Haryana

Panchkula

CC/676/2019

LT.COL L.S BEDI(RETD). - Complainant(s)

Versus

MAHANDER VIHAR CO-OPERATIVE HOUSING MAINTENANCE SOCIETY. - Opp.Party(s)

COMPLAINANT IN PERSON.

22 Jul 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

                                                              

Consumer Complaint No	:	676 of 2019
Date of Institution	:	23.12.2019
Date of Decision	:	22.07.2021

 

Lt. Col. L.S. Bedi (Retd.), F-84, Army Flats, Sector-4, MDC, Panchkula

    ..….Complainant

Versus                                                                  

1.      Mahander Vihar Co-operative Housing Maintenance Society,      Sector-4, MDC, Panchkula-134114, through its President. 

2.      Sh. Shyam Singh, Inspector Co-operative Societies, Bay 23-24, Sector-2, Panchkula.

                                                                              ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:    Complainant in person.

                            Sh. J.S. Kahlon, Advocate for OPs No.1 & 2.

                          

ORDER

(Satpal, President)

1.               The brief facts of the present complaint as alleged are that the complainant is allottee and resident of Flat No.F-84, Mahander Vihar Co-op. Housing Maint, Society, Sector-4, MDC, Panchkula and paying Rs. 12,000/- annually. As per Bye-law No.5(b) of the OP/Society, it is one of the aim & objective of the Society to ensure security of the Colony. It is stated that there is open parking for keeping vehicles of allottees/ members and Op has to look after and protect the said vehicles from any damages and being stolen.  The complainant had given a letter dated 29.10.2017 to the Management of the Society pointing out their shortcomings. After that letter, the OP/Society expelled him on 21.01.2018 from the membership of the Society by making false allegations. They stopped all essential services of plumber, electrician, closed the knob/tap of his overhead water tank on roof and locked the staircase for going on roof top and garbage collector services because of that he called the electrician and plumber from outside on payment basis.  The complainant had wrote a letter on 30.01.2018 to the Assistant Registrar Co-op. Society Panchkula. He has also made a complaint in register about the electrical problem in his flat and remark of the OP No.1 that “maintenance charges pending were received. He stated that they took Rs.85,225/- instead of Rs.15,600/- from him through Assistant Registrar/Sh. Shyam Singh, Inspector Co-operative Societies on 07.08.2018, who was the Administrator at that time, from back date without providing the services and has not given him the official receipt till date even when the amount was transferred to the account of the Society on 09.08.2018.  He was even not allowed to vote by the OP No.2 on 21.08.2018 for the election of a new committee. The complainant further stated that he has two cars which are parked in the parking area of the Society. The said cars were damaged on various nights during the security protection of the OP/Society. He got repair and replaced the wheel cups, one fog light, tail lights and number plate on his pocket.  Due to the act and conduct of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss. The OP has also committed deficiency in service and unfair trade practice. Hence, the present complaint.

2.               Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; no jurisdiction. On merits, it is stated that OP No.1 Mahander Vihar Co-Op Housing Maintenance Society is registered with Registrar Co-Operative Societies Haryana and is governed by the Haryana Co-Op Societies Act, 1984, (HCSA), Bye Laws of the Society and Haryana Apartment Act, 1996. Under the provisions of Section 128 of the Haryana Co-Op Societies Act there is a bar to jurisdiction of this Commission. In this Act no order, decision or award made under this Act shall be questioned in any court on any ground. There is a provision in HCS Act 1986 provides relief under Section 102 of the Act, Settlement of Disputes.  

                  Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; no jurisdiction. On merits, it is stated that the OP No.2 is an Ex inspector of Co-op department of Haryana and has since retired is not the necessary party and he is not in a position to answer the alleged allegations made by the complainant. The other facts are same as in the written statement of the OP No.1. Thus, there is no deficiency in service on the part of Ops No.1 & 2 and the complainant has not suffered any harassment or agony and prayed for dismissal of the present complaint.

3.               Replication to the written statement of the OP No.1 was filed by the complainant on 09.03.2020, reiterating the contents of the complaint while controverting the contentions of the OP No.1. Complainant has also filed replication/rejoinder to the written statement of the OP No.2 on 15.10.2020, reiterating the contents of the complaint while controverting the contentions of the OP No.2.

 4.              The complainant has tendered his affidavit as Annexure C-A along with documents Annexure C-1 to C-21 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavits Annexure R1/A & Annexure R2/A and closed the evidence.

                  During the course of arguments, on dated 08.07.2021, the OP has submitted a letter dated 08.07.2021 regarding payment of Rs.85,225/- outstanding dues which is taken on record as Mark ‘A1’ and copy of service contract entered with the contractor namely B-squad Manpower Solution, which is taken on record as Mark ‘B’ for the proper adjudication of the case.

                  On the other hand during course of arguments, on dated 08.07.2021, complainant has tendered on record relevant portion of bye laws containing the aims and objects, which is taken on record as Mark ‘C’.

5.               We have heard the complainant and learned counsel for the OPs and written arguments and additional written arguments filed on behalf of the complainant and OPs No.1 & 2 and gone through the entire record minutely and carefully.

6.               Reiterating the factual as well as legal position as contained in the complaint, written arguments and additional written arguments, the complainant contended that all essential services like plumber and electrician etc. were stopped by the OP No.1 because he had pointed out certain shortcomings on the part of the OP No.1 vide his letter dated 29.10.2017 and that the complainant had to call the electrician and plumber from outside on payment basis. It is further alleged that he was even not allowed to vote by the OP No.2 on 21.08.2018 for the election of a new committee. It is, further alleged, that OP No.1 has failed to protect and safeguard his two cars as the same were damaged on various nights while parked in the parking area of the society.

