A.Z. Khwaja, Member (J)

1. Appellant Nos. 1 and 2 have preferred present appeal feeling aggrieved by the Judgement and Order dated 25/09/2018 passed by the learned Additional Mumbai Suburban District Consumer Commission, Bandra(E), Mumbai whereby the complaint filed by the appellants came to be dismissed.

2. Short facts leading to the filing of complaint may be narrated as under-Complainant No. 1 - Smt. Latika Prakash Chanderkar and complainant No. 2 - Prakash Laxman Chanderkar purchased Row Houses RH 5A and RH 5B. Complainants are the members of the opponent society namely Madhuban Cooperative Housing Society, Deonar. Complainants have contended that they were regularly paying the monthly service charges including repair and maintenance charges since beginning. Complainants have contended that in the month of March they noticed major leakages in the ceiling above kitchen, bathroom and WC and leakages in the slab of first and second floor. Complainants informed the same to the opponent society and opponent society had carried out waterproofing of all the other units in the colony at Deonar. Opponent did not carried out repairs of the leakages as well as waterproofing of row houses RH 5 A and RH 5B. Complainants have contended that they have sent notice on 02/03/2017 to the opponent. But the opponent did not act on the said notice and did not give any reply. So complainants have sent reminder on 02/04/2017. But still no action was taken. Complainants have sent reply dated 13/09/2017. But no action of carrying out of repairs or waterproofing of their row houses was taken. Complainants have alleged that by not carrying out repairs inspite of taking maintenance charges amounts to deficiency in service as well as unfair trade practice on the part of the opponent and so complainants were compelled to file the consumer complaint.

3. After filing of the complaint due notice was issued to the opponent. Opponent filed detailed written version. Opponent has admitted that complainant Nos. 1 and 2 were the members of the opponent society and had purchased Row Houses bearing Nos. RH 5A and RH 5B. Opponent has categorically denied that it has not carried out any repairs. Opponent has denied that there was deficiency in service on the part of the opponent. On the contrary opponent has taken a stand that since there were many complaints from the members about the leakages Opponent has carried out structural audit during December 2014 and process of caring out repair was in progress. Opponent has also contended that though the complainants were the members of the opponent society they were not in occupation and possession of the said premises and had rented out the same to the third parties since beginning. Opponent has also contended that occupants have got large number of plants on terrace and were pouring water on the plants, as a result of which, there were leakages. Opponent carried out structural audit from M/s. Sai Civil Works-Specialist in Civil Engineering. Opponent has contended that they are in process of carrying out repairs and it will be completed before monsoon. For the foregoing reasons, complaint is not tenable in law and deserves to be dismissed.

4. Thereafter, the learned Additional Mumbai Suburban District Consumer Commission, Bandra(E), Mumbai recorded evidence led by both the parties and gone through the documents as well as brief notes of written argument. Learned Additional District Consumer Commission, Mumbai Suburban District thereafter came to the conclusion that complaint was not tenable in law so dismissed the complaint by passing the impugned Order dated 25/09/2018 which is under challenge in the present appeal.

