The case of the complainants in brief is that O.P. No.1 is the promoter and developer and O.P. No.2 & 3 are the land owner. The complainants purchased a flat from the O.Ps. on 22.7.2015 by paying Rs.14,40,000/-. It is mentioned that when the complainants purchased the schedule flat there was no Generator at the adjacent of the said flat.
The complainants further stated that on November, 2016 they followed that O.Ps. set up a Generator adjacent to their flat. There was no plan of generator in the agreement. Complainants raised vehement objection but O.Ps. did not give any reply. The complainants further stated that before purchase the flat the O.Ps. informed them that they will be set up inverter in the every flat and for which electric wiring was completed.
As a result of plantation of the generator, which created tremendous sound and vibration along with emission of smoke from the generator, the people i.e. flat inhabitant suffers because those flats have no habitable condition. On 11.1.2016 the O.P. No.1 was informed to replace the generator but the O.P. did not make any heed to the complainant’s word. The complainants would not purchase the flat if she had been informed previously regarding the institution of the flat in that side, by expending Rs.14,40,000/-. The complainants has been living in physical and mental disturbance condition. In this case the complainants prays for order regarding removal the generator from the existing site. The complainants also prayed compensation for causing mental and physical uneasiness caused by the O.P. No.1 since the institution of the generator. It is to be noted that later on after institution of case and on 5.9.2017 on the basis of the complainants one advocate was appointed for inspection and the report was filed on 31.8.2018
The O.P. No.1 has contested the case by filing written version denying inter-alia all the material allegations arose by the complainants in his written complaint. The fact is that as per agreement page-18 last part it has been mentioned that there would be generator in common place and soundless generator would be installed in the common portion. On 15.11.2015 the habitants of the flat filed a request before this O.P. No.1 for installation of soundless generator wherein this complainants put signature. After consultation with the committee the generator was installed and three persons were given the charge of the generator and that was installed in the electric room. The generators push out very low sound. Accordingly the fact of installation of the generator was well known to complainants before purchase the flat. Three persons (not named in the written version) has been given the charge of supervision of the generator.
O.P. No.2 & 3 filed written version that they have no title and interest over the property because they already sold the property to the O.P. No.1.
The complainants filed photocopies of sale deed, complaint dated 11.1.2016 and report of inspection dated 28.11.2017. The complainants also filed evidence in chief and brief notes of argument. The O.Ps. also filed evidence on affidavit and brief notes of argument.
Points for consideration
- Whether complainants are the consumers ?
- Whether there is deficiency in service on the part of the O.Ps.?
- Whether the complainants are entitled to get relief as prayed for?
DECISION WITH REASON
All the points are taken up together for convenience and brevity of discussion of this case.
The complainants have filed evidence in chief wherein they have stated their case that the generator which is the whole crux and bone of contention of this case has been causing nuisance by producing sound and smoke and causing physical and mental suffering of the complainants and their family members including young children. The complainants informed the O.P. on 11.1.2016 for taking necessary steps against the nuisance causing by the generator. It is stated that if the complainants had been informed regarding the generator nearby their purchased flat they would not purchase the same by incurring price of the flat amounting to Rs.14,40,000/-. The complainants got no relief from the O.P. for which the complainants have filed this case. The complainants have also filed some additional affidavit in chief. Wherein they stated that the complainants informed the matter to Pollution Control Board. Pollution Control Board sent letter to the O.P. on 5.9.2016 for replacing the generator. On 5.10.2016 the complainants informed the matter to Chairman of the concerned municipality. Chairman passed order on 28.12.2016 directing the O.P. to remove the generator. In the additional evidence in chief the complainants stated that on 24.11.2016 their only son was seriously ill by poisonous smoke emanating from the generator. Doctor ordered to keep child in fresh air condition.
The O.P. has adduced evidence denying the allegation of the complainants. The point on which the O.P. relied is that the O.P. pointed his case on the alternative power back up by soundless generator set which will not provide air-condition, air cooler, lift and refrigerator, shaded with yellow colour. It is admitted by the O.P. that complainants purchased the said flat i.e. there is no dispute regarding the status of the complainants.
