State Consumer Disputes Redressal Commission
Neelkamal Co-Op Hsg Soc Ltd vs Smt Seema Iyar on 5 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/15/844
(Arising out of order dated 20/02/2015 passed by D.F.Raigad in CC/14/2)
1.Neekamal Co-op.Hsg.Society Ltd.
By Secretary
Plot no.30, Sector 12
Kharghar, Navi Mumbai 410 210
2.Mr.A.T.Selvan
Chairman, Neekamal Co-op.Hsg.Society Ltd.
Flat no.302, Plot no.30, Sector 12
Kharghar, Navi Mumbai 410 210 ..... Appellants
Versus
Smt.Seema Iyar
By Shri Jeetendra Kumar Zha, POA
R/o. Flat no.601, Vaibhav Co-op.CHS Ltd.
Sector 11, Kharghar
Navi Mumbai .........Respondent
BEFORE: D.R.Shirasao, Presiding Judicial Member
Dr.S.K.Kakade, Member
PRESENT:Mr.A.S.Guru-Advocate for appellants
Mr.Uday B.Wavikar-Advocate for respondent
ORDER
Per Hon'ble D.R.Shirasao, Presiding Judicial Member
1. Being aggrieved by the judgment and order passed by the learned District Consumer Disputes Redressal Forum, Raigad at Alibag in consumer complaint no.2/2014 on 20/02/2015 directing opponents to pay compensation of Rs.2 lakhs to complainant and to do all the repairs in respect of water leakage in her flat within 30 days from passing of the order, the opponents have preferred this appeal.
2. Brief facts of the case are as under:-
Respondent/ original complainant had filed complaint for getting 1 compensation on account of deficiency in service given by opponents to her by not repairing her flat in respect of water leakage in her flat and for getting necessary directions about the same against the opponents. Complainant submitted that she is owner of flat no.202 of Neel Kamal Co- operative Housing Society Ltd. situated on plot no.30, Sector 12, Kharghar, Navi Mumbai. She submitted that since the year 2010 opponent no.2 is occupying upper flat bearing no.302 in that building. She submitted that however there is leakage from the flat of opponent no.2 in her flat. She submitted that in that respect she had made grievance with opponent no.2. However, opponent no.2 had not taken cognizance of the same. She submitted that opponent no.1 is the society of all the flat owners and hence she had also made complaint about the same with opponent no.1. However, they had also not taken steps to stop the leakage in her flat from flat no.302 of opponent no.2. She submitted that leakage was in profuse manner and hence it had caused damages to the furniture and other articles of her house. She was also required to leave the flat and to reside in rented house for the same. She submitted that as opponent nos.1 & 2 had not made necessary repairs to her flat, she has filed this complaint for getting directions about the same against opponent nos.1&2 and for getting costs and compensation from them.
3. Opponents contested the complaint by filing their written version on record. They submitted that there is no contractual relationship between complainant and opponents and, hence, complainant is not 'consumer' of opponents. They have not provided services to her. Hence, she cannot file complaint in respect of leakage in her flat against them. They submitted that irrespective of that as per information given by complainant, they had verified the building through surveyor and obtained report of surveyor about the leakage of water in the flat of complainant. They submitted that surveyor had informed that because of the structural defects in the building, there is leakage in the flat of the complainant. They submitted that the 2 structural defects remained in the building at the hands of the builder and hence builder is necessary party to the proceeding. Hence they submitted that as they have not given deficiency in service to the complainant, complainant cannot file this complaint against them. Hence, they submitted that complaint filed by the complainant be dismissed.
4. Considering rival contentions of the parties, evidence adduced by them on record and documents filed on record, the Learned District Forum came to conclusion that there is leakage of water in the flat of the complainant and opponent nos.1&2 had not removed the same. Hence, learned District Forum had come to conclusion that opponent nos.1&2 had given deficiency in service to complainant. Hence, the learned District Forum had directed opponent nos.1 & 2 to give compensation of Rs.2 lakhs to the complainant for mental pain and agony suffered by her and directed opponent nos.1&2 to make necessary repairs in respect of leakage of water in the flat of complainant. Being aggrieved by the same opponents have preferred this appeal.
5. Heard learned advocate appearing for appellants/opponents. He submitted that there is no contractual relationship between complainant and opponents. Opponents have not provided any services to complainant. Hence complainant is not consumer of opponents and cannot file this complaint against them in consumer court. He submitted that in respect of water leakage in the flat of complainant, they had appointed surveyor and obtained his report. He submitted that as per report of surveyor there are structural defects in the building left by the builder and hence there is problem of water leakage in the flat of complainant. Hence, he submitted that builder is necessary party to the proceedings and complainant has to file complaint against the builder. He also submitted that in respect of damages caused to the complainant, she has not produced any evidence on record and in absence of the same, she is not entitled to get compensation from opponents. They submitted that the learned District Forum has not 3 considered all these facts and directed opponent nos.1&2 to remove the defects in the flat of complainant in respect of water leakage in her flat and to give amount of compensation of Rs.2 lakhs to her. Hence, he submitted that the order passed by the learned District Forum is to be set aside by allowing this appeal and complaint filed by the complainant be dismissed. For that purpose he relied on following rulings :-
i) M/s.Reliance General Insurance Co.Ltd.v/s. M/s.Saas Bahu Selection decided by State Consumer Disputes Redressal Commission, Punjab at Chandigarh in Appeal no.263 of 2009 on 08/07/2013.
In this case there was dispute between Landlord and tenant. Hence Hon'ble Commission had considered that cognizance of such disputes is to be taken by Civil Court and in that respect complaint cannot be filed before the District Forum.
ii) General Motors (India) Pvt.Ltd. v/s. Mr.Ashok Ramniklal Tolat, 2015(3) Maharashtra Law Journal 539 decided by Hon'ble Supreme Court of India.
