[MAHARASHTRA CONSUMER DISPUTES REDRESSAL COMMISSION]
BENCH
G. G. Loney & PRESIDENT
COMPARATIVE CITATIONS
1993 (1) CTJ 146,
The Judgment was delivered by JUSTICE G.G. LONEY, PRESIDENT
In this complaint, the allegations are made against the opposite party for the sale of the defective elevator. Necessary facts are that the complainant is a firm engaged in the construction business. The complainant constructed the building known as "Shivshakti Apartments" at Thane having Ground plus seven floors. It was incumbent on the complainant under the relevant rules to fix the elevator in the said building. The opposite party sent a written offer on 20.5.1987 for the supply, erection and maintenance of elevator. In the said offer clear representation was made by the opposite party that the elevator components will conform to the Indian Standard specifications in elevators and the Bombay Life Rules 1958. By another letter dated 29.10.1988, the Opposite Party Jayadev Electro Mech Company confirmed their earlier order dated 20.5.1987 and quoted the price of the elevator at Rs. 1, 55, 000/-. The total cost with sales and octroi was Rs. 1, 64, 130.60. The complainant accepted the offer and on 4.11.1988 paid Rs. 15, 550/- as advance and subsequently Rs. 54, 000/- on 4.5.1989, Rs. 20, 000/- on 26.7.1989, Rs. 18, 700/- on 8.7.1989, Rs. 20, 000/- on 13.10.1989, and Rs. 11, 000/- on 9.11.1989 to the opposite party. The elevator was installed in April, 1990. The Opposite Party also informed the complainant that the maintenance service commenced from the date of inspection and shall continue for a period of 24 months thereafter.
2. The complainant alleged that the said elevator was not functioning properly from the date of installation. The elevator could not work even over an hour at a stretch. The complainant made many oral complaints but they are not attended to. Finally, on 14.7.1990, the complainant informed the Opposite Party the hardship caused to him as well as to other occupants of the said building. It was replied by the Opposite Party on 25.7.1990 for the first time raising contention that the voltage available at the site was not enough for the working of the said elevator. The complainant, therefore, approached the Maharashtra State Electricity Board for the inspection of the installation and to certify the voltage. The M.S.E.B. officials certified that the voltage was enough to operate the elevator having the same specifications as that of the said elevator.
3. The complainant further alleged that the opposite party converted the said elevator to a single speed elevator in the hope of its smooth functioning but even then, there was no improvement. According to the complainant on 14.8.1990, the Opposite Party was informed that the voltage in the building was enough for the smooth functioning of the said elevator. The complainant further alleged that the other occupants of the building were agitating over the non-functioning of the elevator. Ultimately, the complainant filed this complaint alleging that the elevator sold to him was defective and, therefore, the complainant claimed the refund of the price of the elevator with interest at the rate of 24% p.a.
4. The Opposite Party filed its written version dated 17.2.1992 denying the claim of the complainant. The Opposite Party admitted the sale of the lift. According to the Opposite Party, the non-functioning of the elevator was due to insufficient voltage. The Opposite Party denied the inconvenience and damage sustained by the Complainant. It is also the case of the Opposite Party that the Complainant had not paid Rs. 9, 880.60 towards the purchase price. In short, the he Complainant about the supply of defective elevator.
5. We have heard Shri Chitnis, Advocate for the Complainant and Shri Alamaida, Advocate for the Opposite Party. We have gone through the relevant record of this complaint. The following points arise for our consideration :-
(1) Whether the elevator sold to the Complainant was defective ?
(2) Whether the Complainant was put to a loss on account of the supply of defective elevator due to the negligence of the Opposite Party ?
6. As regards the first point, we find that the allegations of the Complainant that the elevator supplied to the Complainant was defective stands proved by abundant evidence on record. The Opposite Party in their letter dated 29.10.1988 at Ex. 1 has assured the Complainant of personal careful attention. In another letter dated 20.5.1987 at Ex. 2 again, the O.P.'s Sales Section assured of their personal and careful attention. In Ex. 5, the Opposite Party gave the written guarantee of five years after putting the elevator into working order. The said guarantee is deemed to cover the repairs which may be due to ordinary wear and tear. In Ex. 6 dated 17.4.1990, Shri R.L. Hooda, the Director of the Opposite Party informed that the elevator was inspected by the Inspector of Lifts on 6.4.1990 and that the maintenance service will continue for 24 months. Despite the aforesaid assurance of personal attention assured by Opposite Party, the elevator was not working properly. The complainant in their letter dated 14.7.1990 at Ex. 7 made a complaint about the defective installation of the lift. It is clearly written therein that the lift is not in a working condition and is out of order despite the repairs carried out by the mechanic. It is also stated in the said letter to remove the said lift and to install another lift. In their letter dated 14.8.1990 the complainant has written to the O.P. that despite the 90% payment, the O.P. did not bother to remove the defects in the lift. The order was received by Opposite Party on 17.8.1990. There is signature of having received the said letter by the Opposite Party. In Ex. 9 dated 11.9.1990 again the Complainant wrote a complaint to the Opposite Party informing about the defective nature of the lift and to remove the said defective lift. This letter was also received by the Opposite Party on 13.9.1990 and the acknowledgment is on the reverse side of that letter. In Ex. 13, the Complainant again wrote to the Opposite Party on 6.11.1991 about the defective elevator. It is also pointed out in that letter that the other