DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.802 of 2016

                                             Date of institution:  07.12.2016                                             Date of decision   :  13.05.2019

Frangee Ram son of late Shri Prakash Chand, resident of House No.84, Tower E, Orbit Apartments, VIP Road, Zirakpur, Punjab.

…….Complainant

Versus

1.     Orbit Apartment Construction Private Limited trough its Director Mr. Purshotam Singh Grewal, National Expressway 22 to Delhi, 1, VIP Road, Zirakpur, Pincode 140603 Punjab.

2.     Excellent Security Services through Proprietor/Contractor, Captain Bhag Singh, Zirakpur Mobile No.9814471713 (complete address to be disclosed by OP No.1).

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Ms. Shiti Jain, counsel or complainant.

                Shri Pankaj Sharma, counsel for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

                 Complainant purchased residential apartment constructed and sold by OP No.1. OP No.2 is security service provider because of its being hired by OP No.1. Payment to OP No.2 is made by OP No.1. However, OP No.1 charges from residents a fixed sum every month as user charges for providing various common services to the residents including security services. Agreement of sale dated 10.07.2015 was arrived at with OP No.1 for purchase of residential apartment No.84, Tower E in Orbit Apartments, VIP Road, Zirakpur. Entire sale consideration amount has already been paid to OP No.1 and that is why allotment letter was issued in favour of complainant on 10.7.2015. Physical possession of that flat was delivered to complainant by OP No.1 on 23.08.2015. As per agreement of sale dated 10.07.2015, OP No.1 is responsible for entire maintenance of the building and common services untill a Management Society is formed. That Management Society has not been formed by OP No.1 till date. OP No.1 remains liable for providing necessary common services including parking facilities, Common Park, housekeeping facilities, street lights, lifts and security services etc.  OP No.1 charges a sum of Rs.2,000/- per month from the residents for providing those services. On website of OP No.1 it has been mentioned that promise of 24 hours security with CCTV camera will be fulfilled. On 15.06.2016, when complainant and his wife were out of station, then thieves broke into the house of complainant and took away cash amount of Rs.4.20 lakhs alongwith 8 tolas of gold regarding which FIR No.184 under Section 380, 454 IPC was registered at Police Station Zirakpur on 17.06.2016 against unknown persons. Police and complainant checked the CCTV footage of some days starting from 15.06.2016 for finding that CCTV cameras were switched off for more than 24 hours i.e. from about 2.00 AM on 15.06.2016 till midday of 16.06.2016. On account of switching off these CCTV cameras, it is claimed that OP No.1 provided deficient services because it failed to ensure that CCTV cameras remain operational. It is claimed that had CCTV cameras been operational, then the culprits would have been nabbed. Earlier complaint No.696 of 2016 filed by complainant was returned with observations that dispute has not been raised with the concerned authorities till date. Despite issue of legal notice dated 31.10.2016 nothing has been done and that is why this complaint for seeking direction to OPs to pay compensation of Rs.10.00 lakhs for monetary loss and mental pain and harassment.

2.             OPs in the joint written reply pleaded inter alia as if complaint in the present form not maintainable; complainant has no locus standi; complaint filed without any cause of action, despite the fact that there is no deficiency in service on part of OPs; OPs have been dragged unnecessarily in the litigation and that complaint being false and frivolous merits dismissal with costs and special damages. Admittedly DDR dated 17.06.2016 has been registered, but outcome of investigation is still awaited. Admittedly complainant purchased flat from OP No.1 and he is paying fixed amount as user charges. However, it is claimed that those charges are not meant for providing security services and as such complainant not entitled to invoke jurisdiction of this Forum.  Admittedly complainant after paying entire sale consideration amount had got physical possession of the apartment. As per Clause-15 of agreement of sale dated 10.07.2015, OPs are not responsible for any alleged theft at the premises of complainant. However, it is claimed that OPs are maintaining all common services including parking facility, Common Park, housekeeping facility, street lights, lifts, common electricity and water supply etc. Even OPs have given security to residents of Orbit Apartments to best of their ability.  Registration of FIR No.184 at the instance of complainant denied. All CCTV cameras were in full working condition and police has not submitted any investigation report regarding switching off CCTV cameras for 24 hours as alleged in the complaint. Present complaint alleged to be premature. OPs have installed CCTV cameras at the entrance and all other common areas used by residents of Orbit Apartments. It is not possible to install cameras on each and every floor for monitoring the going on inside the flat. Complainant himself remained negligent resulting in taking place of theft. Complainant should have installed private CCTV cameras in front of his flat. OPs are not responsible for the alleged theft, more so when said factum yet to be proved. OPs are providing common services to residents and as such it is claimed that there is no negligence on part of OPs. Even if liberty earlier was granted by this Forum, despite that complaint not maintainable because no cause of action has accrued in favour of complainant.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-11 and Mark-A and thereafter closed evidence.  On the other hand counsel for the OPs tendered in evidence affidavit of Shri Purshotam Singh Grewal Ex.OP-1/1 alongwith documents Ex.OP-1 to Ex.OP-16 and thereafter closed evidence.

