28/10/2020 Delivery | Westlaw India

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Content Type: Cases
Title : B-1 Devadig Co-op. Housing Society Limited,
through Secretary, Mumbai v N. V. Deshpande
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Number of documents delivered: 1

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National Consumer Disputes Redressal Commission

NEW DELHI BENCH

7 December 2017

B-1 Devadig Co-op. Housing Society Limited, through Secretary, Mumbai

N. V. Deshpande

Case No : Revision Petition No. 2027 of 2017

Bench : Prem Narain (Presiding Member)

Citation : 2017 Indlaw NCDRC 998

The Order of the Court was as follows :

1. The present revision petition has been filed under Section 21(b) of the Consumer Protection
Act, 1986, whereby the petitioner seeks to assail the order dated 28.02.2017 passed by the
Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter referred to
as "the State Commission") in First Appeal No. FA/15/897. By way of the impugned order, the
appeal preferred against the order dated 03.03.2015 passed by the Consumer Disputes
Redressal Forum, Mumbai Suburban (hereinafter referred to as "the District Forum) in
Complaint No. 06/2013 has been dismissed and the order passed by the District Forum was
upheld.

2. Succinctly put, the facts of the case are that complainant is a member of the opposite party
Society and the owner of flat bearing No. 609 .The said flat is directly below the terrace of the
building. It has been alleged that due to the leakage from the terrace of the building and
seepage of water into the flat of the complainant, there has been tremendous loss to the flat
and household articles of the complainant. It was also the case of the complainant that despite
repeated requests, the opposite party Society failed to undertake repair works. Ultimately, the
complainant was compelled to undertake the repair woks at his own cost. Alleging deficiency in
service, the complainant was constrained to file a consumer complaint before the District
Forum.

3.

4. Upon service of notice, the opposite party Society contested the claim of the complainant on
the ground that the complainant made some permanent changes in the flat, which was the
reason for the water leakage. Thus, the complainant was solely responsible for the same. It
has been submitted that the opposite party Society has carried out repair work of the terrace
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of the building from time to time, however, since the building is around 30 years old, it is
beyond the control of the opposite party Society to stop the leakage. Denying allegations of
deficiency in service, the opposite party Society prayed that the complaint may be dismissed.
After hearing the parties and appreciating the evidence on record, the District Forum vide
order dated 03.03.2015 ordered as follows:-

"1. The complaint No.6/2013 is partly allowed.

2. The Forum declares that the Opposite Party has provided defective service to the
Complainant.

3. The Opposite Party is directed to repair terrace of the building in dispute and make it in
good condition within 3 months from the date of order at their own costs.

4. The Opposite Party shall pay compensation of Rs.50,000/- (Rupees Fifty Thousand only)
towards loss to the flat of the Complainant and for loss of household articles; and RS. 50,000
(Rupees Fifty Thousand only) as compensation for mental agony and Rs.10,000/- (Rupees Ten
Thousand only) towards cost of the complaint.

5. The Opposite Party shall implement the above Order within 30 days from the date of receipt
of Order. Otherwise they will be liable to pay an interest at the rate of 18% per cent per
annum on the amount mentioned in clause 4 of the Order from the date of filing of the
Complaint till the realization of the payment.

6. Both the Parties shall file before the Forum an Affidavit as per Circular dated 05/07/2014 of
Maha. Ayog Mumbai within 30 days from the date of receipt of the copy of the Order regarding
the compliance/non-compliance of the said Judicial Order".

5. Aggrieved, the opposite party Society preferred an appeal before the State Commission.

Vide order dated 28.02.2017, the State Commission dismissed the appeal with cost of Rs.
25,000/- payable to the complainant.

6. Aggrieved, the petitioner/opposite party Society has come before this Commission by way
of the present revision petition.

7. Heard the leaned counsel for the petitioner Society at the admission stage and perused the
records.

8. The learned counsel submitted that the impugned order is based on erroneous conclusion;
in this regard, it was further submitted that the fora below failed to appreciate that after the
petitioner Society had carried out the repair work of the entire building along with the terrace
water proofing in the year 2010-2011, no complaints were received from any of the members
having their flat below the terrace.

9.

10. The learned counsel stated that the respondent had carried out addition and alteration of
permanent nature in his own flat and therefore the major leakage problem occurred. In these
circumstances, the respondent is primarily responsible for seepage/leakage and the petitioner
Society cannot be held liable for the same. On these grounds, the learned counsel prayed that
notice may be issued to the respondent and matter may be decided on merits.

11. I have given a thoughtful consideration to the arguments advanced by the parties. In
response to the query put forth by the Bench at time of arguments concerning the
commencement of the repair works after the order of the District Forum, the learned Counsel
submitted that the repair work had already begun but the same had been temporarily put on
hold on account of the monsoon season in the area. The learned counsel further submitted
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that the work will resume after the monsoons. It is surprising to note that the
petitioner/opposite party, inspite of the order of the District Forum, did not complete the repair
work which, in my view, should have been taken with seriousness by the opposite party
because the flat owner is also a member of the society and the flat was getting bad to worse
due to continuing leakage and seepage.

12. It is also seen from the record that office has reported that there is a delay of 2 days in
filing the present revision petition, but no application for condonation of delay has been filed.
In this situation delay cannot be condoned. Hence, the present revision petition is barred by
limitation.

13. It is well settled in law that when facts of the case have been clearly established by both
the fora, the scope under the revision petition is very limited. The Hon'ble Supreme Court in
Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 2011
Indlaw SC 207, has observed:-

"Also, it is to be noted that the revisional powers of the National Commission are derived from
Section 21 (b) of the Act, under which the said power can be exercised only if there is some
prima facie jurisdictional error appearing in the impugned order, and only then, may the same
be set aside. In our considered opinion there was no jurisdictional error or miscarriage of
justice, which could have warranted the National Commission to have taken a different view
that what was taken by the two Forums. The decision of the National Commission rests not on
the basis of some legal principle that was ignored by the Courts below, but on a different (and
in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in
which revisional powers should be invoked. In this view of the matter, we are of the
considered opinion that that the jurisdiction conferred on the National Commission under
Section 21(b) of the Act has been transgressed. It was not a case where such a view could
have been taken, by setting aside the concurrent finding of two fora."

14. In Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. And
others, (2016) 8 Supreme Court Cases 286, the following has been observed:

"23. The National Commission has to exercise the jurisdiction vested in it only if the State
Commission or the District Forum has either failed to exercise their jurisdiction or exercised
when the same was not vested in them or exceeded their jurisdiction by acting illegally or with
material irregularity. In the instant case, the National Commission has certainly exceeded its
jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the
State Commission which is based upon valid and cogent reasons."

15.

16. From the above judgments of the Hon'ble Supreme Court, it is clear that in cases of
concurrent finding of facts by both the fora below, the scope under the revision petition is very
limited and it is restricted only to jurisdictional aspects. No jurisdictional aspect is involved in
the present revision petition. Also the facts cannot be reassessed at the stage of revision
petition in case of concurrent finding of facts by both the fora below.

17. Based on the above discussion, I do not find any illegality, material irregularity or
jurisdictional error in the order dated 28.02.2017 of the State Commission, which calls for any
interference from this Commission. Moreover, the revision petition is also barred by limitation.
Based on these reasons, the Revision Petition No.2027 of 2017 having no merit is dismissed at
the admission stage.

Revision dismissed

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