BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 1st March 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.336/2010
(Admitted on 04.12.2010)
Mr. Abdul Razak M.,
So K. Mayyadi,
Of age about 35 years,
Rat Raz Mansion,
K.B.S. Jokatte 574 173. …….. COMPLAINANT
(Advocate for the Complainant:Sri. Deenanath Shetty)
VERSUS
1. Mr. Mohammed Konaje,
So Manni Kunhi,
Of age about 55 years,
Ashoora Manzic
Kalugundi,
Nadupadav Road,
Post Mangalagangothri.
2. Mr. Hazi Mohammed,
Of age 68 years,
Regal Plaza,
Casba Bazar Village,
Fortward, Mission Street Road,
Mangalore City Corporation. …..OPPOSITE PARTIES
(Advocate for the Op.Party No.1: Sri Abdul Razak G.)
(Advocate for the Op.Party No.2: Sri S.S. Khazi)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, the opposite party No.1 is the owner of the shop rented out to the complainant as per the Rent Agreement entered them i.e., opposite party No.1 and the complainant. It is stated that the opposite party No.1 is the builder cum owner of the building wherein the shop premises bearing Door No.20-03-252/1 measuring about total 160 square feet (IP 100 Sq. Ft.) is housed in the cellar floor of the said building namely ‘Regal Plaza’. The rent agreement was entered on 15.02.2010 for a period of 11 months and the monthly rental was agreed to the said premises at Rs.2,000/- was to be payable by the 15th day of every month. The complainant paid Rs.30,000/- towards deposit and the opposite party No.1 and 2 jointly promised the complainant that premises was provided with proper arrangement for free flow of water and the complainant had expressed his reasonable apprehension with regard to s strong possibilities of entry of water during the rainy season as the said shop premises being used in a seller floor. But both the opponent No.1 and 2 reassured him that he should not be unnecessarily entertained apprehensions with regard to the entry of water into the shop. It is assured that the building is provided with proper underground conduits for the free flow of water.
It is further stated that 19th day of October 2010 due to heavy rain during morning hours from 8.30 to 10.30 A.M. there was not only heavy water logging outside the premises and over flown rain water owing to the formation of flash flood all of a sudden made an entry into the said premises and finally the water was covered the entire floor of the shop premises which the complainant could not prevent and caused heavy damaged to the UPS, Battery, Central Proceeding Unit, inverters and wooden partitions as a result of the rain water entering into them. It is stated that, the complainant could not prevent the damage caused to the computer system because of the flash floods. It is stated that, on 17.02.2010, the complainant purchased computer system for worth of Rs.1,55,000/- and on 09.06.2010 worth of Rs.88,800/- and on 18.02.2010 worth of Rs.5,640/-, on 16.02.2010 worth of Rs.27,500/-, on 09.02.2010 wooden partition, Computer table, top cup board, wooden cash counter, executive chair, computer rolling chair which had to be inevitably dismantled owing to the entry of the flash floods all of a sudden into the premises. It is stated that, because of the opposite party failed to provide conduits for the free flow of water, the above damage was caused and thereby, the complainant was put to final loss and thereafter, the complainant has issued a legal notice to the opposite party called upon to pay the damages. But the opposite party failed to comply the same. Hence, the above complaint came to be filed, under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Opposite Parties to pay totally a sum of Rs.4,62,640/- towards the monetary loss, compensation and costs of the proceedings.
2. The opposite parties No.1 and 2 appeared through their counsel and filed separate versions.
The opposite party No.1 stated that, the lease agreement entered between this opposite party and the complainant, the dispute regarding the lease agreement cannot be considered before this FORA and it may be filed before the Munsiff Court or any Court of Jurisdiction. It is stated that Opposite Party No.1 is not the builder nor constructed the Regal Plaza building and denied that there was flow of rain water or falls at any point of time. It is stated that, the opposite party No.1 not promised with the complainant regarding the flow of rain water and the same is not mentioned in the lease agreement and further stated that he is not liable and responsible for anything as alleged in the complaint and prayed for dismissal of the complaint.
The opposite party No.2 also appeared through their counsel filed version denied the entire allegations alleged in the complaint and stated that he is not aware of the transactions between the complainant and the opposite party No.1 and there is no nexus or relationship with the opposite party No.2 and also stated that he is unnecessary party to the proceedings and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Sri M. Abdul Razak, Complainant (CW1), filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure and One C.D. is also produced and marked as M.O.1. One Mr P.M. Ahamed (RW-1), of Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. Both the parties have produced written notes of arguments.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii):As per the final order.
