National Consumer Disputes Redressal
C. Sukumaran & Anr. vs M/S. Parasvnath Developers Ltd. & Anr. on 18 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 82 OF 2009 1. C. SUKUMARAN & ANR. R/o Angode House, Kizhakkancherry Mankad, Alathur Taluk Palakkad Kerala ...........Complainant(s) Versus 1. M/S. PARASVNATH DEVELOPERS LTD. & ANR. Through its MD, 6th Floor, "Arunachal", 19, Barakhamba Road NEW DELHI -110 001. 2. M/S. OTIS ELEVATOR CO. (INDIA) LTD. Through its Managing Director, Magnus Towers, 9th Floor, Mind Space, Link Road, Malad West Mumbai - 400 064 3. M/S. BASUNDHARA PROPERTIES (P) LTD. (THROUGH ITS MD) 201,",19, BARAKHAMBA ROAD, NEW DELHI-110001 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Raghunath Menon, Advocate For the Opp.Party : For the Opposite Party No. 1 & 3 Mr. Sachin Datta, Sr. Advocate Mr. Deeptanshu Jain, Advocate For the Opposite Party No. 2 Mr. Amit Singh Chadha, Sr. Adv., Ms. Reena Choudhary, Advocate Mr. Sahil Mongia, Advocate Ms. Srishti Govil, Advocate Dated : 18 Jul 2017 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER The complainants are the parents of deceased Sajan, who was residing in a flat on the 6th floor of a building namely Parsvanath Majestic Floors, constructed by opposite party No.1 M/s. Parasvnath Developers Ltd. The case of the complainants, as set out in the complaint is that in the night of 16.7.2008, deceased Sajan pushed the call button of the lift installed on the sixth floor of the building, realizing that there was no electricity supply, he chose to take stairs to go down. By the time he reached the third floor, the electricity supply resumed and the lift door on the third floor of the building opened. The deceased stepped inside assuming that the lift would be in place but fell through the shaft and sustained serious injuries. He was taken to Fortis Hospital where he succumbed to those injuries on 17.7.2008. The complainants impleaded only Parasvnath Developers Ltd., which constructed the building and OTIS Elevator Co. (India) Ltd. which had supplied the lifts installed in the said building and was maintaining them. It was alleged in the complaint that the accidental death of the deceased happened due to gross negligence on the part of the opposite parties. It is also alleged that no power back up was provided for operation of the lifts even in a case of emergency. Though, in the reply to the legal notice sent by the complainants, opposite party No.2 alleged that it was maintaining the lifts pursuant to a maintenance contract with M/s. Basundhara Properties Pvt. Ltd., the aforesaid entity was not impleaded as a party to the complaint. Later on, the aforesaid company, now known as M/s. Marksmen Facilities (P) Ltd., was impleaded as opposite party No.3 pursuant to a direction issued by this Commission. The complainants have claimed a sum of Rs.2.50 crores as compensation from the opposite parties.
2. In its reply to the complaint, the opposite party No.1 Parasvnath Developers Ltd. has denied any negligence or deficiency in service on its part and has alleged that it was not responsible for maintenance of the lift and other services provided in the building. It is further alleged that maintenance of the lift was under the charge of Basundhara Properties Pvt. Ltd.
3. In its written version to the complaint, opposite party No.2 M/s. OTIS Elevator Company (India) Ltd., has denied any negligence or deficiency on its part in maintenance of the lifts installed in the building. It was alleged that after expiry of the free maintenance period, they had started annual maintenance of the lifts under instructions of the Basundhara Properties Pvt. Ltd., an agency appointed by opposite party No.1 Parasvnath Developers Ltd. and under the said contract the personnel were required to go to the site only once a month or as and when there was a complaint. It is alleged that on 16.7.2008, on receipt of information about the accident which had taken place on the premises, a team of the engineers of opposite party No.2 reached the site and checked the lift in question but found the same to be in safe working condition. On 17.7.2008, the lift in question, as well as other lifts were inspected by senior Managers of opposite party No.2 along with other technical staff and a safety test was also conducted. The lift was found to be in good working condition. It is submitted in the written version filed by opposite party No.2 that the complaint was based upon hearsay knowledge and no source of information claimed in the complaint had been disclosed.
