(Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member)

(1)               Heard both the parties on delay condonation application, interalia covering aspects of merit of consumer complaint also since they have a bearing of considering explanation for condoning the delay. 

(2)               As per application for condonation of delay, the delay of 560 days is sought to be condoned.  The delay is calculated on the basis that the cause of action in favour of the complainant accrued on 24/03/2009, i.e. the event when the complainant society obtained the report of surveyor (of insurance company).  It may be at this stage mentioned here that on 30/07/2007, the building in which the complainant had a flat and which was almost 27 years old, was collapsed.  The society of the flat purchasers, consequent to it, made an insurance claim with ICICI Lombard General Insurance Co.Ltd. on 07/10/2008.  A surveyor was appointed by the insurance company and on the basis of surveyor report, said claim was repudiated on 22/10/2008. 

(3)               It is also alleged by the applicant/complainant that on 02/10/1980, the builder, opponent No.1-M/s.Allied Construction had taken a plot for development.  After construction was completed, their architect, opponent No.3-Mr.P.R.Parekh (reported dead ?) issued a stability certificate in respect of construction of the building.  On 12/06/1982, the complainant purchased the flat No.B-3 situated on 3^rd floor of the building for a consideration of `1,30,000/- and started residing there from the following month.  On 21/12/1982, the complainant addressed a letter to the builder about repairs and maintenance of the building.  On 28/02/2000, the complainant obtained a report regarding structural stability of the building as a chairman of the housing society.   Said report was obtained from M/s.Construction Techniques and Control Pvt. Ltd.  Copy of said report is on record relied and by the complainant.  It was reported that the building was in bad condition and can collapse at any time and it was further advised to demolish the said building and re-construct the same.  The building thereafter collapsed on 30/07/2007.  At that time, as per the request of Bombay Municipal Corporation, authorities of Sardar Patel College of Engineering, Andheri (West), Mumbai after inspecting the building prepared their preliminary report of structural aspect of building.  Their remark of the said building reads as under :-

“It appears that the building has started settling on the front side.  Due to this settlement some R.C.C. members like beams, slabs (terrace) and columns have cracked badly.  At some places on the front portion of the building walls have cracked, tiles have bulged out.  It appears that the settlement is still in progress. The tilt of the building on the front side is around 200mm over a height of around 13m.  In view of the above, it is recommended to immediately vacate the occupants of the building.  After properly propping the building, all the belongings of the occupants should be removed so as to reduce the imposed load.  Simultaneously further settlement of the building should be monitored and to take corrective action accordingly.” 

                   As it revealed, shortly thereafter, the building was collapsed.

(4)               There is a report which is also relied by the complainant on Dy.Chief Engineer of the Bombay Municipal Corporation dated 02/07/2007.  It refers in detail about inspection of building and further recorded that the permanent deformations that had set in the building could not be recovered.  It also mentioned a fact that since deformations that had set in cannot be restored and as the structure is old and is already repaired once by jacketing of the stilt colums.  He advised to pull down the structure rather than trying to salvage and repair it further. 

(5)               Consequent to felling of the building, by its letter dated 07/10/2008 to the insurance company, the society had invited attention of the insurance company referring to the facts of the felling of the building and its reasons, as under :-

“We refer to our first Claim intimation letter ref.No.BHR/105/08/07 dated 2^nd August, 2007, to you informing you that the said building Bhairavi Co-op. Housing Society Ltd. had tilted due to downward suppression which was caused by subsidence and the premises formed cracks in the structure, due to the same…………..

We enclose herewith Mumbai Fire Brigade House Collapse Report No.77 of 2007-2008 dated 10^th March, 2008 for your reference and perusal……..”

(6)               The above reference is made which relates to the assessment of causes of felling of building by the society which apparently is the owner of the said structure and it had not at all of the view that the building was collapsed due to the bad quality work carried by the builder as alleged by the complainant. 

(7)               It is another story that the insurance company did not agree with the assessment and based upon their surveyor’s report repudiated the claim.  The surveyor in his report finding upon the root cause of the felling of the building observed as under :-

“As per the President/Secretary of the Society the cause of damage to the building was reported as due to heavy rain, resulting subsidence of the soil of the foundation.

Bases on our inspection and Non Destructive and other testing on Insitu concrete and embedded reinforcement of different RCC elements of structure and the soil investigation report, it was concluded that the cause of damage to the building is due to poor quality of concrete, lack of maintenance, which caused the high level of corrosion in embedded reinforcement, resulting to cracking of the members and structure.  As per the reports, the building was found on rock and there is no variation in soil strata underneath the foundation and there is no subsidence (Test reports are enclosed with the report).”

(8)               This particular observation is relied by the complainant to file this consumer complaint.  Cause of action for the complaint, as one of the flat purchasers, against builder, it at all, would arise at the first instance when he purchased the flat and occupied it on 12/06/1982.  It is obviously case of defects in construction which according to the complainant were surfaced at later stage as per the report of insurance surveyor.  The complainant was aware of condition of the building when as a chairman of the society he obtained report from M/s.Construction Techniques & Control Pvt.Ltd. on 28/02/2000.  Collapse of the building for whatever reason is another event which may give cause of action to the society which is the owner of the building and not to the individual flat purchaser like complainant in the instant case. 

(9)               Considering the above aspects of the case, we find that statement as to accrual of the cause of action and calculation of 560 days’ delay, per se, is a wrong statement.  No delay could be calculated as such.  Therefore, we find that the delay is not at all satisfactorily explained.  Furthermore, even after the statement about accrual of the cause of action on obtaining copy of surveyor’s report, there is hardly any explanation given to explain that part of delay.  Under the circumstances, we hold accordingly and pass the following order.

ORDER

(1)     Application for condonation of delay bearing No.MA/11/218 stands dismissed.  In the result, the consumer complaint No. 119/2011 is not entertained.

(2)     No order as costs.

Pronounced on 6^th July, 2012.