State Consumer Disputes Redressal Commission
Shri Tulsi Mahapragya Foundation vs Schindler India Pvt. Ltd. on 19 March, 2012
UNDER CERTIFICATE OF POSTING
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/10/59
1. SHRI TULSI MAHAPRAGYA FOUNDATION
TERAPANTH BHUVAN, THAKUR COMPLEX, KANDIVALI (E),
MUMBAI - 400 101. THROUGH THE HANDS OF ITS MANAGING AND DULY AUTHORIZED
TRUSTEE BIJAYSING BAID
Mumbai
Maharastra
...........Complainant(s)
Versus
1. SCHINDLER INDIA PVT. LTD.
REGISTERED OFFICE AT SOLITAIRE CORPORAT PARK,
BUILDING NO. 6, ANDHERI
KURLA ROAD, ANDHERI (EAST), MUMBAI - 400
093.
Mumbai.
Maharastra
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
Mr.Tushar Goradia, Advocate for the Complainant.
Mr.Rajmani Varma Adv. a/w Ms.Darshana Gupta, Adv. i/b
Navdeep Vora & Associates for the Opponent.
ORDER
Per Mr.Narendra Kawde Honble Member:
(1)This complaint has been filed by the Complainant which is Religious Charitable Institute engaged in promotion of society and providing educational, medical and healthcare facilities against the Opponents, alleging deficiency in service and unfair trade practice under the provisions of Consumer Protection Act, 1986 as the Opponents were failed to maintain the services of elevators installed in the Complainants premises.(2)
The salient facts giving rise to file this complaint are that, the Complainant purchased three elevators from the Opponent Company at the aggregate costs of `29,42,000/- in the year 2002. Said lifts were installed and annually maintained with annual maintenance contract by the Opponent Company since the day of installation and service charges on account of maintenance of `6,26,636/- have been paid by the Complainant so far to the Opponent Company.
However, the lifts are not in working condition and the Complainant exchanged continuous correspondence somewhere in the year 2009 onwards with a request to restore all the elevators to working condition. However, the contention of the Opponent was to find fault with the mode and manner of use of the lifts by the Complainant and also put to the excuses of water seepage/leakage in the lift premises, thereby affecting services of the elevators. The technician of the Opponent Company ultimately attended the work of lift doors and raised an astronomical bill for the services rendered in this connection. The elevators did not work for month together and after inspection by the technicians of the Opponent Company malfunctioning was attributed to the seepage/leakage of the water leading to dampness and humidity in the lift area.(3)
It is further averred by the Complainant that on 7th October, 2009 the joint survey by the expert was carried out and it was observed that there was no sign of any sort of water seepage or water ingression in any of the lift as claimed by the representative of the Opponent.
The lifts did not work without problem whatsoever and the expert observed probably the parts of the lifts were of the sub-standard quality or they are not shock, jerk, humidity proof and that the same are not of the standard required to suit the weather conditions in the city of Mumbai. With a view to avoid embarrassment to the users the Complainant paid a sum of `1,00,000/- on 1st November, 2009 and additional sum of `29,700/- to the Opponent Company to ensure smooth functioning of all the lifts/elevators.
The Complainant at one point of time tried to sort out this issue with the Opponent Company but the Opponent Company declined to have joint meeting and did not come to the terms of compromise.