It is submitted in the written version filed by opposite party No.2 that all the lifts manufactured by it have an inherent security features viz. that the landing door does not open unless the lift car arrives at that landing. It is further explained that a lift comprises two separate doors viz. the landing door and the car door. The landing door is fixed whereas the car door moves with the lift car and the landing door cannot automatically open unless and until the lift car door arrives at the landing, except by manual intervention. The aforesaid safety feature, according to opposite party No.2 was installed in the lift in question in Parasvnath Majestic Floors at Indirapuram. It is also claimed that in case of emergency, the landing door could be opened only manually from outside with the help of a manual key which is kept at the premises where the lift is installed and which ought to be used only by the authorized person. The manual key in the present case was given to Basundhara Properties at the time of installation of the lift. Opposite party No.2 has outlined two possibilities in which a person could have fallen in the well of the lift. The first possibility, according to them is that the lift door on the third floor was opened with manual key and left open. When the deceased arrived at the third floor and saw the landing door open he stepped inside believing that the lift car shall be there. Lift car must have been at some other floor at that time. In such a case, the Facility Manager shall be responsible for the unauthorized use of the manual key. The second possibility for the incident alleged by the complainants, is that if the deceased had got stuck inside the lift due to electricity failure, the unfortunate incident occurred during the rescue operation undertaken by Basundhara Properties or by opposite party No.1, though the representatives of Opposite Party No.2 ought to have been called for such an operation. It is submitted that in case the lift gets stuck between the two floors, the landing door can be opened with the use of the manual key and in such a case, the main power of the lift must be disconnected so that the lift may not automatically operate in case of a sudden resumption of electricity. Furthermore, in such a situation, the lift car must be manually brought closer to the landing floor and the person to be rescued must be pulled out from the lift car to the landing floor. It is also stated that the person sought to be rescued should not be pulled down from the lift car to the landing floor as there is always a gap between the lift car and the landing floor and if a person is pulled down, he may fall through the gap into the pit. It is submitted in the written version that the deceased got stuck into the lift car and the Facility Manager and / or opposite arty No.1, which carried out the rescue operation tried to pull down the deceased on the landing floor which was to open with the manual key and it was during said rescue operation that either the deceased slipped and fell through the shaft due to his own negligence or the Facility Manager and / or opposite party No.1 failed to take due care and the deceased fell through the gap between the lift car and the landing floor into the pit. The aforesaid two scenarios according to the opposite party No.2 are the only possibility in which the deceased could have fallen into the pit of the lift.
4. In its written version to the complaint, opposite party No.3 M/s. Marksmen Facilities (P) Ltd., has admitted that it was appointed as the maintenance agency of the building namely Parsvanath Majestic Floors and was handed over the maintenance and upkeep of the common areas and services etc. with effect from 04.5.2006. Opposite Party No.3 has also admitted its agreement dated 18.6.2002 with opposite party No.2 M/s. OTIS Elevator Company (India) Ltd. It is admitted that manual key of the elevator was handed over by opposite party No.1 to opposite party No.3, though it has been denied that the manual keys were used by unauthorized persons. It is alleged that consequence of the accident which occurred in the evening of 16.7.2008 was a result of the negligence of the deceased for which opposite party No.3 cannot be faulted. The written version however does not specify the alleged negligence on the part of the deceased. It is admitted that there was no power back up provided for the operation of the lifts in case of emergency, though, it is claimed that the lack of power back up had no connection with the accident in the evening of 16.7.2008.
