Delhi

StateCommission

CC/12/342

RAHUL RATHORE - Complainant(s)

Versus

OMAXE BUILDWELL PRIVATE LTD. & ORS - Opp.Party(s)

11 Mar 2020

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :11.03.2020

Date of Decision :20.04.2020

Decision delayed due to lockdown on a/c of CORONA

COMPLAINT NO.342/2012

In the matter of:

            Rahul Rathore,

            Apartment No.803, Greenwich A,

            Sector-93B, Noida, Gautam Budh Nagar,

Uttar Pradesh.                                                                          ………Complainant        

 

Versus

 

1. Omaxe Buildhome Pvt. Ltd.,

Regd. Office Omaxe House,

10 Local Shopping Centre,

Kalkaji, New Delhi-110019.

 

2. Facility Plus Management Pvt. Ltd.,

Regd. Office F-90/33, 1^st Floor,

Okhla Industrial Area, Phase-I,

New Delhi-110020.

 

3. Akal Security Solution Pvt. Ltd.,

Corporate Office Building no.275,

First Floor, Above State Bank of India,

Old National Highway8, Kapashera,

New Delhi-110037.…..Opposite Parties

 

CORAM

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

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

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that OP-1 developed project Grandwood in Sector Sector-93B Noida which is spread over an area of 25 acres and comprises 22 towers having around 1350 apartments. OP-2 had been appointed by OP-1 for looking after the maintenance of residential complex. OP-3 is private security agency engaged by OP-1 and/ or OP-2 for residential complex. Complainant is an allottee of apartment no.803 Greenwich A, Omaxe Grandwood which was purchased by him in November, 2011 from Neha Electronics Pvt. Ltd. Said firm purchased it from Ms. Shashi Bala Singhania. Complainant’s transfer was approved  by  OP-1 after charging exorbitant transfer fee  of Rs.1,73,980/-. Full payment under allotment has been made to OP-1 and only registration is pending which OP-1 has been repeatedly postponing. Complainant had furnished bank draft for stamp duty of Rs.3,05,400/- for registration. Thereafter OP gave possession in January, 2012 and since then complainant had been residing in the said apartment. OP-1 without any apology or compensation returned the bank draft stating that registration has been indefinitely postponed. Complainant reserved his right to file separate complaint in relation to delay in registering sale deed.
2. Complainant is paying (in addition to electricity and power back up charges) regular maintenance charges @Rs.3,955.07 complainant is working as an Associate Partner in a law firm in Delhi, his wife is teacher as Shriram School Noida. His son Shivom is studying in the same school. On 16.08.12 he and his family followed their usual work day routine. He left the subject apartment at 7.30 a.m. and drove to a gym in Safdurjung Development Area, after which at around  9.30 he drove to his office. His wife and son left the apartment  at about 8.15 a.m. locking the main door and the security door of the apartment, to go to Shriram School Noida. As usual after attending school his wife and son returned at around 3.30 p.m.. They discovered to their extreme shock that the security door and the main door had been broken open with the use of brutal force and heavy tools.
3. Panic stricken, his wife entered the flat  and was stunned to discover that the almirah in three rooms had been ransacked. All clothes and articles in the almirah were strewn on the floor. All drawers had been pulled out from the almirahs and from the dressing table. She then discovered that the gold jewellery that she had taken out from the bank locker and kept at home, in view of her brother’s marriage ceremonies was missing. She also discovered that a large quantity of silver articles had been taken by the burglars. Apart from that the burglars had taken away expensive watches, which had been intended for gifting. However burglars left other items such as electronics untouched.
4. His wife raised alarm, informed him, police and other family members. He and police rushed to the apartment. The forensic expert who came later to take finger prints stated that there appeared to be more than one burglar. Details of stolen articles alongwith their approximate valuation at current rates is mentioned in para-14  of the complaint. The total value of the articles was approximately Rs. 23,34,591/-. Copies of some of the invoices of articles stolen was filed alongwith complaint.
5. After examining the apartment, police proceeded to take statements of complainant and his wife. Police questioned the security guards of OP-3 who were openly clueless. They stated that they had not seen or heard anything amiss.  He realised that it might be possible to catch the burglars through camera footage. OP-1 and OP-2 assured complainant and police that CCTV footage can be retrieved. He went alongwith police to basement maintenance room where there were two screens showing feeds of the TC camera. The staff present there were involved in some clerical activities and were totally clueless about the surveillance system. It could not even identify which visual feed was coming from which tower. It had no idea about how to operate the system and did not know the location of the technical person who could operate the same. After long time, the technical person was located and called to the maintenance room. He fiddled around with the system. After nearly  an hour of dilly dallying, the technical person finally disclosed that there was no footage available for the Greenwich. He casually informed that the hard disk of the DVR receiving footage of the complainant’s building had gone for repairs 15 days back and had not been replaced. In the absence of the hard disk, no footage was recorded of complainant’s building though footage was available for other building. FIR no.406 dated 16.08.12 was registered in Police Station Phase-II, Noida.
6. The complainant had been demanding compensation from the OPs, He wrote various emails. OPs maintained complete silence. OP-3 is not licensed  to be engaged in security services. As per private security agency (Regulation) Act 2005 no one can carry out security business unless a license is issued. Except one, all multipleaccess points were left unguarded. In all 22 towers, one guard has been assigned in each tower who could at the most keep watch over one access point. The said guard could keep watch on front entrance. There were two emergency access points on the back side which were out of guard vision. The deployment of guard was manifestly inadequate. There were no intercom facility. Hence this complaint for Rs.23,34,591/- on account of loss of articles, Rs.10 lakhs on account of mental suffering and harassment, Rs.5 lakhs on account of additional expenses which he would have to incur for  arranging his own security, Rs.10,000/- for cost of the complaint and interest @18% p.a. from the date of burglary till the payment of compensation.
