Tamil Nadu

North Chennai

CC/103/2017

Mr.Rajesh, V.Shah - Complainant(s)

Versus

The Branch Manager ICICI Bank Limited - Opp.Party(s)

k.Gunsekaran ,P.Karundarajan

29 Dec 2017

ORDER

                                                            Complaint presented on:  10.06.2016

                                                                Order pronounced on:  08.12.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

FRIDAY  THE 08^th DAY OF DECEMBER 2017

 

C.C.NO.103/2016

 

 

Ramesh Kumar Jain,

S/o Ganeshmalji,

Aged  55 years,

Residing at Flat No: 6032, TVH Lumbini Square,

127 A Brick Kiln Road,

Purasaiwalkam, Chennai – 600 007.

                                                                                    ….. Complainant

 

..Vs..

The President,

TVH Lumbini Square Owners Association,

Office: Ground Floor,

2^nd Block TVH Lumbini Square,

127 A Brick Kiln Road,

Purasaiwalkam,

Chennai – 600 007.

.....Opposite Party

Date of complaint                                 : 04.07.2016

Counsel for Complainant                      : Party in Person

Counsel for Opposite Party                      : M/s. Iyer & Thomas, H.Karthik

                                                                    Seshadri, Elizabeth Seshadri 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant seeking various reliefs with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased one apartment No.6032 located on the 6^th  floor of the 6^th  Block at the TVH Lumbini Square consisting of 435 residential apartments in that block. There are several blocks in the said TVH Lumbini Square was developed by true Value Homes India Private Limited. The said apartment was handed over to the complainant in the year 2011. The builder maintained the apartments initially for two years and thereafter it was handed over to the opposite party residence Association viz., TVH Lumbini Square Owners Association. The opposite party association was registered under Tamil Nadu Societies Registration Act, 1975 on 21.09.2011. The complainant is one of the member of the said association.

          2. As per the memorandum and Bye-laws, the opposite party to act and administer all common areas and provide amenities, to maintain and repair of common areas, facilities and services at the expenses of the members etc. The maintenance includes adequate and timely water supply, electricity and power back up cleanliness & conservancy etc.

          3. The opposite party is entitled to collect maintenance charges from the members with effect from February 2014. He also raised an invoice for payment of maintenance charges of Rs.14,100/- for the quarter commencing from  01.01.2014. The charges subsequently increased to Rs.19,011/-  and Rs. 22,199/- per quarter commencing from April 2016 to June 2016. The complainant paid all the demands till the quarter ending June 2016 without default. The complainant also deposited corpus fund of Rs.2,00,000/- which is not refundable.  Further in the General Body Meeting on 01.05.2013 it was resolved to collect a sum of Rs.10,000/- which shall be refundable in due course of time and the complainant also paid the said sum of Rs.10,000/- to the opposite party. The opposite party has taken over the maintenance of apartments from 01.02.2014. The builder started transferring the corpus funds and others to them.  The complainant was forced to pay the demand of Rs.10,000/- towards refundable capital levy with a late fee of Rs.15,400/- The collection of Rs.10,000/- is unwarranted when sufficient funds were available for maintaining the apartments.

          4. The opposite party brought on amendment to the Bye-laws to impose a penalty of Rs.100/- per day as late fee for delay in payment of maintenance charges. This amendment was not reported to the register of societies under section 12(3) of the act, 1975 to obtain their approval in their registers. Without following such a statutory provision the amendment is not valid and illegal. 

          5. During unprecedented flood in Chennai in the month of December 2015, the total power supply was dislocated and the opposite party mercilessly stopped backup power supply to the complainant’s apartment and made the complainant to live in utter darkness causing inconvenience to all family members and this has caused mental agony to them. Further the opposite party constantly displayed the complainant name on the notice board as defaulter and caused damaged among the other residents, inspite of that he had paid all the amounts. Having the opposite party committed the above deficiencies and hence, the complainant filed this complaint seeking various reliefs with cost of the complaint.     

6. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The complainant has allegedly claimed refund of 50% of the maintenance charges collected on quarterly basis from the complainant with effect from January 2015 from the date on which the services were denied till the date of restoration of the services and with consequential damages of Rs.5,00,000/- for adopting unfair practice without assigning any reason and such a complaint is not maintainable Under Section 26 of the Act, since the complaint is vexatious and frivolous in nature. The complainant is one of the disgruntled members of the opposite party’s Association. The intention of the complainant is mala-fide and has not come to this forum with clean hands. The complainant is one among other two or three such members who would not intend to allow the association to function peacefully.

