State Consumer Disputes Redressal Commission
Rohini Housing Building Society, vs Smt. Mrunalini Kulkarni on 14 December, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION : HYDERABAD.
F.A.No. 334 OF 2018
AGAINST ORDERS IN C.C.293/2016,
DISTRICT CONSUMER COMMISSION-I, HYDERABAD
Between:
Rohini Housing Building Society,
Regd. No.TAB505, 7-1-32/A/1, Leela Nagar,
Ameerpet, Hyderabad-500 016,
Rep. by its Member. ......Appellant/Opposite Party
And:
Smt. Mrunalini Kulkarni, D/o Late Shri NH Kulkarni,
Aged about 49 years, R/o 7-1-32/A/1, Leela Nagar,
Ameerpet, Hyderabad-500 016.
.....Respondent/Complainant
Counsel for the Appellant/Opposite Party : . M/s. V.Gourisankara
Rao
Counsel for the Respondent/Complainant : Mr.B.Yuvraj
QUORUM :
HON'BLE SMT. MEENA RAMANATHAN, I/c PRESIDENT
&
HON'BLE SRI. K. RANGA RAO, MEMBER - (JUDICIAL)
THURSDAY, THE 14th DAY OF DECEMBER
TWO THOUSAND TWENTY THREE
**********
Order : (HON'BLE SMT. MEENA RAMANATHAN, I/c PRESIDENT)
1.This appeal is filed by the Appellant/Opposite Party U/s. 15 of the Consumer Protection Act, 1986, praying this State Commission to set aside the orders, dated 09.04.2018 of the District Forum-I, Hyderabad in CC 293/2016 and consequently allow the complaint with costs throughout.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint. The Appellant is the Opposite Party and Respondent is the complainant in the C.C.293/2016.
3. The brief averments of the Respondent/complainant are that the appellant/opposite Party Society constructed an Apartment 2 Block "Rohini Apartments" with 28 flats and consisting of 3 floors. Flat No.G-4 was purchased by the complainant's father in the year 1997 and the said flat has subsequently been bequeathed to her. There has been a serious neglect in respect of maintenance in the apartments for the past 30 years. The Respondent/complainant made repeated requests to the Managing Committee of the society to take steps to repair the seepage problem, but in vain.
The Opposite Party Society had failed to render service to the respondent/complainant even though she is paying the monthly maintenance charges of Rs.2,300/- regularly. The respondent /complainant had submitted a representation to the District Registrar of Co-operative Societies on 04.12.2015 to intervene and direct the Managing Committee to attend to repairs immediately and prevent seepage of sewerage water into the complainant's flat, but it has had no effect.
The present complaint is filed against opposite party for their negligence in maintenance and leakage of rain water/sewerage from above of her flat. Despite paying regular maintenance, the society i.e. opposite party is not carrying out the repairs and therefore, she filed the present complaint seeking the following reliefs:-
"To direct the opposite party to undertake repairs in respect of seepage of sewerage water in flat No.G4 of complainant within the period of 4 weeks and further direct the opposite party to pay an amount of Rs.5,00,000/- as compensation to the complainant for mental agony and harassment and forcing the complainant to live in unhygienic living conditions, in the interest of justice and pass such order or orders as this Commission may deem fit and proper in the circumstances of the case".
4. The appellant/Opposite Party society filed their written version submitting that the respondent/complainant is not a "Consumer", as there is no hiring of "Service" for consideration and there is no deficiency of service rendered by the respondent/opposite party. The respondent/complainant has to approach a competent Civil 3 Court for the redressal of her grievance if any. The Appellant/Opposite party Society was formed during the year 1980 with Registration No.TAB 505 with 28 members and their responsibility is limited to construction, allotment of flats and registration and to undertake any major repairs to the complex - outer portion. During the year 1984, the appellant/opposite party has completed the construction and sold the flats to the respective members in the same year. That the repairs are internal and the appellant/complainant has to initiate proceedings against "Rohini Welfare Committee" - who are responsible for the maintenance of the flats in the buildings.
The "Rohini Welfare Committee" was formed to take care of the day to day maintenance of the building. The respondent/ complainant is facing the issue of leakage and seepage from the above located flat and hence, they must settle the dispute with the said flat owner of Flat No.14. The expenditure required for said work has to be borne by respective flat owners and the Rohini Welfare Committee can act only as a member, if the complainant approaches for it. The said Committee is also not liable to bear any expenditure in such cases as it is only dispute between two flat owners.