REASONS
5. POINTS No. (i) to (iii):
The complainant came up with a complaint stated that, he entered into a rent agreement with the opposite party No.1 and at the time of entering into an agreement, the opposite party Nos.1 and 2 has jointly promised the complainant that the shop premises was provided with the proper arrangement for the free flow of water. The Opposite party Nos.1 and 2 assured the complainant that he should not unnecessarily entertained apprehensions with regard to the entry of water into the shop. It is stated that, on 19th day of October 2010 owing to rain having bucketed down like cloudburst in the morning hours from 8.30 to 10.30 A.M., there was not only heavy water logging outside the premises and the over flow rain water all of a sudden made an entry into the said premises and damaged U.P.S., Battery and other things and caused heavy damage. Hence this complaint.
Both the opposite parties denied the allegations alleged in the complaint and contended that they are not liable to pay any compensation.
In order to substantiate the averments raised in the complaint, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C8. And The Opposite party No.1 filed version, but not served interrogatories nor filed oral evidence. The opposite party No.2 filed oral evidence by way of affidavit and denied the entire allegations.
On perusal of the oral as well as the documentary evidence, we find that, the complainant has miserably failed to establish that there was a heavy rain on 19th day of October 2010 and the rain water all of a sudden made an entry into the shop premises and caused damage as alleged in the complaint and also failed to prove that the Opposite Party No.1 and 2 have undertaken to pay the damage in case of any damage caused to his shop.
As we know in a case of like this nature, the Complainant must produce some tangible evidence to show that the Opposite Parties have undertaken to compensate for the damage.
However, the Complainant produced the rent agreement dated 15.2.2010, wherein, it is seen that, the Opposite Party No.1 is a less or. Opposite Party No.2 is not a party to the rent agreement. We are surprised how the Complainant made Opposite Party No.2 as a necessary party to this proceeding without there being connection. Further we noticed that, Opposite party No.1 not given any under taking in the said rent agreement that the premises was provided with proper arrangement for free flow of water and if any damage he will pay damages.
Further, on perusal of the Complainant’s affidavit, wherein, he stated that, on 19th day of October 2010 due to heavy rain during morning hours from 8.30 to 10.30 A.M. there was not only heavy water logging outside the premises and over flown rain water owing to the formation of flash flood all of a sudden made an entry into the said premises and finally the water was covered the entire floor of the shop premises which the complainant could not prevent and caused heavy damaged to the UPS, Battery, Central Proceeding Unit, inverters and wooden partitions as a result of the rain water entering into them and caused heavy damage. From the above affirmation, one could make out that, his shop was situated on the basement floor of the above said building. When that being so, Complainant has to take reasonable steps to safeguard his shop from damage or loss from the common area usage. Because as we noted herein, rain water gushed inside the shop without proper channel facility or free flow of water on the basement floor i.e common area of the building. Now the question arises who has to maintain the common area? is it lessor or the association of the building regal plaza. It is not the case of the Complainant that his leased shop is an independent shop situated separately. It is seen that, the shop taken for rent is situated in basement floor of the building, that means number of floors existing in the said building and provided with common underground conduits/channel for the free flow of water in the building. As we know in all the buildings there must be an association, and the said association must maintain/look after the common area facilities in order to avoid unforeseen problems like rain or otherwise. But in the present case, nothing has been established that whether the said building has owners association to maintain common areas or any other arrangements. Common facilities provided to the shop/building shall be maintained by all the owners forming an association or any other alternative arrangement not by the Opposite Party No.1 individually. When that being so, one cannot fix the liability to a particular individual/ owner herein the Opposite Party No.1, apart from the above as we discussed herein above, the Complainant failed to satisfy that there was a undertaking given by the Opposite Party No.1 or 2 in case of damage caused due to the rainfall or otherwise. In the absence of the same, we hold that, there is no merit in this case and deserves to be dismissed. No order as to cost.
In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 1st day of March 2012.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr. Abdul Razak.M – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 15.10.2010: Rent Agreement.
Ex C2 – 17.2.2010: Invoice of Systek Computers.
Ex C3 – 9.6.2009: Invoice of Systek Computers.
Ex C4 – 18.2.2010: Bill of Systek Computers.
Ex C5 – 16.2.2010: Invoice of Systek Computers.
Ex C6 – 9.2.2010: Bill issued by the Jyoti Furniture Works.
Ex C7 – 12.2.2010: Bill issued by the Mangala Electricals.
Ex. C8 – Photographs.
MATERIAL OBJECTS:
MO No.1: Compact Disc (CD)
Witnesses examined on behalf of the Opposite Parties:
RW-1 : Mr.P.M.Ahammed, Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:1.3.2012 PRESIDENT
