BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 10 of 2015
Date of Institution : 12.1.2015
Date of Decision : 28.1.2016
- Balinder Kumar Sood Son of Sh.Balraj Sood,
- Manjula Sood wife of Sh.Balinder Kumar Sood,
..both residents of Flat no.37, IInd Floor, Era Group, Barnala Road, Sirsa distt.Sirsa.
……Complainants.
Versus.
1.Era Commercial Services Pvt. Ltd., Laurel Garden, Part-II, Barnala Road, Sirsa, through its Manager.
2. Chairman-cum-Managing Director, Adel Landmarks Ltd., formerly known as Era Landmarks Ltd., H.O. B-24, Sector 3, Noida.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT.GURPREET KAUR GILL……PRESIDING MEMBER.
SHRI RAJIV MEHTA ……… MEMBER.
Present: Sh.JBL Garg, Advocate for the complainant.
Sh.Abhinav Sharma, Advocate for opposite parties.
ORDER
In brief, complainants’ case is that on their application Ops allotted them Flat No.37 at IInd Floor in Era Group, Sirsa owned and constructed by the Ops. The possession was delivered on 12.1.2013. After payment of entire price, Ops get executed conveyance deed of the flat and registered in favour of the complainants on 23.1.2013. As alleged, it was assured by the Ops to the complainants that construction of the flat including other fitting work like sanitary, wood work etc. is of A class. It is further alleged that after one month of the possession, complainants noticed that wall from front to rear including duct and terrace portion started developing cracks which can danger for the lives of their family and the families residing in the nearby flats. Beside it, tiles of the bathroom become defective and left their spaces. Upon this complainants lodged their complaints several times to the Ops and also wrote a letter to them on 27.12.2013, but to no effect. As alleged, there is structural defect and construction material used is of third class quality. Hence, this complaint seeking the following reliefs against the Ops:-
- Direction to the Ops either to make necessary repairs and to bring the flat in its perfect condition permanently by removing the structural fault or to allot some other flat with same specification;
- To pay sum of Rs.2 lacs as compensation for unnecessary harassment, mental tension, pain etc.
- To allow the cost of proceedings Rs.11000/-;
- Any other relief in addition to the above relief which this Forum may deem fit.
2. On notice, Ops appeared and contested the case by filing their written version. Ops denied any cracks or defect in the flat as alleged by the complainants. It is further replied that complainants never approached to them with such complaints. It is further replied that complainants want to just change the location of the flat by way of this complaint.
3. In order to make out their case, the complainants have placed on record Ex.C1 and Ex.C2-their own supporting affidavits; Ex.C3 to Ex.C5-affidavits of their neighbourers namely Sh.Raj Kumar Garg, Sh.Surinder Kumar and Sh.Yadvinder Kumar ; Ex.C6-affidavit of Sh.Krishan Kamboj, photographer; Ex.C7-Sh.Inderjeet Bhalla, Achitect; Ex.C8-Sh.Vinod Mehta, JE, public Health department; Ex.C9 to Ex.C19-photographs; Ex.C20-intimation for cracks; Ex.C21-possession letter; Ex.C22-sale deed; Ex.C23 to Ex.C28-copies of photographs regarding cracks; Ex.C29-site plan; whereas opposite parties have tendered in evidence Ex.R1-affidavit of Sh.Ramesh Kumar, authorized signatory and ex.R2-copy of sale deed.
4. We have gone through the record of the case carefully and have heard learned counsel for both the parties.
5. It is admitted fact that complainants are allottees of residential flat No.37 Second Floor Barnala Road Sirsa. The flat in question was constructed by the Era Group i.e. Opposite parties. The OPs have offered the possession of the flat vide Ex. C-21 on 12.1 .2013 after payment of whole consideration. The complainants got executed a conveyance/sale deed Ex. C-22 in their favour and incurred Rs.1,25,000/- on stamp papers and registration fee etc.. Complainants started residing in the flat and they noticed that there are so many cracks in the wall and roof and also noticed that the tiles of bath room have become defective and left their place. Complainants lodged verbal complaints to OPs on many occasions and also made representation Ex.C-20 to them on 27.12.2013 which was duly received by the officials of OPs but they did not pay any heed to the genuine requests of the complainant and thus they did not take any step to rectify the defect/fault in the flat in question.
6. The OPs have denied all the allegations levelled by the complainants in the complaint. In order to adjudicate the matter in dispute, it is necessary for us to discuss the entire evidence placed on record by both the parties. In support of their case, the complainants Balinder Kumar and Smt. Manjula Sood have tendered their affidavits Ex.C-1 and C-2 respectively, in which they have sworn all the averments mentioned in the complaint. Mr. Raj Kumar Garg, Surender Singh and , Yadvinder Kumar, who are neighbourers of the complainant have also supported the averments of the complainants by tendering their affidavits Ex.C-3 to C-5 respectively. They have also stated regarding poor condition of the flat in question. All the above witnesses are residents of adjoining flats of the complainants. Ex.C-6 is affidavit of Sh. Krishan Kamboj, photographer, who took the photographs of the flat in question. Ex.C-7 is affidavit of Sh. Inderjeet Bhalla, Architect, who pointed out the discrepancies in the flat. Ex. C-8 is affidavit of Sh. Vinod Metha, Junior Engineer, who has mentioned in his affidavit that there were cracks in the wall from front to rear including duct and terrace portion. The tiles of said flat left their place. Ex. C-9 to C-19 are original photographs of the flat and Ex. C-23 to C-28 are photocopies thereof. From the glance of photographs, it is apparently reveals that there are so many cracks vertically as well as horizontally in the wall and roof of the flat in question. Ex.C-20 is representation of complainants duly received by the official of OPs. Ex. C-21 is the possession letter. Ex. C-22 is conveyance/ sale deed executed in favour of complainants. Ex.C-29 is lay out plan of the flat whereby the Architect has shown the cracks / damaged parts with green colour. At the time of arguments, complainants have also placed on record four latest photographs stated to be taken on 25.11.2015 to show the present dilapidated situation of the flat in question.
