Decided on October 29,2009

The Kerala State Electricity Board Appellant
Omega Elevators And Anr. Respondents


M.V.VISWANATHAN, JUDICIAL MEMBER - (1.)THE above Consumer complaint is filed by the Kerala State Electricity Board against the opposite party M/s Omega Elevators alleging deficiency of service on the part of the opposite parties in effecting Supply, Erection and After Sale Service of 5 lifts installed at the Vaidyuthi Bhavan Building, Pattom of the opposite party, KSEB. The complainants (KSEB) have also alleged manufacturing defects in the said 5 lifts supplied and installed at the Vaidyuthi Bhavan Building of KSEB. It is further alleged that even during the warranty period there were defects noticed in the said lifts and the matter was informed the opposite parties, but they could not rectify the defects and the said defects were continuing with the aforesaid 5 lifts installed at the Vaidyuthi Bhavan Building of KSEB. The complainants prayed for refund of the sum of Rs.63,16,000 spent by the complainants for installation of the said 5 lifts or in the alternative to replace the said 5 lifts at the cost of the opposite parties. They also claimed compensation of Rs. 25,00,000 for the hardships and injuries suffered by the opposite parties and their employees and guests.
(2.)THE opposite parties entered appearance and filed a joint written version denying and disputing the alleged deficiency of service. They contended that the guarantee period for lift numbers 1 to 3 was over by 13.10.2006 and that the guarantee period for lift numbers 4 and 5 was over by 28.5.2005; that as per the agreement installation work of replacing the old lifts using the old guide rails with a new one was over within the stipulated time and that the inspection of the said lifts was conducted by the Electrical inspector and clearance certificate was obtained by the complainant, before taking possession of the said lifts. The opposite parties are doing the Annual Comprehensive Maintenance Contracts (AMC) and that several letters were issued by the opposite parties to the complainant for realizing the amount due for their work as maintenance by way of bills; but no amount has been released by the complainants. The minor complaint if any shall be rectified as per the Annual Comprehensive Maintenance Contracts from time to time. The opposite parties had sent their lift operators to inspect the lift and got it repaired. The complainant was instructed to replace the old guide rails and ELCB used in lifts. All the minor problems as alleged in the complaint are being caused by the staff and public who are using the lifts without proper instructions and by transporting materials like boxes of stationary items, chairs, cupboards etc. through these lifts. There is no lift operator in all the 5 lifts and the components of the lifts are all very sophisticated electronic components which are damaged several times by the misuse of the lifts by the officials, employees and public. The minor problems are caused due to the electrical problems which ought to have been looked into by the electrical engineers. It is further contended that the complaint is barred by limitation since the agreement was executed in the year 2003 and the complainant took possession of the lifts in the year 2004. There is no cause of action to file the above complaint and the 1st opposite party is only a branch at Cochin installing lifts with full knowledge and consent of the 2nd opposite party having its head office at Ahmedabad, Gujarat. The amount if any is due to the complainant by the opposite parties can be settled by settlement of account. The above complaint has been filed on an experimental measure for harassing the opposite parties. Thus, the opposite parties requested for dismissal of the said complaint.
(3.)AFTER the filing of the original written version, the opposite parties filed an interlocutory application as I.A. 683/09 for getting the written version amended so as to incorporate the following contentions: The complainant being a commercial establishment and the dispute put forward is absolutely civil in nature. The complaint itself is not maintainable and the complainant will not come under the definition of consumer under the Consumer Protection Act, hence the maintainability question may be decided first before taking the evidence of the complaint. 
The complainants being the respondents in the said I.A. 683/09 filed objection to the said I.A. They challenged the correctness of the averments in the affidavit filed in support of the said I.A. 683/09. They disputed the maintainability of the said petition filed for getting the written version amended. It is further contended that the dispute put forward by the complainant is a consumer dispute since the defects in the lifts were developed during the warranty period and the opposite parties failed to rectify the said defects, that the KSEB was established not for commercial purpose and it is not a profit making body; that the Honble State Commission by virtue of the order dated 3.11.2008 in I.A. 876/09 in CC 6/07 has held that there is no preliminary point to be answered as far as the maintainability of the present complain1 is concerned. Thus, the present petition filed is liable to be dismissed as the same is filed without any bona fides. But this State Commission after hearing both parties allowed the aforesaid I.A. 683/09 for amendment of the written version. Thereby the orginal written version was amended and the amendment was carried out.

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