Complainant through Adv. Smt. Anagha Kale
Opponent through Adv. Shri. Rahul Gandhi
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(19/08/2013)
This complaint is filed by the flat owner against the Builder and Developer under section 12 of the Consumer Protection Act, 1986 for deficiency in service. The brief facts are as follows,
1] The complainant has purchased flat in the building named as “Pradnyavibhushan Apartments”, which is situated at Mahatma Society, Kothrud, Pune – 38. According to him, on 17/2/2010, when he returned from the office, he had noticed that the plaster block of the bed room was collapsed. He had informed this fact to the opponent immediately. But the opponent did not bother to verify the situation; hence he approached the office of Grahak Panchayat. The opponent was called there, but he did not pay any heed to the request of the complainant. The complainant got repaired the said roof from M/S Popular Decorators and spent an amount of Rs. 10,715/-. He has also claimed an amount of Rs. 30,900/-, which were wrongly recovered by the opponent by way of service tax. He has claimed compensation of Rs. 50,000/- for mental stress and physical sufferings as well as cost of the litigation.
2] The opponent resisted the claim by filing written statement. According to the opponent, the said flat was purchased by the complainant on 2/8/2006; conveyance deed was also executed on 3/8/2006. The registered agreement was executed on 22/4/2005. The possession of the flat was delivered on 2/8/2006. As per the contents of the agreement, if any defect in the structure of the flat is noticed within 3 years from the date of possession, the opponent agreed to repair and rectify the defects. As the incident took place on 17/2/2010 i.e. after 4 years from the date of possession, hence the opponent is not liable to repair the said structure. The claim of the complainant as regards service tax is also time barred. The amount of service tax is paid by the complainant on 21/7/2006 and the present complaint is filed by the complainant in the year 2010. The complaint is not filed within two years from the date of payment of tax, hence the complaint is time barred. The opponent has prayed for the dismissal of the complaint.
3] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the parties 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 the claim as regards deficiency in service of roof is within limitation? | In the negative |
2. | Whether complainant is entitled for recovery of amount of service tax? | In the affirmative |
3. | What order? | Complaint is partly allowed. |
REASONS :-
4] As regards, collapse of the plaster of the roof of the bed room, the complainant has produced photographs as well as bill of repair of the said roof. The complainant has established this fact with cogent and reliable evidence. According to the learned advocate for the opponent, the parties are bound by the terms and conditions of the agreement and as per the contents of the agreement, the opponent i.e. builder agreed to repair any structural defect, if it is noticed within three years from the date of taking possession. Admittedly, the possession of the flat was taken by the complainant on 2/8/2006; the alleged incidence took place on 17/2/2010, i.e. after 3 years. Hence, builder can not be held responsible for repairing the said defect. I answer the point no. 1 as negative.
5] The opponent has not denied that the complainant has paid contribution towards service tax to the tune of Rs. 30,900/- on 21/7/2006. It is the case of the opponent that this complaint is also time barred and complaint as regards recovery of said service tax contribution is not maintainable, as it is not filed within two years from the date of payment of service tax. But it reveals from the written statement of the opponents that the opponent came to know from the authorities of service tax that he is not liable to pay service tax on the said transaction. The dispute as regards payment of service tax was subjudice between the parties. In such circumstances it can not be said that the said claim is time barred. The opponent has admitted that the Commissioner has issued Trade Facility No. 1/2011 and held in para 4(a) that service tax is not leviable and he has not given liberty to M/S Joshi & Associates to refund amount to the flat purchasers. It is significant to note that when service tax was not leviable, then it was the duty of the builder to initiate proceeding for refund of the said tax. He has collected said amount from the flat holders but did not feel it necessary to initiate proceeding to refund the service tax from the Government Authority and for that complainant, who has paid service tax through the opponent, can not be held responsible. The builder did not even authorize the complainant for recovery of the said service tax, which was paid to the department. Hence, I held that the opponent has caused deficiency in service by not refunding amount of service tax. It is also significant to note that, a person who has paid service tax alone can initiate the proceeding for refund of service tax. The opponent has deposited the said amount, which is collected from the complainant; hence he is responsible for the recovery of that amount. Hence I answer accordingly.
6] In sum and substance, I held that even though complainant has proved that the plaster of the roof of bed room of the complainant was collapsed, but the opponent is not liable to pay the expenses as per terms and conditions of the agreement, as it was collapsed after expiry of three years from the date of possession. In my opinion, the opponent is bound to refund amount of service tax Rs. 30,900/- to the complainant, which was not leviable from the said transaction, as the said amount is not called by him for any legal purpose and that amounts to deficiency in service. The complainant is entitled for the compensation of Rs. 10,000/- for deficiency in service, Rs. 5000/- for mental and physical sufferings and Rs. 2000/- for cost of the litigation. In the result, I answer the points accordingly and pass the following order,
** ORDER **
1. Complaint is partly allowed.
2. It is hereby declared that the opponent
has caused deficiency in service by wrongly
collecting service charges from the complainant.
3. The opponent is directed to pay amount
of service charges i.e. Rs. 30,900/- (Rs. Thirty
Thousand Nine Hundred only), an amount
of Rs. 10,000/- (Rs. Ten Thousand only) towards
compensation for deficiency in service, an amount
of Rs. 5,000/- (Rs. Five Thousand only) towards
compensation for mental and physical sufferings
and an amount of Rs. 2,000/- (Rs. Two Thousand
only) towards cost of the litigation, within 6 weeks
from the date of receipt of this order.
4. Copies of this order be furnished to
the parties free of cost.
5. 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.
