National Consumer Disputes Redressal
Shri P.G. Pai vs Care Elevators & Engg. Co. Pvt. Ltd. & ... on 7 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 15 OF 2006 Judgment reserved on 10.12.2014 Judgment pronounced on 07.01.2015 Shri P.G. Pai Father and legal heir of the deceased Rohan Pai r/o 501, Sudhama Nivas 16th Road, Khar West, Next to B.P.M. High School, Mumbai 400 052 Complainant Versus 1. Care Elevators & Engg. Co. Pvt. Ltd. 111/113, Veena Industrial Estate, Opp. Monginis, New Link Road, Andheri (West), Mumbai 400 053 2. Chairman / Secretary Bhagwati House, Off. Veera Desai Road Andheri (West) Mumbai 400 004. 3. Kingfisher Airlines Ltd. Next to Nand Giri State Guest House, Western Express Highway, Vile Parle (E) Mumbai 400 057. 4. OTIS Elevator Company (I) Ltd Western Region Bhupati Chambers 2nd Floor, 13, Mathew Road, Mumbai 400 004. Opposite Parties BEFORE HONBLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Complainant : Mr. R.P. Bhatt, Senior Advocate With Ms. Babita, Advocate For the Opposite Party-1 : Mr. S.B. Prabhavalkar, Advocate Mr. Mohit Bansal, Advocate For the Opposite Party-2 : Mr. Varun Singh, Advocate For the Opposite Party-3 : Ms. Esha Sandhu, Advocate For the Opposite Party-4 : Mr. Rohan Batra, Advocate O R D E R JUSTICE V.K. JAIN, PRESIDING MEMBER Opposite Party No. 3 Kingfisher Airlines Ltd. had office in Bhagwati House, Off. Veera Desai Road, Andheri, Mumbai, which it had taken on Lease and Licence from Bhagwati Associates Pvt. Limited. The aforesaid building was being managed by Bhagwati House which is stated to be a condominium of the owners of the aforesaid building. The lifts in the aforesaid building were installed by OP-4, OTIS Elevator Company (I) Ltd. and at the relevant time, the upkeep and maintenance of the said lifts was the responsibility of OP-1, Care Elevators & Engg. Co. Pvt. Limited, by virtue of the agreement it had with the above-referred consortium. On 10.05.2005, the lift installed in the rear wing of the aforesaid building got out of order and a report in this regard was lodged with OP-1 at about 10 AM. When late Shri Rohan Pai entered the aforesaid lift, it abruptly moved up, even though its doors were open. As a result, he got stuck in the lift with his neck and head inside and the remaining part of his body outside the lift / elevator. He was rescued from there and taken to hospital where he was declared dead. 2. The case of the complainant, as set out in the complaint is that the safety door switch in the aforesaid lift were electro mechanical type, with inbuilt door locking system on each floor for both the doors, and the operating of the elevator is such that the lift / elevator would not operate even if a single door of any floor was left open. Despite that, the elevator moved up even when the door of the second floor was open, the same having been opened by the deceased. It appears to the complainant that the maintenance staff of OP-1 who were carrying out maintenance work of the aforesaid elevator had disabled the inbuilt locking system thereby enabling the movement of the elevator in spite door being opened, as a result of which the aforesaid incident happened. This is also the case of the complainant that OP-1 & 2 failed in their duty to put-up a notice in some conspicuous place, at all levels, warning against use of the elevators, since they were under repairs / maintenance and any use during repair / maintenance could result into a mishap. The complainant thus, alleges negligence on the part of the OP-1 & 2 in rendering service to the users of the lift. The complainant also claims OP-3 to be negligent and deficient in rendering service by not ensuring safety and security of its employees and exposing them to risk. OP-4 has been arrayed as a party to the complaint on account of its having manufactured and installed the aforesaid lift whereas OP-5 has been arrayed on the ground that it was his duty to ensure proper maintenance / functioning of the lifts. The complainant, therefore, has claimed a sum of ₹ 4,79,28,000/- as compensation from OP-1 to 5 besides a sum of ₹ 10,00,000/- as compensation for the mental stress and agony and ₹ 50,000/- as cost of litigation. The compensation of ₹4,79,28,000/- has been claimed on the premise that the deceased would have earned ₹35,000/- per month from 2005 to 2010, ₹53,500/- per month from 2011 to 2015, ₹80,300/- per month from 2016 to 2020, ₹1,20,000/- per month from 2021 to 2025, ₹1,50,000/- per month from 2026 to 2030 and ₹1,80,000/- per month from 2031 to 2040. 