7. On the other hand, OPs have tendered self serving affidavit of their official Sh. Ramesh Kumar, which is without any authority letter in his favour by the Board of Directors of the OPs-company. Also there is no resolution/ Minutes of meeting from the side of OPs entitling Sh. Ramesh Kumar to tender the alleged affidavit. Moreover, Sh. Ramesh Kumar is not a technical/expert person nor a J.E. or Architect of the Ops-company to tell about the defect of the construction work of the flats made by Ops- company; whereas on contrary, to strengthen their case, the complainants have tendered their lay out plan of the flat and affidavit of Architect, who prepared the said lay out plan and mentioned the cracks and faults in the flat. In such like case, evidence of technical person gives due weightage & authenticity. OPs have not tendered the evidence/ affidavit of technical person in rebuttal. OPs have tendered only the affidavit of Sh.Ramesh Kumar in evidence just to fill up the lacuna and thus the same is formal in nature. There is no evidentiary value of self serving affidavit of OPs without supporting any technical evidence. It is pertinent to mention here that the Architect has shown the cracks in wall and roof in green colour in the lay out plan. After evaluation of the evidence on the file produced by the complainants, there is no doubt that the flat in question has structural fault and deficiency in construction has been proved on the record..
8. Counsel of the OPs has availed three/ four opportunities to depute technical person to inspect the site and to rectify the faults but no official of OPs have inspected the site nor rectified the defects of the flat. This conduct of the Ops shows that they only want to linger on the matter on one pretext or the other. By adopting such practices, they cannot escape from their liability especially in this case, where a person purchased a flat with his hard earn money. Hence, the Ops sold the defective flat to the complainants, which is a gross negligent as well as unfair trade practice on the part of OPs. It is general practice on the part of the Builders that whenever they launch the project, they promise to the customers for good quality material in the construction with so many facilities to attract the investment but once they register the applicants/customers to save the money from one side or the other, then they do compromise with the material/quality of the construction, as a result of which, deficiencies/defects occur in the construction work. In this case, defects in the construction as detailed in the complaint has been proved from all the four corners. To give strength to our view, reference of case law cited as 1(2015) CPJ 37 (Punjab), titled Shiva Real Estate Vs. Rehan Mohashir & Ors. can be given.
9. Now, next question which arises before us for consideration, is that to what quantum of relief, the complainant is entitled for? During the course of proceedings, the complainant submitted a report of R.S.Saxena, ASDE(Retired) PHE Department, Haryana who described the reasons of cracks, nature of damage and tentative cost of repair. His report on the file is Annexure ‘A’. Crux of his report are re-produced as under:-
Reason of Cracks
- That such cracks may develop due to unequal settlement of foundation.
- That due to improper distribution of load of structure on foundation.
- That due to less lintle cover over wall/beam than the PWD’s specified specification.
- That due to reason the proper engineering PWD Specifications might have not been adhered to by the construction agency.
- That there may be fault in designing of building.
- That the steel provided in column and beam may be of poor quality and in less quantity than the specified.
Nature of damage
That as the vertical cracks starts from the bottom/natural surface level (ground) and goes up to the top of building gradually increasingly manner in front side and back side of the structure and the horizontal cracks also exist throughout the common wall of Flat No.37&38 at many places and these cracks despite being repaired once again resurfaced within very short period of time and are more wider, shows that the fault is of continuing nature.
Therefore, from the facts, it can be concluded that these cracks are either irreparable or require heavy amount for repairing the fault permanently.
Tentative cost of repair
That as for repairing the fault permanently, the complete common wall, connected column and beam have to be reconstructed after demolishing the existing one. It includes the one wall of 12 number bedrooms and 12 number bathrooms in total and restoring these to the original position (GF,Ist &IInd floor of Flat no.37&38).
Keeping in mind the prevailing market rates of labour and material, the total cost of repair is estimated approximately Rs.7 to 8 lac.
The above report cannot be brushed out a side because same has been prepared on the technical basis. From the perusal of this report, it is clear that to remove the defects in construction in the complainants’ flat, the complete common wall, connected column and beam have to be reconstructed after demolishing the existing one. It includes the one wall of 12 number bedrooms and 12 number bathrooms in total and restoring these to the original position (GF,Ist &IInd floor of Flat no.37&38). At this stage, it is not possible because this will be effected the flats of surrounding neighbours. As suggested, the cost of the repair will come to Rs. 7 to 8 lacs, but we consider the expenses for repair of the flat to the tune of Rs.7.50 lacs. Further, even if we suppose that there is some exaggeration in the report of the abovesaid Engineer, then also we could consider the amount of exaggeration maximum to the extent of 1/3rd and thus loss and damage to the flat of the complainant comes to Rs. 5,00,000/- (Rupees Five lacs only).
10. Accordingly, the complaint is allowed with cost of Rs.5000/- and OPs are directed to pay the amount of Rs. 5,00,000/- (rupees five lacs) to the complainants on account of loss suffered by them due to defects in the construction work of their flat . The cost and awarded amount shall be given to the complainants in equal share. Compliance of this order be made within forty five days from the date of the order, otherwise, the awarded amount shall fetch interest @ 9% per annum from the date of filing the complaint i.e. 12.01.2015 till its realization. Relief claimed by the complainants for their mental agony etc. is hereby declined. Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated:28.1.2016. Member. District Consumer Disputes
Redressal Forum, Sirsa.
