Complainants through Lrd. Adv. Inamdar
Opponent No. 1 to 3 through Lrd. Adv. Deshmukh
Opponent No.4 through Lrd. Adv. Raut
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(04/12/2013)
This complaint is filed by the consumer against builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant no. 1 and 2 are husband and wife. They are the owners of flat no. 17, in building no. ‘A’, third floor in the scheme known as ‘Golden City’, which is situated at Dhanori-Lohagaon Road, Pune. They were in search of the residential flat. The opponent no. 4 pretended that he is the estate agent and agreed to give flat with facilities and amenities, which have facility of 24 hours water supply from PMC, lift etc. Then opponent no. 4 met out with the complainant opponent no. 1 to 3. The complainant had started to reside in the said flat on 4/4/2010. In the month of May 2010, he found various defects in the flat. Kitchen wall, toilet tiles were cracked, bed room walls are cracked. Water was leaking from roof, balcony walls. There was fungus on the main wall from inside, repainting was not done, possession letter was not give, lift facility was not given. PMC water was not provided. Unbranded accessories like door latches, electric switches were provided. The complainant had informed these problems to the opponents, but he did not pay any heed to the complaint of the complainants. Hence, he has filed this complaint for directing the opponent to cure all the defects, facilities and amenities. The complainant also claimed compensation of Rs. 1 lac for deficiency in service and Rs. 50,000/- for mental and physical harassment.
2] The opponent no. 1 to 3 has resisted the complaint by fling written version and the opponent no. 4 had also filed its separate written version. According to the opponent no. 4, he has no concern with the opponent no. 1 to 3. The complainants approached to them in the month of Feb 2010. He made enquiry about the project of opponent no. 1 to 3 and only preliminary information of the project was given by the opponent no. 4. According to the opponent no. 4, there was no relationship as ‘consumer’ and ‘service provider’ between complainant and them. The opponent no. 4 has prayed for the dismissal of the complaint.
3] The opponent no. 1 to 3 denied the contents of the complaint in toto. They have specifically denied about the deficiency in service and defects in the construction, which were referred in the complaint. The complaint was satisfied about the area and the amenities and thereafter he has purchased the said flat. The averments as regards deficiency are not correct. The opponents have deputed one Supervisor on 11/8/2010 to find out the difficulties in the flat. The complainants were busy and were unable to show the problems. The allegations are bald and false. The complainant inspected every aspect of the flat before taking possession. The opponents have prayed for dismissal of the complaint.
4] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant has proved that the opponents have caused deficiency in service? | Proved against the opponent no. 1 to 3. |
2. | Whether complainant is entitled for compensation? | In the affirmative. |
3. | What order? | Complaint is partly allowed. |
REASONS :-
5] After going through the pleadings, written arguments and documentary evidence, which are produced by both the parties, it reveals that, the relations between the parties is as ‘flat owner’ and ‘builder and developer’ are not in dispute. It is also not in much dispute that the complainant had paid entire consideration to the opponent and they have executed agreement in favour of the complainant. It is the case of the complainant that after taking possession, he found various defects in the said flat, such as leakage, fungus, cracks on tiles etc. He had also made complaints about not receiving light meter and the operation of lift. According to him, the opponent has to supply water of PMC for 24 hours. In order to substantiate the allegations made by the complainant, the complainant has mostly relied upon the photographs of the disputed flat and it reveals from the same that there is leakage from ceiling of the flat. The colour of the flat is damaged due to leakage. It also reveals that the tiles of bathroom and other rooms are broken. The learned Advocate for the opponent has argued before us that the complainant has not produced the expert evidence in order to establish the allegations. It reveals from the record that the expert has also filed its report to which the opponent has raised objection. According to the expert, there is structural defect in the flat. It is significant to note that the Apex Court has observed in the Ruling of “V. Kishan Rao V/S Nikhil Super Speciality Hospital and another”, which is reported in 2010(5) Mh.L.J. 52, that each case has to be judged on its own facts and expert evidence is not at all necessary in all the cases. When the negligence is evident, the principle of ‘res ipsa loquitur’ operates and the complainant does not have to prove anything as the thing proves itself. It reveals from the photographs that there are defects in the construction and which are not cured by the opponents. It is alleged that the Supervisor of the opponent had visited the flat of the complainant but the complainant did not co-operate for the same. This objection is raised by the opponent can not be accepted, as no sane person will avoid to repair the damages, which had been sustained at the hands of the opponent. The complainant had made allegations that the possession letter is not received. There is no reply by the opponent for that allegation. In these circumstances, this Forum is of the opinion that the opponent has caused deficiency by not issuing possession letter and repairing the damages in the flat of the complainant, which have been referred in the complaint.
6] According to the complainant, the builder has assured to provide water supply from PMC for 24 hours, but it reveals from the agreement and the written version of the opponent that the builder has assured to give water connection from PMC. If no sufficient water is available, it can not be said that it is the responsibility of the builder to provide PMC water for 24 hours. According to the opponent, the lift is in operation and this allegation is not correct. After considering evidence on record, this Forum has observed that the complainant has proved deficiency as regards defects in the construction, such as leakage from roof, painting etc. The opponent should repair those defects. The complainant has claimed compensation for deficiency in service as well as for mental and physical harassment. According to the complainant, he could not use the flat for last 3 years due to defects in the flat. In such circumstances, compensation of Rs. 25,000/- on the count of deficiency in service would meet the ends of justice. The complainant has also entitled for the compensation of Rs. 10,000/- on the ground of physical and mental sufferings and Rs. 5,000/- for the cost of the present litigation. In the result, we answer the points accordingly and pass the following order.
** ORDER **
1. Complaint is partly allowed.
2. It is hereby declared that the opponent
No. 1 to 3 have caused deficiency in service.
3. The opponent Nos. 1 to 3 are directed to
pay jointly and severally total amount of
Rs. 40,000/- (Rs. Forty Thousand only)
towards compensation for deficiency in
service, mental and physical sufferings
and cost of the litigation, to the
complainants, within six weeks from
the date of receipt of this order.
4. Complaint stands dismissed against
Opponent no. 4.
5. Copies of this order be furnished to the
parties free of cost.
6. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 18/12/2013