3. The complaint has been resisted by the OPs on several grounds. The preliminary objection taken by them is that no services were being rendered by them to the deceased and he was not their consumer. All of them have also alleged that the unfortunate mishap cannot be attributed to any negligence on their part. It is claimed by OP-2 that it being a condominium of owners of the building, its role was limited to collect property tax, appoint security agents and award contract for maintenance of the lift, etc. Accordingly, they had awarded the maintenance of the lift to OP-1 and security services to an agency namely, TRIG Security Company. It is alleged in the reply of OP-2 that on complaint being lodged with OP-1 at about 10:00 AM, by the employee of TRIG Security Company, the staff of OP-1 entered the building at about 11:15AM and at the entrance of the rear portion, they put-up a notice that the lift was out of order. It is claimed that despite knowing that lift was out of order, the deceased had negligently attempted to enter the same from the second floor, at about 11:15AM. The OP-1 has admitted in its reply that the upkeep and maintenance of the aforesaid lift was its responsibility at the relevant time. The said OP had denied any negligence on its part towards maintenance of the aforesaid lift. It is alleged that when the representative of OP-1 reached site on 10.05.2005, he displayed a notice board as per the normal practice followed by the company, containing a warning that the lift was under inspection / service. It was further alleged that the representatives of OP-1 reached the Bhagwati at about 11:15AM on 10.05.2005. The key of the lift room situated on the top of the building was collected by them from the security personnel. After collecting the key, they reached the terrace of B wing to collect tools but before they could reach the lift room of the A wing, they received a message about the mishap, which had taken place on the second floor involving the deceased. They immediately opened the machine room and switched off ELCB. Thereafter, they went to the second floor and found the deceased stuck between top member of the door frame and the built frame. They, then rushed to the machine room and crancked the lift down, to release his body. The OP-1 has specifically alleged that the maintenance work had not commenced at the time unfortunate incident took place and its employees had not even entered the lift room by that time. OP-1 had categorically denied dismantling or interfering with inbuilt locking system by its employees. 4. OP-3 has denied its liability on the ground that neither the complainant was its consumer nor they had rendered any service to him. It had also denied any negligence on its part. OP-4 OTIS Elevators had admitted that the lift, in question, was installed by them. They have also stated that for a few years after instalment, the lift was under their maintenance. Thereafter the maintenance work was awarded to OP-1. According to OP-4, the lift was functioning well during the period it was being maintained by them. It was also claimed by OP-4 neither the deceased was its consumer nor they had rendered any service to him. 5. The admitted facts in this case are as follows: (a) Deceased Rohan Pai, aged about 25 years on 10th May, 2005, was employed with opposite party No.3 Kingfisher Airlines Ltd., on the salary of about 25,000/- per month. (b) The deceased had entered the lift installed in the rear wing of Bhagwati House, at about 11.15 am on 10th May, 2005. (c) The lift which the deceased had entered, all of a sudden moved up when its door was open and the neck and head of the deceased was inside the elevator whereas the remaining part of his body was outside the elevator and he died on account of the aforesaid mishap. (d) The lift in question was out of order on 10th May, 2005 and a complaint in this regard was lodged with OP No.1 at about 10.00 am on that day. (e) The lift in question was under the upkeep and maintenance of OP No.1 Care Elevators & Engineering Company Pvt. Ltd. (f) OP No.2 is a condominium of the owners of Bhagwati House and Kingfisher Airlines Ltd. (g) No notice/warning was displayed by OP No.1, on any floor of the building, when the lift went out of order. (h) No notice/warning was displayed either by OP No.1 or by OP No.2 on the second floor of the building from where the lift was sought to be operated. (i) The unfortunate mishap occurred between 11.15 am to 11.45 am on 10th May, 2005. 6. There is dispute between OP No.1 and OP No.2 as to at what time mechanics of OP No.1 had reached Bhagwati House on 10th May, 2005. According to OP No.2 the mechanics had reached Bhagwati House at about 11.15 am, whereas according to OP No.1 they had reached at about 11.50 am. No evidence has been led by OP No.2 to prove that the mechanics of OP No.1 had reached Bhagwati House at about 11.15 am. On the other hand, OP No.1 has filed affidavits of both the mechanics, namely, Hemant Mehatra and Praveen More who had visited Bhagwati House on 10th May, 2005. Both of them have specifically stated in their respective affidavits that they had reached the condominium at about 11.15 am and had signed the visitors register maintained by OP No.2. Neither of them has been cross-examined. Hence, the aforesaid part of their deposition remains uncontroverted. They have also stated that after reaching the building they had displayed the board on the ground floor of the building to the effect that lift in question was under maintenance. OP No.2 has placed on record photocopy of the visitors register which is Annexure-A3 to the affidavit of Shri K. S. Sukumar. This document shows that Hemant Mehatra and two others had come to Bhagwati House, at about 11.50 am, for the purpose of lift. There is cutting as well as overwriting on this entry made in the visitors register and probably there is also overwriting on the time recorded in the previous entry pertaining to one Pritesh Kumar. However, considering that this document has come from the custody of OP No.2 and not from OP