DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.56/2017
Col (Retd.) Anil Kumar Bansal
S/o Late Sh. Uttam Prakash Bansal
R/o 1352, Sector- 29, Arun Vihar,
Noida (UP)- 201303
….Complainant
Versus
Army Welfare Housing Organisation (AWHO)
South Hutments, Kashmir House, Rajaji Marg,
New Delhi- 110011
….Opposite Party
Date of Institution : 13.02.2017
Date of Order : 30.03.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The Complainant purchased a flat bearing no. 13F, Block 13, Rajesh Colony, situated at Village Khurpatal, District Nainital, Uttarakhand from OP which is a society registered under the Societies Registration Act 1860. The possession of the said property was taken on 8th December 2012. The complainant further avers that on the onset of rains during 2013, seepage started appearing on the ceiling and walls of the entire apartment and water entered the house through gaps in doors and windows which happened while the apartment was under maintenance/liability period. It is stated that though certain defects were rectified by the OP in October 2013 and assurance was given that there would be no further seepage in the house however in
August, 2014 after the first monsoon rains seepage reappeared and then complainant wrote letters dated 19.08.2014 and 25.08.2014 annexed
as P2 and P3 in response to which the OP informed the complainant that defect rectification has been carried out by the contractor on 18th and
19th August 2014 which would be equally effective.
It is stated by the complainant that he is dissatisfied and disappointed by the workmanship and use of substandard work carried out by the OP, which resulted in fresh seepage reappearing on his walls and ceiling during the first rains of 2015 and 2016. It is also stated that the OP had acknowledged the defect and given numerous assurances to rectify them however nothing was done to control the seepage. It is further stated by the complainant that rectification work was carried out four times since 2013 but the defects have still not been cured and fact have only got aggravated. It is also stated that there is seepage through sloping tile roof, an external wall of the building which causes the damage to the ceiling plaster in interior decoration, paint and furniture and furnishings in the apartment. It is further averred by the complainant that he has suffered a loss of Rs.80,000/- towards the damage caused to his furniture, clothing and other personal belongings on account of dampness in the house over a period of time. It is also stated that the complainant has consulted a certified engineer who has opined that the defect and seepage was due to substandard construction work carried out by the builder both in workmanship and material.
The OP, in its reply admitted that it is a society registered under the Societies Registration Act 1860 and works on ‘no profit no loss’ basis with the purpose of serving retired army personnel as well as their widows. The OP has however taken a preliminary objection that complainant is not a consumer as defined under section 2(d) of the Consumer Protection Act nor has he been able to establish a case of unfair trade practice. OP has also taken a preliminary objection of limitation stating that the complaint is barred by limitation as the physical possession of the property was taken by the complainant on 27.01.2012 and the one year defect liability of the OP was over by 26.01.2013.
It is stated that the liability of the OP was limited during the period of defect rectification liability. It is further stated OP was liable to cover and rectify the defects, as pointed out by the allottee in the dwelling unit, for a period of one year. It is stated that during this period, no complaint of any sort was made to the OP for any defect rectification between 27.12.2012 to August 2014. It is stated additionally that Nainital, being a hill station, experiences
6 to 7 months of rain every year. It is further stated that the letter of the complainant dated 19.08.2014 reduces the OP to be an MES or CPWD maintenance agency whose work is only to carry out defect rectification. It is stated that even though the defect rectification liability of the OP had expired on 26.01.2013 yet as a gesture of goodwill, the OP carried out the treatment to the satisfaction of the complainant in September 2014 as confirmed by the OP vide its letter dated 04.09.2014.
It is also averred by the complainant does not reside in the flat in question which remains under lock and key throughout the year. Absence of day to day maintenance leads to the wear and tear of the property and therefore the OP has no legal obligation or liability to repair this property. It is further stated that for the want of maintenance of the property by the complainant thick weeds have grown on the rooftop terrace thus resulting in cracking of the joints of the roof and connecting walls which has been leading to the alleged seepage as reported in 2014 and 2016 for which the complainant is solely responsible. It is also stated that OP’s representative in the presence of the complainant on 07.06.2017 carried out the inspection of the flat and question and reported that there was no seepage, leakage or dampness in the walls of the property. It is stated that the plaster of the parapet wall was corroded for want of maintenance by the complainant. It is further alleged by the OP that the complainant is wanting to get his property painted and polished at the expense of the OP after 5 years when he has himself failed to regularly maintain.
The complainant, in the rejoinder has stated that the OP had accepted its liability by carrying out temporary repair in the affected areas in the garb of Water proofing treatment (WPT), which is nothing but chemical coating which goes to show that the OP had acknowledged their fault not only with the complainants apartment but also similarly situated apartments of Rajesh Vihar. It was also stated that extracts of Rule number 76 to 78 of the OP’s master brochures annexed as Annexure C/6, categorically mentions that the maintenance is the responsibility of the society and not of the occupants. It is also stated that in a similar matter filed at district forum Nainital, forum awarded a total cost of Rs.4,03,000/- to the complainant to undertake the rectification work by himself however this order was modified by the State Commission at Dehradun, which directed the OP to carry out the repairs for curing the seepage. It is also the case of the complainant that large number of apartments at Rajesh Vihar had experienced recurrence of seepage in June 2017 despite repairs undertaken by the OP in November 2016. It is stated by the complainant that the OP has sold defective apartments to the army personnel at Rajesh Vihar and has cheated retired personnel like him.
The parties have filed their respective affidavits by way of evidence, written arguments and additional written arguments have been filed on behalf of the complainant.
This Commission vide its order dated 11.04.2018 recorded a statement of complainant that the contractor of OP will start the work on the subject property after 25.04.2018 and finish the same within next fifteen days. In terms the above the repairs was finally completed on 23.05.2018. The complainant has filed a report dated 30.05.2018 stating that report appears to be visually effective however its efficacy can only be tested during the oncoming monsoons and changing weather over a period of one year. However, vide another report dated 16.08.2018 it is stated that seepage re-appeared at two places which was observed on 14.08.2018. OP has vide its application dated 16.10.2018 has reported that in pursuance of complainant’s application dated 16.08.2018 further repairs of the subject unit was carried out between 20.09.2018 to 28.09.2018 along with pictures to support the claim.
The complainant had inter-alia prayed for repair/rectify defects of the subject unit with a defect liability period of one year from the date of completion of the defect rectification. Admittedly, the additional one year guarantee period of one year has since expired on 05.10.2019 and no further issue is raised by the complainant. Thus, no order is required as regards this prayer.
The complainant further prayed sum towards mental harassment and litigation expenses. This Commission notes that though the complainant had been raising issues regarding seepage etc since 2012 but the OP has also resolved the issues many a times including in 2018 and there is contributory negligence from the side of the complainant by not maintaining it regularly, therefore this Commission is of the view that complainant is not entitled to any further compensation. Therefore, this complaint is partly allowed in terms of order dated 11.04.2018 and execution of this order stands complied in September 2018. No further order is required.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
