BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                         MANGALORE

Dated this the 1^st December 2016

PRESENT

  SRI. VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI. T.C. RAJASHEKAR                 : HON’BLE MEMBER

COMMON ORDERS IN

C.C.No.302/2012 AND C.C.No.303/2012

(Admitted on 20.09.2012)

In C.C.No.302/2012

Mr. Ebrahim Ali Akbar,

S/o Ali Akbar,

Represented by his Wife

Mrs. Safiya Beguam,

Of age 42 years as Power of

Attorney Holder,

Resident at Sony Mansion,

Bolar Main Raod, Mangalore.

IN C.C.No.303/2012

1. Mrs. Aisha Parveen Mayyaddi

W/o Mayyadi, age 32 years.

2. Mr. Udaya Kumar of age 43 years
3. Mrs. Lavanya of age 39 years,

W/o Mr. Udaya Kumar

4. Mr. Hyder of age 41 years,

S/o Mr. Abdul Khader

5. Mr.Manoj Kumar,

Of age 40 years,

S/o Mr.Sankappa Kotian

6. Mr. Mahesh Kumar of age 37 years.

S/o Late Gopala Karkera.

7. Mrs. Vidya Amin of age 62 years

W/o Mr.Narayana P Amin.

8. Mr. Narayana P Amin of age 65 years,

S/o Late P.H. Poojary

9. Mr. Dheeraj Eswar Bangera,

Of age 27 years,

S/o Eswar Moolya,

Represented by his G.P.A holder

His Father Eswar Moolya, S/o

Pakeera Moolya,

Aged about 60 years.

All the complainants are the resident

of Sony Mansion

Bolar Main Road, Mangalore.

                                                     ….. COMPLAINANTS

(Advocate for the Complainants: DS)

VERSUS

Mr. Gangadhar B.S,

S/o Kunhiappa,

Of age 52 years, Owner cum

Developer, Sony Builders

Floor No.3, Lalbagh Towers,

M.G. Road, Mangalore.

                                                             ….............OPPOSITE PARTY

(Advocate for the Opposite party: Sri MRK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

     The complainants of C.C.No.302/2012 and C.C.No.303/2012 the complainants both these cases are purchasers of various apartments in ‘Sony Mansion’ developed and sold by opposite party Mr Gangadhar B.S  The ground urged in both cases are identical.  By this common order both the cases are being disposed of:

          2. The complainants of 303/2012 contend they purchased the Apartments under individual sale deeds from opposite party in Sony Mansion  with complainant No.1 purchased Apartment No.303, complainants No. 2 & 3 Apartment No. 203, complainant No.4 purchased Apartment No. 201, complainant No.5 purchased Apartment No.101, complainant No.6 purchased Apartment No.202, complainants No.7 and 8 purchased Apartment No.103, complainant No.9 purchased Apartment No.301 and complainant in C.C.No.302 purchased Apartment No.302 under different Sale Deeds from opposite party. 

     3. The complainants contend that the apartment building has Ground plus addition 4 floors with the ground floor providing for car parking area room of this sentry, power room and common lavatory. 

       4. The opposite party submitted a registered Deed of Declaration (Annexure No.7) dated 29.5.2008.  The opposite party is required to deliver to the complainants the documents namely Original title deeds, conversion order, building license, commencement certificate, completion certificate, documents pertinent to MESCOM, electricity documents, corporation building tax payable, corporation water supply documents.

    5. The Apartment building is rife with defects as seen in the coloured photographs and C.D namely: layers of moss formation on the side elevation i.e. on the ledge,  opposite party provided a way through the said apartment via side elevation to a neighbouring half constructed building belonging to the opponent situated in the closed propinquity of the building, construction material heaped on the ground covered by a layer of interlocks inside the premises of the building, the interlocks laid on the ground having come Off at various places, interlocks allowed seepage of water during rainy season, inner walls and as well as outer walls of the building revealing seepage of water during rainy season giving unsightly appearance, damage caused to the left hand side pillar has a mini lorry transported construction materials hit to a wall causing damage, failure of opposite party to set right the damage caused to the pillar, water leakage to the drainage pipe through inside wall from outside showing unsightly appearance and heavy seepage of water and formation of patch of seepage of water on the inner and as well as outer wall of the building,  slab laid on the floor of the kitchen not been properly sealed off allowing entry of water into the sump that lied directly under the floor to find entry with the some causing contamination of water, failure to provide generator facility to the lift, failure on the part of opposite party to fix railing to the flight of the stairs from the 1^st floor to the top floor.