No.1, we are not inclined to reject the same particularly when the said entry is supported by the affidavits of Hemant Mehatra and Praveen More whereas, OP No.2 has not filed the affidavit of any person present in the building on the aforesaid date to prove that the mechanics had entered the building at about 11.15 am. We, therefore, hold that the mechanics of OP No.1 had reached the lift of Bhagwati House after the unfortunate mishap in which the deceased lost his lift had already happened. Liability of OP No.3 We have carefully examined the complaint. It contains no specific allegations of any negligence or deficiency in service on the part of OP No.3 Kingfisher Airlines Ltd. Neither the building nor the lift in question was under the maintenance of OP No.3. No evidence has been led by the complainant to prove any negligence or deficiency in service on the part of OP No.3. Therefore, we hold that the complainant is not entitled to any compensation from OP No.3 Kingfisher Airlines Ltd. Liability of OP No.4 Admittedly, lift in question was under the upkeep and maintenance of OP No.1 Care Elevators & Engineering Co. Pvt. Ltd. and was not being maintained by OP No.4, at the time the unfortunate incident happened. It is stated in the written synopsis filed by the complainant that the lift installed by OP No.4 did not adhere to the standards laid down in Clause-18 of the Indian Standard of Electric Traction Lifts which required that every lending door, shutter or gate shall be equipped with an electro-mechanic lock which shall prevent the lift from moving whilst in lending door, shutter or gate is open. We, however, find that the complaint contains no allegation that the lift installed by OP No.4 did not conform to the aforesaid requirements. In fact, there is a specific averment in para-5 of the complaint that the operating of the elevator was such that the lift/shutter would not open even if a single door of any floor was left open. The aforesaid averment clearly shows that the lift, when installed by OP No.4, did have a mechanism which would prevent the elevator from operating in case any door of any floor of the building in which the lift was installed was left open. We, therefore, hold that the complainant is not entitled to any compensation from OP No.4. Liability of OP No.2 This is the case of OP No.2 itself that it is a condominium of the owners of the building known as Bhagwati House. Thus, all the owners of the aforesaid building collectively are deemed to be OP No.2 in this case. Admittedly, lifts in the aforesaid building were provided by the owners of the building. The lift in a multi-storey building is an essential facility in the absence of which neither the building would get a completion certificate nor it would become fit for occupation and the occupants of the building cannot use it efficiently. The definition of service given in Section 2 (o) of the Consumer Protection Act is inclusive and not exhaustive and as observed by the Honble Supreme Court in Karnataka Power Transmission Corporation and Anr. vs. Ashok Iron Works Pvt. Ltd. (2009) 3 SCC 240, resort to the word includes shows the intention of the Legislature that it wanted to give extensive and enlarged meaning to such expression though sometimes the context may suggest that the word includes may have been designed to convey means. However, the context in which the expression includes has been used in Section 2 (o) of the Consumer Protection Act, coupled with use of the words but not limited to is a clear indicator that the Legislatures intention was to give an enlarged and extensive meaning to the expression service used in the Act. Therefore, we have no doubt in our mind that providing lifts in a multi-storey building would amount to rendering service within the meaning of Section 2 (o) of the Consumer Protection Act. It is true that the deceased did not directly pay any consideration for availing the facility of the lift provided in the building, but that would be inconsequential considering the definition of the consumer given in Section 2 (1) (d) (ii) of the Act which expressly includes within the ambit of the expression consumer, any beneficiary of the services other than the person who hires or avails such services for consideration, when such services are availed of with the approval of the person paying the consideration. The consideration for using the lifts in question was paid by OP No.3 Kingfisher Airlines Pvt. Ltd. to the licensor from whom the premises was taken by it on license and by OP No.2 to OP No.1 and the deceased being an employee of the said company had an implicit permission from it as well as from OP No.2 to use the aforesaid lift. Therefore, the deceased, in our view was a consumer viz a viz OP No.1 as well as OP No.2 as far as the use of the lift was concerned. 