The only point in controversy that the generator planted by the O.P. beside the flat of the complainants which is causing air pollution and sound pollution, should be removed by the O.Ps. Record also shows that complainants moved before the Ld. SDEM, Chinsurah whereby the Ld. Executive Magistrate passed order under 133 Cr.P.C. and later has been confirmed by the Ld. District Judge, Hooghly despite this the documents submitted by the complainants i.e. Directions of the pollution control board, Order of the Municipality, Order of the Executive Magistrate and the Order of the Ld. District Judge, Hooghly favours the complainants’ case showing that the claim of the complainants is right and undisputed.
On the verge of hearing the complainants prayed for appointment of Commissioner for inspection of the existence of the generator. The commissioner was appointed vide order No.12 dated 5.9.2017 and Ld. Commissioner filed report on 28.11.2017. The Ld. Commissioner’s report shows the “Diesel Generator instituted adjacent eastern side of the complainants’ flat in ground floor and the distance between the flat and generator is six feet”.
So, after going through the uncontroverted report before us it is air like clear that the disputed diesel generator existed near the flat of the complainants. It is also depicted in the report that distance between the main entrance gate of the petitioners’ flat and grill gate is 1 ½ feet. The commission report established the allegation of complainants that one generator has been set up contiguous to their house. So, the emission of smoke and sound nuisance cannot be taken to be unworthy of credence. There is every possibility of causing mental and physical inconvenience of the habitants of the ground floor as well as the family members of other neighbour on same place. This probability of disturbances exists. The nature of the allegation and reports before us obviously shows that the O.Ps. are very arrogant to carry out the order of the authority namely judgment of the Ld. District Judge dated 9.3.2017, order of the Ld. S.D.E.M. dated 3.1.2017, order of the Chairman, Hooghly-Chinsurah Municipality dated 5.12.2016 and order of Pollution Control Board dated 5.9.2016. The conduct of the O.Ps. which is reflected in the record is very very unreason and cannot be expected from well reason prudent man. Admittedly, the O.Ps. against whom the allegation has been raised, is a business man, society expects wellness and well behavior from the O.Ps. Complainants are the purchaser of the flat. O.P. has duty to take care regarding habitable condition of the flat sold to the complainants. By omission of not taking appropriate measure to keep the premises in habitable condition, the O.P. has done offence causing impediment of free using the flat purchased by the complainants. Non-omission of duty obviously tantamount to negligence and deficiency in service of O.Ps.
Accordingly, after circumspection pegged by the complainants submitting different papers and evidence has succeeds to prove the case of nuisance and deficiency on service on the part of the O.Ps. and for this deficiency in service O.Ps. must give adequate compensation along with removal of the generator from the place wherein it has been placed.
Regarding fixing amount of compensation there is no yard mark or scale to measure the sufferings of the complainants but fact that it is the O.P. who compelled the complainants to run pillar to post i.e. O.P. force complainants to approach police authority, executive authority, judicial authority, pollution control board, municipality, the complainants left no stone unturned to mitigate their sufferings affected by the smoke and sound arising out of the using of generator. So, after deep deliberation over the prevailing facts and circumstances and conduct of the O.Ps., which is clear negligent and devoid of any sympathy and co-operation with the neighbour. The O.Ps. failed to discharge his duty by omission which he ought to have discharge towards the purchaser of the flat. Accordingly, the O.P. should give adequate compensation to the complainants and shall remove the generator from the controversial place to any conspicuous place for the welfare of the complainants and other habitants. Hence, it is
Ordained
that the complainants’ case be and the same is allowed on contest against the O.Ps.
The Developer and Promoter of the Annapurna Construction i.e. O.Ps. Arindam Sadhu, Barnali Basu and Subhra Dutta are hereby directed to remove the ill fated generator from the place wherein it is situated and shall install it to a place preventing sound nuisance and smoke nuisance of the generator. The Developer and Promoter of the Annapurna Construction are further directed to give compensation of Rs.10,00,000/- for causing harassment, sufferings in body and mind of the complainants. The Developer and Promoter of the Annapurna Construction are also further directed to pay Rs.50,000/- towards cost of litigation. To lessen the pecuniary sufferings of the complainants, the O.Ps. are further directed to comply the order by 45 days from the passing of this order, failing which the complainants are at liberty to execute the order with the help of this Forum.