5. We have heard the complainants in person as well as learned Advocate for the opponent. We have gone through the documents filed on record by both the parties as well as written arguments. There is no dispute that the complainants were the members of Madhuban Cooperative Housing Society and were also the owners of Row Houses bearing No. RH 5A and RH 5B. Complainants have come with a specific case that they had come across major leakages in the ceiling above kitchen, bathrooms and WC and also noted leakages in the slab on the first floor and ceiling in the second floor. They had addressed letters to the opponent society, as the opponent society was under duty to carry out the repairs. There is no dispute that the complainants were paying maintenance charges regularly. It is the case of the complainants that though the opponent society had carried out repairs as well as waterproofing in other building opponent had not carried out any repairs in respect of the Row Houses and more particularly Row House Nos. RH 5A and RH5B owned by them. It is submitted on behalf of the appellants that the learned Additional District Consumer Commission, Mumbai Suburban District had not gone into the merits of the complaint and dismissed the complaint by giving erroneous findings. It is submitted on behalf of the appellants that the learned District Consumer Commission has not taken into consideration the fact that the Structural Audit was done much prior to the letters issued by the complainants who were the members of the opponent society. It is contended that the Structural Audit was conducted in the year 2014 by M/s. Sai Civil Works. But thereafter opponent society had not taken any step for fixing the leakages and also relating to the work of water proofing. In view of these submissions made by the appellants we have carefully gone through the record. Complainants have placed on record copies of letters addressed by the members to the society. On the other hand opponent/respondent has placed on record copy of the Structural Audit Report. If we carefully go through the report of Structural Audit the same shows about the leakages as claimed by the complainants. If we go through the written version filed by the opponent/respondent, opponent/respondent has taken a plea that the leakages have taken place as occupants have kept large number of plants on the terrace and were pouring water, due to which, there were heavy leakages in respect of the Row Houses owned by the complainants. During the course of argument, learned Advocate for the respondent has drawn our attention to the copies of photographs to show that there were plants on the terrace of the row houses owned by the complainants. But the appellants have strongly rebutted this contention and have submitted that this contention is devoid of substance as the leakages cannot take place because of plants which were kept on the terrace by the occupants. On the other hand appellants have contended that though the respondent/opponent was service provider and was under the obligation to carry out repairs and water proofing they have not done so and the learned District Consumer Commission has also not properly dealt with this aspect and has wrongly relied upon the Structural Audit Report conducted by M/s. Sai Civil Works in the year 2014. We have carefully gone through the letters sent by the complainant to the opponent from time to time as well as other documents and we find considerable force in the contention advanced by the appellants. We also find that the learned District Consumer Commission has referred to this aspect in para 12 of the Judgment but despite this has not given any direction to the opponent/respondent to carry out repairs as prayed and on the contrary has given a finding that there is no ground to give directions. But we feel that these findings cannot be sustained in law in view of the documents on record. Admittedly, complainant Nos. 1 and 2 were the members of the opponent society and when opponent society was duly formed, it was the bounden duty of the opponent society to carry out the repairs and also to take care of the proper maintenance of the row houses owned by the complainants. It is submitted on behalf of the respondent/opponent that the members were not occupying the Row Houses. But we feel that merely on this ground the respondent/opponent cannot shirk their responsibility of carrying out repairs nor it can be said that there was no cause of action to file the complaint. In view of the aforesaid facts, we are of the view that the findings given cannot be sustained and the impugned order dated 25/09/2018 passed by the learned Addl. Consumer Disputes Redressal Commission, Mumbai Suburban District in Consumer Complaint No. 134 of 2017 will have to be set aside.

6. In view of the aforesaid discussion, we feel that the necessary directions needs to be given by setting aside the impugned order and we pass the following order-

ORDER

1] Appeal is hereby allowed.

2] Impugned Order dated 25/09/2018 passed by the learned Addl. Consumer Disputes Redressal Commission, Mumbai Suburban District in consumer complaint No. 134 of 2017 is hereby set aside and the complaint No. 134 of 2017 is hereby partly allowed.

3] It is hereby declared that the opponent has committed deficiency in service as well as unfair trade practice.

4] Opponent- Madhuban Co-operative Housing Society Ltd. is hereby directed to carry out repairs and water proofing of the Row Houses bearing Nos. RH 5A and RH 5B within a period of 30 days and complete the same within another period of 30 days.

5] Opponent- Madhuban Co-operative Housing Society Ltd. is hereby directed to pay compensation in the sum of Rs. 50,000/- (Rupees fifty thousand only) and costs of Rs. 5,000/- (Rupees five thousand only) to the complainants within a period of 30 days from the date of passing of this order.

6] No order as to costs.

7] Copy of this order be supplied to both the parties.