Delhi

StateCommission

A/181/2019

RICHA JINDAL - Complainant(s)

Versus

MRS. PUNAM GOYAL & ANR. - Opp.Party(s)

16 Jun 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 16.06.2020

Date of Decision : 25.06.2020

First Appeal No.181/2019

(Arising out of the order dated 21.01.2019 passed in Complaint Case No.417/2014  by the

District Consumer Redressal Forum-II.)

In the matter of :-

 

Richa Jindal,

D/o Late Shri K.C. Jindal,

R/o B-7/86/1, DDA Flats,

Safdarjung Enclave,

New Delhi-110029.                                                  …..........Appellant

 

Versus

 

1. Mrs. Punam Goyal,

W/o Shri Joginder Kumar Goyal,

R/o G-94, Third Floor,

Saket, New Delhi-110017.

 

2. M/s. J.K. Goyal Estate Developers Pvt. Ltd.

D-71, Ground Floor,

Malviya Nagar,

New Delhi.   ….......Respondents

                                                                

CORAM

 

Sh. O. P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                        Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. The present appeal arises out of order dated 21.01.2019 passed by District Forum-II in CC No.417/14 vide which the complaint was dismissed simply on the ground that the dispute raised by the parties could not be decided in a summary manner because it has to be decided on merits whether or not the complainant had changed in the portion due to which problem of seepage occurred. It was also to be decided on merits whether the OP sold the property in question to the complainant when the same was having seepage problem.  Therefore, the parties were required to lead oral/documentary evidence which would imply the cross-examination of each other witnesses.  Appropriate forum for deciding lis was civil court and not the consumer forum.

 

2. It is necessary to narrate the facts before appreciating the approach adopted by the District Forum.  The case of the appellant/complainant was that she needed some space for her personal use and in search thereof she approached OP-1 and agreed to purchase 50% right in the basement floor measuring 900 sq. ft. alongwith  car parking space in stilt area in property No.B-258, erected on plot measuring 220 sq. yds. at Sarvodya Enclave, New Delhi.  Registered Sale Deed dated 16.05.2013 was executed.  At the time of purchase of property, OP-1 assured and represented the complainant that property was in good condition and there had never been any seepage problem.  But after purchasing the property the complainant who is an advocate by profession, spent huge amount on wood work in the basement for storing and housing her library, books and files and other records.  To her utter shock, huge amount of water flooded in the basement through walls, even though there was no rain or overflow of water outside. Due to said seepage of the water, records and books and furniture belonging to the complainant were spoiled.  The complainant had to call for the services of some civil engineers who opined that OP-2 failed to take necessary precaution while constructing the underground water tanks and basement at the time of construction and failed to ensure that no water and seepage came into the basement. The said defect is latent defect which cannot be detected by a man without the services of some experts.

 

3. The complainant’s practice has been affected adversely, since her clients do not come there. There is crust of fungal growth on the affected portion of the walls, windowsm almirah, book shelf as well as on the law books lying, which after drying and mixing with the surrounding atmosphere affect the complainant  and her employees.  The doctor suggested that if they continue to inhale fungus, it would aggravate their lungs and may create asthmatic conditions. Damage to her property caused on account of carelessness and negligence on the part of OP-1 to OP-3 who are responsible for the bad workmanship/non maintenance of underground water tanks and pipelines.  Their persistent refusal for carrying out the requisite repair work in the underground water tanks and for maintaining the same is causing undue hardship.

 

4. The complainant engaged services of one Mr. C.L. Jindal and other named Mr. R.P. Gupta, Water Proofing Engineer and Contractors to have the damage through seepage investigated and assessed. The said engineers started his work of investigation and assessment.  The OP did not cooperate in the process of investigation and assessment. They did everything possible within their means to delay and stop the work and investigation. According to the opinion of said engineers, the damage was being caused by faulty construction and inadequate water proofing and accumulation of water in the adjacent wall of basement.  Mr. Gupta also opined that in case, immediate remedial measures are not taken by the OPs, then the seepage is likely to spread to other portion of the complainant’s property and to the very foundation of the building.  According to Mr. C.L. Jindal the total estimate cost of the work for remedying the seepage and damage cause, to be done in the affected portion of the underground water tanks belonging to the OPs was estimated at approx. Rs.3,60,000/-. Despite that OPs have not taken any action as promised by them.