The respondent/complainant filed the present complaint without being aware as to against whom she has to proceed. The other flat owners have not filed a complaint of this nature against the opposite party society. If the leakage is occurred on account of defect in the construction it would have been raised about three decades back itself, and all the flat owners would have made a similar complaint. The respondent/complainant is not paying maintenance charges to the opposite party society and no notice was received from the District Registrar of Co-operative Societies on the alleged representation of the complainant. Hence, the present complaint is not maintainable and is liable to be dismissed with costs.
45. During the course of enquiry before the District Forum, the complainant filed her evidence affidavit and got marked Ex.A1 to A7. On behalf of the opposite parties the evidence affidavit of one Sri C.V.R.Sarma, Secretary, has filed and no document is marked. However, he filed copies of Certificate of Registration of the Society along with bye-laws of it and same are taken on record for consideration.
6. The District Forum after hearing and considering the material available on record, allowed the complaint in part directing the opposite parties' society to (1) to attend repairs for preventing the seepage of any type of water into the flat of complainant and recover the costs of the same from owner of the flat from which the subject seepage is causing to the complainant's flat within 3 months from the date of service of this order; (2) the complainant is entitled for a compensation of Rs.50,000/- (Rupees fifty thousand only) for causing mental agony from the opposite party; (3) the complainant is also entitled to sum of Rs.5,000/- (Rupees five thousand only) towards costs of this complaint.
The opposite party shall pay the amount of compensation awarded to the complainant within one month from the receipt of this order or else liable to pay interest thereon at 12% p.a. from the date of complaint to the date of payment.
7. Aggrieved by the above order of the District Forum, the Appellant/opposite party filed the present appeal FA No. 334/2018 with the following grounds of appeal:-
That the District Forum failed to see that the complaint is highly barred by limitation u/s 24A of Consumer Protection Act, 1986.
That the District Forum failed to see that the subject matter pertain to the alleged seepage of water into Flat No.G-4 of the complainant from the upper flat, which is a matter of maintenance to be looked after by a different legal entity known as "Rohini Welfare Committee", in which the complainant is a member.5
That the District Forum failed to see that the complaint is liable to be dismissed for filing against this opposite party. The complainant ought to have impleaded the Welfare Committee inspite of this opposite party taking specific objection in the written version.
That the District Forum erred in observing that "the stand taken by the opposite party that the present complaint is directed against them is false and this plea taken only to avoid its liability". The District Forum has not given any reasons how the opposite party is a correct person in so far as the maintenance of the day to day affairs of flat owners. That the District Forum failed to see that the complainant never submitted any representation to the opposite party at any point of time prior to filing of the complaint alleging that there was leakage of water.
That the District Forum failed to see that on 21.08.2017 the complainant was specifically directed by the Hon'ble Forum to implead Rohini Welfare Committee since the complaint was filed against wrong entity and posted the matter to
08.09.2017. Even on 08.09.2017 the complainant has not taken steps inspite of specific earlier orders of the Hon'ble Forum. On 22.09.2017 the Hon'ble Forum categorically observed that the complainant has not file any petition. At her request, the complaint has adjourned from 11.10.2017 to 20.10.2017. Inspite of the complainant taking several adjournments for impleading the Welfare Committee, failed to take steps before the Forum. As such, the District Forum ought to have dismissed the complaint.
With the above grounds the appellant/opposite party prayed this State Commission to set aside the impugned orders passed in CC 293/2016 by the District Forum-I, Hyderabad and consequently allow the complaint with the costs throughout.
68. The point that arises for consideration is whether the impugned order passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified, or interfered with, in any manner? To what relief?
9. We have carefully examined the pleadings, evidence submitted by both sides and heard the arguments by the learned counsel for both the parties.
The complainant is the owner of Flat No.G-4, Rohini Apartments, Leelanagar, Ameerpet, Hyderabad-16. The flat was purchased by her father, late Sri N.H.Kulkarni, from Rohini Housing Building Society in the year 1997 and he passed away in the year 2013 (March). As per the complainant's submissions, there are 28 flats in the said Apartment Block and consisting of 03 floors. The complainant's apartment G-4 is in the Ground Floor. Even as per her complaint, the building is thirty years old. Her complaint is that there has been a complete neglect in maintenance of the building and there is seepage of drain water in her flat, which despite repeated requests, no efforts are being made by the Managing Committee.
To support her case, she has relied on the following exhibits which we have carefully perused. In the award passed by the Lok Adalat dated 18.10.2003, Saturday, the said apartment was bequeathed to the Respondent/complainant vide the settlement before the Lok Adalat.
Ex.A1 is a copy of the letter addressed to the Appellant/Opposite Party dated 25.11.2015.