          6.  The corporation water supply bills and MESCOM meters come in the name of opposite party.  The meter having not transferred to the buyers name. Contending despite notice by registered post opposite party failed to comply and to rectify the defects.   Hence seek the reliefs mentioned in the complaints.

II.     Opposite party has also filed identical objections admitting the sale of the Apartments as claimed but denied that the construction is of substandard as claimed.  He also admits that opposite party to have delivered to the complainants all the documents as claimed.  However opposite party denied allegations of deficiency in service have tabulated and as alleged the CD is a manipulated instrument.  Other alleged deficiency and damages leakage all that were alleged were also denied.

          2.  It is further contended the water supply bill and the electricity meters of MESCOM stand in the name of opposite party but not got transferred by the buyers of the flat.  It is their own fault.  The legal notice was properly replied.  The complainants also have not passed a resolution before filing the complaint as per deed of declaration in page 9 Para 25 and without that the complaint is not maintainable.  The complaint is wage and false.  Hence seeks dismissal of the complainants. 

          3.  In support of the above complainant Mrs. Safiya Begum (GPA) holder filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked as Ex.C1 to C.3 detailed in the annexure here below.  On behalf of the opposite party Mr. Gangadhar B.S (Rw1) also filed affidavit evidence and answered the interrogatories served on him.

       4. In support of the above complainant Mr. Mahesh Kumar filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C.10 and M.O.I detailed in the annexure here below.  On behalf of the opposite party Mr. Gangadhar B.S (Rw1) also filed affidavit evidence and answered the interrogatories served on him.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether there is consumer dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

                    Point No. (i): Affirmative

                            Point No. (ii): Affirmative           

                            Point No.(iii): As per the final order.

                                                                                         REASONS

IV.      POINTS No. (i):      In this case the complainant were buyers of various apartments as detailed in the complaints from opposite party No.1 in ‘Sony Mansion’ is undisputed.   Hence complainants being a consumers and opposite party is a service provider is established.  The complainants asserted in both cases series of deficiencies/shortfalls on in the construction and about poor construction and of poor finishing of the work in respect of the apartments purchased by these claimants.   This aspect was denied by opposite party. Hence there is a dispute to be gone into.  Hence we answer point No. 1 in the affirmative in both cases.

    POINT NO.(ii):    Though affidavit evidences and interrogatories and the replies to these interrogatories were filed by both sides the best thing that we can asses as to the state of affairs at the spot can be made out by looking into the report of a commissioner appointed by the Forum. 

It is seen in order sheet of C.C.No.303/12 on 9.4.2013 after opposite party appeared and on the hearing both sides the commissioner was appointed for local inspection and the report was called for.  Infact one Mr. Alexander Lancy Carlo, Civil Engineer was appointed as commissioner.  In his report he mentioned by notifying all the parties on 25.10.2013 about his inspection on 26.10.2013 at 4 pm he inspected in the presence of the parties 5 complainants and complainant counsel Mr. Deenanatha Shetty and the opponent Mr. Gangadhar B.S he has filed a detailed report.  Infact the opposite party as had filed an objection to this commissioner’s report dated 18.12.2013 but by order dated 11.2.2014 by this Forum rejected the objection.  On the ground the points raised in the objection where the commissioner had answered these points in his commissioners report.  As can we seen from the written argument notes filed on behalf of opposite party there is nothing about repudiation of the written version there is no answer given to the specific questions raised by complainant and the pointed raised out by the complainants and especially to the commissioner report the commissioner appointed by the  Forum who is a Civil Engineer. We may refer to certain important observation made in the Commissioners Report dated 29.10.2013 before that we may point out nothing of substance was raised in the written arguments filed by the learned counsel of opposite party has to the points observed and noted by the expert namely the commissioner in the report dated 29.10.2013.   Some of the important aspects noted by the commissioner are as follows:

REPORT

1. With respect to the point no.9 of the complaint it is convincing to the bare eyes that the buildings looks old and has not been constructed as per good Engineering Practice.

Cracks have been developed on all the elevations which have resulted in internal seepage of water.  Waste water is leaking from the drainage pipes and has accumulated at several places on the floor of parking lot in the ground floor.  Moss and fungus have formed in all the service ducts.

2. With respect to the point no.14 of the complaint, following observations have been noted.

1. The layer of moss formation is evident on the right side elevation of the building.  Weeds have been grown due to the continuous leakage of water.
2. It is noted that vehicular access has been provided to the neighboring plot through the set back area on the left hand side of the building.
3.  
4. The interlocks laid on the ground have not come off.  However, damages to the interlocking have been observed.  It is also observed that the covers of man holes have been disturbed and displaced.
5.  
6. Water seepage through the outer walls is evident.  Most of the balconies have been affected.  Moss and fungal growth has been observed on the internal surface of external walls.

