Tamil Nadu

North Chennai

CC/104/2016

Aasheesh Bagri - Complainant(s)

Versus

TVH Lumbini square Owners Association - Opp.Party(s)

Party In Person

08 Dec 2017

ORDER

 

                                                            Complaint presented on:  20.05.2016

                                                                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.104/2016

 

 

Aasheesh Bagri,

Flat No: 1051, 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                                 : 05.07.2016

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.1051 located on the 5^th  floor of the 1^st 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 19.09.2009. 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 the 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.10,188/- for the quarter commencing from  01.01.2014. The charges subsequently increased to Rs.12,226/- per quarter commencing from July 2014 and again to Rs.14,009/- per quarter commencing from October 2014. The complainant paid all the demands till the quarter ending June 2016 without default.

          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.The complainant regularly paid the quarterly maintenance charges without any default. However, the cleaning staff not picked up garbage in the complainant    residence and further stopped supply of power backup during the break down of TNEB supply.  Further  during December 2015, when Chennai experienced  unprecedented  rain the total power supply was stopped and that time also the backup power was not given to the complainant flat. Hence the complainant wanted an amicable solution, he requested the opposite party for a personal discussion by writing a letter dated 01.12.2015 and a remainder dated 18.01.2016 and such letter were not replied by the opposite party. Due to such activities, the opposite party forced this complaint to file this complaint.  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.1051  located on the 5^th  floor of the 1^st Block at the TVH Lumbini Square  consisting of 435 residential apartments in that block and  totally   several  blocks  were developed   by true Value Homes India Private Limited in the said TVH Lumbini Square and  the said apartment was handed over to the complainant in 19.09.2009 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.A4 is the Bye-laws  of the opposite party’s association and  the complainant is one of the member in the said  association.

          10. The complainant alleged the deficiencies against the opposite party is that, though he had paid maintenance charges for the period 01.01.2014 to 2016 under Ex.A8 to Ex.A12 receipts issued by the opposite party for the collection of charges. The deficiencies are  

1. Power backup was  not given  whenever TNEB cut the electricity and also during December 2015 when Chennai faced unprecedented rain and electricity was cut, the opposite party has not given power backup supply to the complainant residence and  
2. Garbage was not collected in his residence

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.A4 Bye-laws of association of the opposite party  empowering the association to collect maintenance charges from the members of the association i.e  the occupants of the apartments like complainant and also to maintain  and provide service to the complainant  and others  as  per 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 members, 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 members 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 from 01.01.2014 till June 2016 under Ex.A8 to Ex.A12 receipts. Even on perusal of those receipts, it reveals that the quarterly maintenance charges were paid within the due date without any default. The opposite party had not filed any documents on his behalf to prove that the complainant has  not committed default in payment of maintenance charges.

15. Further on perusal of receipts issued by the opposite party establishes that the quarterly maintenance charges were paid by the complainant within the due date. Therefore, it is held that the complainant has not committed any default in payment of maintenance charges.

          16. The opposite party issued Ex.A20 communication to the members that the late fee of Rs.100/- applicable per day from 10.11.2014 towards maintenance charges and if charges are not paid garbage will not be collected, power backup will be cut, and electrical and plumbing service will be barred. The opposite party association has registered Byelaws and they have to act according to it. The Byelaws do not provide for collection of late fee of Rs.100/- per day. The opposite party’s case would be that the late fee charge of Rs.100/- per day is an amendment to their Bye-laws. The complainant would contend that the same was not brought to the knowledge of the registration authorities to amend the Byelaws and till date it was not amended and hence the opposite party has no right collect late fee charges. As rightly contented by the complainant, no amendment was brought in the Bye-laws to collect late fee charges and hence the opposite party insisted the members to pay late fee charges are deficiency on his part.

          17. The specific case of the complainant is that during December 2015 there was heavy rain in Chennai and power supply was dislocated  and further some time also the power supply was disconnected and garbage was  also not collected 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.

          18. Therefore from the forgoing discussions  that the opposite party without approval from the registration authority insisted to pay Rs.100/- per day  as late fee charges and  also barred collection of  garbage at his residence and  power backup supply was not given  to him  proves that the opposite party committed   deficiency in service and  unfair trade practice. 

19. POINT NO:2

          The complainant prayed to refund 50% of the maintenance charges from January 2015 to till restoration of services with damages for adopting unfair trade practice and harassing him. Though the opposite party collected maintenance charges, the opposite party  neglected to provide power backup and  failed to collect garbage  at the residence of the  complainant during  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 and also to pay 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, 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 31.08.2007                   Sales Deed

Ex.A2 dated  August 2016      Construction Agreement

Ex.A3 dated NIL                     Supplementary Agreement

Ex.A4 dated NIL                     By - laws

Ex.A5 dated 19.12.2013                   Association Communication

Ex.A6 dated 06.01.2014                   Association Communication

Ex.A7 dated 08.01.2014                   Association communication

Ex.A8 dated 05.02.2014                   Invoice No.013 for Rs.10188

Ex.A9 dated 27.02.2014                   Payment Challan dated

Ex.A10  dated 21.07.2014      Invoice No.452 for Rs.12226/-

Ex.A11 dated 07.11.2014                 Payment Challan for Rs.14009/-

Ex.A12 dated 08.04.2016                 Payment Challan  for Rs.14009/-

Ex.A13 dated 28.04.2014                 Opposite party Mail-Demand for payment for

                                                    Deposit

 

Ex.A14 dated 30.04.2014                 Reply Mail to opposite party

Ex.A15 dated 23.07.2014                 Remainder Mail to opposite party

Ex.A16 dated 21.07.2014                 opposite party reply

 

Ex.A17 dated 23.09.2014                 Mail to the opposite party

 

Ex.A18 dated 31.10.2014                 Mail to the opposite party

 

Ex.A19 dated 01.12.2015                 Notice under Article 12.9 (A) of By-Laws to

                                                   Opposite party

 

Ex.A20 dated 18.01.2016                 Remainder to the notice to opposite party

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                                …….NIL ……

 

 

 

MEMBER – I                                                               PRESIDENT