7. OP-1 filed WS raising preliminary objection that complaint is not maintainable as there is no consumer dispute. Complainant has not hired any services from OP-1 or paid any consideration. The dispute raised is of civil nature and cannot be decided in summary procedure provided under Consumer Protection Act. Extensive evidence oral as well as documentary is required for just adjudication of the case. There is no cause of action. OP-2 entrusted security services to OP-3 under some agreement between OP-2 and OP-3, for common area in the project.  The alleged theft has been committed inside the house of the complainant for which complainant cannot hold answering OP responsible. The allotment letter/ agreement dated 16.01.08 contained clause 5 to provide for arbitration. On merits OP-1 denied that it was in complete control or management of the project. It was only developer. Under agreement dated 01.03.12 it entrusted maintenance of the common area to OP-2. It denied that OP-2 is a group company of OP-1. It denied that any burglary or theft was committed or articles worth approximately Rs.23,34,591/- were stolen. It prayed for dismissal of the complaint.
8. OP-2 filed a WS raising preliminary objections that  this Commission has no territorial jurisdiction as the agreement has restricted jurisdiction of courts at Noida/ Allahabad alone. Complainant entered into operation/ maintenance agreement dated 22.06.13 providing the above restriction. No cause of action has arisen within the territorial jurisdiction of this Commission. The complainant has whimsically valued the claim in order to confer pecuniary jurisdiction on this Commission. The invoices filed on record are in the name of Ms. Meghna Rathore who has not been arrayed as a party nor she has authorised the present complainant to file the complaint.  Complainant is not a consumer. There is no deficiency in service. It is concerned with operation and maintenance of common area.  Facilities and cannot be held responsible for inside security of house of the complainant. Under the operation and maintenance agreement, complainant was required to have insurance of the contents within the unit. The complainant had been utterly negligent and careless about the security of his own premises. On one previous occasion the complainant had handed over  keys of his unit to some carpenters employed by him and gone away to Chandigarh. Those carpenter drove away the car belonging to complainant and met with some accident. The complaint is bad for none joinder of necessary parties. State of UP and Police Department of UP is responsible for  maintenance of law and order. They are necessary parties. The complaint is full of complicated facts and question of law which require detailed evidence and cross examination of witnesses. On merits it pleaded that clause 15, 16 and 19 of the maintenance agreement fixed limit of responsibility of answering OP.
9. Complainant filed separate rejoinder to WS of OP-1 and OP-2. He filed his own affidavit in evidence. Then he filed an application dated 09.10.14 for additional evidence in the nature  of RTI application regarding running of security agency without license. He moved another application dated 22.04.16 for additional evidence in pursuance of order  dated 24.02.16 passed by NC.
10. On the other hand the OP filed affidavit of Shri Pawan Aggarwal, AR.
11. I have gone through the material on record and heard the arguments. The counsel for complainant strongly relied upon reply under RTI Act stating that no security agency could run without license. She also urged that one cannot be expected to keep invoices of all the jewellery lying in the house. Only some of the invoices which were available have been  filed and approximate value at current rate has been given. She also vehemently argued that  failure of CCTV footage is a strong evidence of deficiency of service on the part  of OPs.
12. On the other hand the counsel for OP submitted that the security cum maintenance agreement was confined to common area only. It was not for inside security of any individual flat. Clause in the agreement restricted the liability of the OP to specified amount.
13. The objection of the OP regarding arbitration clause  is not tenable in view of decision of Hon’ble S.C. in Aftab Singh vs. Emmar MGF Land Ltd. I (2019) CPJ 5  I also do not find any merit in the objection regarding territorial jurisdiction because the OPs have their registered office within the jurisdiction of this Commission.
14. On merits I find that argument of counsel for the OPs that the maintenance agreement was for common area only appear to be weighty. In taking this view I am supported by decision of this Commission in FA no.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 cannot 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.
15. The aforesaid decision was followed by this Commission in FA no.497/11 titled as DLF ltd. vs. Ms. Nivedita Sharma decided on 06.12.18.
16. I specifically asked counsel for complainant as to what happened in the  FIR lodged by him. She was unable to give any satisfactory reply. She stated that complainant is not aware about the progress of FIR as to whether any culprit was arrested or any prosecution has been lodged against said culprit. This shows casual approach of the complainant. It appears that the present complaint has been filed for  wrongful gain and harass the OPs. Consumer Protection Act is not a tool for the said purpose as per decision of the NC in FA no.847/17 as Dr. Uttam Kumar Samanta vs. Vodafone East Ltd. decided on 05.10.18.
17. In III (2019) CPJ 13 NC held that no frivolous complaint should be entertained.
18. For the foregoing reasons the complaint is dismissed.
19. Copy of the order be sent to both the parties free of cost.
20. File be consigned to record room.

                                                                                                                                                                 

(O.P. GUPTA)                                                    

MEMBER (JUDICIAL)