BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.668 of 2014
Date of institution: 21.11.2014
Date of Decision: 03.07.2015
Raja Mittal son of Dharam Pal Mittal resident of Flat No.705, 7th Floor, Block-F, Aero Homes, Village Gazipur Zirakpur, Punjab.
……..Complainant
Versus
Aero Homes, Village Gazipur Zirakpur, Punjab through its Managing Director.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Vishal Aggarwal, counsel for the complainant.
Shri P.S. Bassi, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant filed the present complaint pleading that he entered into an agreement with the OP for buying apartment No.705 in Tower-F in Aroma Homes, Zirakpur for a sum of approximately Rs.43,50,000/- to be paid as per payment plan with an assurance by the OP that it would be delivered on or before 30.07.2013. The OP promised high standard apartment with excellent structure and best quality fittings (jaguar quality). The OP delayed possession and delivered it to him on September, 2013 instead of June, 2013. Moreover the work of fittings for the installation of geyser and wall papers etc. is still pending. The flat/apartment of the complainant is not park facing as promised by the OP. The OP did not provide car parking despite charging for it. When the complainant shifted in the flat/apartment then the complainant had to spend Rs.2.00 lacs on renovation of kitchen and Rs.1.00 lac on cup boards. Further there was leakage/seepage all over the house due to which paint of the house as well as cup board and furniture got spoiled. The complainant brought to the notice of the OP about the poor workmanship and the poor quality material used by the OP. The complainant also sent legal notice to the OP regarding it but it was of no use. The complainant got a report regarding this from an expert i.e. a Registered Architect Shri Vishal Dhiman who carried out the survey of entire apartment and has assessed the loss as Rs.3,42,500/-. The OP had charged Rs.40,000/- from the complainant for providing the club house and various other facilities but did not construct the same. On the top list of the worst part is that the OP has not got NOC from Govt. and accordingly the OP is not getting the sale deed of it in favour of the complainant. Further the OP did not provide garbage ducts despite promise of it. The above mentioned act and conduct of the OP is not only painful and mentally disturbing but also breach of belief and trust causing undue mental tension and harassment to the complainant for which he deserves to be compensated by the OP.
Lastly the complainant prayed for following compensation of:
(i) Rs.4.50 lacs alongwith interest @ 18% on account of damages caused to wooden floor, modular kitchen cabin, wall drops, furniture and furnishing etc.
(ii) amount of Rs.4.40 lacs alongwith interest @ 18% per annum for not providing park facing apartment to the complainant;
(iii) Rs.2.20 lacs for not providing garbage ducts;
(iv) Rs.1.00 lac on account of mental agony and harassment;
(v) Rs.25,000/- as litigation expenses;
(vi) penal cost of Rs.1.00 lac for work and conduct of the OP.
Further the complainant sought following direction by this Forum to the OP:
(i) to pay the penal charges as stipulated in the agreement till the date the OP get the sale deed in favour of the complainant.
(ii) to carry out necessary repairs to stop leakage and seepage in the walls;
(iii) to provide geysers as promised
(iv) any other direction which this Forum may deem fit.
2. After the service of the notice, the OP filed written version taking preliminary objections that the complaint is not maintainable in the present form; complainant is guilty of suppression of material facts; complaint is not maintainable as per arbitration clause 14 (b) of the agreement; this Forum has no pecuniary jurisdiction. On merits also the OP denied all the allegations made by the complainant against it and lastly prayed for the dismissal of the complaint with special cost.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-14.
4. To rebut the allegations of the complainant, the OP tendered the affidavit of Nitin Bansal, its Partner Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-6.
5. We have heard learned counsel for the parties and have also carefully gone through the case file and written arguments filed by them.