tenants viz. the Oriental Insurance Company threatened to move the Court of Law if the lift is not put in order. A copy of the said letter was addressed to Inspector of Lifts, Bombay. At Ex. 14 is a letter dated 13.11.1991 in which the Oriental Insurance Company Ltd. has stated that the lift was not working and has been in totally non-use condition since the beginning. We find that all these letters depict consistently the defective nature of the elevator supplied by the Opposite Party. The Complainant has also filed his affidavit dated 13.4.1992 duly sworn in verifying the facts stated in the complaint. Thus, we are of the considered view that the lift in question supplied to the Complainant by the Opposite Party was defective and it could not be put into working condition due to the negligence of the Opposite Party. The negligence of the Opposite Party is very apparent in as much as we find from the record that since the date of installation i.e. from 6.4.1990 till the filing of the complaint on 27.11.1991 the lift was not in working condition. Ex. 14, letter dated 13.11.1991 from the Oriental Insurance Company bore the testimony of the defective nature of the lift. The Oriental Insurance Company is a third party and has addressed two complaints threatening to move the Court of Law if the lift is not put into order. As against this voluminous documentary evidence, the defence of the Opposite Party is that requisite voltage of the electricity was not available. This defence of the Opposite Party is also false in view of the inspection report of the Maharashtra State Electricity Board dated 20.1.1990 at Ex. 10 and Ex. 11 report of the Electrical Inspector. In both these letters, there is not mention that the requisite 4000 voltage was not available. On the contrary, the Electrical Inspector has given his certificate at Ex. 11 to commence the supply of energy to above said installation. Another defence of the Opposite Party is that the complainant has not paid the arrears of Rs. 9, 880.60 towards the price of the elevator. According to the Complainant, the balance amount towards the price was to be paid by him was settled between the parties and in full and final settlement of the balance Rs. 5000/- were paid by him. Assuming for a moment that the Complainant has not paid the balance amount towards the consideration of the said elevator that does not absolve the Opposite Party from his liability to supply good quality elevator in working condition. It is found from the record that from 6.4.1990 till the date of filing of this complaint on 27.11.1991 i.e. for a period of about 21 months and even thereafter, the elevator in question remained in non-working condition. Thus, in our view, the Complainant has proved his allegation about the defective nature of the elevator supplied to him by the Opposite Party. The negligence on the part of the Opposite Party is also very obvious that despite repeated letters and requests made by the Complainant the lift was not put in to working condition. The Opposite Party has clearly represented in writing to give personal attention about the working of the elevator. Thus, the representation made by the Opposite Party about the purity, potency and the quality of the elevator was imperfect. It is important to note that the elevator was fixed to the building which has ground plus 7 floors and one can imagine the hardship being experienced by the people residing in the building for want of the lift. Under the Act, the Opposite Party is required to maintain the standard of the lift which he has failed to establish. No mitigating circumstance has been placed on record by the Opposite Party to absolve him from the liability of negligence in this case.
7. The Complainant has claimed in this complaint that apart from the refund of price of the elevator to the Opposite Party, they suffered the loss due to the non-use of the elevator. The Complainant has further claimed that a liftman was engaged in the month of May, 1990 on the salary of Rs. 1500/- to operate the lift. According to the Complainant, the salary was being paid to the liftman without doing any work. Thus, the Complainant has claimed the compensation of Rs. 1, 00, 000/- for the supply of defective elevator and Rs. 28, 500/- towards the salary of the Liftman and also claimed the interest at the rate of 24% p.a. on the amount of Rs. 3, 01, 260 Considering the defective nature of the elevator, we find that this is a fit case where the Opposite Party is liable to replace the elevator with a new elevator of the similar description free from any defects forthwith. Similarly, the Complainant has suffered a loss of Rs. 28, 500/- by paying the liftman from May, 1990. The hardship and the sufferings of the Complainant and other occupants can be imagined and cannot be measured in terms of money. The loss has been suffered by all the occupants in the building for which they have been blaming the Complainant and even threatened to drag him in the Court of Law for the acts of Opposite Party. Under these circumstances, in our humble estimation it would meet the ends of justice if Rs. 50, 000/- are awarded as compensation to the Complainant for the loss and injury suffered by Complainant due to the negligence on the part of the Opposite Party. Hence, we pass the following order :-
ORDER
8. The Opposite Party shall within 30 days from the receipt of this order take back the existing lift supplied to Complainant and replace the same with a new lift of the similar description which shall be free from any defect. The Opposite Party shall pay Rs. 50, 000/- to the Complainant towards the compensation. The Opposite Party is further directed to pay Rs. 28, 500/- to the Complainant towards the salary of the Liftman. The Opposite Party shall pay the amount of compensation of Rs. 50, 000/- and Rs. 28, 500/- to the Complainant within 30 days from the receipt of this order failing which the amount shall carry interest at the rate of Rs. 18% p.a. till realisation. In case of non-compliance of this order by Opposite Party, Complainant is at liberty to move this Commission under Section 27 of the Consumer Protection Act, 1986.
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