1.      The present Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (the “Act”) against Order dated 08.09.2017, passed by the learned State Consumer Disputes Redressal Commission, Mumbai (‘State Commission’) in First Appeal No. 295/2014. In the impugned Order, the State Commission dismissed the appeal and upheld the Order of the District Consumer Disputes Redressal Forum, Mumbai Suburban District (‘District Forum’) dated 13.03.2014 in CC No. 73/2011.

2.      For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3.      Brief facts of the case, as per the complaint, are that they purchased flats 601 and 602 on the 6^th Floor of 'B' wing of 'Vinayak Ashish', Mulund (West), Mumbai, from OP and obtained possession on 02.09.2003 upon full payment. However, soon after possession was taken, the flats began leaking from all sides, causing significant damage to their furniture and fixtures. They immediately notified the OP, who verbally assured that the issue would be addressed. In the absence of response, they wrote several letters on 08.05.2005, 08.12.2005, 28.06.2006, 30.09.2006, and 24.03.2007, but to no avail. Subsequently, they obtained a report from M/s Silvel Impex Pvt. Ltd., a professional architect, dated 21.12.2007, confirming the defects. Since, the OP failed to rectify the issues, they filed this complaint, seeking damages of Rs.9,46,250 as determined by the architect, along with costs and compensation.

4.      In their written version, the OP contended that the possession of the flats was handed over in 2003, at which time they inspected the flats and after being satisfied with its condition, they took possession. OP denied having received any letters regarding leakage issues, claiming that the letters produced by them were fabricated. Upon receiving letter dated 18.04.2007, they had appointed architects to inspect their flats, but they had refused access. Additionally, the OP had contended that, after taking possession, the Complainant made major structural alterations, including removal of an internal load-bearing wall and the amalgamation of both flats without obtaining permission from either the OP or the Municipal Corporation. These unauthorized structural changes caused the leakage issues, which the OP had sought to verify through the appointed architects, but they refused inspection to conceal this fact. The OP had also asserted that no other flats in the building experienced any leakage and they could not be held responsible for the leakage in the flats in question, as it had been caused by their own actions. Also, the claim was barred by limitation, as possession was taken in 2003, and the leakage had allegedly been noticed the same year, yet the complaint had not been filed until 2008. Therefore, the complaint is liable to be dismissed.

5.      The learned District Forum vide Order dated 13.03.2014, allowed the complaint with the following reasons and directives:

“...On perusal of Section 24 (A) of Consumer Protection Act, 1986 it is seen that the complainant is required to file his complaint within 2 years from the date of cause of action. The record shows that both the complainants were put in possession of flat No. 601 & 602 by the opponent in 2003. The complainants are claiming that immediately after the purchase of flat they were facing the problem of leakages. The present complaint speaks about the problem of leakages and inferior quality of construction in the flat due to which the wall have developed cracks. ... The present complains has been filed within two years from 2006. The record shows that, in 2005 the complainants had brought to the notice of the opponent about the leakage problem. Since the complaint has been filed within two years from the 2006 by any stretch of imagination it cannot be said that complaint is barred by limitation. Therefore we decide point No. 1 in negative.

  Now coming to the point of deficiency of service on the part of opponent, the complainants are claiming deficiency of service on the part of opponent on two grounds, first the problem of heavy leakage and secondly low quality of construction of flat. In fact the problem of leakage is an outcome of low quality of construction of flat No. 601&602. Both, complainants and opponent in support of their pleadings have submitted on record the report of architect. The photographs of Flat No. 601 & 602 are also filed by architects appointed by complainants as well as opponents. The reports submitted by Silvel Impex though speaks about leakage in the ceiling of the flats said architect had not produced the photographs showing the leakage in the ceiling of the rooms. Silvel Impex has carried out inspection of suit flats on 21/12/2007 that is prior to the filing of the complaint. When it was the contention of the complainants that the leakage was in the ceiling it was expected on the part of Silvel Impex to produce the photographs of the ceiling. Said architect has given estimate for repairing of ceiling to the extent of Rs.1,28,250/-. However, the leakage is not supported by the photos. Even Silvel Impex has not produced the photos of the wall though it is the contention of the complainants that, the walls of the flat have developed crack in the year 2005.

  The report submitted by Shri Shrikant Hadke speaks about the cracks developed in the walls of Flat No. 601 & 602. However his report does not show any damage to the ceiling though his report shows that the problem of seepage was through cracks. The photographs produced by Shri Hadke shows the cracks to the walls of the flats. The estimate submitted by him also does not show any estimate for the repairing work of ceiling. Therefore, these two reports do not support each other in toto.