4.             Written arguments on behalf of OPs submitted. Oral arguments heard and records gone through.

5.             From the pleadings of the parties and submitted affidavits as well as agreement of sale Ex.C-1, allotment letter Ex.C-2 and possession letter Ex.C-3, it is made out that complainant got possession of Flat No. E-III/84 in Orbit Apartments, I, VIP Road, Zirakpur on 23.08.2015. Ex.C-4 is a receipt for showing that Rs.2,000/- were claimed from complainant as user charges by OP No.1 for the month of June, 2016 on 02.07.2016. Even if these user charges accepted on 02.07.2016 and theft took place on 15.06.2016, despite that in view of the fact that certain services were to be provided by OP No.1 to complainant in respect of maintenance of building and common services, as per Clause-15 of Ex.C-1, it has to be held that late payment of user charges not enough to hold that liability of OP No.1 is not there. It is so because terms of Ex.C-1 to prevail. Mention of words user charges in Ex.C-4 not enough to find that facility of keeping CCTV cameras as operational for all the 24 hours was not to be provided by OP No.1, more so when the document Ex.OP-1 produced on record by OP No.1 itself provides that OPs to charge Rs.500/- per month towards providing power back up for the common services; Rs.450/- towards providing security guards at the main entrance; Rs.300/- towards annual maintenance contracts of lifts, CCTV cameras and intercom etc. So from contents of Ex.OP-1 itself it is made out that split of charged amount of Rs.2,000/- through receipt Ex.C-4 is provided through Ex.OP-1 itself.  As in Ex. OP-1 itself it is mentioned that break up of monthly maintenance charges of Rs.2,000/- includes charges of Rs.450/- for providing security guards at the main entrance and exit gates, but Rs.300/- towards annual maintenance contract of lifts, CCTV cameras and intercom and as such inference is obvious that maintenance charges were claimed from complainant by OP No.1 through receipt Ex.C-4 for the month of June, 2016 for providing facility of security guards and also of CCTV cameras. On account of such charging of Rs.2,000/- by OP No.1 from complainant, it was duty of OP No.1 to keep CCCTV cameras operational for all the 24 hours, so that identification of unwanted persons in the complex in which flat/apartment of complainant is situate, may be done on scanning of CCTV footage.  Besides, as charges for security guard services even claimed from complainant and as such it was duty of OP No.1 to ensure through security guards deployed at the main entrance and exit gates that a person carrying luggage is checked for finding if the luggage belongs to concerned person or not.

6.             It is contended by counsel for OPs that if at all theft took place, then the same took place inside the flat of complainant and as such fault lays with complainant in not getting CCTV cameras installed on the gate of his flat. Besides complainant did not ensure at the time of leaving the flat that his belongings remain safe and as such certainly some fault on the part of complainant is also there.