6. Since the complainant has purchased the apartment in question by paying agreed consideration, therefore, the complainant is a consumer. As per buyers agreement the OP has taken some obligation on itself to handover the possession to the complainant within agreed stipulated period and further handover the possession of the property in a defect free condition with the inherent assurance of defect free possession and, therefore, the OP is a service provider. The grievance of the complainant is that despite having paid the full amount of agreed consideration for a defect free property, the complainant has found certain latent defects and has raised these issues with the OP regarding some pending work in the flat vide his e-mail dated 16.03.2014 followed by another e-mail dated 25.05.2014 Ex.C-4 and the pending work raised in these e-mails have not been taken care of by the OP. Finally the complainant had got the valuation of the damages, material furniture and furnishing of his flat from the registered Architect who has assessed the total loss at Rs.3,42,500/- to his property. Therefore, the complainant has sought the compensation on account of damage and defects in property which has remained unattended by the OP. Besides the said assessed loss of Rs.3,42,500/- the complainant has also sought refund of Rs.40,000/- paid as advance for club house facility which is non existence, against the promised facing park flat only the corner flat has been allotted to him, parking fee has been paid but no parking has been earmarked for him, there is considerable delay of one year in handing over the possession against the promised date of possession. Since all these grievances of the complainant has not been addressed by the OP, therefore, a dispute has arisen between the complainant and the service provider, hence present complaint.
7. The first grievance of the complainant is that the property in question is having poor workmanship and poor quality of material has been used which he has observed, once he has started using the property in question. The complainant has brought those shortfalls into the notice of the OP vide his e-mail Ex.C-4 wherein he has listed out the following pending and incomplete works:
(a) Pending of our July 2013 rentals of 15 days plz. Deposit/this rental is clear from our last meeting with Mr. Nitin Bansal.
(b) Wooden flooring is not fitted properly.
(c) Some tiles are broken.
(d) Wall papers are pending.
(e) Geysers are pending.
(f) Wall Putt and paint work is doing rough.
(g) Water problem is very much. Water is not in good quality.”
8. Since the OP has not taken any corrective steps to remove the defects and redress the grievance of the complainant, the complainant of his own has got the valuation of the incomplete or defective work done of his flat from registered Architect Shri Vishal Dhiman who has given his assessment report dated 07.11.2014 Ex.C-7. The perusal of the report shows that in order to remove all the defects and deficiencies in the flat, the complainant has to bear an expenditure of Rs.3,42,500/-. The perusal of the record shows that the author of the report Architect Vishal Dhiman has not proved his report as a witness before this Forum as no evidence by way of affidavit of Shri Vishal Dhiman has been produced. Therefore, the assessment report Ex.C-7 is of no help to the complainant to show that the defects are still in place. Further the complainant has tried to prove the defects still being in existence from photographs Ex.C-5 (Colly). The perusal of the photographs does not lead us to the conclusion that they belong to the flat in question. Therefore, in the absence of any specific number and description of the flat i.e. the property in question having been shown in the photographs, these photographs cannot be taken into consideration a credible piece of evidence to prove the grievance of the complainant against the OP. On this account, the complainant has failed to prove his grievance against the OP.
9. The another grievance of the complainant that he has paid Rs.40,000/- to the OP for availing the club facility and the facility is not in existence. In order to redress the said grievance, it will be appropriate to scan through the evidence of the complainant to prove the payment of Rs.40,000/- by the complainant to the OP. The complainant has not shown any receipt of Rs.40,000/- issued by the OP or any other document to show the payment of Rs.40,000/- for availing the club facility from the OP. Further the complainant has not produced any further evidence to show the non existence of club facility except a copy of the minutes of the meeting held on 11.09.2013 Ex.C-10 by the Executive Officer, Municipal Council, Zirakpur and the flat owners to show that the OP has not provided the club house and other basic facilities. The perusal of the minutes shows that the Executive Officer had directed the OP to submit the time frame schedule for completion of the pending works of the flat owners. The said report was asked by Executive Officer within one week. As per the complainant the club house facility is still not in place despite the complainant has sent another reminder to the E.O. on 26.09.2014. As per the OP in its reply Para 22 (iii) the club house and other facilities are to be provided after 50% occupancy as agreed in the agreement dated 22.05.2012. We have perused Ex.C-1 buyers agreement dated 22.05.2012 duly signed between the parties. Clause 2 (k) deals with club membership registration charges and 2 (l) regarding the operation of the club. The contention of the OP in this regard is well founded because as per the agreement clause 2 (l) the club shall be in operation after minimum 50% occupancy of the project. The complainant has not shown on record that despite 50% occupancy the club is not in operation. The onus is on the complainant to show deficiency in this regard on the part of the OP and the complainant has failed to discharge the onus. However, the complainant has shown the duly approved site plan by the Municipal authorities to show that the OP has not even earmarked the club house in the approved site plan. Perusal of Ex.C-9 shows that it is a proposed site plan. In its reply in para 16 the OP has taken a categoric stand that the plan has been submitted to the Municipal Committee and approval of the same is awaited. Thus, on the basis of respective stand of the parties, it cannot be inferred that there is no provision of the club house in the site plan and once the site plan is approved then the condition of operation of the club house of 50% occupancy will come into operation. Therefore, as on now we do not find any deficiency in service on the part of the OP. Hence, on this also the grievance of the complainant is not maintainable.
