Goa

South Goa

CC/8/2023

Mr. Swapnil Suresh Shirodkar - Complainant(s)

Versus

1.Mr. Francisco Xavier Vinod Dias & Ors. - Opp.Party(s)

Sahil Sardessai

20 Mar 2023

ORDER

 

                                                                     Complaint dt. 03/01/2023

                                                                                                                                             Decided on 20/03/2023

BEFORE THE DISTRCT CONSUMER DISPUTES REDRESSAL COMMISSION, SOUTH GOA AT MARGAO

 

Coram: Shri Sanjay Motiram Chodankar, President

               Smt. Nelly H. Pereira e D’ Silva, Member

               Shri Jayson Rodrigues, Member

 

 

                                                                                           Complaint No. 08/2023

 

Mr. Swapnil Suresh Shirodkar,

Aged 38 years,

R/o Flat No. GF/B, Ground Floor,

Dona Candita Building,

Kedgicato, Cuncolim,

Salcete - Goa.                                                                    … Complainant

Mobile No. 7796536546

 

             V/s

 

1) Mr. Francisco Xavier Vinod Dias,

     r/o H. No. 1636, Sanvorcotto,

    Cuncolim, Salcete - Goa.

   (Deleted as per Order dt. 21/02/2023)

 

2) Mrs. Azilia Fatima Vaz,

    H. No. 1141, Madicotto,

    Cuncolim, Salcete – Goa. (Builder)

 

     3) Filonio Vaz,

         H. No. 1141, Madicotto,

         Cuncolim, Salcete – Goa. (Builder)                              … Opposite Parties

 

 

Complainant present through Adv. Sanman Keny at the time of hearings, and arguments and Adv. Ramchandra Kamat at the time of passing Order  

 

O R D E R

 

(Mr. Sanjay Motiram Chodankar, President)

 

1. By this Order we shall dispose of this Complaint filed under Section 35 of Consumer Protection Act, 2019 at admission stage.

 

2. The case of the Complainant is that Opposite Party No.1 (OP1) [deleted vide Order dated 21.02.2023] is the owner of the Flat which is exactly above the Flat of the Complainant and Opposite Party No.2 (OP2) and Opposite party No.3 (OP3) are the builders of the property.

 

3. According to the Complainant, he has availed services from the OP Nos. 2 & 3 and purchased a Flat bearing No. GF/B situated on the Ground Floor of the said Dona Candita Building which Agreement of Sale deed is duly registered before the Sub Registrar of Salcete.

 

4. That the Complainant has always abided the rules and regulations of society which was temporarily formulated and maintained his flat regularly. That the said building is constructed in the property  KEDGICATO bearing survey No. 244/1(part) of Cuncolim within the limits of Cuncolim Municipal Council, Taluka Salcete, District South Goa.

 

5. That vide Deed of Lease dated 03.02.1998 the original lessee i.e. Talaulikar family got the lease with regards to the said property from the Sociedade Agricola Dos Gauncars De Cuncolim E Veroda for a period of 98 years, which lease Deed is registered with the Sub- Registrar of Salcete under Registered No. 365 at Pages 463 to 471 of Book No. I, Volume No. 815 dated 19/03/1998.

 

6. That by Agreement of Sale dated 29/10/2008 the said OPs have agreed to purchase part of said property admeasuring 2200 sq. mts., whereby the original lessees who are vendors, on certain terms and conditions mentioned in the Agreement for Sale and further the original lessee (Vendors) permitted the OPs (Developers) to develop the said property and to construct multi-storied building therein and to sell the built up area to prospective buyers.

 

7. The said Lease Deeds are registered before the Sub Registrar of Salcete, at Margao, as mentioned in Para 4(C) of the Complaint. That based on the said Agreement for Sale, the OPs constructed multi-storied building in the said property which comprising of Shops, Garage and Residential Flats and have named the project as DONA CANDITA. The Complainant agreed to purchase a Flat admeasuring an area of 85 sq. mts. in the building known as DONA CANDITA and thereafter entered into an Agreement for Construction and Sale of the Flat dated 25/08/2015 with the OPs. The copy of said Agreement for Construction and Sale is annexed to the Complaint.

 

8. The main grievance of the Complainant before us is that in the month of January 2022 he noticed that in the said Flat purchased by him, the waste water from the other toilets started soaking and entering in his flat through the roofs and walls, which caused damage to the construction and interior of the roofs and walls of the Complainant’s Flat, photographs of the same are annexed of the Complaint.