          7. It is always understood that when there are group of people involved in any activities of Association, the majority members views are being considered, that is the reason for which the majority rule is being applied to bring solution to many problems. Admittedly the sum of Rs.10,000/- is refundable deposit but the same shall be refunded when the concerned member vacates his membership from the opposite party. Till such time the sum shall be retained by the opposite party for the welfare of the opposite party. All the members to the Association has paid the sum of Rs.10,000/- each. It is pertinent to note that there are totally 435 members in the association. The Association needs huge chunk of funds to maintain each and every flat and the common areas also. If the complainant has no mala-fide intention, he should have come forward to help the Association in getting all the funds collected. The Association is meant for the welfare of the members in the Association in which the complainant is also a member. The complainant is trying to enjoy all the amenities which are being provided by the Association to the members of the Association by claiming refund of the mandatory maintenance paid by her. It’s not only the complainant has paid, all the others have also paid. If there are any queries, he can very well get it clarified during the general body meetings that are held. The opposite party is functioning as a trustee for all the members of the Association. The opposite party cannot deal the issues which are being accepted by the majority of the members as all of them are contributing. The opposite party is working on the basis that in future there shall not be a short fall of funds in dealing with the issues for the members. There is no cause of action arose. The alleged dispute is internal in nature between the opposite party and complainant. There is no need for the complainant to invoke this Hon’ble Forum jurisdiction as the complainant shall not fall within the definition of the consumer. The opposite party is not functioning for the profit. It is an association registered under the Tamil Nadu Societies Registration Act, 1975. The alleged dispute is between the complainant and the opposite party which is internal in nature. There is no damage, loss or deficiency in service caused to the complainant. There is no material evidence to show that the complainant has suffered mental agony or deficiency in service.

8. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

9. POINT NO :1 

           The admitted facts are that the complainant purchased one apartment No.6032  located on the 6^th floor of the 6^th Block at the TVH Lumbini Square  consisting of 435 residential apartments in that block and  totally   several blocks  were developed  in the said TVH Lumbini Square and  the said apartment was handed over to the complainant in the year 2011 and the builder maintained the apartments initially for two years and thereafter it was handed over to the opposite party’s residence Association viz., TVH Lumbini Square Owners Association and the opposite party association was registered under the Tamil Nadu Societies Registration Act,1975 on 21.09.2011 and Ex.A3 is the registration certificate and Ex.A5 is the memorandum and Bye-laws of the association and  the complainant is one of the member in the opposite party’s  association.

          10. The complainant alleged the deficiencies against the opposite party is that, though he had paid maintenance charges for the period 2014 to 2016 under Ex.A8 receipts issued by the opposite party for the collection of charges that the opposite party committed the following:

1. Power backup  supply was  not given  when the  TNEB cut the electricity December 2015 when Chennai faced unprecedented rain to the complainant residence and  
2. The opposite party collected Rs.10,000/- as refundable amount without amendment made in the Bye-laws and also collected late fee of Rs.15,000/-

and hence the opposite party has committed deficiency in service.

          11. The opposite party would contend that the complainant is not a consumer, since the opposite party is only an association providing service to the members of association and  the association not doing business out of the funds collected from the members for  any profit or income for their service  and hence on this score alone the complaint is liable to be dismissed and apart from that the complainant has filed this complaint with malafide intention with false allegations  and therefore there is no materials to prove that this opposite party has committed deficiency in service and prays to dismiss the complaint with cost.

          12. Ex.A5 Memorandum and Bye-laws of association of the opposite party  empowering the association to collect maintenance charges from the members of the association i.e occupants of the apartments like complainant and also to maintain  and provide service to the complainant others  as clause (c) of Bye-laws such as to provide adequate, to maintain and repair of common areas, amenities, facilities and services, at the expense of its members, to include the following.

i.Adequate and timely water supply for drinking and washing purposes.

ii. Electricity and Power Back-up

iii. Sewerage system

iv. Cleanliness and conservancy

v. Security system/arrangements to protect the residents, common (area) property and Fire Fighting and Detection system

vi. Amenities

          13. It is an admitted fact that the opposite party agreed to provide service to the complainant for the maintenance charges paid by him. The opposite party also admitting to provide service to the occupants, since they were occupying various positions in the association.  The complainant is entitled for service from the opposite party. Merely because the opposite party is not doing any business out of the maintenance charges collected from the occupants for profit, it does not mean that they cannot be termed as a service provider. Here, in the name of association only charges are collected for providing service to the members on behalf of the association. The association is manned by the President, Secretary and other office bearers elected by the members of the association. Therefore, as per Bye-laws the opposite party association is bound to provide service to the complainant for the charges paid by him and hence it is held that the complainant is a Consumer.

