R.C. Chavan, President:
1. This appeal is directed against the order of the District Forum, Central Mumbai whereby the District Forum partly allowed the complaint No.35/2008 before it and directed the opponent/Society to pay to the complainant a sum of Rs.50,000/- towards repairs of the tenement and Rs.5,000/- towards cost.
2. Facts which are material for deciding this appeal are as under :-
The complainant owned a flat No.6 on second floor of the building of the appellant/Society which accommodates twelve members. There was some open land adjacent to the building. M/s.Suraj Estate Developers Pvt. Ltd. (âM/s.Suraj Developers in short) was to start some construction on the adjacent piece of land and for that construction activity; they had to utilize the open space of the appellant/Society. M/s.Suraj Developers had agreed to pay a sum of Rs.7,01,000/- towards usages of this open space. However, subsequently, M/s.Suraj Developers and the Society agreed that in lieu of payment of Rs.7,01,000/-, M/s.Suraj Developers would carry out necessary repairs to the appellant-building.
3. On behalf of M/s.Suraj Developers, one Span Construction started carrying out those repairs and the complainant had grievance that these repairs by Span Construction resulted in damage to the internal structure of the complainants flat. The complainant accordingly raised a grievance with the Society. The Society did not pay heed in spite of exchanging letters and notice. The complainant consulted a Structural Engineer, who stated that a sum of Rs.4 Lakhs would be required for carrying out repairs. The complainant sent Report to the Society, but the Society responded with false accusation, amongst other thing that the complainant prevented workers from entering into her flat. The complainant, therefore, filed a consumer complaint with the District Forum.
4. The appellant/Society filed a written version stating that the Society had not received any consideration from the complainant for carrying out repairs and therefore, the complainant was not a consumer. It was stated that the complainant was making a grievance about repairs which was allegedly due from 1989. In 1996, the complainant herself was stated to be President of the Society and at that time, expenses on repairs were assessed at Rs.21,550/- which she herself was to incur. It was stated that there was no damage caused to the complainants flat on account of repairs carried out by Span Construction. It was alleged that Members of the Society had in fact filed a case against the complainant in the Co-operative Court, which was decided against the complainant and against which an appeal is pending. Appellant stated that whenever repairs were required to be carried out through M/s.Suraj Developers, same were obstructed by the complainant and therefore, there was no deficiency in service.
5. After considering the material tendered before the District Forum, District Forum held that the Society was not responsible for carrying out all the repairs and that the Society was only bound to carry out repairs as per Circular dated 22/05/1996. District Forum found that the claim of Rs.4 Lakhs raised by the complainant was excessive and therefore, awarded a sum of Rs.50,000/- towards repairs to be carried out.
6. We have heard Mr.Uday Warunjikar, Advocate for the appellant and Mr.A.v. Patwardhan, Advocate for the respondent.
7. Learned Counsel for the appellant first submitted that as per averment in Para 4 of the complaint cause of action first arose on 24/06/1994 when M/s.Suraj Developers had agreed to pay Rs.7,01,000/- to the Society in lieu of which M/s.Suraj Developers ultimately agreed to carry out free repairs. He pointed that in Para 8 of the complaint, the complainant had stated that she raised grievance on 10/11/2001 in respect of damage to the interior of her flat which was replied by the Society on 17/01/2002 allegedly leveling unwarranted allegations against the complainant. Learned Counsel for the appellant therefore, submitted that the cause of action, if any, arose on 17/01/2002. The complaint itself filed on 11/04/2008 was thus, hopelessly barred by limitation. It was filed without seeking condonation of delay. Learned Counsel for the respondent on the other hand submitted that cause of action was continuing since complaint was in respect of repairs which were not carried out. He also pointed out that it had been consistent stand of the Society that the Society was ready to carry out repairs, but it was the complainant who obstructed. Thus, there was no repudiation of the application to carry out the repairs. Learned Counsel submitted that cause of action subsisted and had not crystallized and therefore, complaint was tenable. Though, in our view, ordinarily, the complainant should have approached the District Forum immediately on finding that repairs were not being carried out as desired by her and though the theory of continuing cause of action is tenuous, in spite of failure of the complainant to seek condonation of delay, we may not find fault with conclusion of the District Forum that the limitation had not expired, since it was open to the District Forum to condone the delay had such condonation been sought.
8. Learned Counsel for the appellant submitted that since there was no consideration which had passed from the complainant to the appellant/Society, the complainant could not claim to be a consumer in respect of services sought by her. He submitted that if the complainant claimed that by permitting M/s.Suraj Developers to keep the construction material on the vacant portion of the plot on which the appellant/Society stood, the complainant and other members of the Society were made to pass some consideration, still the service provider would not be the Society, but M/s.Suraj Developers or Span Construction who were supposed to carry out repairs in consideration of being permitted to store their construction material and so the Society would not become liable for providing service for which it had not received any consideration from the complainant. There is considerable force in the argument and we do not see as to how the Society would be liable to carry out repairs since it had not received any consideration from the complainant. Complainant may be a beneficiary qua M/s.Suraj Developers or Span Constructions, but not a consumer of the Society. Therefore, on this ground, District Forum ought to have dismissed the complaint.
9. Learned Counsel for the appellant next submitted that as per the Societys Bye-laws, particularly, Bye-law No.160, carrying out internal repairs were not the responsibility of the Society. He also pointed out that what the complainant had sought is the replacement of entire ceiling of Kitchen which Span Construction had declined to do as not being a part of the repairs which it was supposed to carry out. He also pointed out that the Society had written to the complainant on 24/06/2003 seeking co-operation of the complainant for carrying out repairs to the balcony ceiling. This letter mentioned that the Contractor would send his men to dismantle the structure and reconstruct and repair the balcony. It was also stated that proper shuttering would be done to cause the complainant the least convenience in the monsoon. Letter intended with a request to complainant not to refuse to accept the letter as had been done in past. Complainant seems to have received the letter and endorsed in her own hand asking the Society not to rush into starting any work in her south side balcony, bedroom and loft till she vacated the place. She also added that she had not agreed to anything âearlierâ as stated in the letter. It is thus, clear that it was not the Society which was not ready to carryout essential repairs, but it was the complainant herself who was preventing such repairs being carried out. In view of this, in fact, the District Forum should have seen that there was no deficiency in service as alleged by the complainant.
10. The contention of Learned Counsel of the appellant about failure of the complainant to prove the Report of the Structural Engineer need not be gone into since even the District Forum does not seems to have relied on the Report of the Structural Engineer.
11. To sum up, since there was no consideration which was passed on to the Society from the complainant, the complainant was not a consumer qua the appellant/Society. Secondly, repairs which the complainant was insisting on were in fact part of internal repairs which, Society was not bound to carry out. As far as external repairs are concerned, it was the complainant who prevented the Society from carrying out those repairs and therefore, it cannot be said that the Society had failed to provide the agreed service.
12. In view of foregoing reasons, we pass following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 31/08/2009 is set aside. Consequently, consumer complaint No.35/2008 stands dismissed.
2. Parties to bear their own costs.
3. Copies of the order be furnished to the parties.