Date of Filling :06.03.2015
Date of Disposal :03.11.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S.SUJATHA,B.Sc., … MEMBER-I
CC.20/2015
Tuesday, the 3rd day of November 2015
D.Thiruvateeswaran
L 13A, Sarvamangala colony,
Ashok Nagar, Chennai- 600 083. …Complainant
/Vs/
The President,
KV II Apartment Owners Welfare Association,
B9, 1st floor, Paruththipattu, Chenni - 600 071. …Opposite Party
….
This Complaint is coming upon before us finally on 15.10.2015 in the Presence complainant appeared in person and also the opposite party is appeared in person subsequently after filed his written version he was set-exparte and 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 U/S 12 of Consumer Protection Act, 1986 against the opposite party seeking direction that the opposite party has to refund his share of the AOA charges returned by CGEWHO, to improve the quality of services in the complex & to pay a sum of Rs.20K, for DOS, to pay Rs.1,00,000/- towards compensation for mental agony and to pay a sum of Rs.10,000/- for his legal and incidental expenses.
The Brief averments of the complaint as follows:
- The complainant is a member of the opposite party’s Association owning D3-45 flat in the Ch Ph II complex. The Kendriya Vihar II Apartment Owner’s Welfare Association, partuththipaatu, Chennai is the opposite party. The complainant had paid AOA charges of nearly Rs.33,000/- in advance to the central Govt. Employees Welfare organization, New Delhi, who promoted the project, for it to maintain the common services in the Ch Ph II complex, until the owners formed a Registered Association for the purpose. This amount represents 1.5% of the total cost of the flat paid by his at the time of remitting the last instalment. The scheme rules of the promoter provide that the CGEWHO, a public sector undertaking, will maintain the services with this money and transfer the unspent money to the Apartment Owner’s Association as and when it is formed and agrees to take over the job.
2. The AOA was formed in June 2013 and was registered with the District Registrar, Chennai South in sep.2013. The registration no. is 403/2013. In Feb./Mar 2014, the CGEWHO, on the request of the opposite party who had taken over the maintenance of the common areas & services earlier, transferred a sum of Rs.70.5 lakhs to the opposite party’s bank account in SBI, as the unspent AOA charges (Exhibit A1). The opposite party had started collecting w.e.f Jan 14, mtce. Charges at the rates fixed for 4 types ABC & D (Rs.800,900 & 1100 respectively) from the owners. However, the money refunded by CGEWHO was placed as a fixed deposit in the SBI POaruththipattu, W/o provision in the BL.
3. The complainant wrote letters to the opposite party on 31.08.2014 and 17.012.2014 asking for refund of his pro rata share Exhibits A2 & A3), but the opposite party has not refunded it till the date of filing this complainant. He has not replied either. To add insult to injury, the opposite party barred the complainant from participating in the GBMS or elections, alleging ‘default’. He is withholding the money due to 572 owners illegally for the past 12 months which is an Unfair Trade Practice chap. I. 5(i) of the bye-laws prescribes only 12% p.a. interest for late payment of MC, but opposite party collects Rs.100/- p.m. There are 37 blocks with 4 floors in each 33 of them have stilt floors, all the floors are not cleaned by the house-keeping staff. In a few posts only one lamp is functional. Instead of rectifying the defects, tube lights are fitted on the posts. When the tubes in the lifts fail, ordinary bulbs are provided. There is the risk of theft of these TL fittings & bulbs. Dust bins are not cleared. Therefore, the opposite party is the guilty of deficiency of service. Hence this complaint.
