Order by:

Smt.Aparana Kundi, Member.

1.       This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14^th March, 2022.

2.       The  complainant  has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that she is Senior Technical Assistant at DMC College Ludhiana and the complainant has purchased a plot No. 47, 2^nd Floor, M/s.Eldeco Estate-I Colony, G.T.Road, Ludhiana, from her hard earned money and getting the same financed from State Bank of India vide agreement dated 17.07.2012 from Opposite Parties and got  registered the sale deed on 21.01.2015 having vasika No. 9150, registered in the office of Sub Registrar, Ludhiana for the total sale consideration of Rs.29,24,550/-. The complainant has also spent Rs.2 lakhs on wooden almirah and wooden work in the kitchen and said unit comprised over the land at village: Bhattian and Hussainpura, G.T.Road, Tehsil & District Ludhiana. Further as per the broacher and agreement executed by the Opposite Parties with the complainant, the construction and the material was to be used by the company upto durable quality. The company after  getting executed the sale deed of the above referred unit, handed over the  possession of the same to the complainant in the month of February 2015 and at that time, the construction of block No. 48 abutting to the block No. 47 was continued. After taking the possession and due to the continuance of the construction of block No. 48, some cracks and seepage occurred in the unit of the complainant and in this regard, the complainant made a complaint from the e-mail of her husband who is also a Judicial Officer and then the Civil Wing of the company got repaired the said cracks  also assured time and again for strengthening the construction. But after few months when heavy strokes were used in the unit No.48 during its construction, then cracks again occurred in the unit of the complainant and again Civil Wing of the company got repaired the cracks. However, after completion of the construction of block No. 48, the cracks were again occurred in the unit of the complainant and the matter was brought to the notice of branch office through e-mail, but said office did not take care and not got repaired said cracks occurred in the walls and in the roof itelf in the unit of the complainant.  Further from the electrical material, sanitary material in the wash rooms and kitchen and locks used in the door and window, it is clear that the material used there, was not upto the mark and is of inferior quality. Even a fist blow on the wall caused cracks in the walls which show the low quality of the material/ expertise used in the construction. The quality of he construction is also clear from the fact that due to high wind in the year 2016 the tiles work made on the top projection of the unit fallen and now the company after removal of the said tiles all the blocks, is making design in the plaster in the projection of the units in all the blocks situated on  the main road of the colony, due to which the projection of the blocks not looks good as given in the broacher, due to this act value of the unit diminished. High taper walls on the projection on the top of the floor of block No. 47, purchased by the complainant, was of weak quality and there was every apprehension that it can fall, that is why the complainant constructed the room, giving extra wall under the taper wall, over the roof to save the projection of block No. 47 as such like rooms have already been given by the company in the constructed villas. Even the wall of the room come under the projection on the roof and without damaging the concerned projection of the block, it give support to the projection and that is why the room has been constructed by the complainant by saving the taper/ projection, on the same pattern already constructed by the Opposite Parties in the Villas constructed in the colony, just for the safe side of the projection.  Not only this, in the agreement dated 17.07.2012 and sale deed dated 2.01.2015 monthly club charges of Rs.1100/- per month nowhere mentioned whereas only one time club charges Rs.25,000/- have been mentioned which has already been paid by the complainant to the company and also only mentioned the monthly maintenance charges and power backup charges, which have been paying by the complainant regularly, but the Opposite Parties have been illegally charging the monthly club charges at the rate of Rs.1100/- per month without any such terms and conditions provided  in the agreement and sale deed, which the complainant has paid for the last about 1 ½ years which is liable to be recovered by the complainant from the Opposite Parties. Further alleges that in the colony, the company is also supplying the electricity @ more than Rs.14/- per unit, whereas the government/ PSPCL rate per unit is Rs.6/7 per month  to the meter account No. W42HP221169K installed in the name of the complainant and due to the inferior quality of electricity appliances of the Opposite Parties, the supply of electricity power in the unit of the complainant and the other inhabitants is getting interrupted time and again. Not only this, the Opposite Parties are also illegally charging minimum Rs.300/- per month of power back up charges, whereas the one time power back installation (Diesel Generator Set) charges Rs.45,000/- have already been paid by the complainant. In this way, the Opposite Parties are providing deficient services and causing monetary, financial loss as well as mental agony to the complainant. In view of the aforesaid averments, there is great lapse, deficiency in service and unfair trade practice on the part of the Opposite Parties.                                                Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Parties may be directed to pay the compensation upto Rs.10 lakhs and undo the loss caused to the unit at 2^nd floor of block No. 47 purchased by the complainant and further action may kindly be taken against the Opposite Parties No.1 to 3 for constructing the block No. 48 without approval from the concerned authority and for blocking the open area and green area to be kept for the purpose of the colony where the unit of the complainant is situated and further the Opposite Parties be directed to refund the club charges illegally charged by the Opposite Parties from the complainant and the Opposite Parties are liable to be restrained from charging the monthly club charges and minimum power back charges Rs.300/- per month except the power usage charges amounting to Rs.5400/- and club charges amounting to Rs.19,800/-. 

