State Consumer Disputes Redressal Commission
Gangadharan.C vs The President/Secretary on 13 December, 2023
FA/757/2014 D.O.D.: 13.12.2023
GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:31.07.2014
Date of Hearing:07.11.2023
Date of Decision:13.12.2023
FIRST APPEAL NO.-757/2014
IN THE MATTER OF
SH. GANGADHARAN. C.
A-507, NAVIN CGHS LTD, SECTOR-5,
PLOT NO. 13, DWARKA,
NEW DELHI-110075
(Appellant in person)
Appellant
VERSUS
1. THE PRESIDENT/SECRETARY,
NAVIN CGHS LTD, SECTOR-5,
PLOT NO.13, DWARKA, NEW DELHI-110075
(Through: Mr. Rohit Kumar, Advocate)
2. SH. H.S. BHANDARI & MRS. BHANDARI
A-103, NAVIN CGHS LTD, SECTOR-5,
PLOT NO.13, DWARKA,
NEW DELHI-110075
(Respondent No. 2 in Person)
...Respondents
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FA/757/2014 D.O.D.: 13.12.2023
GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Ganga Dhar, appellant in person.
None for the Respondent.
PER: MR. J.P. AGRAWAL, MEMBER (GENERAL)
JUDGMENT
1. The facts of the case as per District Forum record are as under:
"This complaint under section 12 of The Consumer Protection Act, 1986 is filed by the complainant, claiming the relief of a expenditure incurred by the complainant in the sum of Rs 1,00,170/- and compensation in the sum of Rs. 2,00,000/- on account of torture and agony by the OPs suffered by the complainant and his family. The complainant has alleged that he acquired fiat A- 507 being member of Navin CGHS Society., Sector-5, Plot No. 13, Dwarka, New Delhi-75. The grievance of the complainant is that the OP 1 had allotted the parking space for parking the car of the complainant just right side of A- 103. The flat number of the complainant was written on the parking place just right side of A- 103 by the OP-1. The complainant has alleged that in March 2009 OP.2 asked him to entertain the parking by pretext of being late to the office. After a week's trial from his place, the complainant conveyed his inability to change due to his sight problem. On 13/3/2009 OP-2, Mr Bhandari erased his parking PARTLY ALLOWED PAGE 2 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
ground number. The matter was reported to the OP-1, but no action was taken On 20/2/2009, Mr Bhandari forcibly occupied his parking. The application was given to OP-1, but no action was taken. According to the complainant it is the duty and responsibility of the management committee of the society to recover the encroached common area allotted for parking to a member from the encroacher under the provisions of RCS Act since the managing committee of the society is spending thousands of rupee for maintenance of these parking space from contribution of the members so after recovery of the encroached parking space if should be given to the original allottee of the parking space.
Complainant has alleged that on 3/5/2009 the President of the managing committee of the Society called the complainant in the office of the society and threatened and insulted him and ignored his request to allot him different parking out of the four vacant parking places to avoid the dispute. He went for lottery deliberately to evict the complainant from the parking but the complainant won the lottery conducted with the consent of both complainant and Mr Bhandari. The complainant approached various authorities including the police, Public Grievance Commission, Registrar of Societies, National Human Rights Commission and the Joint Registrar as Arbitrator from Registrar Cooperative Society, but all efforts of the complainant remained unfruitful. The complainant has PARTLY ALLOWED PAGE 3 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
also alleged that he incurred an expenditure of Rs. 1, 00,170/- while exploring Justice and has claimed a sum of Rs.2,00,000/- for torture and agony suffered by complainant at the hands of the OPs.
The OP-1 and OP-2 have filed joint written statement with one of the preliminary objections that the complaint is not maintainable for want of jurisdiction as the complainant has already exhausted the remedy available to him by filing the claim threatened, insulted or ignore the request of the Complainant for allotment of parking space. They submitted that OP.2 was parking his vehicle at parking space, which was alloted to him by the office bearers of the OP.1. The OPs have also alleged that complainant is in the habit of writing false and vexatious complaints to the departments including the police alleging the false and frivolous allegations against the OP-1 and OP-2. The OPs have denied other facts stated in the complaint and have prayed for dismissal of the complaint with exemplary costs.
In the rejoinder, the complainant has denied the averments made in the joint written statement and has reaffirmed the facts stated in the complaint. In support of his case, complainant has filed his affidavit in evidence. In their evidence, the OPs have filed the affidavit in evidence of Mr H. S. Bhandari OP-2. The complainant has filed written arguments and both the OPs have filed joined written arguments."