The contention of the written version of the opposite party has brief as follows:
4. The complainant is not a consumer as defined in section 2(1) (d)(ii) of the Consumer Protection Act, 1986 (herein after referred to as the CP Act. The said complainant has admitted that he is an owner of flat No.D-3/45 of Kendriya Vihar-II, Paruthipattu allotted by the Central Government Employees Welfare Housing Organixation, New Delhi. The complainant has neither paid the one time membership fees of Rs.1000/- with the membership application nor has he paid the monthly maintenance charges since the beginning i.e.Jan2014 to the Association, whereas majority of the members of this Association are doing so regularly. Therefore, the said complainant cannot claim to have hired or avail any services for a consideration from the opposite party, an essential requisite as provided in the said section 2(1)(d)(ii) of the Act.
5. The KV-II AOWA was formed on 21 June 2103 and got itself registered as a society on 03rd September 2013. The Association also formed its Bye Laws. The said Association is constituted from amongst its members for the benefit and welfare of the other members of the colony. The Executive Committee of AOWA is a duly elected body amongst the members, The said Executive Committee comprise of one President, one Vice President, One Secretary, three Joint Secretaries, one Treasurer and 18 Executive Members. The said Committee is responsible for conducting day to day affairs of the Association. These official bearers, are mostly either serving Central Government officials or retired Central Government Officers, who render their service for the said Association on voluntary basis and absolutely free of charge, that is to say, that they are not paid any consideration for their voluntary services. Thus, the opposite party cannot be termed to be “service Provider’ or a “Trader”, against whom a complaint can legally be preferred under the CP Act. Further, the free services rendered by the Association i.e. the opposite party, also fall within the exemption mentioned in the definition of “Services” in Section 2 (1)(o) of the CP Act.
6. The action of the complainant in filing this complaint case is also “premature” having not exhausted the Redressal of grievances mechanism as provided under the Bye laws of the opposite party. The complainant has not approached this Forum with clean hands, since the complainant being a owner of a flat in the colony and thus governed by the Bye laws of such Association, has failed to comply with the provisions of the said Bye Laws. The complainant has failed to comply with the provision contained in Chapter VII (vii) of the Association’s Bye Laws, which stipulates that “In case of any dispute between the Executive Committee and the owner, the matter will be referred to an Arbitrator in writing. The Arbitrator, an independent person who has no connection either with the Society Owner, is obliged to act as per provisions contained in Arbitration Conciliation Act, 1996 and his decision is binding on the Executive Committee and owner both”.
7. The complainant having not paid the one time Membership fees and also not paying the maintenance charges, (as being paid by most of all other members irrespective of whether they are resident or non-resident within the colony), does not have any legal right to claim any compensation or refund of any deposit made by him with CGEWHO, from the opposite party as prayed in the instant complaint case. Further, the complainant, notwithstanding his old age of 76 years and without residing within the colony, is in the habit of writing unethical and derogatory languages and allegations towards the past and present office bearers of the Association, which certainly deserves in filing a defamation case against the individual. It is relevant to mention here that, when complainant has raised the same refund issue by email communication dated 31 Aug 2014 to the earlier committee a email reply was sent to him on 09th Sep 2014 as well as to all the members of the Association clarifying the point, hence the complainant claim of no reply was given to his representation is not correct and false.
8. It is submitted that a separate housekeeping contract is concluded to carry out the house keeping activities. The maintenance activities are being carried out where ever required and hence allegation made by the complainant is totally false and wrong. With the approval of the General Body it is proposed to utilize this money in the years to come for the purpose of repairing the roads, re-laying or roads, painting in common areas, to deposit a sum of Rs.20 lakhs to TWAD Board for drinking water supply, a few lakhs for bringing bus shelter outside our campus, purchase of trolleys, purchase furniture’s Audio system etc., for the proposed Community Centre, purchase of more benches in the parks, books for the proposed library, water proofing of terrace, etc.,. Hence this complaint is liable to be dismissed.
9. In order to prove the case of the complaint, the complainant filed his
proof affidavit as his evidence and Exhibit A1 to A4 are marked on the side of the complainant. subsequently after filing of written version of the opposite party was set-exparte.
10. At this juncture, the point for the consideration before this Forum is:
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
- To what other reliefs, the complainant entitled to?