10. The next grievance of the complainant that he was promised the flat facing park whereas he has been allotted the corner flat. Thus, the act of the OP is an act of deficiency in service. In order to prove the grievance the complainant has not produced the brochure from where the inference of promise of allotment of park facing can be drawn. However, we have perused buyers agreement Ex.C-1 and on internal Page-3 the description of the property has been mentioned as follows:
“That the developer agrees to sell on to the purchase and the purchase agrees to purchase apartment No.705 on 7th Floor in Tower-F having super area of approximately 1760 sq. ft.”
Therefore, the perusal of above contents reveals that the OP has never promised to sell the park facing flat to the complainant and the grievance of the complainant is not maintainable on this ground.
11. The next grievance of the complainant is that despite having paid for the parking facility no parking facility has been provided to him by the OP. In order to prove the charges having been paid on this account no document has been produced. Thus in the absence of any receipt issued by the OP in lieu of the payment of parking charges charged from the complainant or any other document showing the payment of parking charges by the complainant , we are unable to appreciate the fact whether it was a paid service or not. However, the OP in its evidence vide Ex.OP-1 has shown that the specific parking space has been earmarked in the parking lot for F-705 i.e. the flat of the complainant and we are in full agreement with the contention of the OP. Therefore, the complainant has paid to prove his grievance in this regard.
12. The next grievance of the complainant is that there is delay of six months beyond the agreed date in handing over the possession of the property and as per the agreed terms the complainant is entitled to compensation of Rs.30,000/- per month for the delayed possession from the agreed date till the actual handing over of the possession. Perusal of Clause 4 (a) i.e. the delivery of possession the buyers agreement Ex.C-1 shows that the OP has proposed to deliver the possession to the purchaser by 30.06.2013 subject to force majeure failing which the OP is obliged to pay a penalty of Rs.5/- per sq. ft. per month for the period of delay in handing over the possession. As per the buyer agreement Ex.C-1 the flat was in question was supposed to be handed over by 30.06.2013 whereas as per Ex.C-3 dated 09.09.2013 the flat in question was handed over to the complainant on 09.09.2013. Therefore, there is apparent delay of two months and 8 days. The OP has fairly admitted such delay on its part as per stand taken by it in the written reply Para 3 but contributed the delay to the circumstances which are beyond its control i.e. the lack of construction material due to the restriction imposed by the State Govt. The OP has not produced any evidence in support of its contention of force majeure. Therefore, we hold that delay of two months and one week the complainant has not been compensated by the OP under the agreed clause. Therefore, the act of the OP in this regard is an act of deficiency in service and unfair trade practice for which the complaint deserves to be allowed and the complainant deserves to be compensated on this account i.e. withholding of penalty amount due to complainant on account of delay of 2 months and 8 days in handing over the possession.
13. In view of above discussion, the complaint is allowed with the following direction to the OP to:
(a) pay to the complainant a sum of Rs.30,000/- per month for the period from 01.07.2013 to 08.09.2013 with interest thereon @ 12% per annum till actual payment.
(b) pay a lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) for mental agony and harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
July 03, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
