PRESENT

Complainant by Adv. Shri.R.M.Shetty present.

Opponent by Adv. Shri.A.M.Kadam present.

                         ORDER

( Per- Shri. S.Z. PAWAR, Hon’ble Member )

1. This is a complaint under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opponent here in referred to as ‘ the op’.

2. Brief facts of the case are that the op is a registered Co-operative housing society governed by the provisions of the Maharashtra Co-operative societies Act, 1960 and Rules 1961. The complainant is the member of the op housing society since 1997 and he is residing at flat No. A-11 which is on the top floor of the building A. In the year 2006-2007, the managing committee of the op society carried out the Water proofing Replastering and Paraphitt work and other civil work on the terrace through the company named as M.D. Construction. However, after completion of the work major water leakaging problem stated at the complainant’s residential flat. The complainant came to know through civil engineer, MMRDA that due to improper and sub standard work of water proofing and other civil work it was the said leakage problem. The complainant made several request to

the op to rectify the defects in the water proofing work but turned in futile. In spite of his legal notice through Adv. Mr. R.M. Shetty, the op by reply to the notice through Advocate refused to comply with the requisitions. Due to the negligent and lethargycal attitude of the op, the complainant suffered several loss. The complainant is going to incur for the carrying out the repair work Rs.2,62,000/-. Hence the complaint for the reliefs that 1. The op be directed to pay the amount of Rs.2,62,000/- to the complainant due to the reason of deficiency in service on the part of the op.

OR

That 2. direct the op to carry out the repair work at the complainant’s residential flat, that 3. The op be ordered to pay to the complainant Rs. 5,00,000/- ( Rupees five lakhs only ) toward mental agony, inconvenience and hardship caused to him and that 4. The op be directed to pay to the complainant Rs.1,00,000/-( Rupees one lakh only ) as and by way of legal expenses incurred by him.

3. The op, Sadguru A, Building Co-operative Society resisted the complaint by filing its written statement on 13.10.2015. The op has denied all of the allegations made by the complainant against it. The defense of the op, as it would reveal from it’s written statement , is that the complainant is defaulter in not paying the maintenance charges to the op and therefore the op filed an application under section 101 of Maharashtra Co-operative Society Act, for recovery of the dues and Hon’ble Deputy Registrar of the society has issued recovery certificate against the complainant. Hence the service rendered by the op society is free of cost i.e. the transaction in question was without any consideration and is free of any charges and as such is not service for the purpose of the Consumer Protection Act. The dispute involved in the complaint is not a consumer dispute and therefore this forum has no jurisdiction to entertain and adjudicate upon the dispute. Further the complaint is barred by limitation. Making out its defense as above, the op prayed for dismissal of the complaint.

4. Both the parties have led evidence by way of an affidavit to support their respective contentions. Their Advocate also filed written notes of argument. Their evidence and written notes of argument is in consonance with their respective contentions. We have also perused the documents filed by the parties on record.

5. Admittedly, the op is a registered co-operating housing society governed by the provisions of the Maharashtra Co-operative societies Act, 1960 and the Rules 1961 made there under. It is not in dispute that the complainant is the member of the op society since 1997. The complainant therefore is bound to pay the maintenance charges and the society has to render services to its member. Therefore if there is dispute between the member and the society in respect of the flat/apartment, it is well within purview of the provisions of the Consumer Protection Act. In the present case on our hand, there is dispute between the complainant and the op that there is leakage problem at the complainant’s residential flat No.A-11, which is on the top floor of the building A. Hence we hold that the complainant being member of the op society and there being leakage problem at the complainant’s residential flat, the complainant is consumer and the op is service provider since the op collects maintenance charges from its members including the complainant.

6. According to the complainant, the op society carried out water proofing, Replastering and civil work etc. on the terrace and the work carried out was substandard work and therefore leakage problem started. The op has denied that it was substandard work. However the fact stands on record that there is leakage problem at the complainant’s residential flat in the op society building A. Therefore we are of the considered view that the op society is bound to do repair work so as to stop the leakage . It can not avoid the repairing or water proofing work for the reason merely the complainant is defaulter in not paying the maintenance charges. The op can obtain recovery certificate from the Deputy Registrar of the societies or take action against the member or his flat/apartment as per provisions of the co-operative societies Act. We therefore find that there is deficiency in service on the part of the op.

7. Since the leakage problem is continuous cause of action , it can not be said that the present complaint is barred by limitation.

8. In the result, the complaint deserves to be allowed partly. Hence we proceed to pass the following order.

                                        ORDER

1. The consumer complaint No. 807/2014 is partly allowed.

2. The op, Sadguru A-Building Co-operative society is directed to carryout the repair work within 3 (Three )

months from the date of this order at the complainant’s residential flat No.A-11 so as to stop the leakage at the

complainant’s said flat which is on the top floor of the building A.

3. The op, Sadguru A-Building Co-operative society is directed to pay to the complainant within 2 months

from the date of this order of Rs. 5,000/- ( Rs. Five thousand only) towards mental agony

caused to him and Rs.5,000/-( Rs.Five thousand only) towards legal expenses incurred by him.

4. Copy of this order be sent to both the parties free of costs and without delay.