          14. The complainant had paid quarterly maintenance charges for the period 2014 to 2016 under Ex.A8 receipts. Even on perusal of those receipts, it reveals that the quarterly maintenance charges were paid within the due date. Ex.A13 is the  minutes dated 28.09.2014 demanding the members to pay Rs.10,000/- as refundable deposit.  The opposite party also sent Ex.A15 mail dated 19.01.2015 that Rs.100 is applicable per day for payment of maintenance charges as late fee.  Due to pressure of the opposite party, the complainant  paid a sum of Rs.10,000/- towards  refundable advance and also paid Rs.15,400/- as late fee   under Ex.A17 receipt issued by the opposite party. 

15. It is an admitted case  of both the parties are that in the general body meeting resolution passed as per ExA.13 that the members  have to pay  the refundable deposit amount of Rs.10,000/-. When the said amount is refundable and the complainant admittedly paid a sum of Rs.2,00,000/- towards corpus fund, the collection of refundable deposit of Rs.10,000/- has no meaning at all.  Apart from that for payment of Rs.10,000/- the opposite party collected a sum of Rs.15,400/- as late fee that on the basis of Rs.100/- per day as late fee. The late fee collection was not amended in the Bye-laws as contended by the complainant and hence the collection of late fee of Rs.15,400/- is untenable. Therefore, the  opposite party collecting the refundable amount of Rs.10,000/- late fee as said above is deficiency on his part.

          16. The specific case of the complainant is that during December 2015 there was heavy rain in Chennai and power supply was dislocated and  power backup supply was not given  at his residence is  deficiency on the part of the association. This was not denied by the opposite party in his written version. Further during arguments the complainant submitted that after filing of the complainant the above services were restored to him. The power backup supply was not given to the complainant from December 2015. The complaint was filed in this Forum on 10.06.2016. Nearly for six months the complainant suffered without the above said services with his family members, inspite of that he had paid the maintenance charges regularly and hence in this respect also the opposite party also committed deficiency.

          17. Therefore from the forgoing discussions  that the opposite party without approval from the registration authority insisted to pay Rs.10,000/- towards refundable amount and further   collected a sum of Rs.15,400/- as late fee charges and  power backup  supply was not given to the complainant residence during  power cut proves that the opposite party committed   deficiency in service and unfair trade practice. 

18. POINT NO:2

          The complainant prayed to refund 50% of the maintenance charges from January 2015 onwards to till restoration of services with damages for adopting unfair trade practice and harassing him. Though the opposite party collected maintenance charges he neglected to provide power backup and other services to the complainant from December 2015 to till filing of the complaint nearly for six months. Therefore, ordering of refund of the maintenance charges is not sustainable. However, it would be appropriate to order compensation for deficiency in service committed by the opposite party is sustainable and accordingly the opposite party can be directed to pay a sum of Rs. 25,000/- towards compensation for the deficiency in service to the complainant. Further without authority the opposite party collected Rs.10,000/- refundable deposit and also collected Rs.15,400/- as late fee and hence the complainant is entitled to get refund of the afore said amount of Rs.10,000/- and Rs.15,400/- from the opposite party besides  a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for deficiency in service and mental agony and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards refundable deposit and Rs.15,400/- (Rupees fifteen thousand and four hundred only) towards late fee charges, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 08^th day of December 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 08.10.2010                   Sales Deed

Ex.A2 dated  25.08.2010                  Construction Agreement

Ex.A3 dated 29.10.2013                   Association Registration Certificate

Ex.A4 dated NIL                     Form VI filled by Association

Ex.A5 dated NIL                     Memorandum & Byelaws of Association

Ex.A6 dated 06.01.2014                   opposite party communication

Ex.A7 dated 08.01.2014                   opposite party communication

Ex.A8 dated NIL                     Payment Challan for 2014 – 2016 – Maintenance

                                                    charges  

 

Ex.A9 dated 01.05.2013                   Minutes of the General Body Meeting

Ex.A10  dated 25.08.2013      Minutes of the General Body Meeting

Ex.A11 dated 09.09.2013                 opposite party communication

Ex.A12 dated 07.08.2014                 Association Balance sheet as on 31.03.2014

Ex.A13 dated 28.09.2014                 Minutes of GB meeting held in Sept 2014

Ex.A14 dated 18.04.2016                 Registrar of Societies letter

Ex.A15 dated 19.01.2015                 opposite party communication

Ex.A16 dated 10.06.2015                 Letter to opposite party expressing dissent

 

Ex.A17 dated 12.06.2015                 Receipt for payment of 10,000/- capital levy and

                                                    late fee of Rs.15,400/-

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                                …….NIL ……

 

 

 

MEMBER – I                                                               PRESIDENT