11.Written Arguments filed by the complainant and in addition to that Oral
Arguments adduced by the complainant. Though the opposite party is remained Ex-parte, this Forum wants to decide this case fully on merits with available materials.
12. Point 1: According to the case of the complainant is that, he is the member of the opposite party’s Association owing D3-45 flat in the Ch Ph II complex, Paruthipattu and thereby he has paid AOA charges of Rs.33,000/- in advance to the central Govt. Employees Welfare organization, New Delhi, who promoted the said project, 1.5% of the total cost of the flat paid by him at the time of remitting the last instalment to maintain a common services in the Ch Ph II complex, until the owners formed a Registered Association for the purpose. It is further sated by the complainant that the AOA formed in June 2013 and was registered with the District Registrar, Chennai South and on the request of the opposite party who had taken over the maintenance of the common areas and services earlier transfer a sum of Rs.70.5 lakhs to the opposite party’s bank account in SBI, as the unspent AOA which is marked as Exhibit A1 and further the opposite party had started collecting with effect from Jan 14, maintenance Charges at the rates fixed for 4 types ABC & D (Rs.800,900 & 1100 respectively) and therefore the complainant wrote letters Exhibit A2 and A3 to the opposite party asking for refund of his pro rata shares but the same has not refunded till date and therefore the complainant has written the another letter to the opposite party Exhibit A4, for the guilty of deficiency in service.
13. On the other hand, the opposite party has mentioned in the written version that the opposite party cannot be termed to be service provider or a trader and moreover the another of the complaint as prepared by the complainant does not fall the under any of the clauses defining the terms complaint under Section 2(1) (d)(ii) of the Consumer Protection Act and also the complainant has failed to comply with the provision contained in Chapter VII (vii) of the Association’s Bye Laws, which stipulates that “In case of any dispute between the Executive Committee and the owner, the matter will be referred to an Arbitrator in writing. The Arbitrator, an independent person who has no connection either with the Society Owner, is obliged to act as per provisions contained in Arbitration Conciliation Act, 1996 and his decision is binding on the Executive Committee and owner both”. It is further stated that the complainant having not paid the one time membership fees and also not paying the maintenance charges as being paid by all other members and therefore the complainant does not for any legal right to claim any compensation or refund of any deposit, as made in the complaint.
14. Moreover, the 1.5% of total cost of the plats is only collected by CGEWHO from the allots fir the Association to be formed in future for it is initial corpus fund and it has been decided in the general body meeting that the said money will be kept as corpus fund and monthly maintenance charges will be collected from the members for the maintenance activities as per the rate fixed by the Executive committee with the provisions of the said Bye Laws and with approval of the general body it is proposed to utilize this money in the years to come for the purpose of repairing the roads, re-laying or roads, painting in common areas, to deposit a sum of Rs.20lakhs to TWAD Board for drinking water supply, a few lakhs for bringing bus shelter outside our campus, purchase of trolleys, purchase furniture’s Audio system etc., for the proposed Community Centre, purchase of more benches in the parks, books for the proposed library, water proofing of terrace, etc., and the complainant is the only allottee not willing to co-operate the Association and the said fund is utilizing in the proper way as per the resolution passed by the general body of the Association and therefore, the complainant is not entitled for any relief as prayed in the complaint.
15. At the outset, on careful perusal of the rival submissions put forth on either side to goes without saying that the burden of prove lies on the complainant to prove his case before this Forum by means of relevant and acceptable evidence. First of all, this Forum has to consider as to whether the complainant is the member of the opposite part’s Association who being the flat owner. As per the written version, it is clearly stated by the opposite party that the complainant neither paid the one time membership fees of Rs.1000/- with the membership application nor he has paid the monthly maintenance charges since the beginning of Jan2014 to the Association, whereas majority of the members of this Association are doing so regularly. At this point of time, in order to prove that the complainant has paid the membership fees, the complainant has not filed any such document that he has paid the membership amount. Whereas the complainant narrated that all the flat owners, are service provider since they collected the service charges and all the members of Association are consumers as per the section 2 (1)(d)(ii) of the Consumer Protection Act 1986 and therefore the payment of membership is only formality and it is unfair trade practice on the part of the opposite party to say that the complainant is in arrear of maintenance charges when he is holding the big sum paid by in advance. From the above narration, it is crystal clear that the complainant himself admitted that he has not paid the membership fees to the opposite party’s Association.