7.               In the present complaint, the complainant alleging lapse and deficiencies on the part of OPs has claimed the following reliefs:-

i)       That the OP No.1 be directed to provide the receipt to the    complainant in lieu of payment of Rs.85,225/- made by him to the   OP No.1 and to refund money illegally charged from back date with      interest, without providing services with interest.

ii)      That the OP No.1 be directed to reimburse the sum of Rs.2468/-+         Rs.3500/- total Rs.5968/-)incurred by him in the repair of tail        lights, wheel cups, fog light & number plate of his damaged     cars as per Annexure C-17 and C-18 respectively.

8.               The OPs have denied any lapse and deficiency on their parts. The learned counsel for the OPs have strongly refuted the claim of the complainant pertaining to the reimbursement of the expenses incurred in the repairs and replacement of tail lights, wheel cups, fog light & number plate. It is contended that the task and duty of the security staff is/was only to monitor and regulate the unwanted entry into the gated complex spreaded over 8 acres of land, having two gates i.e. in and out,  which are being manned round the clock by security staff employed on contractual basis.

9.               Apart from merits, the OPs have strongly contested the claim of the complainant by taking some preliminary objections. It is contended that as per Section 128 of Haryana Co-OP Societies Act, the jurisdiction of this Commission is barred. Further, it is contended that in view of the Section 102 HCSA, the complaint is not maintainable before this Commission.

         The aforementioned plea disputing the maintainability of the complaint is rejected in view of the law laid down by the Hon’ble Apex Court in the case tilted as Secretary, Thirumurugum Co-Op Agrl Credit Society Vs. M.Lalitha (2004 AIR SC, 448) wherein it has been held that the remedy before the consumer forum is in addition and not in derogation to remedy under other Acts-Dispute between Co-operative Society and its member – The jurisdiction of Consumer for a to decide the dispute is not barred because of even the remedy of arbitration provided under the Co-operative Societies Act.

We may also reply upon another judgment of Hon’ble Supreme Court titled as Emmar MGF Land Limited Vs. Aftab Singh Review Petition (c) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 decided on 10.12.2018 wherein it has held that the arbitration clause cannot oust the jurisdiction of consumer court.

10.             Moreover, Section 128 of Haryana Co-operative Act as well as Section 102 of the HCSA, bars the jurisdiction of the court                in certain eventuality but certainly not in the case of consumers. Admittedly, the complainant is a consumer as he is paying a sum of Rs.12,000/- annually as charges to the OP No.1.

11.             Now, coming to the relief sought by the complainant, the learned counsel for the OPs has tendered a copy of letter dated 08.07.2021(Mark ‘A’), sent to the complainant also, certifying the payment of Rs.85,225/- by the complainant to OP no.1. Though the complainant is not satisfied with the said letter dated 08.07.2021, but we find no merits in the objections and thus, conclude that the grievances of the complainant stands redressed to the extent of non-receipt of proof pertaining to payment of Rs.85,225/- by him to OP no.1.

12.             Now, coming to the deficiency allegedly pertaining to the safety and security of the vehicles including that of the complainant, parked in the area of the society, the learned counsel for the OPs has placed on record the copy of  service contract (Mark B) governing the terms and conditions of the security staff, according to which, the service provider i.e. the contractor namely B-squad Manpower Solution, is responsible for all aspects of security, which inter-alia, includes the reporting of matters to police pertaining to all untoward incidents or misbehavior of residents/visitors. It is contended that security staff is/was not responsible for any kind of damages to the vehicle parked in the premises of the society.

13.             On the other hand, the complainant has disputed the validity of the service contract entered by the OP No.1 with the service provider, namely, B-Squad Manpower Solution, being contrary to the bye laws of the society.  In this regard, the complainant placed reliance upon clause 5(c) of the Bye-laws of the Society, which is reproduced as under:

(c)     To maintain, at the expense of its members all common services such as roads,          boundary walls, gates, parks, drains, sewers, pumps, security posts, street         lights and other properties. To ensure sanitation and security of the colony and   to arrange, sweeping of common area, paths, roads and the like.

14.             Having perused the service contract as well as the above mentioned clause of the aim and object of the society and hearing the rival contentions of both the parties, it is found that the prime task of the security staff is/was to regulate the entry point so as to prevent the occurrence of untoward incidents. We find no specific clause in the service contract regarding the responsibility and liability of the contractor or the OP No.1 pertaining to damages to the parked vehicle in the area of the society. It is pertinent to mention here that the damages to the car of the complainant allegedly have been made during several nights; thus, the averments regarding damages to the car are vague as no specific date has been pleaded. By no stretch of the imagination, the security staff or the OP No.1 can be held responsible/liable for any damages to his car as alleged by the complainant.

15.             In our considered opinion, the complainant has failed to make out any case in his favour as to how and when the damages to his car occurred. Although, the complainant has placed on record the receipt Annexure C-17 and C-18, showing that the expenses had been incurred by him in getting the repairs and replacement of the tail lights, wheel cups, fog light & number plate but the aforesaid receipt does not prove by themselves as to when, how and where the damages to the car occurred.

16.             Apart from above, it would be pertinent to mention here that if anybody had caused the damages to the car of the complainant deliberately and intentionally, then the complainant was supposed to report to the police by way of lodging an FIR. In our considered opinion, there was no lapse and deficiency on this ground on the part of the OPs.

17.             In view of the aforesaid discussion, we find no force and substance in the version of the complainant; hence, the complaint of the complainant deserves to be dismissed and accordingly, the same is hereby dismissed with no order as to cost. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 22.07.2021

 

 

           Dr.Sushma Garg          Dr. Pawan Kumar Saini      Satpal

                    Member                    Member                            President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                  Satpal

                                                President