   Now, coming to the report submitted by H. Mehta & Associates first of all it is seen that, he was appointed as a Court Commissioner and he has carried out the inspection of flat in presence of complainants as well as opponent. Secondly for his appointment as a Court Commissioner even complainants did not object. Shri Mehta has also produced the photographs showing the cracks on the walls of flat No. 601 & 602. However he has opined that cracks are minor in nature except in tiles on toilet wall and kitchen. He has further opined that, by doing painting work and replacing the tiles in the toilet and kitchen and the problem will be solved. The total estimate for the said work suggested by him is Rs.64,000/- It is also important to note that the report submitted by Shri Mehta does not deny the contentions of the complainants about leakage in ceiling but he has opined that said leakage was up to 2005 when construction of 7^th floor was not completed. Since the construction of 7^th floor in 2005 was completed there is no leakage in the ceiling and there are only marks of leakages in the ceiling. The Commissioner has mentioned that complainants did not repaint the flat which is not disputed by the complainants. The most important point to note that architect Shri Mehta has negatived the case put forth by the opponent about the structural alteration carried out by the complainants in flat No. 601 & 602. Since H. Mehta & Associates is appointed as Court Commissioner by the Forum there is no reason to disbelieve his report.

  Therefore considering this position we are of the view that complainants have successfully prove about the deficiency of service on the part of opponent for providing low quality of construction in flat No. 601 & 602. However we are of the view that if the repairing as suggested by H. Mehta & Associates is carried out by opponent the problem will be solved. Therefore we are of the view that if the total estimate submitted by Shri H. Mehta & Associates plus for the problem of leakages till 2005 if opponent directed to pay Rs.1,00,000/- to the complainant, then no injustice will be caused to him. In addition to that for mental agony complainants are entitled to get compensation to the extend of Rs.40,000/- and Rs.15,000/- towards cost of litigation. Therefore we decide Point No. 2 in Affirmative and pass following order.

ORDER

1) Complaint is allowed.

2) It is hereby declared that opponent is indulged in deficiency of service by not providing quality construction to the complainants in respect of Flat No. 601 & 602

3) Opponents be directed to pay Rs.1,00,000/- towards compensation for low quality construction of Flat No. 601 & 602 and further directed to pay Rs.45,000/- towards compensation for mental agony with 10% Interest on it from the date of Complaint till the realization of amount.

4) Opponent is also directed to pay Rs.15,000/- towards cost of the complaint to the complainants and shall bear his own.”

6.      Being aggrieved by the said order, the OP filed FA No. 295/2014 and the State Commission vide Order dated 08.09.2017 dismissed the Appeal upholding the District Forum order, with following observations: -

“In this case, it appears that when complainants had taken possession of their flats at that time there was no construction of 7^th floor and hence there was leakage problem from the ceiling in the flats of the complainants. However, after construction of 7^th floor, leakage problem was stopped. However, till then complainants had to suffer for the leakage problem and hence for that purpose they are entitled to get damages from the opponent. On perusal of the order passed by the learned District Forum, it appears that cost of the repairs suggested by the Court Commissioner is of Rs.64,000 including other minor repairs. The learned District Forum had directed opponents to pay damages about the same of Rs.1,00,000 and further directed to give an amount of Rs.45,000 towards mental agony caused to the complainants. We are of the opinion that amount of compensation given by learned District Forum to the complainants appears to be reasonable. Under such circumstances, we are of the opinion that the learned District Forum has rightly considered that the opponent had given deficiency in service to the complainants and thereby awarded cost and compensation to the complainants. As the amount of compensation granted is reasonable, we are of the opinion that the appeal filed by the appellant/opponent be dismissed by confirming order passed by the leamed District Forum. Hence, we proceed to pass the following order.

** O R D E R **

1. Appeal stands dismissed. Appellant/opponent to give cost of Rs. 10,000/- (Rs Ten Thousand only)

to the Respondents/complainants.

2. Order passed by the learned District Forum in CC/11/73 decided on 13/03/2014 is hereby confirmed.

3. Certified copy of order be supplied to both the parties free of cost.”

7.      Dissatisfied by the Order of the State Commission, OP filed this Revision Petition before this Commission with the following prayer:

“a) call for the records of the First Appeal No.A/14/295 before the Maharashtra State Consumer Disputes Redressal Commission and upon perusal of the records, be pleased to set aside the impugned Judgment and final Order dated 08-09-2017 passed in FA A/14/295 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai and also the Judgment and Order dated 13-03-2014 in Complaint No.CC/73/ 2011 passed by the Additional Consumer Dispute Redressal Forum Mumbai Suburban District;

b) award costs of the proceedings in favour of Petitioner;

c) Pass such other/further orders/directions as may be deemed just and proper in the facts and circumstances of the case.”

