreover, complainant Nos. 9, 24 & 52 have neither booked any flat nor purchased the flats. The complainant Nos. 2 & 6 have already sold their flats. There is no privity of contract between complainant Nos. 8, 28, 46, 47 & 59.
18. All these arguments are bereft of merit. The complainants have filed a paper, signed by the above said flat owners, viz, 12, 13, 14, etc. If they are not interested in filing the complaint, they should come to the Commission or they should come through the Advocate. On 07.03.2014, we passed the following orders :-
Counsel for the parties are present.
Arguments heard.
It is made clear that those who do not want to continue with the case, may file a separate application, either in person or through their Advocate, with Vakalatnama.
Affidavit may be filed within 3 days, i.e., till 4.00PM, on Monday, 10.03.2014.
Arguments are closed, Advocates need not come for the Arguments.
Reserved for orders.
19. None of the litigants have filed application for withdrawal of the case. However, the complainants have filed a Joint Statement, on behalf of, as many as 193 residents. The arguments advanced on behalf of OPs is that there is no privity of contract between those who have sold the premises or where the tenants are residing. This argument is not a coherent argument. Are they not getting the maintenance allowance from them. Consequently, privity of contract stands established. They want to have the benefit of both the worlds. On the one hand, they are charging maintenance allowance and on the other hand, they contend that they have got no connection with them.
D. Violation of Byelaws :
20. The next submission made by the counsel for the OPs 1 to 3 was that the complainants have violated the bye-laws by way of carrying out illegal construction in their respective Apartments and even the defacement of the exterior of the building blocks in the complex. OP2 received a notice from the Director, Town & Country Planning, Haryana, Chandigarh, as detailed above. It is also submitted that the maintenance due up to November, 2012, towards complainant, Dr.Amitabha Sen, Complainant No.48, in the sum of Rs.55,598/-, towards complainant No.62, Mr.Subhash Chandra Talwar, in the sum of Rs.1,12,580/-, towards complainant No.44, Mr.Ishan Mohan Sandhu, in the sum of Rs.32,894/- and towards complainant No.65, Mr.Vipen Vig, in the sum of Rs.4,355/-.
21. Do all these questions germane to the present controversy? In case the complainants have violated the law and rules, the law will take its own course. The Director, Town & Country Planning, Haryana, Chandigarh, is already seized of the matter.
E. Maintenance of Lifts :
22. Now we turn to the question of maintenance of the lifts/ Elevators. The counsel for the complainants has placed reliance on the following authorities. (1) Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105 (2) Manroland Druckimachinen Vs. Multicolour Offset Ltd. & Anr., (2004) 7 SCC 447, (3) Optonica Kalyani Sharp India Ltd. Vs. Gopal Lakhotia, II (2003) CPJ 435, (4) Mrs. Meena Balan & Anr. Vs. Maxworth Homes Ltd. & Anr., II (2002) CPJ 52 (MRTP), (5) Dr.Mohanarao Maruthirao Charge Vs. M/s. Sipani Automobiles Ltd., II (1992) CPJ 613 and (6) Original Petition No. 25 OF 2005, titled Mrs. Rashmi Handa & Ors. Vs. M/s. OTIS Elevator Company (India) Ltd., decided by this Bench, on 21.01.2014.
23. On the contrary, the counsel for the Opposite Parties 1, 2 and 3, has cited the following authorities, in support of his case. (1) Ravneet Singh bagga Vs. M/s. KLM Royal Dutch Airlines & Anr., (2000) 1 SCC 66 (2) Satish Garg & Anr. Vs. Netafim Irrigation India Pvt. Ltd. & Anr. (RP No. 2086 of 2012) decided by this Commission on 03.10.2012 (3) Usha (India) Ltd., Vs. State Estate Management Pvt. Ltd., I (2005) CPJ 43 (NC), (4) Shri Maqbool Alam Ansari Vs. Mr.M.S.K. Mapara (RP No.2179 of 2009) decided by this Commission on 09.02.2012 (5) Sahil Garden Co-op. Housing Society Ltd., Vs. Paranjpe Estates & Development Co. (P) Ltd., (FA No. 346 of 2010) decided by this Commission on 04.07.2012, (6) Kishori Lal Bablani Vs. Aditya Enterprises & ORs., II (2012) CPJ 682 (NC), (7) Sujata Nath Vs. Popular Nursing Home & Ors., III (2011) CPJ 239 (NC), (8) Ramesh Kumar Sihan Hans VS. Goyal Eye Institute, 2 (2012) CPJ 676 (NC), (9) Ratna Ghosh & Ors., Vs. Dr. P.K. Agarwal & Ors., (Complaint No.9 0f 2010) decided by this Commission on 29.03.2010, (10) Indian Oil Corporation Vs. Consumer Protection Council & Anr., SLP (C ) No.9440 of 1993, decided on 07.12.1993 and (11) Topline Shoes Ltd., Vs. Corporation Bank, AIR 2002 SC 2427.
