GANGA PROSAD JAISWAL vs KAMAL SITT

THIS appeal was directed against the judgment passed on 10:94992 by Ld. Calcutta District Consumer Redressal Forum is CDF case No. 988/92.

THE contents of the appellants are :- (1) It is a dispute between landlord and tenant and as such Consumer Protection Act has no application. (2) THEre is no clause in the tenancy agreement that the respondent would be provided with lift facility. (3) Matters complained of by the respondent are not at all deficiency in service as contemplated in COPRA. (4) A similar dispute is already pending between the parties herein before the Ld. City Civil Court being T.S. No. 1840/89.

That from the facts and circumstances of the matter complained of it is admitted by the contesting parites that:- (i) Respondent is a monthly tenant under the appellants in respect of 4th floor of 18, Camac Street, Calcutta. (ii) He had been using lift since the inception of its tenancy. (iii) Lift became out of order which needs repair. (iv) Tenancy Agreement is silent about the service of lift. (v) Appellants filed an ejectment suit against the respondents before City Civil Court, Calcutta.

Ld. Advocate of the appellants argued that it has been set at rest by the Hon''ble National Consumer Dispute Redressal Commission as also by the Hon''ble High Court at Calcutta that Consumer Protection Act has nothing to do away with landlord tenant dispute and cited decisions as stated in paragraph 9 of their stay application. Ld. Advocate of the appellant also argued that in the tenancy agreement nowhere it has been stated that lift would be provided to tenants.

Ld. Advocate of the respondent No. 1 while supporting the judgment passed by the learned Calcutta District Forum cited a decision reported in 1991 (2) CPR 326, wherein it has been stated that tenant of a building by virtue of rights as tenant paying rent is entitled to use the lift and is hence hirer of the lift service and being hirer of lift service maintained by landlords, a tenant is a consumer regarding lift service as contemplated in Section 2(1)(d) of COPRA. The learned advocate of the respondent No. 1 also cited a decision of Hon''ble High Court at Calcutta reported in 1982 (1) RCJ at page 482 which speaks of that "Rent includes the charges of lift". He also referred the decision 1979 CWN 221 and argued that rent means and includes the whole amount which is agreed to be paid by the tenant as condition for the occupation of the premises. In a Division Bench decision reported in 1989 CWN 242. Learned Advocate of the respodent No. 1 quoting paragraph 17 at page 247 argued that "All things which are intended to be enjoyed as part of the tenancy would be part and parcel of the tenancy and all sums payable on that account would be rent. He also questioned in the midst of his argument that if the landlord orders his tenant can the police without taking cognizance of the same us per Criminal Law altogether ignore the same just by more saying that it is a matter between landlord and tenant? He also said that Learned Calcutta District Forum in its judgment passed on 10.9.1992 has dealt with the same and there is no ambiguity in the same and as such the said judgment can not be interfered with under any circumstances.

WE find much substance in the submission of the Learned Advocate of the respondent No. 1 Section 2(1) (d) (ii) of the C.P Act defines a Consumer, thus:- "Consumer" means any person who- (i) -------------- (ii) Hires any services for consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the service for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned above. The tenants of the building by virtue of the rights as tenants paying rent are entitled to be the user of the lift put and maintained by the landlord.

Thus we find nothing to interfer with the judgment as passed by the learned Calcutta District Consumer Forum in CDF Case No. 988/92. In course of the argument Learned Advocates of the respective parties informed the Commission that at the moment the lift is being maintained by the tenants at present after extensive repair. The Learned Advocate of the respondent claimed the amount spent for repair of the lift and its maintenance cost from the appellants together with compensation for the harassment caused to the respondents. Since it is a Consumer Court we ca n at best grant compensation for the harassment caused to the respondent for non functioning of the lift. Taking all these factors into consideration we think a sum or Rs. 10,000/- may be fixed for compensation.

IN the result the appeal fails and we direct that the appellant shall pay Rs. 10,000/- as compensation to the respondent within thirty days from this day. We also give liberty to the respondent to recover the expense incurred by him to set at right the lift in appropriate forums. We also direct the appellant to pay Rs. 2000/- to the respondent No. 1 as cost of proceedings. Appeal dismissed with costs.