ORDER Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”), by the Complainant, acting through his father, is to order dated 18.03.2014, passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short “the State Commission”) in FA Nos. 669 and 682/2013. By the impugned order, the State Commission has overturned the order, dated 23.04.2013, passed by the District Consumer Disputes Redressal Forum SAS Nagar (Mohali) (for short “the District Forum”) in Consumer Complaint No.325 of 2011, inter-alia directing the Respondents to pay to the Petitioner, jointly or severally a sum of Rs. 35,000/- towards the loss suffered by him on account of damage to his Ground Floor Flat because of leakage and blockage etc. Respondent No. 1 is the Estate Officer, Greater Mohali Area Development Authority (for short “GMADA”). Respondent No. 2 happens to be the owner/occupant of the Upper Floor(First Floor). Both of them were Opposite Parties No. 1 and 2 respectively in the complaint. 2. Briefly stated, the material facts, giving rise to the Revision Petition, are that on 01.09.1998 the Petitioner was allotted, by Respondent No. 1, Flat No. 2750-GF-MIG(Super) in Sector 70, District SAS Nagar, Mohali on hire-purchase basis. Similarly, Flat No. 2750-A (FF) was allotted to Respondent No. 2. It seems that there was choking/blocking in the bathrooms and kitchens of the Upper Floor flats resulting in seepage and consequent damage to the Petitioner’s flat on the ground floor. Vide letter dated 09.01.2009, Petitioner requested Respondent No. 1 to get the requisite repairs done from Respondent No. 2. It appears that having failed to get any positive response to his complaints from the said Respondent as also the Punjab State Human rights Commission, Chandigarh, he filed a complaint with the District Forum, praying for a direction to the Respondents to get the needful done and also pay as compensation a sum of Rs.50,000/- towards loss and building material; Rs. 30,000/- for mental tension etc. 3. The complaint was contested by the Respondents. Respondents No.2 raised preliminary objections to the maintainability of the complaint on the grounds that: (i) there was no cause of action to file the complaint; (ii) the Petitioner was not a “consumer” under the Act and (iii) the complaint was hopelessly barred by limitation. On merits it was alleged that the Petitioner had himself made certain unauthorized changes in the flat and a show cause notice was issued to him on the complaints of his neighbours. In the written version filed on behalf of Respondent No. 2, it was pleaded that there was no “consumer” relationship between him and the Petitioner and as a matter of fact the leakage problem emanated from flat on the second floor, which was rectified on the direction of Respondent No. 1. 4. The District Forum accepted the version of the Petitioner and observed that the problem of blockage/chocking of the bathroom and kitchen flow started in the year 2009, it took one and half years for the Respondents to plug the leakage and save the property of the Petitioner from further damage, which amounted to deficiency in service on their part. The District Forum finally concluded that as per Clause Viii of the hire-purchase agreement a duty was cast upon Respondent No. 1 to maintain the building, which it failed to do and, therefore, both the Respondents were jointly and severally liable for deficiency in service. Accordingly, as noted above, the Respondents were directed to pay to the Petitioner sums of Rs.35,000/-,
Rs. 25,000/- and Rs. 5000/- towards loss, compensation and litigation expenses respectively. 5. Being aggrieved, Respondent No. 2, preferred Appeal to the State Commission. The order was challenged by GMADA as well, by way of a separate appeal No. 682/2013. Both the Appeals have been allowed by the State Commission observing thus:- “27. The District Forum has relied upon the Hire Purchase Agreement Ex. C-12 dated 1st September, 1998 between respondent no. 1 and respondent no. 2, but later on the mutation has been sanctioned vide Ex. C-17 in the name of respondent no. 1 on 15.01.2009 and the said mutation is a registered document and after registration of the mutation document, the Hire Purchase Agreement loses its significance. Respondent no. 1 has not specified any loss and it was stated that whatever is shown in the site plan is the loss, but as stated above, the leakage/seepage, if any, was in Flat No. 2750-B owned by Kulbir Singh, but said Kulbir Singh has not been made a party. The said seepage/leakage travelled through Flat No. 2750-A downwards to Flat No. 2750 at ground floor and some dampness was caused to the various parts of the flat of respondent no. 1 which is clear from the photographs placed on the file of the District Forum. 28. As discussed above, the seepage/leakage travelled from Flat No. 2750-B which is on 2nd floor, belonging to Kulbir Singh, but said Kulbir Singh has not been made party and there was no seepage/leakage from the flat of the appellant i.e. Flat No. 2750-A and, as such, the order of the District Forum is against the evidence and material on file. No order can be passed against the owner of Flat No. 2750-B i.e. Kulbir Singh, as he has not been made a party by respondent no. 1/complainant. For no fault of the appellant, the District Forum has penalized the appellant and respondent no. 2, by awarding the compensation, cost of the loss and litigation expenses and the order passed by the District Forum against the appellant and respondent no. 2 is not sustainable in the eyes of law.” Hence, the present Revision Petition. 6. Having heard Mr. Ajab Lal, father of the Petitioner/Complainant, we are of the opinion that the present Revision Petition is devoid of any substance. It is evident from the order of the District Forum that the claim of the Petitioner is based on Clause Viii of the Hire Purchase Agreement dated 01.09.1998, which reads as follows: “… to maintain the building at his/her cost by regular repairs of wear and tear failing which the owner shall have the right to get necessary repairs executed at hirer and he/she reimburse the amount expended by the owner.” 7. A plain reading of the said clause, which forms part of Para 7 of the aforestated agreement, shows that the stand of the Petitioner is ex-facie misplaced. It does not cast any obligation on the GMADA to continue to maintain the flats under the Scheme and to carry out regular repairs for wear and tear. Moreover, on execution of conveyance deed in respect of the said flat on 28.01.2009, rights and obligations of the parties under the Hire Purchase agreement stood extinguished. Thus, there was no occasion for him to allege deficiency of service on the part of Respondent No. 1 in not taking action for getting the alleged leakage/blockage rectified. Having held so, the Petitioner cannot be said to be “consumer” within the meaning of section 2(1)(d) of the Act, qua Respondent No. 2, and therefore, a complaint under the Act was not maintainable against him. Furthermore, we also feel that the Complaint filed on 08.08.2011 was barred by limitation as on Petitioner’s own showing damage to the flat had taken place much prior to 09.01.2009, when he had requested Respondent No. 1, to have the necessary rectifications carried out. 8. For the foregoing reasons, we do not find any jurisdictional error in the impugned order warranting our interference in Revisional Jurisdiction. The Revision Petition is dismissed accordingly. |