16. At this juncture, as per the 1st General Body meeting of the opposite party Association held on 16.02.2014, it is unanimously decided that the 1.5% of total cost of the plots was paid by the every allottee along with the final payment towards society charges as per CGEWHO’s notification for final payment and for the society only, which cannot be claimed to be refunded by any allottee. Further, it is seen that the same has been transferred to the KV-II AOWA by the CGEWHO as per the norms/procedure and as being followed in all other projects executed by them.
17. Moreover, the said 1.5% is the only amount collected for the Association to be formed in future for its initial corpus fund and it will be kept as corpus fund and monthly maintenance charges will be collected from the members for the maintenance activities as per the chapter 5(i)(g) Association bye laws, the executive committee is empowered to fix a monthly subscription amount to be charged from the members to meet the 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.,. Therefore, it goes without saying that, as per the laws the opposite party’s Association it is bounden duty of the complainant to pay the one time membership fees and also to pay a maintenance charges for every month as mentioned above. But the complainant has neither paid the one time membership fees of Rs.1,000/- till date from Jan 2014.
18. Moreover it is pertinent to note that the complainant is not residing in the campus. Further, it is seen from the minutes of the second General Body meeting, that the sum of Rs.75 lakhs (Rs.72 lakhs received from CGEWHO and Rs.3 laksh as membership fees collected) so far has been deposited for one year in the SBI Paruthipattu Branch. As resoled the last general body meeting this corpus fund will be utilized only for developmental infrastructure activities of the campus.
19. In the light of the above facts, circumstances and observations made above, as rightly pointed out by the opposite party in the written version that the complaint preferred by the complainant does not fall under section2 (1) (d)(ii) of the Consumer Protection Act and moreover, the complainant has not approached this Forum with clean hands. Since the complainant being a owner of a flat in the colony and thus governed by the Bye laws of such Association, has failed to comply with the provisions of the said Bye Laws. Furthermore it is crystal clear, that as per the resolution passed by the General Body meeting that the sum of Rs.72 lakhs received from CGEWHO and Rs.3 laksh as for membership fees already deposited and the fund will be utilized only for the developmental and infrastructure activities of the campus and therefore there is no question of refund of the said amount to the allottees as prayed by the complainant in the complaint. More so, in other aspects also, the complainant has not proved his case with relevant and consistent evidence before this Forum. Therefore, there is no deficiency in service and unfair trade practice on the part of the opposite party. Thus the point no.1 is answered accordingly.
20. Point 2: As per the decision arrived in point no.1, the complainant is not entitled for any relief as prayed in the complaint. Thus, the point no.2 is answered accordingly.
In the result, this complaint is dismissed. No cost.
Dictated by the president to the steno-typist, transcribed and computerized
by her, correctly by the President and pronounced by us in the open Forum on this 03rd November 2015.
Sd/-**** Sd/-****
MEMBER I PRESIDENT
List of Documents filed by the complainant
Ex.A1/Dt. : Xerox copy of the ledger account of the Association.
Ex.A2/Dt.31.08.2014: Xerox copy of the letter sent by the complainant to the opposite
party.
Ex.A3/Dt.17.12.2014: Xerox copy of the letter sent by the complainant to the opposite
party.
Ex.A4/Dt.20.01.2015: Xerox copy of the letter sent by the complainant to the opposite
party.
List of documents of the opposite party: Nil.
Sd/-**** Sd/-****
MEMBER I PRESIDENT