7. Admittedly, Bhagwati House is a multi-storey building and the lifts provided in the said building opened on several floors. When a lift installed in a multi-storey building becomes non-functional or gets out of order on account of developing some fault, it is the mandatory duty of the service provider i.e. the person who has got installed the lift in the building to immediately put up a display board outside every lift door, warning the potential users of the lift that the lift was out of order. He may do it directly or through the maintenance agency appointed for the lift. The obvious purpose of displaying such a warning is to inform the potential users that since the lift was not functional, they should not board it as boarding a lift when, it was non-functional/out of order or under repairs could lead to a mishap. Admittedly, no such board was displayed by any employee of the OP No.2 on any floor of the building including its ground floor. In the reply filed by it, OP No.2 does not claim to have displayed any such board on any floor of the building. The plea taken by OP No.2 is that the Warning Board was displayed by the mechanics of OP No.1 when they came to repair the lift. However, as noted earlier, the mechanics of OP No.1 reached the building at about 11.50 am. Therefore, they would not have displayed the said board at any time prior to 11.50 am. The mishap, however, had already taken place before 11.50 am. Moreover, even the mechanics of OP No.1 did not display such a board on each floor of the building. In a multi-storey building anyone can board the lift from any floor either for going up or for coming down. It is not necessary that everyone would board lift only from the ground floor. Therefore, if a lift is out of order and/or under repair, display of a warning board on the ground floor would not dissuade a person seeking to board the lift from an upper floor, from doing so, since he would not be aware that the lift was under repair/out of order. 8. It is true that everyone has to initially come to the ground floor to board the lift and if the warning board is displayed on the ground floor, he would not use the lift but would rather use the stairs. That, however, does not take care of a situation where the lift gets out of order and/or is sought to be repaired after some persons have already reached the upper floors using the lift at the time it was functional. Such persons would have no idea of the lift having developed fault and/or being under repair when they seek to board it from an upper floor. Moreover, if for instance a person uses the staircase instead of using the lift, seeing the warning board displayed on the ground floor, in the morning, but, after sometime he seeks to go up or come down, finding no warning board displayed on the floor from which he seeks to board the lift, he may presume that the lift has been repaired and is functional and, therefore, may seek to board it from the said floor. In such a case he is likely to become victim of a mishap on account of the lift actually still being under repair/out of order. Therefore, it is imperative that the service provider puts directly or through the maintenance agency such warning boards on each and every floor of the building and removes those boards only after the fault is attended to and the lift becomes functional. 9. As has come in the evidence of OP No.2 that they had given the contract for the security of the building to M/s Trig Security Services. A perusal of the contract of OP No.2 with the aforesaid agency would show that it contains no specific obligation on the security guard to put up a warning board, cautioning the potential users against boarding the lift or remaining present outside each and every door of the lift, and dissuade them from boarding the lift. Under the aforesaid contract the security guards were to carry out all the duties assigned to them as per the instructions of the management, but there is no evidence of the management of the building having instructed the security guards to display warning boards in the event of the lift getting out of order or remaining present outside the lift gates, to prevent the potential users of the lift from boarding the same. In any case the contract with Trig Security does not absolve OP No.2 from its responsibility and, if OP No.2 feels that its contract with the security agency did obligate the security guards to undertake the aforesaid duty it can always seek reimbursement from the said agency for the compensation which it will have to pay to the complainant in terms of this order. Liability of OP No.1 It is not in dispute that the lift in which the mishap occurred was under the care and maintenance of OP No.1. Therefore, it was the duty of the OP No.1 to keep the lift free from any defect, check the same regularly and immediately replace the defective parts, if any, of the lift. Being in the business of upkeep and maintenance of the lifts OP No.1 is expected to be a specialised agency for rendering such services. Therefore, it was obligatory for OP No.1 to tell this Commission as to what caused the mishap in which the deceased lost his life. Unfortunately, OP No.1 has not shared the aforesaid cause with this Commission and the reply filed by it is conspicuously silent as to why the lift all of a sudden moved up despite the door being open at that time. The case of the OP No.2 in this regard appears to be that the incident occurred at the time when the employees of OP No.1 were repairing the lift. Even the complainant has alleged that the maintenance staff had disabled the inbuilt locking system sometimes thereby enabling the moving of the elevator despite of the door being opened and the incident had occurred on account of the aforesaid reason. The case of OP No.1, however, is that their mechanics having reached the building only at about 11.50 am, they had no occasion even to enter the lift room by the time mishap occurred. For the purpose of adjudicating upon by the alleged responsibility of OP No.1 we proceed on the assumption that their mechanics had not disabled the inbuilt locking system of the lift as is claimed by OP No.2. If that be the position, OP No.1 should have told the Commission as to what had caused the lift to move despite the door of the second floor being open at that time, and should also have established such reason. 