Punjab

StateCommission

CC/279/2016

Amit Mehrotra - Complainant(s)

Versus

M/s SMV Agencies Pvt. Ltd. - Opp.Party(s)

Suresh Goyal

03 Oct 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,    PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.279 of 2016

 

                                                          Date of Institution   : 06.09.2016            

                                                          Order Reserved on : 27.09.2017

                                                          Date of Decision     : 03.10.2017

 

Amit Mehrotra son of Sh. Bipin Kumar Mehrotra, r/o H.No. 1304, First Floor, Sector 68, SAS Nagar, Mohali 160002

 

                                                                                       ….Complainant

Versus

1. M/s SMV Agencies Pvt. Limited through its Chairman Sh. S.K. Jaipuria, S-25, Green Park, Main Market, New Delhi 110016.
2. M/s SMV Agencies Pvt. Limited through Director S-25, Green Park, Main Market, New Delhi 110016
2.  

Zirakpur office : Shop 35-26, Jaipur Sunrise Plaza, VIP Road,

Zirakpur (District Mohali).

3. Sh. Keshav Mittal, Director of M/s SMV Agencies Pvt. Limited S-25, Green Park, Main Market, New Delhi 110016.
4.  
4. Sh. Sandeep Sharma, Project Director M/s SMV Agencies Pvt. Limited, S-25, Green Park, Main Market, New Delhi  110016
2.  
3. Col. SK Dutta, General Manager Project, 2^ndAddress : 1862, Mahalaxmi Market, Bhagirath Palace, Chandni Chowk Delhi.

Zirakpur office : Shop 35-36, Jaipur Sunrise Plaza, VIP Road, Zirakpur (District Mohali).

                                                                             Opposite parties.

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

         

Present:-

          For the complainant         :  Sh. Sourav Goyal, Advocate

          For opposite parties         :  Sh. Kabir Sarin, Advocate

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments, that he had booked one flat with OP no.1 in its project "Jaipuria Sunrise Greens" located at VIP Road Zirakpur District Mohali Punjab. After receiving full and final payment, one flat no.          N-001 in N Block Jaipuria Sunrise Greens VIP Road Zirakpur was allotted to him on 04.12.2014 and possession of the flat was handed over to him on 05.12.2014.  As per agreement executed between the parties, OP no.1 handed over flat in a ready to shift condition to him. After receiving the possession, he was shocked to find that outer side of the flat, very adjacent to the bedroom wall of his  flat, electricity meter board of  half of entire N Block flats were without his knowledge. He was informed neither about the same at time of booking nor during the construction of the flat. For installation of the same, even big holes were dug in the wall of the flat and iron rods were put inside the wall of his flat. This is very dangerous and hazardous and can lead to massive fire or high voltage electric current. This wall is of bedroom and washroom of his flat. This could be life threatening to him and his family members, as well. In all other blocks of the society i.e. Block A to Block M, the electricity meters are in the basement. The same has been brought to the notice of OPs by him, but no action has been taken so far. As per commitment made by OPs, they had promised to him that after taking the possession of the flat, electricity meter would be removed from the flat, as they have already directed their Engineering Department for removal of the same and further informed him that alternative spaces were available in the society for installation of entire electric meter of N Block flats. As per information of the complainant, the place, where the alternative space are available and where the meter of N Block was supposed to be installed was not carried out. OPs used the poor quality of material in the construction of the flat and due to which, there were various problems, which occurred i.e. major seepage issue on all the walls, big cracks on the wall, less use of cement in sand-cement mix, which affected the quality of walls, poor quality of floor times and bathroom tiles on the  walls, door quality was also extremely poor and so on. The possession was taken by him on the condition that the issues would be resolved in next 15 days therefrom, but after making the entire payment of the flat, no issue has been resolved by OPs.  The OPs have miserably failed to perform their duties. The complainant has, thus, filed the complaint directing OPs to make the payment of                     Rs. 33,00,000/- on account of expenses to be incurred by him for removing the defects in the flat, besides Rs.10 lac as compensation for mental tension and agony along with interest @ 18% p.a and further prayed that OPs be directed to remove the electric meter installed at his flat and other reliefs, as mentioned in the complaint.