8.    Learned Counsel for the Petitioner/OP reiterated the contentions in the written version and the grounds in the petition and asserted that the State Commission erred in holding that the claim is within the limitation period. The alleged water leakage in the flats began soon after possession was taken in September 2003, and the complaint, filed on 01.03.2008 was thus time-barred. The letter of 24.03.2007 did not give rise to a new cause of action. As per Section 7(2) of the Maharashtra Ownership of Flats Act, 1963, the defect liability of the complainant expired three years after possession, i.e., on or around 02.09.2006. There is no evidence, such as acknowledgements or postal receipts to prove that they sent the letters to OP. The letters, with identical page numbers and formatting, were most likely printed together at the time of filing the complaint to fabricate a false case. The Complainant did not approach the Court with clean hands. Moreover, the alleged letters were also not attached to the complaint filed through the Consumer's Guidance & Protection Society.

9.    The Complainant reiterated the facts of the complaint as initially presented, emphasizing the key elements and details that had been outlined in the original submission. He affirmed support for the findings of State Commission and District Forum, asserting that the conclusions drawn and the decisions made by the fora were correct and justified based on the evidence and arguments presented. In light of this, the Complainant requested that the Revision Petition be dismissed, arguing that the petition lacked merit and that the judgment of the State Commission should be upheld. He relied upon the case of Indore Development Authority v. Urmila Singh and Anr. (RP/1870/2013), decided by this Commission on 07.10.2022.

10.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for the parties.

11.    It is undisputed that both the complainants purchased Flat No. 601 & 602 in Vinayak Ashish Building and got the possession of both flats on 02.09.2003. The contention that several communications in writing made on 08.05.2005, 08.12.2005, 28.06.2006, 30.09.2006 and 24.03.2007 to the OP regarding leakage in flats by complainants was disputed. These documents and contentions of the parties were duly considered by the learned District Forum and the learned State Commission, and it was held that the complaint was filed within time. With respect limitation, the last letter was dated 24.03.2007 and the cause of action was a continuing one and the complaint was not barred by limitation. Moreover, the contention of the OP that the letter dated 24.03.2007 did not give rise to a new cause of action, in terms of Section 7(2) of the Maharashtra Ownership of Flats Act, 1963, is untenable as the Consumer Protection Act is a beneficial legislation and it is an established by plethora of judgments of Hon’ble Supreme Court that the same is in addition to and not in derogation of any other law. In the absence of anything substantial to the contrary, I am not inclined to interfere with the orders of both the fora in this regard.

12.    The main issue now to be determined is whether the OP was deficient in the services with respect to flats handed over to the Complainants. This issue revolves around the contention of the OP that the alleged leakage was due to reconstruction by the Complainants within the flat. We have also perused the report of the Commissioner appointed by the Court to ascertain the cause of the leakage. The report reveals that the demolition of the wall, which the OP claimed to be the cause of leakage, was done prior to handing over of the flats. The same has also been relied upon and the District Forum, after thoroughly considering the pleadings and evidence and passed a well-reasoned and detailed order. This was subsequently affirmed by the State Commission, which also issued a well-reasoned and detailed order, after reviewing the facts and evidence on record.

13.    As regards the scope of this Commission in a Revision Petition, Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. ((2011) 11 SCC 269) held that the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima material irregularity or jurisdictional error appearing in the impugned order.  Moreover, in Sunil Kumar Maity Vs. State Bank of India & Ors. (AIR (2022) SC 577) the Hon'ble Supreme Court held that:

"The revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity."

14.  In Rajiv Shukla V. Gold Rush Sales & Services Ltd., (CA No. 5928 of 2022), decided on 08.09.2022, Hon'ble Supreme Court held:

"In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order (Gold Rush Sales and Services Ltd. Vs. Rajiv Shukla, 2016 SCC Online NCDRC 702) the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under section 21 (b) of the Consumer Protection Act."

15.  The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. Therefore, award of Rs.45,000/- to the Complainant towards compensation for mental stress, over and above the component of interest already awarded is untenable.

16.    Based on the above discussions and on careful perusal of material on record, the appellant has not brought out anything substantial to interfere with the order of the learned District Forum dated 13.03.2014, except as regards award of compensation of Rs.45,000 towards mental  agony and harassment which is set aside as multiple components of compensation are disallowed. The Revision Petition No. 3753 of 2017 is accordingly disposed of.

17.    There shall be no order as to costs. All pending applications, if any, also stand disposed of accordingly.