 

9. It is further stated by the Complainant that the said nuisance is being caused due to defects, deficiency, imperfections and lack of quality work on behalf of the OPs, thereby causing damage to the Complainant’s Flat. It is also the case of the Complainant that similar cases have occurred with other residents of the building. That in the month of December 2022, the OPs informed the Complainant that they are not responsible for the said repairs as they have already transferred the possession of the said Flat to the Complainant. The said amounts to deficiency in service on behalf of the OPs. That due to the said nuisance of soaking of waste water in the Flat of the Complainant, the Complainant’s parents have to suffer from tremendous health problems due to the bad smell and further may causes infection to his aged parents.

 

10. According to the Complainant at Para (12) ………..cause of action for filing the present complaint against the original OP arose on 21.04.2022 as the OP has failed to act in accordance with law and prayed that this complaint may be admitted and notice be issued to OPs.

 

11. That initially when the complaint was filed and the arguments were heard on the point of admission on 13/01/2023 through the Ld. Advocate Shri Sahil Sardesai for Complainant. The main grievance of the Complainant was against Mr. Francisco Xavier Vinod Dias (the Original OP1) who was deleted vide order dated 21.02.2023).

 

12. That when the matter was fixed for further arguments the said Ld. Adv. Sahil Sardesai withdrew his appearance and fresh Vakalatnama came to be filed by Ld. Adv. Sanman Keny and he also filed application for Amendment dt. 13/02/2023 (Exh. 13) and Application for production of documents dt. 25/02/2023 (Exh. 16). That both the applications were granted vide Order dt. 21/02/2023 and 27/02/2023 respectively.

 

13. That Para 4, 5 and prayers 1, 2 were deleted as per order dated 21.02.2023 and in their place a fresh amendment was carried out from Para 4 to 4(T), 5 to 5(C) and the original prayers at prayer 1 and 2 were deleted and in their place new prayers are added    from 1 to 2(A).

 

14. That the said Ld. Adv. Sanman Keny also filed written arguments and also argued orally on the point of admission.

 

15. As stated above basically the original complaint was filed against Mr. Francisco Xavier Vinod Dias and others and the main grievance was against Original OP No.1 Mr. Francisco Xavier Vinod Dias.  But after the said amendment it is seen that the entire nature of the complaint is changed and the main grievance and reliefs are sought against the present OPs i.e. OP No. 2 & 3, so also the cause of action as per Para (8) of complaint that due to serious health reasons and the father of Complainant was seriously affected, the Complainant filed a Complaint to the Health Department dated 20.01.2021 after which pre-inspection notice was issued on 15.02.2022. Copy of the said Complaint and inspection notice by Health Department dated 15.02.2022 are annexed to the Complaint.

 

16. The Health Department conducted inspection and on several occasions has given opportunities to the Original OP No.1 Mr. Francisco Xavier Vinod Dias to repair the scaling off due to seepage in Complainant’s flat as the same is causing tremendous health problems to the Complainant and his family. Furthermore the Health Department by letter dated 12.04.2022 informed the said Original OP No.1 to file a compliance report but he has failed to do so till date. Copy of the Inspection Report dated 23.02.2022 and letters dated 07.03.2021 and 12.04.2022 by Health Department are annexed to the Complaint.

 

17. We have heard at length the Ld. Adv. S. Keny for Complainant on point of admission and also perused the documents. That the Ld. Adv. S. Keny submitted that there is clear deficiency of services on the part of present OPs. That there is a leakage in the said Flat G/FB. It is seen from the records that before the amendment the allegations of the Complainant were against OP1 who was later deleted. After amendment the allegations remained the same but cause of action shifted against OPs 2 & 3 thereby changing the basic nature of the complaint which is not permissible in law.  

 

18. If we peruse the documents annexed to the Complaint at page 81, is a complaint from the Complainant dated 20.01.2022 addressed to the Health Officer, Bali Health Centre, where in the Complaint is made against Mr. Francisco Xavier Vinod Dias the original OP1 in the present complaint.  In the said complaint it is clearly mentioned at Para (2) that said Mr. Francisco Xavier Vinod Dias has given his said Flat on rent to some unknown people without even police intimation and the said unknown people have been creating nuisance to the Complainant and his family by releasing the waste water from their toilet, which soaks and enters in Complainant’s flat through the roof and walls, which amounts to damage to the construction and interiors of the roof and walls of said Flat.