 

5. OP-1 & 2 filed WS stating that property was sold by OP-1 to complainant.  The OP-2 could not have been made a party in the present proceedings since it never dealt with complainant and there has never been any transaction between the complainant and OP-2. The complaint is not maintainable since the complainant is not consumer and OP-1 is not service provider and no services were promised at the time of executing the sale deed. It is not a case of unfair trade practice for the sole reason, it is sale of immovable property under the T.P. Act.  OP-1 is not involved in any kind of trade.  The property was constructed by OP-2 sometime in the year 2010.  OP-2 sold proportionate share of the basement with some space for car parking at the stilt parking to the OP-1 vide sale deed dated 20.05.2011.  OP-1 sold the same to complainant vide sale deed dated 16.05.2013.  During the period from 20.05.2011 to 16.05.2013 OP-2 did not receive any complaint from OP-1 with regard to the property in question.  There was never any technical fault in the basement. After purchasing the portion of the basement alongwith car parking area, complainant had illegally constructed and added one bathroom, kitchen and room in the basement and stilt area of the property and had also put portion alongwith other fittings and fixtures in the stilt area which is against the prevailing building bye-laws. The construction carried out by the complainant was dangerous to the existing structure of the property.  It is apparent that aforesaid portion/construction/alterations carried out by the complainant caused grave damage to the RCC walls of the basement area leading to the alleged technical faults.
6. No  notice was served on the OPs prior to filing of complaint.  The complaint has been filed without ulterior motive to extort money from the peace loving and law abiding citizens of this country.

 

7. OP-3 was dropped by the complainant vide order dated 06.11.2015 before District Forum itself.

 

8. Complainant filed rejoinder stating that OP-2 is company of husband of OP-1 and OP-3 is partner in the OP-2.  Complainant filed her own affidavit in evidence.  The complainant also filed photos of the damaged portion and reports of two engineers. As compared to it OPs filed affidavit of Sh. Munish Goyal, Director of OP-2.  OP-1 did not file her own affidavit even.

 

9. Both parties have filed written arguments.  After going through the material on record and hearing the arguments, the District Forum passed the impugned order.

 

10. In appeal the grievance of the complainant is that District Forum was laboring under a mistaken belief that the complaint is in respect of some deficiency in service only and has not applied its mind to the fact that the complaint related to non disclosure of latent defects in the property sold and amounted to unfair trade practice. District Forum failed to apply its mind and has not considered the report of various engineers submitted by complainant. The District Forum failed to apply its mind and has not considered that factum of seepage is not disputed by the OPs.  District Forum had erred in holding that the case requires a trial, which cannot be undertaken by the forum.

 

11. The respondents have filed reply to the appeal.
12. After oral arguments on 16.06.2020, the respondent filed written arguments on 17.06.2020.  I have gone through the material on record and heard the arguments. As regards, findings of the District Forum that case involves complicated questions of fact and law and requires oral evidence including cross-examination which cannot be done in summary proceedings in Consumer Protection Act. It may be observed that all cases in which facts are disputed, must not be  returned by the consumer courts.  In CCI Chambers Cooperative Housing Society Vs. Development Credit Banks III (2003) CPJ 9 Hon’ble Supreme Court held that merely because service experts for proof and writing are required, consumer courts cannot refuse to entertain the case.  In J.J. Merchant Vs. Shrinath Chatuvedi, AIR 2002 SC 2931 it was held that where negligence of expert is alleged, case can be decided by consumer courts. Similar view was taken in   I (2010) CPJ 312 NC.

 

13. In 1998 (9) Judgement Today 109 it was held that complaint is not to be returned on the ground that it involves complicated questions, at the last stage. In the present case, the District Forum kept the complaint pending from 214 to 2019 and both parties had led their evidences.

 

14. Moreover, in Shiv Kumar Vs. Arun Tandon, 2007 (2) CPJ 321 National Commission held that consumer courts are headed by senior judicial officers and are capable of dealing with complicated questions.  So I am unable to sustain the impugned order.

 

15. Counsel for respondents strongly urged that complainant is not consumer.  It is a simple case of sale of property.  In support of his submissions he relied upon decision in Ganesh Lal Vs. Shyam, 2014 (14) SCC 773 in which it was held that sale of plot of land simplicitar not involving a consumer transaction does not amount to housing construction services cannot lead to a complaint in Consumer Forums. The same is distinguishable as that is case of sale of plot.  In the present case dispute pertains to defect in the construction.

