Ashok B Chougule filed a consumer case on 25 Jan 2016 against Basavaraj S Kundargi in the Belgaum Consumer Court. The case no is CC/180/2015 and the judgment uploaded on 03 Feb 2016.
(Order dictated by Shri. V.S. Gotakhindi, Member)
ORDER
The complainants have filed the complaint u/s. 12 of the C.P. Act against the O.Ps. alleging deficiency in service of non providing civil amenities to the flat owners.
2) In-spite service of notice, O.P. has remained absent. Hence placed ex-parte.
3) In support of the claim made in the complaint, the complainants have filed their affidavit and produced certain documents. We have heard the arguments and perused the records.
4) Now the point for our consideration is that whether the complainants have proved deficiency in service on the part of the O.P. for non providing basic amenities to their flats and entitled to the reliefs sought?
5) Our finding on the point is partly in affirmative for the following reasons.
:: R E A S O N S ::
6) On perusal contents of the complainant and affidavit filed by the complainants. The allegations of the complainants against the opponent that, the opponent is an Advocate by profession and also a developer who constructed the apartment by name “Shankutala Apartment” which is constructed over property bearing CTS No. 4857/6A situated at Sadashiv Nagar, Belgaum. The complainants further alleges that the opponent obtained the building permission bearing No.CCB/PWD/BLD/SR-189/2009-10/N. The complainants approached the opponent on different dates and expressed their intention to purchase the residential flat which was under construction. The complainant No.1 and 2 agree to purchase the flat No. S-10 measuring 924.63 Sq.ft. located on second floor and accordingly the opponent has received earnest money and agree to handover the possession of the flat after completion of entire work. The complainant No.1 and 2 submit that the opponent has executed Sale Deed on 9/1/2013 and registered the same in Sub Registrar office and pertaining to this the O.P. has received entire sale Consideration amount including Car parking, HESCOM charges and other Civil facilities. Likewise, the complainants No.3, 4 and 5, 6, 7 have also entered into Sale agreement with the opponent and have purchased the flats bearing No. S-11, T-16, G-4, S-1 and G-5 respectively. The opponent has executed the sale deed in favour of the complainants. The complainants further alleges that the opponent has reserved the basement area for parking to the flat owners, this being the fact recently opponent constructed a house for his sister in the basement of area which was reserve for parking for flat owners, but now the parking space is not available to the complainants and the opponent has violated the permission granted by the City of Corporation of Belgaum. The complainants further alleges that the opponent has agreed to provide electric lift having capacity for 6 persons but the opponent has not installed the lift even after repeated request to provide the same and made false promise which amongst to illegal trade practice and violation of C.P. Act. The complainants further alleges that the opponent has sold the parking lot to the respective complainants in the apartment and he is under obligation to provide space to parking vehicle in the said apartments, and also to provide lift. The complainant further alleges that now the members of the apartment without lift are climbing the staircase which is causing mental pain harassment and inconvenience.
7) The complainants further alleges that there is no proper drainage systems to the Septic Tank provided by the opponent which is causing foul smell and great nuisance and even after repeated request the opponent, is not making arrangement for the drainage system even after paying huge money for the betterment of the flats as per the agreement the opponent has failed to provide Civic and basic amenities to the flat owners and committed deficiency of service in eye of law. The complainants further alleged that on 14/7/2014 the issued legal notice calling upon the opponent to provide basic amenities within 15 days and the said notice was served on 15/7/2014, but the opponent did not reply nor complied the legal notice and hence the complainants were constrained to file this complaint.
8) We have perused the documents, such as Sale Deeds and also the layout map and also gone through legal notice issued by the Advocate for the complainants and also the postal intimations for the service of the notice to the opponent and also the complainants have produced the memorandum of association registered by the flat owners before the registrar of societies Belagavi. The complainants have also produced the photos to show that the complainants apartment wherein we can see that the work is in completed and also the photo shows there is no lift nor proper electricity and also there is no drainage connected to the Septic Tank and also there is no parking place in the apartment.
9) We have gone through the Deed of Sale of the complainants executed by the opponent wherein we can read the clause No.5 and 6 on pageNo.3, 2 in some deed of sale and so on we can see that the opponent has mentioned that the staircase in the building shall use by purchases and also water supply line from the overhead tank etc., but looking to the photographs produced by the complainants it is clear visible and seen that the opponent has failed to provide the lift to the apartment and over head tank as seen in the photo is not completed and also the drainage pipe is not connected to the sewage tank and the parking facility as promised by the opponent is not been provided and there is incomplete construction and the electricity wires are lying on the floor and there is leakage of water near the electricity meters etc., By this we can make it out that the opponent has failed to provide civil and basic amenities to the complainants and also we can observe that and noticed that the opponent has not constructed the apartment according to the proposed plan and the parking place which ought to have to be provided to the flat owners is not provided as per the space shown for parking in the proposed plan and also by going through the photographs we noticed that the opponent has constructed house in the basement etc., The definition as provided u/s. 2 (b) and (c) which reads as under;
Section 2. Definitions. - (1) In this Act, unless the context otherwise requires,—
(b) "complainant" means—
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or
(iii) the Central Government or any State Government,
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;
(c) "complaint" means any allegation in writing made by a complainant that—
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
(ii) the goods bought by him or agreed to be bought by him; suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price –
(a) fixed by or under any law for the time being in force
(b) displayed on the goods or any package containing such goods ;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;
The reading of Sec. 2 (b) (iv) which reads as the complainant means one or more consumers, where there are numerous consumers having the same interest; In the present case there are 7 complainants who are the purchases of flats from the opponent in the apartment constructed by the opponent. Hence there is a same interest even though there are numerous complainants. Hence we are of the opinion that the complaint is maintainable before the forum and the complainants are the consumer as per the C.P. Act. The another point to be considered is that as per the section 2 (c) (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; As per this sub section the opponent has plaid unfair trade practice in non providing basic service to the complainant even after receiving of entire sale consideration from the complainants.
10) It is also important to note that, the opponent even after receiving of the legal notice issued by the complainants has not replied or acted on legal notice and also that even after service of notice from this forum the opponent remained absent and placed ex-parte. By this attitude and conduct of the opponent it is to be believed and accepted the allegations of the complainants and the complainants have proved deficiency of service on the part of the opponent for not providing basic amenities as alleged in the complaint and also to reburt the allegations of the complainants the opponent has failed to appear before the forum. Hence we are of the opinion that that the opponent has failed to provide Civic and basic amenities as per the Deed of Sale and as promised to the complainant before executing the sale deed even after receiving of entire sale consideration from the complainants. Accordingly, following order.
ORDER
The complaint is partly allowed.
The O.P. is hereby directed and liable to provide Civic and Basic amenities to the complainants such as Electricity, Lift, Parking facility, drainage system etc., and other basic amenities as per the Deed of sale entered in between the complainants.
So also, the O.P. is hereby directed and liable to pay Rs.25,000/- each as a compensation to the complainants for mental agony, pain and suffering etc.,
Further O.P. is hereby directed and liable to pay Rs.5,000/- towards costs of the proceedings to the complainants and Rs.10,000/- to be deposited towards Consumer Welfare Fund.
Above order shall be complied within 30 days from the date of the order.
(Order dictated, corrected and then pronounced in the open Forum on: 25th day of January 2016)
Member Member President.
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