*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-
Complainant in person
Advocate Unmesh Deshpande for the Opponent
*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-
Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 28th August 2013
This complaint is filed by consumer against the service provider for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are resident of Kothrud, Pune. Opponent is dealing in the profession of construction. Opponent agreed to develop the property bearing S.No. 77/2/14 situated at Kothrud which is belonging to the complainants. As per the agreement between the parties the Opponent agreed to pay Rs.6,00,000/- to the complainants and also agreed to provide two duplex flats each admeasuring 1600 sq.ft. which were worth Rs.14,40,000/-. Thus the total consideration for the said transaction was Rs.20,40,000/-. The Opponent has paid Rs.6,00,000/- to the complainants. After execution of the agreement the Opponent had started construction as per the agreement but did not deliver the possession of the said flats within 18 months. There was inordinate delay caused by the Opponent for delivery of the possession of the said flats. There were defects in the construction as the Opponent has not provided the M.S. grills for windows in the duplex units, wooden moulding for M.S. door frames was not provided, plaster of the stair case was not upto the mark, electric meter as well as overhead tank were not provided as per the agreement, fencing was also not provided as per the agreement. Hence complainants had required to complete the remaining construction at their own expenses. Hence complainants have filed present complaint. They have claimed compensation for deficiency in service, the amount which was spent by them for completing the construction. They have also asked relief such as completion certificate, formation of society and conveyance deed.
[2] Opponent resisted the complaint by filing written statement. The execution of agreement as well as contents of agreements is not disputed by the Opponent. But according to them the complainants have suppressed the material facts. They had faced various litigations in the Civil Court. One Shri. Tukaram Gholap had filed RCS No.830/2000 against them and hence the construction was prolonged. The Opponent had promptly obtained commencement certificate, permission for Non Agricultural use and started construction but as there was dispute as regards title and encroachment over the suit property the delay was caused for completing the construction. It is also contended that there was no specific agreement as regards provision of window moulding for MS door frames, cement plaster with neeru finish. They have agreed for only one overhead water tank and under ground water tank. They never agreed to provide compound wall. Separate electric meter is provided to the complainants. The construction has been carried out as per the sanction plan. The process as regards formation of association of apartment and conveyance deed is in progress. Opponent had connected the water line and sewage line to the respective lines of the duplex units which is in possession of the complainants. Opponent has prayed for dismissal of the complaint as there is no deficiency in service on their part.
[3] After scrutinizing the documentary evidence, written argument and pleadings of both parties following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainants have proved that Opponent has caused deficiency in service ? | In the affirmative |
2 | What order ? | Complaint is partly allowed |
Reasons
As to the Point Nos. 1 and 2-
[4] Admitted facts in the present proceeding are that the development agreement was executed in between the complainants and the Opponent and Opponent had agreed to provide duplex units to the complainants. The particulars as regards the facilities and amenities which were to be provided are referred in the schedule which is annexed alongwith the agreement. It reveals from the same that the Opponent had agreed to provide the windows alongwith M.S. grills. But it reveals from the photographs which are produced by the complainant that the Opponent has not provided M.S. grill for the windows. Opponent had also agreed to provide overhead and ground water storage tanks with pumping system for continuous water supply but failed to comply with the said agreement. The other amenities such as compound wall with chain link fencing were also agreed by the Opponent. But these were not provided and the complainants were required to spend expenses from their own pocket for fulfilling the terms and conditions of the agreement. The Xerox copies of bills as regards the expenses incurred for the construction of compound wall, installation of water tanks and for providing the other facilities are produced by the complainants and these are not seriously challenged by the Opponent. In such circumstances I held that the complainants are entitled to receive Rs.40,000/- for the cost of fencing around the units, Rs.35,000/- for the cost of providing M.S. grill to the windows, Rs.9000/- for separate overhead water tank, Rs.60,000/- for under ground water tank and pump.
[5] Complainants have asked compensation @ Rs. 10,000/- p.m. for 46 months i.e. Rs.9,20,000/- as there was delay in delivery of possession of the duplex units. But it reveals from the record that the delay in construction as well as delivery in possession was caused as the Civil Suit was pending between One Mr. Gholap and the Opponent on the count of title and encroachment over the property. In such circumstances I held that the construction was prevented due to legitimate reason which was beyond the control of the Opponent. Hence the complainants are not entitled for compensation for causing delay in delivery of possession.
[6] It reveals from the record that the Opponent has delivered the possession of the duplex units in incomplete status. The complainants were required to complete the construction at their own expenses and the Opponent had not abided the terms and conditions of the agreement. More over there is delay of possession of the said property. After considering all these factors I held that the complainants are entitled for compensation for mental agony and sufferings caused due to deficiency in service and they are entitled to receive Rs.25,000/- for the said purpose. Eventhough the Opponent agreed to provide separate MSEB meter and connection for the duplex units the said provision was not made by the opponent and for that purpose the complainant had required to spend Rs.58,090/-. Complainants are dragged in the Forum due to the acts of the Opponent hence they are entitled for the cost of litigation to the tune of Rs.3,000/-.
[7] The Opponent had contended that they had done the extra work and as the cost of that work was not paid by the complainants they are entitled to receive the same from the complainants. But there is no satisfactory evidence to that effect. Hence I held that the Opponent is not entitled for any set off or counter claim from the complainants.
[8] It reveals from the record that the Opponent has failed to execute conveyance deed as well as form association of apartment or society and that also amounts to deficiency in service.
I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent had caused deficiency in service by leaving the construction incomplete.
3. The Opponent is directed to pay lump sum compensation of Rs.2,27,090/- to the complainants within six weeks from the date of receipt of copy of order.
4. The Opponent is directed to pay costs of Rs.3,000/- to the complainants within six weeks from the date of receipt of copy of order.
5. The Opponent is directed to form association of apartment or society and execute conveyance deed to the complainants within six weeks from the date of receipt of copy of order.
6. Both parties are directed to collect the sets which are provided for the Hon’ble Member within one month from the date of Order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 28/08/2013
[S. M. Kumbhar] [V. P. Utpat]
Member President