We have reproduced the relevant portion of this Letter for clarity :-
She claims to have been a resident of Flat No.G-4, Rohini Apartments for the past 18 years and her letter reads as follows:-
"There has been a water seepage from the Terrance (top floors) of Rohini Apartments through the above three floors and now it has started draining into my residence causing great inconvenience to 7 me. I had to put buckets to collect the water in both the bathrooms, bedrooms".
"I request the Rohini Welfare Society to kindly look into the matter and repair the damage as early as possible".
10. Ex.A2 is the letter dated 04.12.2015 addressed to the District Registrar Office, Red Hill, Hyderabad, stating that she had addressed a letter to :
(i) Rohini Welfare Committee and
(ii) Rohini House Building Society.
But no action has been taken to solve her problem.
Ex.A3 is the Award passed by the Lok Adalath, vide O.S.No.864/2003 dated 18.10.2003 and Ex.A4 is the Suit for Partition, filed before the Senior Civil Judge, City Civil Court, at Hyderabad, vide O.S.No.864/2004.
Ex.A5 is the Legal Heir Certificate, dated 15.05.2002 issued by the Govt. of Andhra Pradesh, Office of the Mandal Revenue Office, Ameerpet Mandal.
Ex.A6 are the details of Maintenance charges issued by Rohini Welfare Committee.
She has filed the details of the payments made for the months September 2015 to December' 2015 and the monthly charges paid by her are Rs.2,300/-.
Besides this she has filed some blurred photographs which do not support her grievance of seepage of drain water from the terrace.
11. In her complaint, she has failed to file copy of the sale deed which would reveal the essential clauses for the maintenance of the building and the age of the building. Merely on this extremely flimsy evidence, the District Commission below erroneously directed the Appellant/opposite party to attend to the repairs and further granted compensation along with costs. The Forum below failed in 8 their primary duty of examining the complaint along with the necessary material evidence.
The Forum below relied entirely on clause 10 of the bye-laws formed in accordance with A.P. Housing Society Act and erroneously concluded that the fact the Appellant/opposite party Society is still existing has not been explained by the appellant/opposite party and that it is apparent that the appellant/opposite party formed the Rohini Welfare Committee and therefore, cannot evade the liability. This extremely warped deduction is based on the clause 10 of the bye-laws which has not been marked as an exhibit by the Commission below. This view is not only unfair but also very short slighted.
12. Although, the bye-laws have not been marked, the entire impugned order is based on the bye-laws, therefore, we reproduce the relevant portion and discuss the same :
clause 10-TENANTS - (f) All external repairs shall unless otherwise determined by the committee be a charge on the revenue of the society but internal repairs must be done by and at expense of tenants to the satisfaction of the committee except in such cases as it may determine otherwise. When such repairs have in the opinion of the committee become essential they may order them to be done and if not paid for by the tenant may charge the cost of the same against his share capital/loan stock/deposit account. In case of a tenant leaving the society same rule will apply".
A reading of this Clause, explains that external repairs must be determined by the Committee and internal repairs must be done by and at the expense of the tenants. The Society was formed with the primary object to manage, administer and maintain the said property in accordance with the Co-operative principles and enforce the obligation on members' interest. The Society cannot act beyond the scope of its main objectives and the complainant has failed to establish the responsibility or liability of the appellant/opposite party to carry-out the repairs for her flat.9
The Forum below failed to take into account that the said apartment building is more than 30 years old and the complainant's father is not the original purchaser of the said flat. The complaint was filed on 19.04.2016- the Forum below also failed to point out that the complainant has been residing in the said flat for 18 years and has raised the complaint of seepage after having lived in the same flat for almost two decades. The complainant has not filed any report of a structural Engineer to establish her case that the seepage of water is from the terrace to hold the appellant/opposite party responsible for the repairs.
13. Apartment maintenance generally refers to keeping the residential facilities safe and includes cleaning, post control and staff to oversee these routine tasks. As per the bye-laws, it is specifically mentioned that internal leakage will be the responsibility of the member/tenant/complainant. If the resident above is not co-operating to solve the internal leakage problem, the complainant is at liberty to take the necessary steps for solving her internal flat leakage/seepage problem.
14. In view of the aforesaid discussion, the appeal is allowed.
15. In the result, the appeal is allowed and the impugned order dated 09.04.2018 on the file of the District Commission-I, Hyderabad, in CC 293/2016 is set aside.
The appellant/opposite party is permitted to withdraw the statutory deposit if any, made to the credit of this appeal together with accrued interest thereon.
Sd/- Sd/-
I/c PRESIDENT MEMBER-JUDICIAL
Dated : 14.12.2023