2.      Upon notice, OPs appeared and contested the complaint of the complainant vehemently. It is averred that allotment of the flat to the complainant has been effected on 27.08.2012 and not on 04.12.2014. Further offer of possession was to be given on 01.04.2014 and OPs had offered the possession of the said flat to him on 14.06.2014. The detailed offer of possession has also been sent, vide hardcopy along with all necessary details on 15.06.2014. The finalization of the accounts has been completed by the parties concerned  on 27.06.2014, which bears the complainant's signatures. It is averred that there are no alternate locations for such resettlement of the electricity unit. The photographs of complainant are that of other towers and open spaces in general.  The complainant is neither technically qualified nor an Engineer to assume such spaces fit and viable for such shifting. The complainant has not raised any such issues nor he received the possession of flat under protest or on the above grievance at the relevant time. The OPs had applied for completion certificate, much prior to possession being delivered to the complainant. It is denied that complainant has suffered any mental and physical harassment, as alleged. The complete and habitable possession has been handed over to complainant after a delay of approximately six months due to his own omissions. The complainant has been offered possession, vide intimation of possession dated 14.06.2014, 15.06.2014 and 27.06.2014 and has subsequently taken possession without protest and objection on 15.12.2014, which sequentially proves that all the necessary requirements were well in place and that the competent authorities, as per completion certificate gave the final approval to the basic layout and infrastructural requirements to OPs of this project. The infrastructural requirements are in consonance with the terms and conditions of the allotment. OPs relied upon clauses 6, 10 and 28. Clause 15 reads that the maintenance of the residential unit including all walls and partitions, sewer drains, pipes, attached lawn and terrace shall be the exclusive responsibility of the allotees from the date of receipt of possession. Clause 15 lays down that complainant is responsible for interiors of his residential unit. It is averred that complainant wrongly pleaded Rs. 5 lac required for cost of seepage as all the walls and floor needs to be repaired after resolving the faults, Rs.4 lac required for cost reconstruction after seepage treatment for purchase of tiles, cement, sand fixing and labour, Rs. 4 lac required for cost of bathroom renovation as the tiles and cement sand mix needs to be removed and constructed again and removal of the electricity meter broad from outside of N -001 Flat, Rs. 3 lac required for cost of changing door, Rs. 4 lac required for cost of crack repair of wall and Rs. 1 lac required for loss of rent. Rest of the averments of complaint have been denied by OPs and they prayed for dismissal of the  complaint.

3.      The complainant tendered in evidence copies of documents  Ex.C-1 to Ex.C-8 (photographs Ex.C-4(1) to Ex.C-4 (28) and closed evidence. As against it; OPs tendered in evidence copies of documents Ex.OP-1 to Ex.OP-5 and closed the evidence.

4.      We have heard learned counsel for the parties and OP in person as well  and also examined the record of the case. The grievance of the complainant in this case is that possession of the flat was handed over to him on 05.12.2014 only and it was agreed upon to be handed over in a ready to shift condition. The complainant found that electricity meter board of the half of entire N Block flats (total number of flat in the N Block are 28) has been installed on the outer side of bathroom wall of the complainant without his knowledge by OPs. He was neither informed about it at the time of booking of the flat nor during the construction of the flat by OPs. For installation of the same, even big holes were dug in the wall of the flat and iron rods were put inside the wall to hold together electricity meter compartments. The thick electric wires going to the meter are placed along with walls. Some of them are touching the wall and flat base, which is very hazardous for residence of the complainant in the  above flat, because high voltage electric current can pass to his flat through walls during any mishap or heavy rain or water logging or during deterioration of thick electric wires. The version of the OPs is that agreement has been executed between the parties without any addition therein and complainant was duly aware about it and he took possession of the flat willingly.  Clause 6 of the allotment letter was relied upon by OPs that complainant gave unconditional and irrevocable consent to such variations /additions/alterations and modifications. Similarly, Clause 10 of the allotment letter was relied upon by OPs in this regard emphatically.

5.      We have gone the evidence on the record with the able assistance of counsel for the parties. The complainant tendered affidavit in support of his above averments. OPs tendered counter affidavit of Anurag Mishra Ex.O-A  against it on the record. Our attention has been drawn to the photographs Ex.C-4 (1) to Ex.C-4 (28) on the record. There is nothing on the record by OPs to rebut these photographs. The photographs have strongly clinched this point that OPs installed electric meter board of the half of entire N Block flats (total number of flat in N Block are 28) without knowledge of the  complainant. It is very hazardous to the residence of the complainant and his family members as well. It could lead to any hazard or misadventure. There should be separate place for installation of such highly voltage electric meters, so that residential houses remained insulated from it. Above referred photographs have sufficiently prove it on the record that OPs installed the high-level electric meter of 28 flats of N Blocks at the bedroom of the complainant. The complainant also corroborated the above photographs by filing his affidavit on the record. Possibility of passing of electricity current in the bedroom and washroom of the complainant are thus not ruled out. This can be life threatening to complainant and his family members, which fact is not ruled out. Consequently, OPs are found deficient on this count, as projected before us by the complainant, as they installed it without any express consent of the complainant touching the bedroom of his flat adjacent to his washroom.