5. The first question which arises for consideration in this complaint is as to whether the deceased had died from the injuries sustained from falling in the pit of the lift installed in the building in which he was residing or he died elsewhere. It has rightly been pointed out by the learned senior counsel for the opposite party that as far as the complainants are concerned, they had no personal knowledge of the incident which is alleged to have happened on 16.7.2008, as they were not residing along with the deceased nor were they present at the time he sustained injuries. The complaint obviously is based upon the information provided to the complainants by third parties, presumably the residents and / or security guards of the building in which the deceased was residing as a tenant. However, the facts and circumstances of the case, clearly shows that the deceased had sustained injuries on account of his having fallen in the pit of the lift installed in the aforesaid building. It is an admitted position that the upkeep and maintenance of the building in which the deceased was residing as a tenant was the responsibility of opposite party No.3 under an agreement it had executed with opposite party No.1, developer of the said building. Admittedly, the security guards engaged by opposite party No.3 had been deployed in the said building. This is nobody's case that the deceased had sustained injuries at a place other than the building in which he was residing as a tenant. Opposite party No.3 therefore, ought to have disclosed to this Commission as to in what manner the deceased had sustained injuries in the aforesaid building. The written version filed by opposite party No.3 is conspicuously silent in this regard. Though, it has been vaguely alleged that the accident which occurred in the evening of 16.7.2008 was a result of the negligence of the deceased, the written version does not disclose how the deceased himself was responsible for the said incident. Despite the complainants having set up a specific case that the deceased sustained injuries when he stepped inside the lift door on the third floor of the building, none of the opposite parties has claimed that the deceased had not died in the aforesaid building. None of the opposite parties has claimed that the deceased had not entered the landing door on the third floor of the building. None of them has alleged that the deceased had not fallen in the pit of the lift installed in the aforesaid building. As far as opposite party No.2 is concerned, it is justified in saying that it had no knowledge of the incident which happened in the evening of 16.7.2008, resulting in serious injuries to the deceased. Even opposite party No.1 can claim such lack of such a knowledge, it having already entrusted the upkeep and maintenance of the building to opposite party No.3. But, as far as opposite party No.3 is concerned, once the complainants had expressly alleged, albeit on the basis of information gathered from third party sources, that the deceased had entered the lift door on the third floor, assuming that the lift would be in place and had fallen through the shaft sustaining serious injuries. It was obligatory for the said opposite party to expressly refute the said allegations in case the same were not factually correct. Moreover, as far as opposite party No.3 is concerned, it also ought to have informed this Commission as to in what manner the deceased had sustained injuries in the aforesaid building in the evening of 16.7.2008. Since the building in which the incident took place was under the care and maintenance of opposite party No.3, which also had its security guards posted there, the doctrine of res ipsa loquitur applies as the genesis of the incident is primarily in the knowledge of opposite party No.3.
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 Hon'ble 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 Hon'ble 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."
As neither opposite party No.3 has expressly denied the allegations made in the complaint as regards the manner in which the deceased sustained injuries nor has it given any other version of the incident in the written version filed by it, it can be safely held that the said incident had happened only in the manner alleged in the complaint.
6. In the FIR lodged on 17.7.2008 by the President of the Resident Welfare Association, it was alleged that the deceased had fallen in the lift of tower No.2 of Parsvanath Majestic Floors at about 8.15 p.m. on 16.7.2008 and that oral information in this regard had already been given to the police station. Though, the informant has not been produced as a witness nor have the complainants been able to file his affidavit by way of evidence, the fact remains that fall in the left of the building was alleged in the FIR. The incident was also reported in Hindustan Times dated 21.7.2008 and the cause of the death was reported to be fall in the lift shaft. A legal notice was sent by the complainants to opposite party No.1 & 2 and opposite party No.2 on 21.1.2009, alleging in para 4 of the said notice that when the deceased pushed the call button of the lift on the sixth floor, there was no electricity supply and therefore, he chose to taken stairs. It was further alleged that when he reached the third floor, the electricity supply resumed and lift door on the third floor opened. The deceased stepped inside, assuming the lift to be there but fell through the shaft and sustained serious injuries. A reply to the said legal notice was sent by opposite party No.2 OTIS Elevator Company (India) Ltd., though opposite party No.1 did not respond. It was stated in the said reply that on 16.7.2008, between 8.30 p.m. and 9.30 p.m. opposite party No.2 was informed about an incident which had taken place on the premises and a team of the company went to the spot and checked the 'lift in question' which was found to be in safe working condition. It was further alleged that detailed inspection of lift in question as well as the other lifts was carried by four senior Managers of the company, along with technical-staff on 18.7.2008. The very fact that on receipt of a complaint, the engineers of opposite party No.2 inspected a particular lift firstly on 16.7.2008 itself and thereafter on 18.7.2008 as a strong circumstance which corroborates the case set out by the complainants which the deceased had sustained injuries on account of having fallen in the pit of a lift installed in the building in which he was residing as a tenant. Had that not been the case, there would have been no occasion for such inspections. Vide letter dated 21.7.2008, the developer of the building opposite party No.1 Parsvnath Developers Ltd., referring to the incident of 16.7.2008, in which the employees of opposite party No.2 were gheraoed by the residents of this complex requested them to carry out an immediate inspection of the elevators so as to enhance the feeling of safety amongst the residents. This is yet another circumstance indicating that the deceased had sustained injuries only on account of his fallen in the pit of the lift.
