Delhi

StateCommission

A/11/497

DLF LTD. - Complainant(s)

Versus

NIVEDITA SHARMA & ORS. - Opp.Party(s)

22 Nov 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :22.11.2018

Date of Decision : 06.12.2018

FIRST APPEAL NO.497 /2011

In the matter of:

 

DLF Ltd.,

(Earlier known as DLF Universal Ltd.)

DLF Centre,

Sansad Marg,

New Delhi-110001.                                                                                                    …..Appellant

                                                Versus                                   

 

1. Ms. Nivedita Sharma,

R/o. A-30/9 Phase-I,

DLF Qutub Enclave,

Gurgaon-122002.           

 

2. Mr. K.K. Bhattacharya,

The Director,

DLF Property Management Services Ltd.,

Shopping Mall, 3^rd Floor,

Arjun Marg, DLF City Phase-I,

•  

 

3. State of Haryana,

Through Director,

Town & Country Planning Department,

•  
•  

 

4. Qutab Enclave Residents Welfare Association,

Through General Secretary,

BB-8, Qutab Plaza,

DLF Qutub Enclave, Phase-I,

Gurgaon, Haryana-122002.                                             …….Respondents

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. It is one of the rarest cases and unusual litigation regarding theft, by purchaser against builder filed under Consumer Protection Act. But the same met with success at the hands of District Forum.
2. Appellant was OP before the District Forum. Respondent/ complainant was resident of Phase-I, DLF, Qutub Enclave, A-Block, Gurgaon. The complainant entered in an agreement dated 03.02.04 for providing service of standard and quality to all residents whether member of RWA or not, with OP. The complainant was paying Rs.2,413/- quarterly for the said service. These services included round the clock security, street lighting, electric system and upgradation, repairing of boundary and fencing conservancy, upgradation of parks/ roads, administrative services of salary of staff, telephone, computer etc.
3. A theft took place in the house of the complainant on the night between 7/8.8.06 when she was not at home. She lost some valuable  and FIR was lodged, but police could not locate the accused, though it suspected her own servants for the act. It was alleged that the said theft was direct result of  overall poor and insufficient security and deliberate negligence of security guards, who failed to apprehend a person standing near the backside boundary.
4. The appellant filed a WS pleading that case was not maintainable, complainant had suppressed material facts. Complainant was seeking to enforce statutory functions and issues of law and order, country planning which could not be adjudicated in Consumer Forums. There were disputed questions of facts which required a proper trial in civil court. According to OP it was not providing house to house security. It was community or blanket security with police posts, gate management, joint patrolling etc. It questioned the alleged theft. The complainant based her case on non cooperation with local police to interrogate the servants of the complainant.
5. The District Forum relied upon pleadings of OP in SLP before Hon’ble Supreme Court where it justified the charging of maintenance charges on account of maintenance services to be provided to the owner of plot in terms of sale deed. The security was encompassing which included round the clock security, fencing etc. besides other services.  The dispute in SLP was confined  to the question whether the cost of plot included such charges and whether developers were not entitled to demand such changes from plot owners. In the final orders the Supreme Court observed that the same depended on the interpretation of terms of the agreement with the plot owners and in SLP it would not go into contractual obligations of the parties. The same was for different forum to do that.
6. Still the District Forum went on to observe that question in the present complaint was not who committed theft. The question was how by proper security, theft could have been prevented. Round the clock security consists even patrolling and wireless security. The same failed because intruders got entry without checking. The security personnel even failed to apprehend the intruders, on being accosted. This was a deficiency in service in not properly intervening and stopping of outsider. It agreed that agreement by OP was not for house to house security against theft etc., prevents loss. Still it found that the patrolling along the boundary and fence etc. needed to be tightened. In case the security was  inqdequate keeping in view the large area and need of more manpower and equipment, the appellant had to speak to RWA to augment it and demand more charges
7. Strangely enough the District Forum went on observing that the complainant had raised concern for all residents, who may be next victim, if the situation continues. This is together beyond the prayer of the complainant. The complainant had not filed the complaint in representative capacity.
8. The District Forum directed appellant to pay Rs.50,000/- to the complainant for  her suffering wrongful financial loss, unwarranted mental stress and agony, fear and harassment for improper discharge of obligations leading to deficiency of services. It also directed the appellant to enter into dialogue with RWA / OP-4 for necessity of augmenting resources to provide better security services and pay Rs.10,000/- for litigation.
9. We have gone through the material on record and heard the arguments addressed by appellant.  We did not have the privilege of listening argument of respondent as non appeared for the respondent at the time of arguments.
10. The counsel for appellant urged and rightly so that directions to enter into dialogue with RWA for necessity of augmenting resources for providing better security services is beyond the scope of Consumer Protection Act. Consumer Foras are creation of Consumer Protection Act and have to act within the four corners of the Act. It does not possess inherent powers enjoyed by civil court.
11. On merits the counsel for the respondent drew our attention to closer report filed by police in the  FIR lodged by respondent/ complainant. The same is available at page-392 to 394. English translations thereof at page-395 to 397 of appeal file. The same recites that complainant was out for dinner at 9.00 p.m., she had security guard at the main gate who was working with her since last 7 years. When she came back at 00.45 a.m., she was informed by the security guard that they saw a man boy standing backside of the house, after he shouted the man boy jumped the adjoining boundary wall and ran from behind. The complainant had three dogs in the house who were very attentive to any strange noise or stranger. All the three dogs were in house. When she came to her home, her servant was watching T.V. just outside her bedroom. She tried to open from outside. She found that the same was locked from inside. She entered from the other adjoining room and went inside and found that the room sliding door was open, she found main still almirah and other  cupboard were  open, draws of her side tables, still almirah  was open, her entire jewellery and other items were ransacked and were lying on floor. One heavy gold and pearl necklace, two kadai, ear rings and two hand bracelet and one gold and pearl necklace and some watches were taken. The FIR was lodged by Shri Anil Sharma husband of the complainant. The appellant apprehended  servant Gagan Bandhu  and Raghu Nandan finger prints were lifted from the site and sent to FSL , Madhuban. Lie dictator test of Gagan Bandhu (servant) was got conducted. No proof of incident was found. So the case was being closed.
12. The counsel for the appellant submitted that when complainant’s own servant and dogs could not prevent the theft, community service by appellant was too small a measure to prevent theft. The arguments appear to be impressive.
13. The counsel for appellant relied upon judgment 21.04.16 of this Commission in appeal no. FA-79/11 titled as Jai Gupta vs. Rakesh Bhardwaj in which it was held that merely because guard on gate have to look after park and other area, he can not always be present at the gate for 24 hours without a break.  The expectation was unwanted and impractical, the same could not give rise to deficiency in service. The appeal was dismissed and order of the District Forum dismissing the complaint was maintained.
14. The present case is within the four corners of the aforesaid decision.
15. As a result of the above discussion the appeal is accepted, impugned order is set aside and the complaint is dismissed.
16. Copy of the order be sent to both the parties free of cost.
17. One copy of the order be sent to District Forum for information.

File be consigned to record room.

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                         

            MEMBER                                               MEMBER (JUDICIAL)