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GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
2. The District Forum after taking into consideration the material available on record passed the order dated 02.07.2014, whereby it held as under:
"We have heard the complainant in person and learned counsel for the OPs and have gone through the written arguments filed on behalf of both parties, pleadings and affidavit in evidence on record and the relevant provisions of law.
It is admitted position of the parties that the complainant has already approached the authorities under the Delhi Cooperative Societies Act, 2003, unsuccessfully. But it does not mean that the complainant cannot approach this District Forum as it is made clear by Section 3 of the Consumer Protection Act, 1986 that provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Further, the bar of jurisdiction of Section 70 in the Delhi Cooperative Societies Act, 2003 also does not prevent the complainant from approaching this Forum as it is now well settled that the said provision of the said Act does not bar the Jurisdiction of this Forum (See Chandigarh Housing Board v. Avtar Singh IV (2010) CPJ 9(SC) VII (2010) SLT 60 and Secretary, Thirumurugan Co-Operative Agricultural Credit Society v. M. Lalitha (dead) through L.Rs. I (2004) CLT 20 (SC): 1 (2004) SLA 200 AIR 2004 SC 448).
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The question raised by the OPs that the complainant does not come within the definition of consumer as given in Section 2 (d) of The Consumer Protection Act, 1986 or the objection regarding maintainability of the complaint that complaint does not fall within the purview of the definition of "service" as per section 2 (O) of the Consumer Protection Act or that the complaint even does not fall within the ambit or purview of the definition of the "deficiency as given in Section 2 (g) of the Consumer Protection Act, 1986 are liable to be rejected in the light of the fact that members of society pay periodical subscription to society for consumer services in the society so complainant is consumer and society in question provides services and allegation in complaint indicates deficiency in service on the part of society. The complainant has approached the different authorities and has placed on record their decisions also. The Public Grievance Commission has passed order on 12/10/2009, indicating that the issue of car parking space is primarily a matter to be looked by the Society management or at the most by intervention of Registrar Cooperative Societies. It also asked the complainant to approach the Managing Committee and get the matter resolved at the committee level or seek intervention of Registrar Cooperative of Societies. The copy of the decision of Joint Registrar (Arbitration), Office of the Registrar Cooperative Societies, Government of NCT of PARTLY ALLOWED PAGE 6 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
Delhi passed on 22/7/2010 is filed by the complainant which shows that the compensation claimed by the complainant was not allowed and it was felt by learned arbitrator that the appropriate remedy in this case would be for claimant to approach the civil court for damages. For a small matter of parking space to the member of a society, the complainant had to make disproportionate efforts and still he is without remedy. The Society is being represented by President/secretary as OP-1 and charges maintenance subscription from the member's so, is duty bound to redress the grievance of the members as to the common facilities including the parking space for the vehicles. Failure, to resolve the issue between the members, amounts to deficiency of the OP-1 Society. The copy of the certificate, dated 14/3/2010 duly signed by the complainant and Mr. Bhandari being OP-2, here And One Doctor DVR Suman is placed on record and shows that there was an agreement that the complainant would receive his original parking between A-501 and A- 304 and Mr Bhandari agreed that his present parking between A-601 and A-501, which belonged to complainant shall be taken by Mr Bhandari and Dr DR Suman has also given his consent for this compromise. The complainant has also filed photographs to show the genuineness of his claim of parking made in the complaint. We see no reason as to why this compromise, dated 14/3/2010, which is now exhibited by us as Exhibit C-1 should not be accepted by PARTLY ALLOWED PAGE 7 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR.
the parties and enforced by Society being represented by President Secretary OP-1. However, we do not find justification for awarding compensation in the sum of Rs 2,00,000/- or the expenditure in the sum of Rs 1,00,170/- as claimed by the complainant, though we feel that complainant should be adequately compensated by the Navin CGHS Society through its President/Secretary. In view of the above discussion, we hold that the compromise effected between complainant and Mr Bhandari OP-2 copy of which is Exhibit, C-1 shall be binding upon the complainant and the OPs and direct the OPs to give effect to the said compromise. It shall be the duty of OP-1 to get the said compromise enforced within one month of receipt of copy of this order. We also direct Navin CGHS Society to pay the compensation in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand) including the cost of litigation to the complainant."
3. Aggrieved by the aforesaid order of the District Forum, the Appellant has preferred the present appeal, contending that Rs.25,000/- compensation including legal expenses allowed by the District Forum from OP No.1 is not acceptable to him, as the same is far below the value of amount spent on documents, photocopies, transport, legal expenses etc. Further, he was compelled to face harassment, time wastage, PARTLY ALLOWED PAGE 8 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR. torture etc. for so many years despite being an ailing/senior citizen/retired and innocent member of the society.