 

19. Further it is stated in the complaint that the said waste water enters his Flat cause’s malodour (bad smell) and further causes infection to his aged parents and there is even possibility that his family will suffer from deadly disease due to fecal contamination. It is also mentioned that Complainant on many occasions tried to request the said Mr. Francisco Xavier Vinod Dias to evict the said tenant and repair his Flat so that further nuisance is not caused to him but the said Mr. Francisco Xavier Vinod Dias is not ready to do so. Accordingly requested the Primary Health Centre to conduct an inspection in both the Flats and to take immediate action against said Mr. Francisco Xavier Vinod Dias.

 

20. That on receipt of said Complaint, Primary Health Centre Bali -Goa issued pre-inspection notice dated 15.02.2022 which is at page (85) and date was fixed for site inspection on 23.02.2022. In the said report at page (86) observation written by Sanitary Inspector in the presence of parties  is as follows “It is been observed that the paint of the wall of Mr. Swapnil Shirodkar is digely shettard due to water proofing and leakage problem of upper flat of first floor of Mr. Francisco Xavier Vinod Dias.” Remarks in the said report are as under “The owner of the flat Mr. Francisco Xavier Vinod Dias is agree to repair.” The parties and the Sanitary Inspector signed the inspection report.

 

21. That by letter dated 07.03.2021, the Health Officer of Primary Health Centre, Balli - Goa issued letter to said Mr. Francisco Xavier Vinod Dias to do repair work and give the Compliance report at the earliest to his office of Primary Health Centre Balli - Goa.

 

22. At page (88) of complaint, is the Notice issued as per Section (2) of 22 of the Goa Public Health Act 1985 & Rules 1987, this is classified as nuisance, where in it is observed that the paint of walls of Swapnil Shirodkar is scalling off, the paint of walls due to seepage of sewerage problem of upper flat of Mr. Francisco Xavier Vinod Dias.

 

23. That short point for consideration is whether the Complainant is consumer under Consumer Protection Act, 2019 and whether there is any deficiency of service on the part of the present OPs No. 2 & 3. It is seen from the records and arguments advanced by the Ld. Advocate for the Complainant that as per the documents mentioned above, the Complainant’s grievance was against Mr. Francisco Xavier Vinod Dias and he has filed the said Complaint with Primary Health Centre Balli - Goa and notice was issued to him for causing nuisance as defined section (2) of 22 of the Goa Public Health Act 1985 & Rules 1987.

 

24. That as per the said notice dated 12.04.2022 in exercise of power vested in health officer under Section 40(1) of the aforesaid Act, he was served notice to abate the nuisance by taking such steps as may be necessary within a period of eight days from the receipt of said notice and send the compliance report of the same in writing to their office, failing which action deemed fit shall be initiated as per the provisions of “The Goa Public Health Act, 1985 & Rules 1987.”

 

25. Adv. for the Complainant was not able to explain to us and give status of the proceedings filed before the said Health Authority. That merely issue was pending before the said health authority does not permit the Complainant to file litigation on the same issue before another authority. If we see the grievance of the Complainant in his first Complaint addressed to the Primary Health Centre which is at page 81 it is a clear cut case of leakage of waste water from the upper flat of said Shri Francisco Xavier Vinod Dias, which cannot be termed as a consumer dispute/deficiency of service under the Consumer Protection Act, 2019.

 

26. There is no grievance against the present OPs No. 2 & 3 in the said documents annexed to the Complaint. The documents produced by the Complainant with the complaint establishes beyond doubt, that it is not Consumer Dispute between the parties but it is nuisance under “The Goa Public Health Act, 1985 & Rules 1987.”

 

27. In view of above discussion, we find that Complainant has failed to make out Prima Facie case for admission and also to show that there is deficiency in service on the part of OPs and the subject matter falls under the Consumer Protection Act 2019.

 

28. Consequently, we hereby dismiss the above Complaint at the admission stage and considering the facts and circumstances, no order as to cost.

 

Pronounced in open court, proceeding closed.

 

 

                                                                                                                              (Mr. Sanjay Motiram Chodankar)

                                                                                                                                                  President

 

 

                                                                                                                      (Ms. Nelly H. Pereira e D’ Silva)

                                                                                                                                                   Member

 

 

                                                                                                                                         (Mr. Jayson Rodrigues)

                                                                                                                                                       Member