6.      Further grievance of the complainant is that OPs used poor quality of material in the construction of the flat, causing major seepage on all the walls, big crack on the walls, use of lesser cement in sand-cement mix, which further affected the quality of walls. The complainant further pleaded in paragraph no. 5 of the complaint that less sand-cement mix has been used to paste floor tiles and bathroom tiles on the walls, which has created major issue and poor quality of wood/ply is used on all his doors/windows. He took possession on the condition that above deficiencies will be resolved in next 15 days by OPs. The above deficiencies projected by complainant has been pleaded in detail in paragraph no. 6 consisting of Clause 6.1 to 6.7 of the complaint. The submission of counsel for the complainant is that the complainant took possession and OPs were to remove the above issues, but the same have not been removed by OPs. The complainant pleaded that Rs. 5 lac is required for cost of seepage, as all the walls and floor needs to be repaired after resolving the faults, Rs.4 lac required for cost reconstruction after seepage treatment for purchase of tiles, cement, sand fixing and labour, Rs. 4 lac required for cost of bathroom renovation as the tiles and cement sand mix needs to be removed and constructed again and removal of the electricity meter broad from outside of N -001 Flat, Rs. 3 lac required for cost of changing door, Rs. 4 lac required for cost of crack repair of wall and Rs. 1 lac required for loss of rent. The complainant has sought relief of payment of Rs.33 lac, as expenses for removal of the above deficiencies in services left by OPs and further claimed Rs.10 lac as compensation for mental harassment and Rs. 1 lac as cost of shifting of the electricity meter.

7.      OPs raised plea in the written version that possession was offered to complainant via email on 14.06.2014 and detailed offer of possession has also been sent, vide hard copy along with all necessary details on 15.06.2014. OPs completed all the formalities in June, 2014, hence instant complaint is hit by limitation in this case. In paragraph no.2 of the written reply on merits, it is pleaded that complainant eventually took possession of the flat on 05.12.2014 by signing the documents and he himself is liable for delayed possession. The version of the OPs is that possession was offered on 14.06.2014 and OPs delivered the possession of the residential flat to complainant on 14.06.2014 by email followed by hard copy to him on 15.06.2014. The complainant eventually received possession on 05.12.2014 causing delay on its own part. The OPs are in receipt of completion certificate as well, and hence complaint of the complainant is barred by time having been filed after more than two years from offer of possession on 14.06.2014.

8.      Counsel for OPs relied upon law laid down in Delhi Development Authority versus Lal Chand (Dead) through Lrs, reported in 2017(2) CPR 682 (NC), which is not applicable in this case and law laid down by this Commission in Punjab Urban Development Authority  through its Chief Administrator versus Malkiat Singh Bala reported in 2001(2) CPR 293 is also not applicable in this case on the basis of above observations recorded by us that possession was delivered to complainant on 05.12.2014 and limitation is to commence to file the complaint from the above date.  Delay of two years has been prescribed in filing the complaint from the date of commencement of cause of action only by CP Act. The core point involved is as to on, which date cause of action arose in this case. OPs pleaded and filed affidavit of its witness that cause of action accrued on 14.06.2014, when it offered the possession of flat to complainant. OPs relied upon the affidavit of Anurag Mishra Ex.OP-A on the record in this case. Reliance has also been placed on email letter dated 14.06.2014 offering of possession of flat N-001. Ex.OP-2 is letter dated 15.06.2014 offer of possession of Unit No. N-001 to complainant followed by statement of account. Ex.OP-3 is final settlement of Unit No. N-001. Ex.OP-4 is possession letter of the apartment. We find that it is signed by both sides. Consequently, it can be taken to be date of delivery of possession and we hold that complainant received the possession on 05.12.2014 as amply proved on record and possession letter duly signed by him is Ex.OP-4 dated 17.01.2015.  We cannot assume commencement of cause of action on the basis of Ex.OP-1  because possession might not have been completed and due to this reason complainant has not opted to receive it at that time. The possession was taken on 05.12.2014 as proved on record, vide Ex.OP-4 by complainant. The complaint was filed on 06.09.2016 before this Commission within a span of two years from the date of accrual of cause of action on 05.12.2014, hence it is within time. The contention raised by counsel for OPs on this point is not accepted.