In this case Hon'ble Supreme Court of India considered that mere proof of 'unfair trade practice' is not enough to claim compensation. Loss sustained is to be proved.
6. Heard learned advocate appearing for respondent /complainant. He submitted that since when opponent no.2 has occupied flat no.302, which is situated on the upper side of flat of complainant, there is leakage of water in the flat of complainant. In that respect, complainant had made grievance with opponent nos.1&2. However, they had not taken cognizance of the same and hence complainant was required to file this complaint. He submitted that opponent no.1 is the society, who is recovering maintenance charges from complainant and opponent no.1 is Chairman of the society 4 who is occupying flat no.302 in that building, which is on the upper side of flat of complainant. He submitted that as society is recovering maintenance charges from complainant, society has to give services to complainant in respect of flat owned by her in the society. However, society has not taken cognizance in respect of water leakage in the flat of complainant. Hence, he submitted that complainant is entitled to file this complaint before the Learned District Forum as opponent nos.1&2 have given deficiency in service to her. He submitted that in respect of leakage of water in the flat of complainant, opponent nos.1&2 had made a survey through surveyor and obtained his report. He submitted that report of surveyor itself disclosed that there is water leakage in the flat of complainant and because of which she had sustained damages to her household articles. He submitted that when society has taken possession of building from the builder, now society is required to make all the repairs in the building and to fulfill the contractual obligation of builder to the flat owners. He submitted that the learned District Forum had rightly considered all these facts and directed opponent nos.1&2 to do all the repairs in respect of water leakage in the flat of the complainant and directed them to pay compensation of Rs.2 lakhs to complainant. Hence, he submitted that the order passed by the Learned District Forum is legal and correct. Hence, appeal be dismissed.
7. Perused record of the case, evidence adduced on record by the parties and documents filed by them on record. On perusal of the same it has become clear that the complainant owns flat no.202 in Neel Kamal Co- operative Housing Society Ltd. situated on plot no.30, Sector 12, Kharghar, Navi Mumbai. Flat no.302 is on the upper side of flat of complainant. The same is occupied by opponent no.2, who is the Chairman of the society. Since when opponent no.2 is occupying flat no.302, there is water leakage in the flat of complainant. It appears that in that respect complainant had made grievance with opponent nos.1&2. However, they had not taken cognizance of the same. In that respect complainant has filed documents 5 on record.
8. The appellant has mainly contested the claim on the ground that opponent nos.1 & 2 have not given any services to complainant and hence in respect of water leakage in the flat of complainant, complainant cannot file consumer complaint against them in consumer court. They submitted that on the contrary, due to structural defects in the building there is water leakage in the flat of complainant and, hence, complainant has to file complaint against the builder. However, contention of learned advocate appearing for opponent nos.1&2 in this respect cannot be accepted. After completion of construction of building, builder had given possession of building to the society and executed conveyance about the same in favour of the society. At that time society had verified construction of the building made by the builder and after satisfying with the same had taken possession of the same. Hence, after formation of the society, society has taken over possession of the building from the builder and society is liable in respect of construction of the building and any deficiency arising out of the same. In this case it appears that opponent had appointed surveyor to look into the problem of complainant in respect of water leakage in her flat. Surveyor had inspected the building along with flat of the complainant and had given their report. The same is produced on record. On perusal of the same, it has become clear that there is water leakage in the flat of complainant and the same has caused damages to the household articles of the complainant. It is the contention of surveyor that it is due to structural defects in the building which were left by the builder and hence builder is responsible for the same. However, we are of the opinion that when society has taken possession of this building from builder since then society is responsible in respect of building and when society is recovering maintenance charges from flat owners, society is required to make the repairs in respect of the flat along with opponent no.2. We are of the opinion that the Learned District Forum had considered the same rightly and directed opponent nos.1&2 to make 6 proper repairs to the flat of complainant in respect of water leakage in her flat. The ruling relied upon by the learned advocate appearing for the appellant is in respect of dispute in between landlord and tenant. Such is not the case here. As society is recovering maintenance charges from complainant, society is bound to provide proper services in respect of flat of complainant to her.
9. Another ruling which the learned advocate appearing for appellant has relied is on the point to prove the damages. In this case, it is the contention of complainant that her household articles were damaged due to water leakage in her flat and even she was required to leave the flat and to reside in rented premises. Admittedly, in that respect she has not produced any document on record and hence the learned District Forum has not considered this fact in favour of the complainant. However, from the report of surveyor itself it has become clear that there is water leakage in the flat of complainant and because of which the household articles of the complainant are damaged. We are of the opinion that although complainant had made repeated requests in that respect to opponent nos.1&2, they had not taken cognizance of the same which caused mental harassment and agony to complainant. Hence, complainant is entitled to get compensation about the same from opponents. We are of the opinion that the amount of compensation granted to complainant appears to be reasonable. Hence, we are of the opinion that the learned District Forum had rightly directed opponent nos.1&2 to make proper repairs to the flat of complainant in respect of water leakage in her flat and directed to pay compensation of Rs.2 lakhs to her in respect of mental pain and agony received by her in that respect. Hence we are of the opinion that the order passed by the learned District Forum is legal and correct and, hence the same be confirmed by dismissing the appeal. Hence we proceed to pass the following order:-
7ORDER Appeal is hereby dismissed.
Appellant to pay costs of this appeal of Rs.5,000/- (Rupees Five Thousand only) to respondent/original complainant.
Copies of the order be furnished to the parties.
Pronounced on 5th March, 2018.
[D.R.SHIRASAO] PRESIDING JUDICIAL MEMBER [DR.S.K.KAKADE] MEMBER Ms 8