The elevators are now almost useless and therefore the Complainant prayed for refund of total amount of `36,98,336/- (Rupees Thirty Six Lac Ninety Eight Thousand Three Hundred Thirty Six only), `29,42,000/- paid towards cost of three elevators, `6,26,633/- towards maintenance charges and `1,29,700/ on account of value of the parts of the elevators) with interest @18% per annum from the date of filing of the complaint till payment or realization as the Opponents have miserably failed to restore the elevators in sound working position. In support of the complaint the Complainant appended invoice vouchers of the purchase with copies of the agreement, annual maintenance contract and the correspondence exchanged between the parties.(4)
The Opponent filed written version and affidavit of evidence thereby denying the statements made in the complaint by the Complainant. The Opponent Company stated that right from the commission of the three elevators in the year 2002 the Complainants have been executing annual maintenance contract with the Opponent Company in continuation, though it is not mandatory for the Complainant to avail maintenance services of Opponent Company. This action of the Complainant reveals that the Complainant though making grouse about maintenance of the lifts belatedly yet continued to avail services for maintenance of the Opponent the Opponent Company. The commissioning of all these three elevators is as per the standard norms meant for elevators as the Opponent Company is the worlds no.1 in the lift manufacturing business and one of the trusted brands all over. Free maintenance period for all three lifts under the sale contract was for a period of one year in respect of each of the elevators and 26th May, 2004 was the last such date in respect of one of the lifts. The Opponent Company further stated that repeatedly the Complainant was instructed to provide dry and moist free weather, free from water seepage/leakage in the lift area and at no point of time the Opponent Company has guaranteed the elevators to remain in working conditions without waterproof conditions. It is further stated that Complainant failed to discharge its obligation to prevent water seepage and leakage to reach any part of the lift. In or about August, 2004 due to water falling on the lifts, (BA 1530) the electric circuit which was fixed on the roof of the lifts was short circuited as a result the lift stopped working. Upon receiving the complaint the Opponent Company immediately attended to the grievance and pointed out to the Complainant said problem of short circuit was due to water falling and Opponent made it amply clear to take abundant caution to protect the roof top of the elevators from falling water, which the Complainant failed to adhere.(5)
Further it is stated by Opponent that, annual maintenance contract produced on record, terms and conditions does not guaranty supply of spare parts costs free. There is no change in the conditions right from the execution of annual maintenance contract by the Complainant from year to year and as such the last annual maintenance contract executed by the Complainant expires on 14th June, 2011 and further averred that on all counts including point of limitation the complaint is not tenable.(6)
We heard Ld.Advocates of the parties, perused the record. Undisputed facts are that all these three elevators manufactured and installed by the Opponent Company in the year 2002. Free annual maintenance in respect of each of the lift was carried out by the Opponent Company. For the first time only in the year 2009, the Complainant started making complaint about non-functioning of the elevators. The Opponent Company conducted spot inspection and suggested certain remedial measures to stop water seepage and protect the ground of the lift from water falling and keep the lift area free from moisture and protect the top of the lift from water falling, as this was noticed in one of the site inspections by the Opponent Company technician. All the lifts were installed and commissioned in the year 2002 and till 2009 there was no major complaint about the smooth functioning of the lifts, annual maintenance contract was executed from year to year by the Complainant with the Opponent Company and as such last Annual Maintenance Contract expires on 14th June, 2011. Amount of maintenance is being regularly paid and accepted by the Opponent Company and in token of contract regular servicing as per the terms and conditions of annual maintenance contract are carried out by the Opponent Company.(7)
The submission of the Ld.Advocate of the Complainant that the lifts had inherent defect or having supplied sub-standard parts is not acceptable as no supporting documentary evidence led under section 13(4) of the Consumer Protection Act, 1986. Lift has been used since the date of commencement in the year 2002 and we do not find any serious complaint till 2009 about the maintenance of these lifts.
No failure can be attributed in discharging duties by the Opponent Company in accordance with terms of the annual maintenance contract.(8)
Ld.Advocate for the Complainants submission about refund of costs of the elevators and the services charges is not tenable in as much as lifts have been put to use from the date of installations in the year 2002 and the services have been provided by the Opponent Company as per terms and conditions of annual maintenance contract. We do not find any deficiency in service on the part of the Opponent Company as alleged. Had there been any deficiency in service on the part of the Opponent Company in maintenance of the lifts, the Complainant with all probabilities could not have entered into annual maintenance contract from year to year. This shows that the Complainant was satisfied with the services rendered by the Opponent Company. We do not find any merit in the complaint. We hold accordingly and pass the following order:
O R D E R
(i) Complaint stands dismissed.
(ii) In the given circumstances, parties to bear their own costs.
Pronounced on 19th March, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER ep