3.       Opposite Parties No.1 to 3  appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that after filing of the present complaint, the complainant filed a civil suit No. 3221/20 titled as Neelam Rawal s. Eldeco Infrastructure in the court of CJSD, Ludhiana for the declaration and permanent injunction and the plaint of the said civil suit has been rejected by the court of Ms.Pavleen Singh, CJSD, Ludhiana vide order dated 26.11.2020. Further, as per the terms and conditions of the allotment and mutually signed agreement, the complainant is liable to pay the club usages charges and only then, he can be  permitted to visit the club after the payment of said club usages charges. The right of the complainant to use the club facility is limited and subject to payment of usages charges which is a legal and genuine demand. Further as on date, huge amount is pending towards the complainant on account of club usages charges and the same is unpaid till date. On merits, the Opposite Parties No.1 to 3 took up almost the same and similar pleas as taken up by them in the preliminary objections and prays for the dismissal of the complaint against Opposite Parties No.1 to 3.        

4.       On the other hand, Opposite Party No.4-PSPCL appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant is silent regarding any grievances against the answering Opposite Party. Moreover, there is no deficiency in service on the part of the answering Opposite Party. The answering Opposite Party is regularly maintaining the electric lines and poles whatsoever provided to  the Opposite Parties No.1 to 3. Further till date, the Opposite Parties No.1 to 3 never moved any complaint for any maintenance or any negligence to the answering Opposite Party as such it reveals that there is a main dispute between the complainant and Opposite Parties No.1 to 3 and the complainant has falsely dragged the answering Opposite Party in the present complaint just to harass the answering Opposite Party. On merits, the Opposite Party No.4-PSPCL took up almost the same and similar pleas as taken up by them in the preliminary objections and hence prayed for the dismissal of the complaint against the answering Opposite Party.       

5.       In order to  prove  her  case, the complainant  has tendered into evidence affidavit Ex.CW alongwith copies of documents Ex.C1 to Ex.C109.

6.       On the other hand, Opposite Parties No.1 to 3 tendered into evidence the affidavit of Sh.Jagtar Singh Thakur Ex.RA alongwith copies of documents Ex.R1 and Ex.R2 and closed their evidence. 

7.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

8.       Ld.counsel for the Complainant as well as ld.counsel for the Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is that despite charging heft amount of the flat including its construction, the Opposite Parties have not used the best quality material, rather used the inferior quality and due to this reason, their  developed cracks in the wall and interior location of the site in question and due to this reason, the complainant has though spent more than Rs.2 lakhs to remove the said defects, but still, the cracks in the wall etc. still exists. Not only this, in the agreement dated 17.07.2012 and sale deed dated 2.01.2015 monthly club charges of Rs.1100/- per month nowhere mentioned whereas only one time club charges Rs.25,000/- have been mentioned which has already been paid by the complainant to the company and also only mentioned the monthly maintenance charges and power backup charges, which have been paying by the complainant regularly, but the Opposite Parties have been illegally charging the monthly club charges at the rate of Rs.1100/- per month without any such terms and conditions provided  in the agreement and sale deed, which the complainant has paid for the last about 1 ½ years which is liable to be recovered by the complainant from the Opposite Parties. Further alleges that in the colony, the company is also supplying the electricity @ more than Rs.14/- per unit, whereas the government/ PSPCL rate per unit is Rs.6/7 per month  to the meter account No. W42HP221169K installed in the name of the complainant and due to the inferior quality of electricity appliances of the Opposite Parties, the supply of electricity power in the unit of the complainant and the other inhabitants is getting interrupted time and again. Not only this, the Opposite Parties are also illegally charging minimum Rs.300/- per month of power back up charges, whereas the one time power back installation (Diesel Generator Set) charges Rs.45,000/- have already been paid by the complainant. In this way, the Opposite Parties are providing deficient services and causing monetary, financial loss as well as mental agony to the complainant.

9.       On the other hand, the only contention of the Opposite Parties is that after filing of the present complaint, the complainant filed a civil suit No. 3221/20 titled as Neelam Rawal s. Eldeco Infrastructure in the court of CJSD, Ludhiana for the declaration and permanent injunction and the plaint of the said civil suit has been rejected by the court of Ms.Pavleen Singh, CJSD, Ludhiana vide order dated 26.11.2020. Further, as per the terms and conditions of the allotment and mutually signed agreement, the complainant is liable to pay the club usages charges and only then, he can be  permitted to visit the club after the payment of said club usages charges. Bare perusal of the order passed by the ld.Civil Judge, Junior Division, Ludhiana shows that in the said suit, the complainant has sought the relief for declaration as well as mandatory injunction, but in the present complaint, the complainant has sought the relief of compensation for causing her monetary loss as well as compensation for causing her mental  tension and harassment and in view of this, the subject matter is totally different. Moreover,  ld.Civil Judge, Junior Division, Ludhiana vide its order dated 26.11.2020 has not decided the matter on merit holding that the jurisdiction of this court has been expressly barred by law under Punjab Regional and Town Planning and Development Act, 1995.  Moreover, mere the filing suit in the Civil Court and without its decision on the same subject matter on merit, does not take away the right of the complainant to take shelter under any other provision including that of the Consumer Protection Act, 2019 (as amended upto date). Furthermore, section 100 of the Consumer Protection Act, 2019 provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, we are of the view that since the suit filed by the complainant before ld.Civil Court on different subject matter i.e. declaration as well as mandatory injunction, but in the present complaint, the complainant has sought the relief of compensation for causing her monetary loss as well as compensation for causing her mental  tension and harassment and in view of this, the subject matter is totally different. Moreover,  ld.Civil Judge, Junior Division, Ludhiana vide its order dated 26.11.2020 has not decided the matter on merit holding that the jurisdiction of this court has been expressly barred by law under Punjab Regional and Town Planning and Development Act, 1995.  The relevant Conclusive para  of the judgement passed by ld.Civil Judge, Junior Division, Ludhiana is reproduced as under:-