24. It is an admitted fact that the OP charges maintenances of the lift at Rs.1.50 per sq.ft.
and now it has been raised to Rs.2.26/- per sq.ft. Let us take up the case of Shri Pramod Kishan, who has got 2656 sq.ft. He was present in the Commission during the final arguments. He has to pay a sum of Rs.6,975/- approx., as maintenance charges. The maintenance charges, also include the maintenance of the lifts, security, etc.
25. It is noteworthy that the OPs 1 to 3 and even 4, did not utter a word/syllable or whisper, about the maintenance of the lifts. No record was produced before this Commission. No evidence of their regular visit saw the light of the day. No attendance register was maintained nor it was explained as to why it was not maintained. No Engineer ever visited or maintained the lifts. It is surprising to note that no record is being maintained for the last about more than a decade. The maintenance allowance is charged regularly except few exceptions.
26. The admission of this fact comes out from the horses mouth itself. Mr. Raj Singh Gehlot, Opposite party No.1, in the capacity of Director, Ambience Developers & Infrastructure Pvt. Ltd., issued letter dated 17.09.2007 to Lt.Gen.Vinay Shankar, President, Ambience Lagoon Apartments Residents Welfare Association, the relevant para of which, runs as follows:-
In this respect, I would like to draw your attention to the discussions and consensus arrived with you in the matter whereby it was agreed that after obtaining the requisite approval of your association, you will send us a formal requisition for obtaining of quotation for replacement of the above said lift at the costs and expenses of the residents. Please note that we were in agreement that keeping in view all the aspects and betterment of the services at Lagoon Complex, the lifts need to be replaced and the exterior paint need to be carried out for which you were supposed to send me the authorization letter. Similarly, fire-fighting equipments and services need major repair and over hauling for which your formal approval is necessary.
27. The Minutes of Meeting held with the representatives of Residents Welfare Association on 31.08.2003, mentions under the caption, LIFTS, as under :-
RWA is not at all happy with lifts provided by Scan Elevators, particularly with reference to Quality of Mtc. They alleged that same problems keep on appearing again and again and the mtc., works need to be toned-up to improve performance and reliability.
Besides above, following observations were made by them to improve quality of service:
A. Some of the emergency ] Action to be taken lights in Lift cabins are not ] by Scan Elevators.
functional. ]
28. The lifts provided by the OPs are not in consonance with the recently enacted Haryana Laws involving maintenance and operation of all lifts, operating in the State of Haryana. The lifts, supplied by the OPs, are so bad that the OPs have failed to renew the licence for the lifts, which is another mandatory requirement for operating lifts in the State of Haryana. The complainants have prayed that all the 22 lifts should be replaced, which will incur a cost of Rs.
4,47,70,044/-. The complainants are also entitled to interest @ 12% p.a. for 10 years to the tune of Rs.13,92,34,837/-.
29. Let us now, turn to the Expert Reports, filed by both the parties, which favours the case of each party. Sh. A.K.Verma, Electrical Engineer, appointed as Expert on behalf of the complainants, submitted his affidavit, the relevant portion of which, is as under :-
I have visited one or more of the lifts installed. They do not qualify as high-speed elevators as their speed is less than 1.5 mtrs. per second. They are in a very sorry state of affairs as they seem to have remained unserviced for a long time and are thus in an urgent need of an exhaustive maintenance. All elevators, therefore, should be essentially serviced by trained and experienced Technicians at an interval not exceeding 30 days and preventive maintenance/ repairs/replacement be carried out under expert supervision and guidance.
