DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.835 of 2017
Date of institution: 06.10.2017
Date of decision : 22.02.2018
Krishan Kant, Plot 538, Ansal API Golf Links-1, Sector 114, SAS Nagar – 140307, Punjab.
…….Complainant
Versus
Star Facilities Management Limited, 1110, Ansal Bhawan, KG Marg, New Delhi 110001.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Harmanpreet Singh, cl. for the complainant.
OP Ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
As per case of complainant, OP entered into an agreement with complainant on 17.09.2013 for providing maintenance services. As per that agreement, maintenance charges to be paid by complainant, but the maintenance services to be provided by OP. Clause-14 of maintenance agreement casts obligation on OP as below:
“Obligation of SMFL
i. To provide general watch & ward services for the common areas.
ii. To provide drainage & sewerage connections to the main lines upon payment and its due upkeep and maintenance.
iii. To provide single connection for water supply to the unit.
iv. Common area lights including street lights and its maintenance and repairs.
v. General area lights including street lights and its maintenance and repairs.
vi. Maintenance & repairs of roads.
vii. Maintenance & repairs of underground water reservoir, overhead tanks and water supply distribution system including water procurement.
viii. Providing managerial, skilled, semi skilled and unskilled staff for smoothly carrying out the works mentioned as above either directly or through competent vendors.
ix. Cleaning of drains and berms.”
However, OP despite receipt of maintenance service fee of Rs.26,746/- provided the following deficient services:
a) Failure to maintain and repair roads. Re-carpeting of entire road is required. It is causing damage to plaintiffs vehicles in terms of wear and tear and also restricts access to complainants premises.
b) Failure to maintain common area lights including street lights. Lack of street lights specifically affects complainants security during night.
c) Failure to maintain proper drainage systems. Specifically during rains, rain water gets logged on to road in absence of proper sewerage and affects access to complainant premises.
d) Failure to maintain Park No.9 permitting to area. There are weeds all around park. Lack of lighting in park affects its use in evening.
e) Failure to properly collect garbage and dispose it off. Further there is no sweeping or cleaning of road and area surrounding complainants premises is performed.
f) Failure to maintain and/or repair water supply pipes. Water pipes gets burst frequently.
g) Failure to clean berms and vacant area surrounding it. Due to huge weeds on berms and in vacant area there are many snakes or other reptiles which affect well being of complainant. Workers hired by opposite party further defecate in the area.
h) Electricity wires have been left open on the ground with many joints near premises of complainant. This includes additional risk of electrocution of any individual especially during rains. Electricity distribution box is not properly fitted with a proper box.
i) Debris/malba created by developer is lying near premises of complainant is not being removed.
j) No footpath alongside road is being maintained and no plantation is done on footpath/berms.”
2. In the earlier complaint filed by complainant against developer Ansal Properties & Infrastructure Limited, Hon’ble State Consumer Disputes Redressal Commission, Chandigarh, granted liberty to complainant to initiate independent action against the maintenance company. This complaint filed after serving legal notice. Refund of paid amount of Rs.26,746/- claimed alongwith suspension of maintenance amount till OP does not start providing maintenance facilities, as per agreement. Compensation for mental harassment and agony of Rs.3.00 lakhs and litigation expenses of Rs.20,000/- more claimed. This Forum alleged to be having jurisdiction because cause of action has arisen in SAS Nagar where the site to be maintained as per agreement, is situate.
3. OP is exparte in this case.
4. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to C-4 and thereafter closed evidence.
5. Written arguments not submitted but oral arguments addressed by counsel for complainant.
6. Maintenance agreement dated 17.09.2013 signed by complainant as well as by representative of OP is produced on record as Ex.C-1. Perusal of this agreement reveals that OP is under obligation to provide the following services as per Clause-14:
i. To provide general watch & ward services for the common areas.
ii. To provide drainage & sewerage connections to the main lines upon payment and its due upkeep and maintenance.
iii. To provide single connection for water supply to the Unit.
iv. Common area lights including street lights and its maintenance & repairs.
v. General cleaning of the area including garbage collection and disposal.
vi. Maintenance & repair of roads.
vii. Maintenance & repairs of underground water reservoir, overhead tanks and water supply distribution system including water procurement.
viii. Providing managerial, skilled, semi skilled and unskilled staff for smoothly carrying out the works mentioned as above either directly or through competent vendors.
ix. Cleaning of drains and berms.
x. The buyer will get the DPC level layout approved by the project team of Ansal API/SFML before proceeding with further construction.
xi. Finished berms if damaged will be repaired/rectified to its original specification and finish or will be made good by the buyer. Mixing of mortar/concrete will not be done on the roads and on road berms.
xii. Construction material will not be stacked on the road or road berms. Adjacent plot may be used for the stacking of construction material with the consent of its owner and SFML.
xiii. The buyer will submit the following documents to SFML before commencing the construction:
- Copy of sanctioned building plan.