 

16. Counsel for respondent also relied upon decision in Ludhiana Improvement Trust, Ludhiana & Anr. Vs. Shakti Cooperative House Building Society Ltd. (2009) 12 SCC 369 in which it was held that existence of some cogent material before the District Forum relating to unfair trade practice is necessary.  Any inferential finding is not sufficient to attract section 2(1)(r) of Consumer Protection Act.   Again the same is not applicable as the complainant has filed the reports of two engineers.

 

17. Reliance on UT Chandigarh Administration & Anr. Vs. Amarjeet Singh (2009) 4 SCC 660 is case of auction on as is where basis.

 

18. The respondent has also relied upon the decision of High Court of Calcutta in Ranjit Kumar Chakravarty Vs. Sandhya Modak & Ors. that was the case in which bar of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 was invoked.

 

19. On the other hand, the appellant has relied upon the decision of Hon’ble Supreme Court in Civil Appeal No.944/16 titled as Bunga Daniel Babu Vs. Sri Vasudeva Constructions decided on 22.07.2016.  The said decision has dealt with decision of Hon’ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta (1994) 4 SCC 225 in which it was held that definition of consumer in Consumer Protection Act is in two parts.  The first deals with goods and the other with services. Both parts first declare the meaning of goods and services by use of wide expressions. Their ambit is further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it. The legislature has taken precaution not only to define 'complaint', complainant', 'consumer' but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in clause (r) and even to define 'defect' and 'deficiency' by clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services.  The defect in one or deficiency in other may have to be removed. Thus, the appellant is covered under Consumer Protection Act.

 

20. The appellant has also relied upon the decision of Hon’ble Supreme Court in Civil Appeal No.7577/2006 titled as Sujit Kumar Banerjee Vs. Rameshwaran decided on 10.07.2008 in which Hon’ble Supreme Court reiterated its decision in Faqir Chand Gulati Vs. M/s. Uppal Agencies Pvt. Ltd., Civil Appeal No. 3302/2005. The decision of High Court of Delhi in Jaina Properties Pvt. Ltd. Vs. Union of India, 1994 (2) AD Delhi 464 has also been cited by appellant.  In that case consumer aggrieved to take a flat from builder, aggrieved by the services of builder he filed petition before State Commission seeking damages.  It was held that no delivery of possession within stipulated period is not disputed in respect of immovable property.  Damages were awarded.

 

21. The appellant argued that problem of seepage is not one which can be seen apparently. The same is latent defect.  Every transaction comprises of implied assurance that construction is free from defect. Fixation of wooden almirah in the wall for purpose of keeping library cannot be said to cause damage leading to seepage. The engineers of complainant has opined that seepage took place due to improper maintenance of underground water tanks and not taking care at the time of construction of basement.

 

22. The respondent OP has not filed any contra report to show that damage took place due to act of complainant.

 

23. In para-5 (f) of written submission filed in appeal, the appellant has mentioned that claim regarding “Cost incurred while engaging M/s. Sharma Associates to investigate and take remedial measures in the complainant’s flat” appellant has failed to plead any specific details about alleged hiring of M/s. Sharma & Associates in her complaint. I am at loss to go through his argument. She has filed report of Sh. Rajender  Prasad Gupta CW1/3 and P. Garg & Associates which is exhibit of CW1/4.  She has also filed photographs which are exhibit CW1/2.  Since respondents disputed availability of those documents on file of District Forum, I had to summon the file of District Forum and documents find place on it.  The photographs and their envelope is between page-122 to 123 of the file of District Forum. The envelope containing those photos was given serial number 123 in the file of District Forum.

 

24. Report of Sh.  Rajender  Prasad Gupta shows estimate of Rs.1,29,800/- whereas report of P. Garg & Associates shows estimate of Rs.1,27,500/-. I prefer to choose report of Sh. P. Garg & Associates which contains lower amount. But both the reports were given somewhere in 2013 and now we are in 2020.  The cost of repairs must have increased twice at least.  Thus, cost of repair is estimated at Rs.2,50,000/-.  In addition the appellant is entitled for compensation of Rs.2,00,000/- on account of mental agony, asthmatic condition and loss of business.  However the prayer for loss on account of reduction of the value of property, exemplary damages, cost incurred in engaging Sharma & Associates are declined.

 

25. To sum up, the appeal is accepted and appellant is permitted to carry out the repairs of her own for which the respondent-1 would pay Rs.4,50,000/- as detailed above. However, appeal against Respondent no.2 is dismissed as there is no privity of contract between the appellant and said respondent.

 

26. Copy of this order be sent to both the parties free of cost.

 

27. One copy of the order be sent to District Forum for information.

 

28. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)

Bench-2

                                

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