30. On the other hand, the Certificate of Inspection submitted by the Expert, Sh.S.S.Malani, on behalf of OPs, is as under :-
The inspection of the lifts installed in the premises of Lagoon residential complex, Gurgaon, is carried out and is found safe for operation.
31. Dr. Amitabha Sen lodged a complaint with the District Town Planner, Enforcement, HUDA, on 13.01.2005. Its relevant para No.10, runs as follows:-
The sub-standard Elevators provided in the Apartments Complex are a far cry from the promised hi-speed elevators and have resulted in several injuries already.
32. The opposite parties want to make bricks, without straw. It is well settled that the documentary evidence will always get preponderance over the oral submissions, because, it is well known axiom of law that, men may tell lies, but the documents, cannot. There is not even an iota of documentary evidence, which may go to reveal that any action, any work, any payment, etc., was made to the maintainer of lifts, either by OP4 or any other maintenance company, for the last, more than a decade. Why are they charging, such a huge amount, towards maintenance?. Is there, any purpose to feather their own nest? The OPs 1, 2 and 3 are liable to pay 70% of the maintenance charges from November, 2002, till date. The said amount be returned, within 90 days, with interest at the rate of 9% p.a., from the date of receipt of this order, else, it will carry interest at the rate of 12% p.a., till its realization.
F. Liability of OP4.
33. The learned counsel for OP4 vehemently argued that the contract for maintenance of lifts in question, was given for one year only and that too, it was a free maintenance. The lifts were installed on 21.11.2000. It was specifically mentioned in the Quotation Scan Elevator Limited, as under :
Our Quotation includes for one year (12 months) free maintenance. The period of this maintenance will be deemed to commence on the date the installation is completed and offered for inspection. The date of commencement of this service will remain unchanged irrespective of any delay in building completion, availability of permanent power supply, inspection, taking over or commencing use of the lift.
Maintenance will consist of regular examination and any necessary adjustment and lubrication of equipment by competent employees under our direction and supervision. The required supplies will be furnished except such parts as may be needed because of negligence, misuse or accident not caused by us. Upon your request, special examination will be made, should trouble develop between regular examinations and you agree to notify us promptly of any such trouble. All work will be performed during our regular working hours of our regular working days, except for emergency, minor adjustment, call back service which will be provided during regular working hours and also during any overtime hours. No work or service other than the specifically mentioned is included or intended.
It is agreed that we do not assume possession or control of any part of the equipment but such remains your exclusively as the owner (or lessee) thereof.
We shall not be liable for any loss, damage or delay due to cause beyond our reasonable control including but not limited to acts of government, strikes, fire explosion, theft, floods, riot, civil commotion, or malicious, mischief or act of God. Under no circumstances, shall we be liable for consequential damages.
34. OP 4 has produced the agreement for one year only. It is an indisputable fact that their agreement, for future, was not renewed. The deficiency on part of OPs 1, 2 and 3 is discernible as, in the future, such like agreements did not see the light of the day. This is unfair trade practice on part of OPs 1, 2 and 3. The OP4 should have produced the maintenance record, record showing the details about appointment of Guards, Engineers, Experts, etc. However, OP4 is conspicuously silent about it. As its role was limited, therefore, we impose costs on OP4, in the sum of Rs.1,32,000/- , to be divided by the complainants, in the sum of Rs.2,000/- each. Same be paid, within 90 days of the receipt of this order, otherwise, it would carry interest at the rate of 9% p.a.
35. The OPs 1, 2 and 3 are directed to maintain the lifts every day, month and year, within a period of 90 days, from the date of receipt of this order, otherwise, they are liable to pay penalty of Rs.15,000/- each, for Blocks C, E, F and H, per month. They are directed to maintain the record, in this context.
Liability, if any, shall be saddled upon them if there is any accident or mishap. We also impose costs of Rs.5,000/- each, to be paid to each of the 66 complainants, which be paid, within 90 days, else, it will carry interest at the rate of 9% p.a., till realization.
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(J. M. MALIK,J.) PRESIDING MEMBER ...
(DR.S. M. KANTIKAR) MEMBER dd