9.      Coming to the next point, as to whether OPs left deficiencies in the construction of the flat, which was handed over to the complainant. We have gone through the evidence on the record. The infirmities have been pleaded by complainant in para no. 6 consisting of clauses 6.1 to 6.7 of the complaint. The complainant also filed affidavit in support of these infirmities on the record. On the  other hand, OPs denied this fact that there were any infirmities in the construction raised by them. OPs mainly relied upon document Ex.OP-4, vide which, the complainant received absolute possessions without any protest. Ex.OP-5 27.08.2015, vide which, completion certificate was issued by OPs on the condition that OP/Company would make all the arrangements of PPCB/fire protection. Ex.OP-5 has proved that completion certificate was delivered on 27.08.2015 vide no. 2680 addressed to OPs by Municipal Council Zirarkpur. Consequently, the offer of possession by OPs without completion certificate on 14.06.2014, vide letter Ex.OP-1. The project was not ready for delivery of possession till 27.08.2015, as substantiated, vide Ex.OP-5 on the record. Till project of complainant was not completed, there was no accrual of cause of action for the complainant to file this complaint.

10.    Now, we further refer to evidence on the record to prove this fact, as to whether the amount of Rs. 33 lac is required to be paid to complainant for removal of above infirmities and deficiencies. There is mere affidavit of complainant on the record in this regard, which is counter-balanced by the affidavit of OPs. There is no report of technical expert that the above-referred amounts would be required for removal of the alleged infirmities left by OPs in the construction of the flat. Consequently, we are unable to pass any order directing the OPs to pay the above referred amounts to complainant for removal of the infirmities without any technical expert's report in this regard. So far as, point of infirmities in the flat in concerned, the complainant placed on record photographs Ex.C-4 (1) to Ex.C-4 (28). We have examined these photographs with the able assistance of both counsels for the parties. There is no dispute regarding the identity of these  photographs to be of the flat in dispute. They do prima facie prove this fact on the record that there are deficiencies left by OPs in the construction of the flat causing seepage in the walls. The mere affidavit of OP to counter above photographs is unable to make dent in them. These photographs corroborate the version of the complainant, as pleaded in the complaint, duly supported by his affidavit on the record. The OPs have not adduced any cogent  rebuttal evidence against it. They have not examined any of their engineers to prove this fact that there were no infirmities therein so as to discharge the onus of proof, which shifted on them on discharge of initial onus of proof by complainant in this regard. Consequently, we hold that OPs left some infirmities in the construction of the flat of the complainant. This finding is, thus, returned by this Commission in this regard on this point. Since the value of the flat,  as agreed upon by the parties is more than Rs.20 lac totaling Rs.33 lac and as such, this Commission is competent to take cognizance of the matter on the basis of law laid down by National Commission in Ambrish Kumar Shukla and 21 others versus Ferrous Infrastructure Pvt. Ltd, in Consumer Case No. 97 of 2016 decided on  07.10.2016. We are not able to agree with the contention of OPs that complainant has exaggerated the pecuniary jurisdiction to file the complaint before this Commission. Similarly, law relied upon in Man Singh Grewal and another versus M/s Parsvnath Developers Ltd reported in 2017(2) CPR 678 (NC) has been examined by us. Since basic value of the flat is Rs. 33 lac and hence there is no question of exaggeration of pecuniary jurisdiction by the complainant in this case as held.

11.    After considering the law laid down in M/s Omaxe Chandigarh and others versus Lalitha Saini  in First Appeal no. 1364 of 2017 decided on 21.08.2017 by National Commission and facts and circumstances of the case and evidence on the record, we accept the complaint of the complainant and direct the OPs to shift the electric meter board of half of entire N Block flats from the outer side of the complainant flat and to install it at a safe place not touching the residence of any of the owners of the flats within a period of three months from date of receipt of copy of this order. OPs are also directed to remove the above referred deficiencies to the satisfaction of the complainant in the construction by removing the seepage and setting right the floor ties and bathroom tiles and removing the deficiencies in the doors by fixing proper ply board and removing major cracks in the flat within a period of three months from the date of this order. The complainant is also awarded the compensation of Rs.70,000/- for mental harassment and Rs.30,000/- as costs of litigation, which shall be paid by OPs to complainant within 45 days from the date of receipt of copy of this order.

12.    Arguments in this complaint were heard on 27.09.2017 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

13.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

October, 3  2017                                                            

(ravi)