Chandigarh

DF-II

CC/563/2022

ABHISHEK MENGI - Complainant(s)

Versus

SMT. SONI PHOGAT - Opp.Party(s)

05 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	563/2022
Date of Institution	:	22.07.2022
Date of Decision	:	05.09.2023

 

                     

        

 

Abhishek Mengi s/o Sh.Virender Kumar Mengi r/o H.No.3413, Sector 47-D, Chandigarh -160047.

…..Complainant

Versus

 

Soni Phogat w/o Sh.Narender Pal Singh r/o H.No.K-384, Blcok K, Street No.6, Mahipalpur Exten., New Delhi-110037.

….Opposite Party

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI S.K.SARDANA	MEMBER
PRESENT:-
	Complainant in person. Ms.Jaspreet Kaur, Counsel for OP (Defence of OP struck off).

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The brief facts of the present complainant are that the complainant has filed the present complaint pleading that the OP is the owner of the flat at Vatika Lifestyle Homes, Flat No.W2-104 (2^nd Floor), Sector 83, Gurugram and he took the said flat for the period Nov.2019 to April, 2022. He moved into the said flat on 01.11.2019 and when he moved in the flat then already two tenants are living in the flat and he paid 1/3^rd share of the total rent and the flat maintenance charges until July, 2021. The two flatmates moved out of the flat in July, 2021 and he started paying full rent of Rs.12,000/- every month from August, 2021 to March, 2022 besides maintenance charges of Rs.6,000/-. The complainant has further averred that when he informed the OP that he was going to vacate the flat then the OP immediately visited the flat and demanded Rs.12,000/- towards whitewash and paint and Rs.12,000/- for wash basin replacement charges, Rs.2,500/- for bathroom kitchen cleaning and sanitation and Rs.2,000/- for replacement of bathroom’s lock. The owner directed the security guards of the society not to allow the complainant to take away his belongings until her permission. The complainant has further averred that he has no option but to pay Rs.7,000/- to the OP besides withholding security charges of Rs.12,000/-.  Alleging that the aforesaid acts of omission and commission on the part of the OP amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the Opposite Party to refund Rs.19,000/- along with compensation and litigation expenses.
2.     The defence of the OP was ordered to be struck off vide order dated 08.02.2023 on the ground that the written version was not filed within 45 days as per the principle of law laid down in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86.
3.     The complainant filed his affidavit and documents in support of their case.
4.     We have heard the complainant in person, Counsel for the OP and we have gone through the documents on record including written submissions.
5.     The main issue involved in the present complaint is that whether the complainant is a consumer of the OP or not?
6.     In order to find out answer to the above mentioned issue, it is important to discuss the following facts and circumstances of the present complaint.
7.     The complainant in his complaint has mentioned that the OP is the owner of the flat at Vatika Lifestyle Homes, Flat No.W2-104 (2^nd Floor), Sector 83, Gurugram and he took the said flat on rent for the period Nov.2019 to April, 2022. He moved into the said flat on 01.11.2019 and when he moved in the flat then already two tenants are living in the flat and he paid 1/3 share of the total rent and the flat maintenance charges until July, 2021. The two flatmates moved out of the flat in July, 2021 and he started paying full rent of Rs.12,000/- every month from August, 2021 to March, 2022 besides maintenance charges of Rs.6,000/-. However, the complainant neither mentioned the name and address of those other tenants nor impleaded them as parties in the present complaint. The complainant further alleged that when he informed the OP that he was going to vacate the flat then the OP immediately visited the flat and demanded Rs.12,000/- towards whitewash and paint and Rs.12,000/- for wash basin replacement charges, Rs.2,500/- for bathroom kitchen cleaning and sanitation and Rs.2,000/- for replacement of bathroom’s lock. The owner directed the security guards of the society not to allow the complainant to take away his belongings until her permission. The complainant has no option but to pay Rs.7,000/- to the OP besides withholding security charges of Rs.12,000/-.   As per the complainant, it amounts to deficiency in service on the part of OP and lastly he prayed to direct the OP to refund Rs.19,000/- along with compensation and litigation expenses.
8.     From the above mentioned facts, it is clear that the relation of the complainant and the OP is of the ‘tenant’ and ‘owner’ respectively and not the ‘consumer’ and ‘service provider’. The complainant has failed to place on record any agreement between the parties establishing relationship of ‘consumer’ and ‘service provider’. Moreover, the complainant is paying the maintenance charges for and on behalf of owner to the society i.e. Vatika Lifestyle Homes, Gurugram. It is made clear that the OP (owner of the flat) and the complainant (tenant) may be ‘consumer’ or ‘beneficiary consumer’ of the society i.e. Vatika Lifestyle Homes, Gurugram but it was not made a party in the present complaint. The complainant (tenant) may be beneficiary consumer qua society i.e. Lifestyle Homes, Gurugram but not qua its owner by any stretch of imagination.
9.     Moreover, the owner withhold the security amount of Rs.12,000/- of the complainant and charged Rs.7,000/- from him on account of wear and tear of the flat, which is generally termed as maintenance  of the flat i.e. on account of whitewash, washbasin replacement charges, bathroom kitchen cleaning and sanitation and replacement of lock of the door of the bathroom. However, these issues are issues of wear and tear of the flat and do not fall within the definition of service invoking jurisdiction of this Commission. 
10.     In the present case, the complainant has not placed on record any ‘agreement of terms and conditions’ between parties regarding maintenance.  Moreover, the ‘maintenance’ mentioned by the tenant is wear and tear of the flat and ‘not service’ as mentioned in the Consumer Protection Act, 1986/2019. 
11.     The Hon’ble Supreme Court of India in the case titled as Laxmiben Laxmichand Shah & Others v/s Sakerben Kanji Chandan & Others, (2001) 9 SCC 604 held that in the absence of terms for cleaning, repairing and maintenance of building by the landlord, the tenant cannot be said to be consumer so as to maintain claim for compensation against the landlord for omission to render the said services.
12.     Though the present complaint deserves to be dismissed with costs yet taking a lenient view, we do not impose any cost upon the complainant.
13.     Keeping view the facts and circumstances of the present case, the complaint being devoid of any merits stands dismissed.
14.     The pending application(s) if any, stands disposed of accordingly.
15.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced 05.09.2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (S.K.SARDANA) MEMBER