4. The appellant has prayed to set aside the impugned order dated 02.07.2014 passed by the Ld. District Forum - VII (south-west) and allow the present appeal. Appellant has further prayed to consider for a suitable compensation of Rs.3,00,170/- in his favour from the Respondents.
5. The Respondent, in reply has stated that as per the directions of the Ld. District Consumer Forum, the Respondent had already given the compensation amount of Rs. 25,000/- to the Appellant, which the Appellant has refused to accept. Further, the Appellant is not a consumer within the definition of the Consumer Protection Act and as such is not entitled for any relief. The complaint was pertaining to the illegal encroachment of the parking space of the Appellant by Mr. H S Bhandari and his wife. Inspite of this, the Respondent in order to resolve the dispute amicably between the Appellant and Mr. H S Bhandari executed a reconciliation between both of them and to that effect an agreement in terms of a certificate was entered into between the appellant and Mr. H S Bhandari on 14.03.2010. The Public Grievance Commission in its order dated 12.10.2009 has mentioned that the complaint was forwarded to Delhi Police and PARTLY ALLOWED PAGE 9 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR. after enquiry by local police, it was revealed that there was no provision of earmarked car parking space at the time of allotment of the flats in the society and members chose to park their vehicles in the premises at their conveniences. The complainant/Appellant also did the same thing but after sometime one Mr. Bhandari started using that space for his car. The issue of car parking space is primarily a matter to be resolved by the Society Management or at the most by intervention of RCS.
6. Respondent has further submitted that the complainant's wife after the initial temporary allotment by the society i.e. OP No. 1 came to the OP No. 2 and requested for mutual interchange of the parking space because the complainant was learning driving and was facing difficulty in reversing the car for some time. The OP No. 2 after giving the consideration to her requests accepted the same subject to the condition that whenever, he will require his parking the complainant will shift to his earmarked place-IV and returned the parking space marked-III to the OP No. 2. Aggrieved with the impugned order passed by the Ld. Consumer Forum the respondent preferred an appeal before the Hon'ble State Commission vide appeal no. FA-790/14 and the same was disposed off as dismissed as withdrawn by the Hon'ble PARTLY ALLOWED PAGE 10 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR. Commission on 27.08.2014. Thereafter, in compliance of the orders of the Ld. Consumer Forum, the respondent in its Annual General Meeting held on 21.09.2014 passed a resolution to pay a sum of Rs.25,000/- to the appellant and subsequently sent a letter dated 21.09.2014 along with a cheque bearing no. 000192 dated 21.09.2014 drawn on HDFC Bank Ltd. for an amount of Rs.25,000/- to the appellant and the same was refused by the Appellant. Respondent has prayed this Commission to dismiss the present appeal with exemplary costs.
7. It would not be out of place to mention here that Naveen CGHS Ltd., Respondent No. 1 herein had filed a cross appeal i.e. FA NO. 790/2014 titled "THE PRESIDENT/SECRETARY Naveen CGHS Ltd. VS. Gangadharan C", which was dismissed as withdrawn and disposed off accordingly, by this Commission on 27.08.2014.
8. We have perused the appeal and the impugned judgment including the record of District Forum - VII (South West) and all the material available on record including the written arguments.
9. On perusal of record before us, it is noted that all the contentions which were raised by the Appellant and Respondents in the present appeal were duly taken into PARTLY ALLOWED PAGE 11 OF 13 FA/757/2014 D.O.D.: 13.12.2023 GANGADHARAN. C VS. NAVEEN CGHS LTD. & ANR. consideration by the District Forum before passing the impugned judgment. The District Forum has thoroughly answered all the contentions raised by both parties. After having gone through the facts of the case and after examining the detailed order passed by the District Forum, we do not find any irregularity in the findings arrived at by the District Forum. However, we are of the opinion that the compensation of Rs.25,000/- including the cost of litigation awarded by the District Forum to the Complainant/Appellant herein, is on the lower side and needs to be suitably increased. Further, we find that all the funds in a Cooperative Group Housing Society are generated by the contributions of all members of the Society.
10. In view of the foregoing, we modify the impugned order of District Forum-VII and partly allow the appeal as under:
A. We direct the President/Secretary, Navin CGHS Ltd. i.e. Respondent No. 1 to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) including the cost of litigation to the Appellant within a period of 60 days from the date of this judgment failing which the Respondent No. 1 shall be liable to pay interest @9% per annum.
11. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
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12. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
13. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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