Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member

These two appeals have been filed against the order passed by District Consumer Disputes Redressal Forum, Thane in consumer complaint no.421/2008 decided on 31/10/2009.  Appeal no.429/2010 has been filed by the original complainant against the partial relief granted to him by the forum below in its’ impugned judgement and award, whereas Appeal no.504/2010 has been filed by the original O.P. against the judgement and award passed against it by the forum below while allowing complaint of the complainant.  Both these appeals have arisen out of the same common order and, therefore, we dispose of both these appeals by common judgement.  Facts to the extent material may be stated as under:-

Complainant is a member of O.P. society.  It has been found by the complainant that in every rainy season there used to be seepage of water in his flat from the terrace.  According to complainant, he asked the O.P. society to carry out repairs and stop seepage of water entering into his flat from the terrace but society appears to have not taken cognizance of his complaint and, therefore, fed up with the non co-operation given by the society, the complainant filed consumer complaint in the forum below against the society.   According to complainant, before filing consumer complaint he had sent notice through his advocate.  Notice was replied by sending false reply. According to complainant, he had incurred expenses of `30,000/- in April 2006, `35,000/- in March 2007 and again incurred expenses of `38,000/- in April 2008 and got his flat duly repaired. But even thereafter from 05/6/2008 to 15/6/2008 there has been seepage of water because of the heavy rains and, therefore, he sustained damage to his property.  He also apprehended that his health would be jeopardized because of seepage of water and, therefore, he filed consumer complaint with the prayers that O.P. society should be directed to take immediate steps to stop seepage of water.  He also claimed damages from the society and interest on the said damages @ 18% p.a.  He also prayed that Commissioner should be appointed to see the extent of damage caused to his flat.

O.P. filed its written statement to contest the matter.  According to O.P. society complaint is absolutely false and frivolous and it should be dismissed by imposing compensatory cost on the complainant.  According to society, member of Housing society cannot be said to be a ‘consumer’.  O.P./Society further pleaded that complainant is quarrelsome person, he always complains to the society.  Society pleaded that society building in the said complex requires major repairs and they had appointed Architect and Engineer for carrying out major repairs.  After their estimate is submitted, action will be taken to carry out major repairs, but it was the complainant who was creating more problems than helping the society.  He filed another dispute in the Co-operative Court and O.P. society pleaded that this complaint is not maintainable and he should have approached Co-operative Court for redressal of his grievance. 

On the basis of affidavits and documents placed on record, forum below after hearing rival counsels was pleased to observe that there was deficiency of service on the part of the O.P. society and that complainant had spent some monies for repairs and still his flat was not seepage proof and, therefore, forum below allowed the complaint partly and directed society to immediately stop seepage in the flat of complainant by taking immediate steps of repairing the terrace portion covering the complainant’s flat.  Forum below also directed O.P. society to pay `30,000/- as compensation to the complainant and also `5000/- towards the cost.  Aggrieved by this order, complainant has filed Appeal no.429/2010 and society has filed Appeal no.504/2010.

We heard Mr.A.H.Desai-Advocate for the original O.P. and Mr.M.M.Waghmare-Advocate for the original complainant.

In the course of arguments, Advocate Mr.Waghmare as well as complainant in person fairly conceded before us that he had not filed affidavit of any mason or person through whom he got carried out repairs to his flat.  Complainant and his counsel also admitted that they had not produced before the forum below any bills to show that they had purchased certain materials and paid labour charges for carrying out repairs in question. Forum below after considering the case of the parties gave categorical finding that the complainant had failed to mention and prove the particulars of expenses incurred by him for carrying out the repairs to his flat.  Forum below categorically mentioned that though complainant had asserted that in 2006 he had spent `30,000/- in 2007 he has spent `35,000/- and in 2008 he has spent `38,000, the complainant has failed to adduce any evidence in this behalf.  When this is the finding of the District Consumer Disputes Redressal Forum, it is very surprising to note that forum below while allowing the complaint partly, directed O.P. to pay compensation of `30,000/- and pay cost of `5,000/- to the complainant.  When complainant had failed to establish that he had incurred so much expenses in the years 2006, 2007 & 2008, there was no question of granting any compensation to the complainant by allowing the complaint partly.  In the circumstances, upon hearing both the parties, we are finding that the appeal filed by the society will have to be allowed partly, so as to delete from the operative part of the impugned judgement para 4, whereby forum below awarded `30,000/- as compensation and `5000/- as cost.

At this stage, let us consider the case of the complainant who has filed Appeal no.429/2010.  Complainant has filed this appeal to get enhanced compensation or to claim compensation which has been negatived by the forum below.  While hearing both these appeals, we reiterate again that complainant and advocate clearly admitted that they had not adduced any evidence to show that complainant had spent `30,000/- in April 2006, `35,000/- in March 2007 and `38,000/- in April 2008.  In absence of any affidavit tendered in that behalf, it is not proper for any forum or for this Commission to allow the appeal for enhancement filed by the complainant because if there is no evidence, there is no case proved by the complainant.  In the instant case, complainant having failed to prove that he has spent so much amount for the last three years i.e.2006-2008, there is no question of granting enhanced compensation, which has been negatived rightly by the forum below. Appeal filed by the original complainant being no.429/2010 stands dismissed, while appeal filed by the original opponent being no.504/2010 stands partly allowed, just to delete clause no.4 of the operative order in toto.  In the circumstances, we pass following order:-

                                                ORDER

1.     Appeal filed by the original complainant being no.429/2010 stands dismissed, while appeal filed by the original opponent being no.504/2010 stands partly allowed and from operative order of the judgement of the forum below, we delete clause no.4 of the operative order in toto.

2.     Rest of the order of the forum below stands confirmed.

3.     Parties are left to bear their own costs.

4.     Amount deposited by the appellant/original opponent in A/504/10 be refunded back to the appellant.

5.     Copies of the order be furnished to the parties.