National Consumer Disputes Redressal
M/S. Jansatta Sahkari Awas Samiti Ltd. vs M/S. Kone Elevators India Pvt. Ltd. on 11 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 80 OF 2005 1. M/S. JANSATTA SAHKARI AWAS SAMITI LTD. THRUOGH SH. PRADEEP SINGH, PRESIDENT M/S. JANSATTA SAHKARI AWAS SAMITI., GH-1, SECTOR -9, VASUNDHARA GHAZIABAD U.P. ...........Complainant(s) Versus 1. M/S. KONE ELEVATORS INDIA PVT. LTD. 50-55 & 58, VANAGRAM ROAD, AYAWAMBAKKAM, CHENNAI - 600 095. 2. M/S. KONE CORPORATION KONE OYJ KEILASATAMA-3, P.O. BOX-7, ESPOO - 02150 FINLAND ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER
For the Complainant : Counsel for the Complainant For the Opp.Party : Mr. Sandeep Khurana and Ms. Seemab Ali Fatima, Adocate Dated : 11 Sep 2015 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER The complainant society, which at the relevant time was constructing multistoried flats for its member in Sector-9, Vasundhara, Ghaziabad awarded the contract for the supply, installation and commissioning of four lifts to the opposite party-Kone Elevators India Private Ltd. and made 90% of payment to the said opposite party. According to the complainant, after substantial delay in executing and completing the work, the said opposite party allegedly commissioned three lifts and handed over the same to the site engineer of the complainant who took them over subject to the approval of the Managing Committee of the society. The fourth lift however was not commissioned and the complainant was informed that parts valued at Rs.2,88,768/- kept at the site of the complainant society were missing. The opposite party blamed the complainant society for theft of the aforesaid missing parts and also demanded the balance amount of Rs.4,59,600/- in order to complete the balance work. The said demand however was not met by the complainant society.
2. This is also the case of the complainant society that out of the three lifts allegedly commissioned by the opposite party only two lifts were somehow made operational though even those two lifts did not function properly, giving a number of problems to the residents. The complainant also entered into an Annual Maintenance Contract in respect of those two lifts with the opposite party as per the terms of the main contract between the parties. This is also the allegation of the complainant society that the lifts were not even tested at the time they were commissioned and no electricity was available in the complex at that time. Being aggrieved from the services rendered by the opposite party, the complainant is before this Commission seeking a sum of Rs.6,08,68,400/- along with interest. The aforesaid amount includes the amount of Rs.42,45,399/- paid to the opposite party, Rs.59,40,000/- on account of loss of rent to the members who were unable to let out the flats on account of non-functioning of the lifts, maintenance charges and compensation.
3. The complaint has been resisted by the opposite party, inter-alia on the ground that they have installed three out of four lifts. As regards the fourth lift, it is alleged that it could not be installed since the material supplied by the opposite party was stolen from the site of the society. The opposite party has also taken an objection that since three lifts were installed and the fourth life also should have been installed in the year 2000, the complaint filed in the year 2005 is barred by limitation.
4. The agreement between the parties for the supply, installation and commissioning of four passengers lifts was executed on 20.04.2000. The letters dated 18.04.2000, 13.04.2000 and 27.03.2000 written by the opposite party to the complainant society form an integral part of the agreement. As per the letter dated 18.04.2000, the lift material was to be supplied within 10 weeks of the approval of General Arrangement Drawing (GAD) submitted by the opposite party and the lifts were to be installed in five weeks subject inter-alia to the site readiness in all respects at the time of arrival of lift material and provision of single and three phases power supply, properly terminated in the lift shaft and machine room. The site readiness included a complete enclosed lift shaft with three phase power supply, properly terminated in the lift machine room, a complete enclosed machine room with door, trap door windows and exhaust fan and lockable storage space nears the lift shaft. Admittedly, the complainant paid 90% of the agreed price to the opposite party and the balance amount was payable on successful commissioning the lifts.
5. The case of the opposite party is that two lifts one bearing no.16495 and the other bearing no.16496 were installed tested, commissioned and handed over to the representative of the complainant on 11.12.2000 whereas the third lift was installed, tested, commissioned and handed over in satisfactory working condition in January, 2001. The opposite party has in this regard placed reliance upon the handing over certificates dated 11.12.2000 in respect of lifts no.16495 and 16496 and a certificate of January, 2001 in respect of lift no.16497. The first two certificates are signed by Mr. Duli Chand, representative of the complainant society which accepted the lifts subject to final inspection by architect and management committee. The third certificate however does not bear signatures of the representative of the complainant society namely Mr. Duli Chand. The third certificate has been initialed by someone on 19.01.2001 but it cannot be known by whom the said certificate is initialed on behalf of the complainant society. The initial on this certificate altogether different to certificate signed by Mr. Duli Chand on the first two certificates.
6. The case of the complainant in this regard that the lifts could not possibly have been tested and commissioned in December, 2000 or even on 19.01.2001 since the temporary load itself was sanctioned later and without electricity, the lifts could not possibly have been tested and commissioned. In this regard, it is also pointed out that there was no final inspection and acceptance of any lift either by the architect or by the managing committee of the society.