It is observed that water leakage from the sunken portion of the bathrooms and some walls on the common area s like lobby, staircase etc.

7. One supporting pillar of the gate has been damaged and no more able to withstand the weight of the gate.
8. There is no sign of repairs to the damaged pillar.
9. Waste water is leaking from the drainage pipes and has accumulated at several places on the floor of parking lot in the ground floor.  Moss and fungus have formed in all the service ducts.
10. There is no sign of dirty water finding way into the underground sump.  However, water seepage on the walls of watch man room is observed which is near to the underground water storage sump.
11. Generator facility is not provided to the apartment building including lift.
12. Railing is not provided for the staircase at the top floor.

Thus ongoing through above commissioner report it is clear there is deficiency in service provided by the opposite party to the complainants who are buyer of the Apartments in ‘Sony Mansion’.  Hence we are of the view that opposite party shall be directed to remedy/to carry out the repair remedy/short comings mentioned by the commissioner in his report dated 29.10.2013. 

In respect of other reliefs claimed by the complainants it is necessary to direct opponent to deliver the documents claimed by complainants that were not delivered to their Registered Owners Association of the apartments under within the specified timed.

In respect of the meter pertaining to corporation water supply to the complainant shall get the meter transferred to the name of the Owners Association to which opposite party shall extend all required help and assistance to the complainants.

Similarly the complainants shall with the required assistance of opponent get MESCOM meters of their respective power meter transferred to their name. Considering the fact that the complainants were made to approach this Forum and undergo the touchier all these years and deficiency in services the opposite party shall be direct to pay a consolidated sum of Rs. 50,000 to the Association of the Apartment Owner of the Sony Mansion. 

The opposite party shall be given a 3 months time for compliance.   Hence we answer No .2 in the affirmative.

POINTS No. (iv): Wherefore the following order

ORDER

CC.No.302/2012 and C.C. No.303/2012 are allowed with costs. Opposite party is directed to deliver the documents claimed by complainants that were not delivered to their Registered Owners Association of the apartments within the specified time mentioned below. In respect of the meter pertaining to corporation water supply to the complainant shall get the meter transferred to the name of the Owners Association to which opposite party shall extend all required help and assistance to the complainants. Similarly the complainants shall with the required assistance of opponent get MESCOM meters of their respective power meter transferred to their name. Considering the fact that the complainants were made to approach this Forum and undergo the torchure all these years and deficiency in services the opposite party is directed to pay a consolidated sum of Rs. 50,000 to the Association of the Apartment Owner of the Sony Mansion. 

The opposite party shall be given a 3 months time for compliance.   

    Keep original order in CC.302/2012 and a true copy of in CC.303/2012.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 13 Dictated by president directly to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 1^st December 2016)

ANNEXURE OF C.C.No.302/2012

Witnesses examined on behalf of the Complainants:

CW1  Mrs. Safiya Beguam G.P.A holder

Documents marked on behalf of the Complainants:

Ex.C1 : 16.03.2012   : Sale Deed

Ex.C2 :                    : Deed of Declaration

Ex.C3 :                    : No.3 to 26 Copies of the photographs                          

Witnesses examined on behalf of the Opposite Party:

RW1: Mr. Gangadhar B.S, Owner cum Developer

Documents marked on behalf of the Opposite Party:

 Nil

ANNEXURE OF C.C.No.303/2012

Witnesses examined on behalf of the Complainants:

CW1  Mr. Mahesh Kumar

Documents marked on behalf of the Complainants:

Ex.C1 : 16.12.2010   : Sale Deed

Ex.C2 : 19.08.2011   : Deed of sale

Ex.C3 :11.10.2010    : Deed of sale

Ex.C4: 12.09.2011    : Deed of sale 

Ex.C5: 05.04.2010    : Deed of sale

Ex.C6: 27.02.2009    : letters given by MCC along with Sale deed  

Ex.C7: 14.07.2008   :  Deed of Sale

Ex.C8: 29.05.2008   : Deed of Declaration

Ex.C9: 28.07.2012   : legal Notice

Ex.C10:                   : Coloured Photographs

M.O.I                      : CD

 Witnesses examined on behalf of the Opposite Party:

RW1: Mr. Gangadhar B.S, Owner cum Developer

Documents marked on behalf of the Opposite Party:

 Nil 

Court Document:

Commissioners Report dated 29.10.2013

Dated:  01.12.2016                           PRESIDENT