10. Since the lift in question was under the care and maintenance of OP No.1 the doctrine of res ipsa loquitur applies to the case as the cause of mishap is primarily within the knowledge of OP No.1. This maxim is stated as under in its classic form: - Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. With respect to the aforesaid maxim the Honble Supreme Court in Shyam Sunder and Ors. vs. The State of Rajasthan AIR 1974 SC 890 inter alia observed as under:- The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing on the matter are at the outset unknown him and often within the knowledge of the defendant. The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway v. S. Wales Transport [1950]1 AER 392). The plaintiff merely proves a result, not any particular act or omission producing the result. If the result in the circumstances, in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John, G. Fleming, The Law of Torts, 4th ed., p.260). In the case before the Honble Supreme Court, the engine of a truck caught fire on the way and the deceased, in order to prevent himself, jumped out of the truck and died. It was a driver of the defendant who was driving at that time. Holding the defendant liable to pay damages, Supreme Court held as under:- It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident. In these circumstances, we think that the maxim res ipsa loquitur is attracted. 11. Since ordinarily the lift would not move up when the door is open, it was imperative for OP No.1 to explain as to what led to the lift to move up, despite the door being open. Considering the stoic silence by OP No.1 in this regard we have no hesitation in holding that the aforesaid mishap happened on account of some negligence or deficiency on the part of the said OP in upkeeping and maintenance of the lift. It was not possible for the complainant to give evidence as to what was the exact reason of the unfortunate incident in which his son lost his lift. The maxim res ipsa loquitur, therefore, fully applies to this case. 12. For the reasons stated herein above, we are of the view that both OP No.1 and OP No.2 were negligent and deficient in rendering services to the deceased who being a beneficiary of the services rendered by them was their consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act. 13. Coming to the compensation, though the complainant has claimed a sum of Rs.4,79,2,000/- on account of pecuniary damages, based upon the potential income of the deceased, we are of the view that the compensation payable to the complainant needs to be calculated in terms of the decision of the Honble Supreme Court in Balram Prasad vs. Kunal Saha (2014) 1 SCC 384. In the aforesaid case, Honble Supreme Court awarded compensation based upon the income of the deceased coupled with 30% addition for future prospects, on the assumption that a healthy person would have lived upto the age of 70 years. 1/3rd of the income so computed was deducted on account of personal expenses of the deceased. In the case before us the deceased was earning salary of Rs.25,000/- p.m. and was about 25 years old, when he died in the aforesaid unfortunate mishap. After addition of 30% for the future prospects his annual income comes to Rs.3,90,000/-. After deducting 1/3rd for his personal expenses, the loss of income comes to Rs.2,60,000/- p.a. Considering that the deceased who was a hale and hearty man of 25 years and there is no evidence of his suffering from any disease, the loss of income comes to Rs.1,17,00,000/-. 14. No amount of compensation can duly substitute the mental suffering agony and stress which a father suffers on account of the sudden and untimely death of a young son. There can be no loss for the parents bigger than losing a young son, in the advanced age of their life. Their life can never be the same again. A just and reasonable compensation can only give them a financial succour, which the son would have provided, had he remained alive. In the facts and circumstances of the case, we award compensation amount of Rs.5,00,000/- to the complainant for the aforesaid suffering. We also award a sum of Rs.50,000/- towards loss of consortium and Rs.50,000/- as cost of litigation to the complainant. The total compensation payable to the complainant comes to Rs.1,23,00,000/-. In the facts and circumstances of this case, we direct that 25% of the aforesaid amount will be paid by OP No.2 whereas 75% amount would be paid by OP No.1 i.e. jointly by all the owners of the Bhagwati House. We also award interest to the complainant @ 6% p.a. from the date of the filing of the complaint till payment in terms of this order. ..
(V.K. JAIN J.) PRESIDING MEMBER ..
(DR. B.C. GUPTA) MEMBER RS/Raj