7. Vide letter dated 26.02.2002, which is the first letter filed by the parties with respect to the commissioning of the lifts, the opposite party referring to the complainant's letter dated 08.02.2002 seeking installation of the last and re-commissioning of the other lifts informed the complainant society that during inspection by their engineer, it was found that certain parts mentioned in the said letter were missing from the controller and the society should take appropriate action for providing those items which were missing from the society. Reference was also made to an earlier letter dated 08.12.2001 sent by the opposite party to the complainant society. There was no response to the aforesaid letter dated 26.02.2002 from the complainant society. Vide letter dated 24.06.2002, the opposite party informed the complainant that the cost of missing parts was Rs.2,88,768/- which they will have to bear. It was further informed that there was an outstanding amount of Rs.4,59,600/- against the society. The complainant was requested to release the aforesaid payment and place order for supply of missing parts along with 50% advance payment. It was further stated in the aforesaid letter that the OP will try to re-commission 2 elevators, using the material available on the site. There was no response from the complainant society to the said aforesaid letter dated 24.06.2002, for more than five months. Vide letter dated 10.12.2002 that the complainant society, referring to the above referred letters of the opposite party emphasized that the missing goods needed to be enquired. As regards the payment of the balance amount, the complainant society required the opposite party to provide copy of the quotation along with terms and conditions agreed between the parties and specification of the lifts for verification. However, no order was placed by the complainant society for supply of missing parts worth Rs.2,88,768/-.
8. As far as, lifts no.16495 and 16496 are concerned, admittedly the said lifts had been duly installed/commissioned though neither the complainant nor the opposite party has disclosed the exact date of installation/re-installation of the aforesaid two lifts. It is an admitted case of the parties that they have been entering into Annual Maintenance Contract in respect of the aforesaid above referred two lifts. Had those two lifts not been successfully installed/re-installed to the satisfaction of the complainant society, it would not have entered into maintenance contracts with the opposite party. Another important aspect in this regard is that for almost two years after writing the letter dated 10.12.2002, the complainant did not ask the opposite party to commission the lifts no.16495 & 16496. Had even these 2 lifts not been commissioned, the complainant would not have remained silent for such a long period. We are therefore satisfied that two out of four lifts were commissioned/recommissioned at-least after the letter dated 24.06.2002 was sent to the complainant.
9. As regards the third and the fourth lift, the cause of action for filing this complaint, in our opinion arose on 26.02.2002 when the opposite party requested the complainant to take appropriate action for providing the missing parts repaired for the commissioning and installation of the lifts at the site and in any case on 24.06.2002 when the opposite party was required to place order for supply of missing parts worth Rs.2,88,768/- which were removed from the site. We need not go into the question as to whether it was the complainant or the opposite party who was responsible for the loss of those missing parts from the site though the case of the complainant is that the lifts being in possession of the opposite party, they cannot be held responsible for the loss of the missing parts whereas the case of the opposite is that since the complainant failed to make available to them, a lockable storage space near the lift shaft in terms of the clause 2 of the letter dated 18.04.2000 which formed part of the contract between the parties, they cannot be held responsible for the loss of the said missing parts. In case the complainant was aggrieved on account of the opposite party insisting on the complainant placing an order for supply of the aforesaid missing parts with 50% of the advance payment, it ought to have approached an appropriate forum for the redressal of its grievance. Alternatively, it could have placed order for supply of those missing parts and made payment under protest. Had the opposite party not installed the fourth lift nor commissioned/re-commissioned the third lift despite the aforesaid order and payment, this would have been a case of deficiency on the part of the opposite party in rendering service to the complainant. Be that as it may, what is relevant is that the cause of action for filing this complaint accrued when the aforesaid two letters were sent by the opposite party to the complainant and it insisted on the complainant placing a purchase order for supply of missing parts. Computed from the date of the second letter, this complaint having been filed in September, 2005 is clearly barred by limitation prescribed in Section 24-A of the Consumer Protection Act. Though, the complainant has stated in para 19 of the complaint that the cause of action also arose on 29.12.2004 and 04.03.2005 when the legal notices were sent by it to the opposite party and then again when the official of the opposite party verbally promised to install the fourth lift, in our opinion mere sending a legal notice, does not constitute a cause of action not does not it extend the period of limitation prescribed in the Act. As far as the alleged verbal promise is concerned, there is no proof of any such promise having been made by the opposite party.
10. It is settled legal proposition that the provisions of 24-A of the Consumer Protection Act are mandatory in nature and the consumer forum, considering a complaint which has been filed after expiry of the prescribed period of limitation, is mandatorily required to dismiss the same unless, for the reasons to be recorded in writing, the delay in filing the complaint is condoned. The following view taken by the Hon'ble Supreme Court in SBI vs. B.S. Agriculture Industries (I), (2009) 5 SCC 121 is pertinent in this regard:-
"It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, "shall not admit a complaint" occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own5 whether the complaint has been filed within limitation period prescribed thereunder.
12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
11. No application for condonation of delay having been filed by the complainant, there is no occasion even to examine whether there was any sufficient cause for delay in filing this complaint within the prescribed period of limitation or not.
12. Though the complainant has alleged deficiencies even in the lifts commissioned by the opposite party, no technical evidence has been led by it to prove any such defect. The alleged defect in the lifts or in their installation could be proved by examining a technical expert. No expert however has been examined. Moreover, the complainant has been awarding Annual Maintenance Contract of 2 lifts to the opposite party, which is a clear indicator that they did not suffer from any technical defect.
13. For the reasons stated hereinabove, the complaint is dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER