Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 13th June 2013
This complaint is filed by Geeta Park Co-operative Housing Society Ltd. against Builder and Promoter u/s 12 of the Consumer Protection Act, 1986 for deficiency in service. Brief facts are as follows-
[1] Complainant is a Co-operative Housing Society Ltd. formed under the Maharashtra Ownership Flats Act, 1963. Opponent No.1 is the Partnership Firm and the Opponent No.2 is the Partner of the said Firm. They have developed land at Kothrud bearing S.No. 91/1/13 and constructed five storied building consisting 26 flats. The Opponents entered into Agreements of Sale with the members of the Society. As per the provisions of Maharashtra Ownership Flats Act, 1963 the Promoter and Builder are under obligation to provide facilities and amenities. The Opponents have not provided those facilities and amenities. The Opponents had agreed to pay water bill to the tune of Rs.1,43,624/- but did not pay the same and the complainants were required to pay the said bill to the P.M.C. Authorities. The Opponents have not executed Conveyance Deed as per the Agreement. Opponents have recovered Rs.11,500/- from each flat owner towards MSEB Charges and deposit amount of electricity meter. But they have not provided electricity meters to all flat owners. They have not deposited the said amounts with MSEB Authorities. Opponents have cheated the members of the complainant society by selling less area than which is agreed in the agreements. The details about the agreed area, actual area and less area as well as effective financial losses to the members of the society are referred in the Table at page No. 6 of the complaint. The Opponents did not provide letter boxes and electrical fittings as per the agreements. Thus Opponents have caused deficiency in service and they are liable to pay compensation for selling less area as well as for deficiencies as regards not providing the facilities such as electric meters, water bills etc. The complainant society has claimed compensation of Rs.20,00,000/- from the Opponents.
[2] The Opponents resisted the claim by filing written version and flatly denied the contents of the complaint. According to the Opponents the Secretary who has filed the complaint is not authorized to present and conduct the present complaint. Hence complaint is not maintainable. The complaint is hopelessly time barred as it is filed in the year 2003 and the flats were sold out in the year 1999. It is further denied that the Opponents have caused deficiency in service by selling less area than the agreement and by not providing the facilities as alleged. According to the Opponents, complainants have failed to give particulars of water bill which is referred in the complaint. The Opponents have also denied that the amount of Rs.11,500/- which is recovered from each of flat owner for MSEB charges and deposit amount is not utilized for the said purpose. According to the Opponents there is no deficiency in service and complaint is liable to be dismissed. The Opponents have claimed compensatory costs of Rs.50,000/-. Initially this complaint was decided by this Forum on 21/8/2009 and the complaint was dismissed on the ground of limitation as well as authority to present the complaint. The complainants have preferred First Appeal bearing No. A/09/1191 and that was decided by the State Consumer Disputes Redressal Commission, Maharashtra on 5/7/2011. The Appeal was allowed and the points as regards the authority for filing the complaint as well as limitation were decided in favour of the complainant and the State Consumer Disputes Redressal Commission, Maharashtra has directed to appoint two Architects with consultation of both parties and decide all the points raised by the complainants in their complaint.
After receiving this proceeding by this Forum the complainant has appointed Architect named as Khaire Kenjale Architects who has submitted his report alongwith the maps, measurements and difference in the area as shown in the agreement and actual area. The Opponents did not take any pain to appoint Architect on their behalf. Before deciding this complaint Court Commission i.e. City Engineer was appointed to bring on record the actual area and the area which was sold out to the members of the complainant society. Thus there are three Reports of Architects. The first report is filed alongwith complaint, the second report is of City Engineer and the third report is of Khaire Kenjale Architects who were appointed as per the directions of the State Consumer Disputes Redressal Commission, Maharashtra.
After considering the written arguments, voluminous documentary evidence and pleadings of both parties following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainants have proved with satisfactory and cogent evidence that Opponents have caused deficiency in service as regards the water bill, electricity charges and other amenities ? | In the negative |
2 | Whether complainants have proved deficiency in service as regards selling less area to the members of the complainant society ? | In the affirmative |
3 | What order ? | Complaint is partly allowed |
Reasons
As to the Point Nos. 1 to 3-
At the outset of the reasons it is necessary to mention here that the points as regards limitation and authority to file present complaint are already decided by the State Consumer Disputes Redressal Commission, Maharashtra and the Opponents had not challenged that findings before the superior authority. Hence those findings have attained finality.
In order to establish deficiency in service as regards not utilizing the funds which were provided by the members of the society for electric bill and deposit towards electricity meter the complainants have not adduced adequate, sufficient and cogent evidence. So also no evidence is adduced on behalf of the complainant as regards the liability of the Opponents to pay water charges to the P.M.C. by the Opponents. Hence I held that the complainant society has failed to prove these deficiencies in services.
During the pendency of the present proceeding the Opponent No.2 died. The complainants have filed application for bringing on record the legal heirs of the Opponent No.2. The Opponents have not filed any say as regards the legal heirs of the Opponent No.2. Hence that application is allowed.
As regards deficiency in service for selling less area to the members of the complainant society there are three reports before this Forum. At the time of filing of the complaint complainants have measured the flats in dispute through Architect who had worked out the less area than which has been shown in the agreement. The cost of that area was Rs.17,95,028/-. Thereafter the Court Commissioner i.e. City Engineer was appointed by the District Forum for taking measurement of all the flats who had worked out the less area which is worth of Rs.23,37,550/-. As per the directions of the State Consumer Disputes Redressal Commission, Maharashtra the third Architect - Khaire & Kenjale were appointed on behalf of complainant society. As per the report of the Khaire & Kenjale Architect the cost of the less area is Rs.20,23,571/- The said report is in detail. The Opponent had failed to exercise the option for appointing the Architect for measuring the properties as per the directions of the State Consumer Disputes Redressal Commission, Maharashtra. The Opponents have not challenged the report of Khaire Kenjale Architects. The Architect had actually measured the flats, considered the guidelines and ready reckoner while preparing and calculation of carpet area and built up area hence the report of Khaire Kenjale Architects can be accepted for determination of compensation as regards deficiency in service. But it reveals from the calculation which is made on the basis of the report Khaire Kenjale Architects the total value of compensation is worked out to the tune of Rs.20,23,571/-. The complainants have not amended the complaint and the pleadings. In such circumstances the complainants are not entitled to receive the compensation which is based on the report of Khaire Kenjale Architects. The compensation which is claimed for deficiency as regards less area by the complainant is Rs.17,95,028/- i.e. less than the compensation which is worked out as per the report of the Khaire Kenjale Architects as well as the compensation which is worked out on the basis of the report of City Engineer which has been appointed as Court Commissioner on the strength of application which is given by the Opponents. In the light of the above discussion I held that the complaint deserves to be partly allowed. The complainants are entitled not for the compensation as regards deficiency in service for the payment of electricity meter, bill, water bill but they are entitled to receive compensation for selling less area to the members of the complainant society to the tune of Rs.17,95,028/- from the Opponents as per the Table which is annexed at page No. 18 of the complaint and they are also entitled to receive Rs.25,000/- for deficiency in service. I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by selling less area to the members of the complainant society.
3. The Opponents are jointly and severally directed to pay
amount of Rs.17,95,028/- to the members of the complainant Geeta Park Co-operative Housing Society Ltd. for selling less area within six weeks from the date of receipt of copy of order.
4. The Opponents are jointly and severally directed to pay
Rs.25,000/- towards compensation for deficiency in service and Rs.5,000/- towards costs to the members of the Complainant Geeta Park Co-operative Housing Society Ltd. within six weeks from the date of receipt of copy of order.
Copy of order be supplied to both the parties free of cost.