- Possession letter.
- Adjustable security deposit decided by SFML as a guarantee money towards timely payment of cost of water for construction purposes if provided and for clearance of malba if not done by the buyer.
xiv. The buyer will construct a covered water tank where the main supply of water will be given if available.
xv. The sewer line will be connected to the main sewer only after the occupant submits the ‘completion certificate’ issued by the competent authority.
xvi. The buyer will abide by the rules and regulations laid down by all the relevant government departments without any violation. The buyer will be liable for any penalties on account of any such violation.
xvii. The security staff will not be responsible for the loss of any material lying in the open at the construction site.
xviii. The buyer will construct the Rain harvesting system as per the law.”
7. Ex.C-3 gives details of receipts through which payment of Rs.28,756/- made by complainant to OP and photostat copies of these receipts enclosed with these details. Notice before filing the complaint was served on Ansal Properties & Infrastructure Limited as well as on present OP and a copy of the same is produced on record as Ex.C-4. Despite this notice, services regarding maintenance or repair of roads; of attaching of lights to street light poles; of cleaning of proper drainage system; of cleaning of area; of maintenance of berms; of cleanliness of construction material stacked by OP or anybody else or of maintenance of area including electricity wires or of footpaths or of water pipes not provided. Photograph depiction in this respect produced on record as Ex.C-2 in four pages. No rebuttal to this evidence adduced and as such it is obvious that OP failed to provide maintenance services despite accepting the maintenance charges of Rs.28,756/-. In case complainant to avail the services, then certainly he is not entitled for refund of paid maintenance service charges because the services to be provided by OP on chargeable basis and not otherwise. So either relief of refund of maintenance charges can be allowed or that of calling upon OP to provide maintenance services can be granted.
8. Copy of order dated 24.07.2017 passed in First Appeal No.548 of 2017 by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh (second additional bench) in case titled as Krishan Kant Vs. Ansal Properties & another, is produced on record to show that as possession of the plot was got by complainant from Ansal Properties & Infrastructures Limited in August, 2013 and that is why complaint filed for seeking direction to Ansal properties & Infrastructure was dismissed, but with the observation that right of seeking maintenance services in the project, being based on maintenance agreement, flows independently than that of buyers agreement. In Para No.4 of this order it was specifically found that in case present OP not maintaining the project as per maintenance agreement, then complainant can file independent complaint on the basis of maintenance agreement. So complaint now has been filed on the basis of rights flowing from the maintenance agreement in question. As deficient services are provided and as such complainant suffered mental tension and agony as well as harassment, due to which he is entitled for compensation for mental agony and harassment.
9. In case bearing complaint No.C-15 of 2015 titled as PNB Housing Finance Ltd. & Ors. Vs. Star Estates Management Ltd. decided on 22.10.2008 by Hon’ble State Consumer Disputes Redressal Commission, New Delhi it was held that payment regarding hire of car parking and maintenance charges is unfair trade practice and that is why the same was quashed. However, demand of maintenance charges put forth by OP in this case is not shown to be exorbitant or unjust and as such said demand of seeking maintenance charges cannot be quashed. However, as due maintenance services not provided and as such complainant entitled to compensation for mental harassment and agony as well as to litigation expenses. As list of providing deficient services is long as given through Para No.5 of affidavit Ex.CW-1/1 and as such sufficient time to OP for rendering due services required.
10. As a sequal of above discussion, complaint allowed exparte with directions that OP will maintain and repair the roads; maintain the common area roads including street lights; will maintain proper drainage system and the berms and will remove the construction material stacked and even clear the area as well as maintain the footpaths, water pipes/electricity wires within 100 days from date of receipt of certified copy of order. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. However, it is further ordered that complainant will keep on performing his obligation of paying maintenance charges regularly.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018.
Announced
February 22, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