36.    Thus, from the conjunction of the conclusion drawn by this court, after due perusal of the plaint, with respect to the grounds of rejection of the plaint mentioned in order 7 rule 11 (a) and (d) CPC, discussed above, it is crystalline  that the plaint of the plaintiff does not disclose a cause of action against the defendants and is, simultaneously, barred by section 35 of Punjab Apartment and Property Regulation Act, 1995 and section 174 of Punjab Regional and Town Planning Act, 1995.’   

In view of these facts and circumstances, the complainant has a legal right to avail the remedy before this District Consumer Commission for getting redressal of her  grievances.

10.     On merits, with regard to main grievances, to prove her contention, the complainant has placed on record her duly sworn affidavit Ex.CW alongwith copies of allotment letter Ex.C1 of the plot in which the complainant has duly deposited Rs.29,24,550/- with the Opposite Parties, copy of conveyance deed Ex.C2 of the property in question, photographs Ex.C4 to Ex.C101 in which it is clearly shown with naked eye the water seepage, cracks in the walls as well as on the wooden window/ doors and these photographs clearly shows that the material such like electrical and sanitary in the wash room kitchen  are used of inferior quality. In this regard, the complainant made so many requests to the Opposite Parties in writing copies of the e-mails are placed on record and tendered into evidence as  Ex.C104  and Ex.C105. Not only this, the complainant also served legal notice upon the Opposite Parties, copy of which is Ex.C107, but all these evidence placed by the complainant has nowhere denied by the Opposite Parties by filing any cogent and convincing evidence. As per a landmark decision passed in 1993 in the case of Lucknow Development Authority vs. M.K.Gupta, the Honourable Supreme Court of India passed a judgement stating that

“all builders/contractor(s)/all concerned authorities of any State engaged in Housing Construction activity in any manner are amenable to Consumer Protection Act, 1986 for any act or omission relating to housing activity such as: “Delay in delivery of possession, non-completion of construction within the stipulated time, defective and faulty construction and more…”

Hon’ble Supreme Court of India further held that “a builder who constructs a house or hires the services of a contractor to develop a property is engaged in the act of providing service to his customer, and for which he is getting monetarily compensated. This makes him a service provider and hence liable under the clauses of Consumer Protection Act, 1986.”

11.     In view of the aforesaid facts and circumstances we hold that there is certainly a deficiency and unfair trade practice on the part of the Opposite Parties company and in lieu of this, the complainant is definitely entitle to relief.  However, the Complainant pray before this District Consumer Commission to direct the Opposite Parties to pay the compensation upto Rs.10 lakhs and undo the loss caused to the unit at 2^nd floor of block No. 47 purchased by the complainant and further action may kindly be taken against the Opposite Parties No.1 to 3 for constructing the block No. 48 without approval from the concerned authority and for blocking the open area and green area to be kept for the purpose of the colony where the unit of the complainant is situated and further the Opposite Parties be directed to refund the club charges illegally charged by the Opposite Parties from the complainant and the Opposite Parties are liable to be restrained from charging the monthly club charges and minimum power back charges Rs.300/- per month except the power usage charges amounting to Rs.5400/- and club charges amounting to Rs.19,800/-, but we are of the view that the claim for compensation to the tune of such extent appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainants are awarded lump-sum compensation to the tune of Rs.6 lakh and we award the same accordingly.

12.     In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the complainant and direct Opposite Parties No.1 to 3 to pay lump sum compensation of Rs.5 lakh (Rupees Five Lakhs only) alongwith interest @ 8% per annum from the date of filing of the present complaint i.e. 06.12.2017 till its actual realization. The compliance of this order be made by Opposite Parties No.1 to 3, within  60 days from the date of receipt of the copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of District Consumer Commission, Ludhiana. All applications pending before this District Consumer Disputes Redressal Commission, if any, stand disposed off accordingly. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana   and thereafter, the file be consigned to record room after compliance.

13.     Reason for delay in deciding the complaint.

This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer  Disputes Redressal Commission, Moga with directions to work on this file onward from 14^th March, 2022 and accordingly District Consumer  Disputes Redressal Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible.

Announced in Open Commission at Camp Court, Ludhiana.

Dated:29.09.2022.