Counsel For Complainant : Party –in-Person
Counsel For Opposite Party : Set Exparte
This Complaint is coming upon before us finally on 30.06.2015 in the presence of on the side of the complainant who is appeared as party-in-person, and Opposite party not appeared he was Set Exparte upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following:
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant against the opposite party U/S 12 of Consumer Protection Act seeking direction to pay a sum of Rs.1,00,000/- towards mental agony due to the deficiency in service with the cost of Rs.2000/-
The Brief Facts of the Complaint are as follows:-
1. The complainant, is the resident of A- 4/54, Kendriya Vihar-II, Avadi poonamallee road, paruthippattu village, Avadi , Chennai -600071. The opposite party is the President of AOWA (Registered) under section 10 of the Tamil nadu societies Registration Act, 1975. It has mandate to collect monthly maintenance charges from its members to pay all taxes, fees for common services and utilize the fund for the requirements including security. The complainant has been paying Rs.800/- per month towards maintenance charge since March 2014. The complainant also paid Rs.800/- towards maintenance charge (10.09.2014) for the month of September 2014 ExA1. This amount was paid by the complainant to AOWA for providing necessary security etc., Instead of strengthening and providing adequate and proper security to the premises, the office bearers were engaged in indifferent attitude and failed to perform their basic service obligation. On 11th September, 2014 the complainant along with his family left for Delhi informing his neighbors. On 25th September, 2014. The complainant was informed by the Association that his apartment’s door was broken in and miscreants had entered. He requested them to inform the police. On his return from Delhi on 28th September’ 2014 the complainant noticed that a theft had taken place on the night of 24th September 2014 at his residence and jewels and belongings worth around Rs.1,00,000 /- were stolen. Despite the security provided outsiders were able to enter and exist freely jumping over the compound wall. An FIR had been failed on 29th September 2014 ExA2. Hence this complaint is filed for deficiency of the service of the opposite party .
2. After Filing of the Written Version by the Opposite Party, despite of sufficient time and opportunities given to the opposite party, the Opposite party failed to utilize the same and hence he was Set Exparte. Therefore the Opposite party remained Exparte, this Forum wants to dispose this complaint on merit in the available documents.
3. On the side of the complainant, the proof affidavit is filed as his evidence, Ex.A1 & Ex.A2 are Marked.
3. At this juncture, the point for consideration before this Forum, is,
(1)Whether there is any deficiency of service on the part of the opposite
party as alleged in the complaint?
(2)To what other relief the complainant is entitled to?
4. Written Arguments submitted by the complainant and also oral
arguments adduced.
5.Point No. 1:- As per the case of the complainant is that where the complainant along with his family members left for Delhi on 11.9.2014, and on 25.09.2014 it was informed that same miscreants entered and theft had taken place for the worth of Rs.1,00,000/- by stolen of jewels due to the deficiency in Service of the opposite party and failed to provide proper protection, and security to the residents. In order to prove the same, the Ex.A2 the FIR has been preferred and Ex.A1 is the receipt for paying the maintenance charges of Rs. 800/- Per month.
6. While so, on perusal of the Written Version filed of the Opposite Party, it is stated that the complainant is not a Consumer as defined sec 2(d) (ii) of the Consumer Protection Act 1986 and the complainant has not approached this forum with clean hands. Since the complainant being a member of the Association and also the E.C. member and given by the Bye Laws of such Association and thereby he has failed to comply with the provision of the bye laws in chapter VII (xxx) which stipulates the, Every owner/occupant whenever happens to lock the house and go out of station or otherwise for more than 24 hours, shall register such absence with AOWA office and chapter (vii), of the said bye Laws, which stipulates that “In Case of any dispute between the Executive Committee and the other owner, the matter will be referred to an Arbitrator in writing. The Arbitrator, an independent person who was no connection either with the Society or Owner, is obliged to act as per provisions contained in Arbitration Conciliation Act. 1986 and his decision is binding on the Executive Committee and owner both.” Further, it is stated that the office bearers of the Association are not paid any consideration for their voluntary services. The maintenance charges collected by the association is not any for security but also other amenities like water supply, street lights, lights in common areas, collection and removal of garbage, sewage cleaning, maintenance of common properties etc. and the security requirement of the residents, a contract was placed M/s. Anuprasad security service and even local Police expressed their satisfaction about the security service inside the KV-II complex and requested the residents to the security cautious. It is further governed that the progress or outcome of the investigation made by the police with the subject matter of FIR is not within the knowledge of AOWA officials and therefore the opposite party is no way held responsible and hence this complaint is liable to be dismissed.
