M/S. Omega Elevator vs C.K. Pamecha & Ors

M. Shreesha, J

Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 17.05.2007 passed by theRajasthan State Consumer Disputes Redressal Commission (in short "the State Commission") in First AppealNo. 2197 of 1998. By the impugned order, the State Commission concurred with the finding of the District Consumer Disputes Redressal Forum, Udaipur, Rajasthan (in short "the District Forum"), and only modified the order of the District Forum to the extent of reducing the rate of interest from 18% p.a. to 9% p.a.

The facts, in brief are that the Complainant placed an order with M/s Omega Elevators for the supply of one hospital lift at a cost of ₹1,65,000/- with the following terms:

(a) 10% Advance at the time of confirmed order to FREEZ the price of lift.

(b) 70% on supply of material at installation site.

(c) 20% on satisfactory Installation.

A demand draft for ₹16,500/- dated 31.10.1991 was sent as confirmation regarding the price of the lift, which was duly acknowledged by the Opposite Party and a letter dated 03.11.1991 was also issued. A proforma invoice dated 16.12.1992 was also issued for the supply of elevators. The Opposite Party informed the Complainant about the readiness to supply the elevators through bank vide their letter dated 07.01.1994 and requested the Complainant to send the name of the transporter which was informed vide letter dated 06.03.1994. For the prompt release of the payment to the Company, the proprietor telephonically asked the Complainant to send the letter of assurance from the financer, who has financed the hospital project. Accordingly, Rajasthan Financial Corporation issued a letter dated 06.03.1994. Thereafter, despite several requests, the lift was not supplied. The delay in supply of lift led to a lot of physical and mental agony since the Complainant is a Hospital and the patients have to be carried on stretchers to the upper floor, where time and convenience was affected. Vexed with the attitude of the Opposite Party the Complainant approached the District Forum seeking direction to the Opposite Party, to install the Elevator as per the specification without any delay and also pay ₹1,50,000/- towards compensation and ₹1,000/- towards costs.

The Opposite Party filed their reply stating that there was no contract or binding Agreement between the Complainant and the Opposite Party and that the Complaint is barred by limitation as the cause of action arose on 31.08.1991, but the Complaint was filed on 31.10.1993. It was also averred that the Complainant is not a 'Consumer' as the lift was to be used for commercial purpose and therefore the Complaint was not maintainable. All other averments made by the Complainant in the Complaint were denied. It was further denied that Mr. Kumar Desai had given any telephonic assurance or in writing to the Complainant or that he has ever asked for any assurance letter from Rajasthan Financial Corporation.

The District Forum based on the evidence adduced allowed the Complaint in part directing the Opposite Party to pay ₹16,500/- with interest @ 18% p.a. from 01.09.1991 till the date of payment, together withcompensation of ₹70,000/- and cost of ₹600/-. If the Opposite Party did not comply with the order within the period of two months from the date of order interest @ 18% p.a. was also awarded on the compensation amount of ₹70,000/- from the date of order i.e. 24.10.1998 till the date of payment.

Aggrieved by the said order, the Opposite Party preferred Appeal No.2179 of 2018 before the State Commission. The State Commission while allowing the Appeal in part only reduced the rate of interest from 18% p.a. to 9% p.a. while confirming the rest of the order of the District Forum.

Learned counsel appearing for the Revision Petitioner drew our attention to the order dated 18.02.2008 of this Commission in which operation of the impugned order was stayed subject to deposit of ₹35,000/- with the District Forum and the Complainant was given liberty to withdraw this amount on furnishing a personal bond. It was also submitted by the learned counsel for the Petitioner that an amount of ₹16,500/- along with interest was already paid to the Complainant.

A brief perusal of the letter dated 18.02.2008, shows that there was an observation made by this Commission regarding deficiency of service on behalf of the Petitioner which reads as follows:

"There is also no dispute that the Shri Ram Hospital and Research Centre has taken finance from the Rajasthan Finance Corporation (RFC). There is also no dispute about the fact that the Petitioner demanded the money before lift being dispatched to the Udaipur. The question of deficiency would relate to this demand of 70% against the delivery of material at site. If the amount was to be paid on delivery at site then the demand was certainly not justified and to that extent the Petitioner cannot absolve themselves from the charge of deficiency in rendering service.

Ld. Counsel for the Petitioner in this context submits that the Respondent was asked to send the bank draft and take the delivery of the material. But that Respondent offered to make payment through RFC because the RFC agreed to release the payment against bank documents. We think that this would have satisfied the terms of payment as agreed to in between the parties. Refusing to take the goods for delivery at site and demanding payment against the terms of agreement of sale, would surely amount to deficiency. Consequently, it is not possible for us to accept the submission of the Ld. Counsel for the Petitioner. "

Therefore the brief point that falls for consideration is whether the compensation amount awarded by the fora below is justified or not.

The letter of supply and installation of one lift issued on 30.08.1991 is not in dispute. The terms of the payment as per the letter dated 30.08.1991 are 10% advance against payment, 70% against delivery of material at site and 20% on satisfactory installation.

This letter evidences that the amount is to be paid on delivery at site. Hence the demand made by the Petitioner was certainly not justified. This Commission has already given a finding on 18.02.2008 that refusing to take the goods for delivery at site and demanding payment which is in violation in terms and conditions of Agreement of Sale amounts to deficiency of service. The same finding has not even being challenged by the Petitioner and therefore has attained finality. Having regard to the fact that this is a matter pertaining to the year 1991, which is prior to the amendment of 1993, the contention of commercial purpose need not be gone into, further keeping in view the fact that limited notice was issued only confined to the quantum of compensation. The amount of compensation awarded is meagre specially keeping in view the fact that the Complainant is a Hospital and this elevator was requested to be delivered time and again and the delay caused hardship to the patients since the attendants of the Hospital had to carry the patients on a stretchers from floor to floor, which caused severe physical harassment and mental agony not only to the patients but also to their attendants. The time that is lost cannot be undermined and therefore this Revision Petition is dismissed with costs of ₹25,000/- to be paid to the Complainant within four weeks from today.

In the result, this Revision Petition is dismissed and needless to add, the amount which has already been released to the Complainant shall stand adjusted from the decretal amount and the rest of the amount of the compensation stands confirmed.