7. In his affidavit by way of evidence Mr. Rakesh Chandra of M/s. OTIS Elevator Company (India) Ltd. has inter-alia stated that when he reached the premises at about 9/9.15 p.m. on 16.7.2008, along with his colleague Mr. Subodh, they were informed by the security guards that someone had fallen in the elevator pit of elevator number L008702 in Tower No.2 and had been taken to nearby Fortis hospital. The aforesaid elevator was thereafter examined by him and Mr. Subodh. The statement made by the security guards posited in the building to Mr. Rakesh Chandra is yet another corroborative circumstance to prove that the deceased had sustained injuries when he fell in the pit of one of the elevators installed in the building. I therefore, have no hesitation in holding that the deceased had entered one of the lift doors and since the lift car was not in place he had fallen in the pit of the said lift, receiving serious injuries leading to his death on the next day.
8. As noted earlier, the case of the opposite party No.2 M/s. OTIS Elevator Company (India) Ltd. is that the elevator in question had two doors, one called elevator door and the other called landing door. The elevator door moves with the elevator while the landing door remains fixed on each floor. The technical mechanism of the lift has been explained as below in para-3 of the affidavit of Mr. Shiv Kumar Sharma, Senior Manager of the company who is also a qualified BE(Tech.), having been associated with the service and maintenance of elevators for almost thirty years:
"3. By way of a brief explanation of the technical mechanism which operates the landing door, I state that the elevator in question has an elevator door and a landing door. The elevator door moves with the elevator while the landing door is situated at each floor of the building and remains fixed. The landing door requires certain external force to open. This external force is provided to the landing door by the interplay of the "Door Coupler Cam" of the elevator door with the "Door Coupler Rollers" of the landing door. When the elevator in question reaches the landing of a particular floor, the Door Coupler Cam of the elevator door will engage with the Door Coupler Rollers of the landing door, thereby providing the requisite external force to open the landing door.
4. Therefore, I state that if the elevator does not arrive at a particular floor, the Door Coupler Cam of the elevator door will not engage with the Door Coupler Roller of the landing door. In such a situation, the landing door of the elevator in question will not open on its own, unless by way of manually forcing the landing door open by using the manual keys of the landing door of that particular floor.
6. As previously stated in my affidavit of Evidence dated 21 March, 2013, the functioning mechanism of the elevator in question and its inherent security feature is such that the landing door of the elevator cannot open automatically without the elevator car arriving at the landing of that particular floor (Re: para 14(a) of my Affidavit of Evidence dated 21 March 2013). I further state that the door lock system of the elevator in question prevents the doors from opening even by mistake. As such, the elevator door cannot open when the lift is in motion or parked on another floor. (Ref. owner's Manual @ pg. 31, Part-II)".
The opposite party No.3 has not controverted the aforesaid mechanism in written version filed not it has filed any evidence to controvert the affidavit filed by Mr. Shiv Kumar Sharma. Therefore, I see no reason to reject the case set out in this regard in the written version and affidavit by way of evidence filed by opposite party No.2 M/s. OTIS Elevator Company (India) Ltd., and hold that the landing door could not have opened without the elevator car arriving at the landing of that particular floor, unless the landing door was physically opened, using the manual key of the landing door provided for the purpose.
9. It is an admitted case that the manual key of the landing door had been delivered to opposite party No.3 and therefore was in the custody of its employees. Obviously, either the landing door was opened by the employees such as guards of opposite party No.3, using the said key or they had handed over the key to one or more residents of the building in order to enable them to open the landing door.
10. The next question which arises in this regard is as to why the landing door would be opened, using the key kept in the custody of opposite party No.3. It is alleged in the complaint that there was no power in the building when the deceased was on the sixth floor and therefore, he had to take stairs in order to come down stairs but the power supply resumed by the time he reached the third floor of the building. In the written version filed by the opposite party No.3 it has not been alleged that there was no power failure in the building at around that time. The landing door, using the manual key therefore would have been opened for the purpose of undertaking a rescue operation in an emergency situation otherwise; there would have been no necessity of opening the said door. As explained in the written version and affidavit by way of evidence filed by the opposite party No.2 M/s. OTIS Elevator Company (India) Ltd., the landing door is fixed, whereas the car door moves with the lift car. Someone, using the lift at the time of power failure got stuck in the lift on account of the sudden power failure and the landing door therefore had to be opened, using the manual key kept in the custody of opposite party No.3 for the purpose, in an attempt to rescue the person stuck in the lift car. It is also obvious that it was during the rescue operation that the deceased fell into the pit of the lift and sustained serious injuries. The aforesaid scenario fits well into the second possibility stated in the written version of opposite party No.2, in which a person can fall in the pit of the lift.