7. At the outset, in careful perusal of the rival submissions put forth on either side, it is an admitted fact that the complainant is the resident of the Kendriya Vihar –II Apartments, Avadi, and the complainant is the member as well as the office bearers, who being the E.C Member of the Opposite party Association. Further, it is not disputed that the house Break and theft taken place in the resident of the complainant on 24.09.2014 night and in their connection Ex.A2 FIR registered on the file of the T.6 Avadi, Police Station and pending investigation.
8. At this juncture, the first point, has to be taken into consideration is as to whether the complainant is a Consumer U/S 2 (d) (ii) of the Consumer Protection Act 1986. It is pertinent to note that complainant is a member of the opposite party Association and also he is one of the office bearers of the opposite party association, being the E.C. Member: But such fact has been suppressed by the complainant. At the outset, it is learnt the complainant being the member of the Association he ought to have governed by the Bye Laws of such Association. It is stated by the opposite party that the Bye laws stipulated that, every owner/Occupant when ever happens to lock the house and go out of station or otherwise for more than 24 hours shall register such absence with AOWA office. But the complainant failed to do so. It is crystal clear that on this own voice of the complainant by stating in the proof affidavit itself that he has only informed to the neighbor which is contrary to the Bye Laws. If the complainant is contra to the contention of the opposite party, he ought to have produced the Bye laws before this forum, but not taken any steps for causing production of the Bye Laws. Therefore, the plea taken by the opposite party cannot be thrown out easily.
9. Furthermore, the office bearers of the Association rendered their service on voluntary basis and free of charge, that is they are not paid any consideration. Not only that, if the complaint is not fully satisfaction about the security arrangements he ought to have to raise his voice in periodical and meeting of the Association. In fact, at no point of time, the complainant who attended the recent EC meeting, he has not brought any security lapse issues either in the meeting or in writing to the AOWA. Moreover, it goes without saying, that the complainant being a EC member, he also a party to it.
10. In furtherance, it is an admitted fact that EXA2 FIR is still pending investigation with the concerned police which is not without the knowledge of the AOWA officials. Further, it is brought to the knowledge of the forum that the amount paid by the complainant towards the maintenance charges for providing necessary security is not fully tenable since, major portion of the share is being used to meet expenses incurred for rendering common amenities like water supply, street lights, lights in common areas collection and removal of garbage, sewage, cleaning, maintenance of common properties etc. and the same to be keep in mind for consideration.
11. In the light of the above facts and observation it is crystal clear that the complainant is not a Consumer U/S 2 (d) (ii) of Consumer Protection Act and not moved with clean hands and also not proved the deficiency of service against opposite party. Hence, there is some meaning on the averments made by the opposite parties in the written version and the same cannot be easily thrown out in the basket though remained Exparte subsequently. Thus the point No. 1 is answered accordingly.
12. Point No. 2:- In view of the decision arrived in the point no. 1 the complainant is not entitled for any relief as prayed for in the complaint. Thus the Point. No. 2 is answered accordingly.
In the Result, this complaint is dismissed. No Costs.
Dictated directly by the President to the steno-typist transcribed and computerized by her, corrected by the president and pronounced by us in the open forum, on this the 9th July 2015
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MEMBER –I MEMBER –II PRESIDENT
List of Complainant Documents:
Ex.A1 Dt.10.09.2014 - Xerox Copy of receipt payment
of maintenance charges
Ex.A2 Dt.29.09.2014 - Xerox Copy of FIR
List Of Opposite Party Documents:- -Nil-
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MEMBER –I MEMBER –II PRESIDENT