7.             Ex.C-6 is copy of DDR for showing that complaint lodged by complainant regarding theft was made part of FIR No.184 lodged by Bhagat Singh. What transpired in course of police investigation, qua that no material produced on record and as such it cannot be inferred from the produced material that police even found CCTV cameras, got installed by OPs, as non functional for 24 hours. No mention of non working of those cameras for 24 hours made in Ex.C-6 or the enclosed FIR No.184 or the police proceedings recorded underneath thereto and as such submission of counsel for complainant has no force that police even found CCTV cameras as non functional for 24 hours, during which period theft in question took place. Withdrawal of earlier complaint through Mark-A shows that opportunity was given to complainant to approach the Forum again in case any cause of action arose in his favour. As despite lodging of FIR result of investigation not known to complainant and nor OPs shown to have helped the police in tracing the culprits by providing CCTV footage and as such inference drawable is that actually complainant has to file this complaint after finding that police is clueless may be due to fault of OPs in not providing of CCTV footage. Bill Ex.C-9 and copy of saving bank account passbook Ex.C-10 and that of the income tax return Ex.C-11 though produced, but they at the most show as if complainant purchased jewellery, which may have been stolen at the alleged time.  These documents do not exclusively prove about purchase of stolen jewellery, but they prove that some jewellery purchased by complainant.  

8.             OPs have produced on record bill Ex.OP-2 alongwith tax invoices Ex.C-3 to Ex.C-7 for claiming that OP No.1 is paying charges to OP No.2 for providing security services. Copies of electricity consumption bills Ex.OP-8 and Ex.OP-9 alongwith receipts of AMC charges of CCTV cameras and of intercom produced as Ex.OP-10 to Ex.OP-12 alongwith photographic depiction of boundary wall of the apartments as Ex.OP-13 to Ex.OP-16. So these documents show that OP No.1 virtually hired services of OP No.2 for ensuring safety of residents of the flat in the complex in question in which apartment of complainant also is situate. As OPs had been charging for CCTV cameras and as such certainly it is their responsibility to keep those cameras operational throughout the time so that CCTV footage got from them may be used as per need for tracing thieves.  It is not the case of OPs that they provided CCTV footage of the relevant time to police for helping out to trace the culprits of theft and as such deficiency in service on part of OPs to that extent certainly is there.

9.             As per law laid down in Pradeep Chopra Vs. Goliath Detective Private Limited and Ors. 2010(3) CPJ 461 (NC) liability of security agency cannot be equated with that of insurance company because insured to be fully compensated in terms of the insurance cover provided by the insurance company. It is so because security agency only provides watch and ward services. So amount of compensation has to be considered with reference to nature of deficiency in providing such services and valuables kept in different flats of the society. Amount of compensation cannot be stretched to include compensation for loss of articles and valuables kept in the flat.  Upon proving of negligence and consequent deficiency in service on part of security agency, an amount of Rs.50,000/- as compensation awarded as per above cited case. In the case before us also as deficiency is on part of both complainant and OPs, as discussed in detail above, and as such full price of the stolen articles cannot be allowed by way of compensation in favour of complainant. Keeping in view the nature of deficiency on part of OPs referred above, it is fit and appropriate to direct OPs to pay compensation of Rs.50,000/- in lump for the negligent act of not keeping the CCTV cameras operational for whole time.  Payment of awarded amount must be made within specified period failing which complainant will be held entitled to interest @ 7% per annum from today onwards till payment. Complainant has cause of action for filing this complaint because he cannot be made to wait for years together for seeing result of police investigation.

10.            Certainly monitoring of activities inside house of complainant by OPs is not possible for maintaining privacy of complainant. Moreover, CCTV cameras to be installed on the exit and entrance gates and not on the door of flat of complainant and as such fault in that respect on part of OPs is not there. NO detailed evidence is required for finding the extent of deficiency in service on part of OPs. Even if complaint by complainant with OPs may have not been filed at any time regarding non working of CCTV cameras, despite that it was responsibility of OPs to provide footage of CCTV cameras of the relevant period for helping the authorities to trace out the real culprits. Non providing of CCTV camera footage ipso facto shows as if these CCTV cameras remained non operational at the relevant time. For that deficiency in service on part of OPs, complainant suffered and as such he is entitled to compensation for lump sum amount only.

11.            No other point worth mentioning argued.

12.            As a sequel of above discussion, complaint allowed with direction to OPs to pay compensation of Rs.50,000/-    (Rs. Fifty Thousand only) in lump sum for the negligent act of not keeping the CCTV cameras operational. Payment of this awarded amount be made within 30 days from the date of receipt of certified copy of the order, failing which complainant will be entitled to interest @ 7% per annum from today onwards ill payment. Liability of both the OPs will be joint and several. Certified copies of the order be supplied to the parties as per rules and thereafter the file be indexed and consigned to the record room.           

Announced

May 13, 2019

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member