It is explained in the affidavits filed by opposite party No.2 that the main power of the lift has to be disconnected before undertaking such an operation. Moreover, the person trapped inside the lift car should not be pulled down from the lift car to the landing floor as there is a gap between the lift car and the landing floor. The lift car in a situation where a person is trapped inside needs to be manually brought closer to the landing floor and thereafter that person has to be pulled out from the lift car to the landing floor.
11. Though, it is not known as to whether the rescue operation was undertaken by the guards employed by opposite party No.3 or by the residents or it was a joint efforts of the guards and the residents, the fact remains that had opposite party No.3 not provided the manual key of the landing door to the guards and / or the residents, the deceased would not have fallen in the pit of the lift, during the rescue operation undertaken by them. Handing over the manual key to the guards and / or the residents who were not trained in carrying out such a rescue operation was a negligent act committed by the employees of the opposite party No.3, though their intention must have been to rescue the deceased who had been trapped inside the lift car on account of sudden power failure. The employees of opposite party No.3, which was entrusted with the maintenance of the building, including the lift installed therein ought to have called either the office of the opposite party No.2 M/s. OTIS Elevator Company (India) Ltd. or they ought to have called the fire brigade instead of undertaking the job themselves or allowing the residents to do the same by handing over the manual key of the landing door to them. Even if the residents of the building were keen to undertake such a rescue operation, it would not have been possible for them to do so unless the manual key of the landing door was made available to them by the employees of opposite party No.3, posted in building. Therefore, though, opposite party No.3 may not be solely responsible for the injuries sustained by the deceased which later resulted in his death, a contributory negligence on the part of its employees is clearly evident in the facts and circumstances of the case.
12. As far as opposite party No.1 is concerned, a perusal of the complaint would show that no power back up was provided for the lifts installed by it in the building in which the deceased was residing. The allegation made by the complainants in this regard in the complaint has not been denied in the written version of opposite party No.1. Moreover opposite party No.3 has also admitted in its written version that no power back-up had been provided for the operation of the lifts, in case of emergency. The documents of opposite party No.2 M/s. OTIS Elevator Company (India) Ltd. also show that no power back up had been provided for the operation of the lifts. Admittedly, the building in which incident took place was a multi-storied residential building. It was necessary for the builder to provide atleast the minimum power back for operation of the lifts in case of emergency before delivering possession of the flats to the allottees. Providing lifts in a multi-storied residential building, without even minimum power back up, in my opinion, is certainly a negligent act and a defect or deficiency in the services rendered by the builder to the flat buyers. Had power back up for the operation of the lifts been provided, this incident would not have happened since the lift car would have been on the landing floor and the deceased would not have been stuck on account of power failure.
13. As far as opposite party No.2 M/s. OTIS Elevator Company (India) Ltd. is concerned, no negligence or deficiency on its part in the manufacturing, installation or maintenance of the lifts has been proved. Therefore, no responsibility for the death of the deceased can be fastened upon opposite party No.2
14. The next question which arises for consideration is as to how much compensation should be awarded to the complainants and by whom the said compensation should be paid. Though, the facts and circumstances of the case clearly show negligence on the part of the employees of opposite party No.3 on account of them having handed over the manual key of the landing doors to the persons who undertook the rescue operation during which the deceased fell in the pit of the lift and sustained injuries, it is not known whether the rescue operation was undertaken by the guards employed by opposite party No.3 or by the residents or jointly by the guards and the residents. Therefore, it has not been proved that the deceased died solely on account of the negligence or deficiency in rendering services by opposite party No.3. Considering all the facts and circumstances of the case, I am of the view that the complainants should be awarded a total compensation of Rs.50,00,000/- (Rupees Fifty Lacs), out of which Rs.30,00,000/- shall be paid by opposite party No.3 M/s. Marksmen Facilities (P) Ltd., and Rs.20,00,000/- shall be paid by opposite party No.1 M/s. Parasvnath Developers Ltd.
15. The complaint is therefore disposed of with the following directions:
(i) Opposite part No.3 M/s. Marksmen Facilities (P) Ltd., shall pay a sum of Rs.30,00,000/- (Rupees Thirty Lacs) as compensation to the complainants;
(ii) Opposite party No.1 M/s. Parasvnath Developers Ltd. shall pay a sum of Rs.20,00,000/- (Rupees Twenty Lacs) as compensation to the complainants;
(iii) Opposite Party No.1 and Opposite Party No.3 shall also pay Rs.10,000/- each as the cost of litigation to the complainants.
(iv) The payment in terms of this order shall be made within three months, failing which it shall carry interest at the rate of 9% per annum, with effect from three months from the date of this order.
......................J V.K. JAIN PRESIDING MEMBER