Per Mr.B.S.Wasekar, Hon’ble President
1) The complainants have filed this complaint u/s 12 of the Consumer Protection Act, 1986. According to the complainants, they are the flat owners in Ashok Towers Complex of the Opponent. At the time of booking, sample flats were shown. The entrance to each tower was through a small canopy/porch. Possession of the flat was given in the year-2010. The complainants visited the site for inspection before taking possession. They noticed that massive canopy/porch structure had been built instead of the original designed canopy/porch. The structure was so huge that it come in front of the drawing room and bed room and the height of that room was at the second floor flat level. It creates grave security risk. Some of the flat owners discussed the matter with office bearers at builder’s office. It was told that matter will be put up to the management and the architects but till today there is no response. There is security hazard and in October-2010, there was robbery in the complex. The management of the opponent were requested to review the situation but there is no response. Representation was also given in January-2011 and the complainants were called for meeting. The management refused to accept the fact that there was any deviation from the original plan. There is constant fear to life and property. As per the original plan of 2004, height of the porch was of 4 meters, width was of 2.5 meters and length was of 8.84 meters. As per the amended plan of 2009, height of porch is 6 meters, width 4 meters and length is of 18.5 meters. In view of these changes, life and property of some of the residents is highly in danger. There is mental stress in the heart of the residents. Therefore, the complainants have filed this complaint for necessary modification to the present canopy/porch structure to the original size and shape so that affected residents are free from mental stress and can feel safe and secure in their homes. They have also claimed compensation of Rs.17 Lakhs for mental agony.
2) The O.P. has filed written statement. It is submitted that the complaint is false and fabricated. It is not maintainable in law. The requirements u/s 2(1)(b) r/w 12(1)(c), 13(1)(6) of Consumer Protection Act, 1986 and order I Rule 8 of C.P.C. are not followed. It is submitted that no leave is obtained from the Forum u/s 12(1)(c) of Consumer Protection Act therefore the complaint deserves to be dismissed. No justification is given for the loss suffered by the complainants. As per the plan, a porch was designed to be erected at the entrance of the Tower and accordingly it is erected. The complainants were aware about the height and width of the porch at the time of allotment of the flats and at the time of payment of installments. Robbery took place in October-2010 in the house of complainant No.1. The said robbery was committed by the driver of Complainant No.1. There is free access into the complex to the drivers by virtue of their employment. Thereafter only objection was raised by the complainant No.1. The complainants had come to inspect the flat premises in 2010 before taking possession. They have not taken any objection in respect of the height of the porch. There is no security hazard due to porch. It is denied that complainants are living under constant fear of life and property. It is denied that there is difference in the plan of 2004 and 2009. There is no change in the plan of 2004 and 2009. The complaint is baseless hence liable to be dismissed.
3) After hearing both the parties and after going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether the complaint is maintainable in view of the provision u/s 12(1)(c) of the Consumer Protection Act, 1986 ? | No |
2) | Whether there is deficiency in service ? | No |
3) | Whether the height of the porch was increased in the amended plan of 2009 ? | No |
4) | Whether the complainants are entitled for the relief as claimed ? | No |
5) | What Order? | As per final order |
REASONS
4) As to Point No. 1 :- In prayer of the complaint, the complainants have prayed for modification to the present canopy/porch structure to the original size and shape so that the affected residents are free from the mental stress and can feel safe and secure in their homes. On going through this prayer, it is clear that the complainants are praying relief from this Forum in their representative capacity for other residents also. In view of the provision u/s 12(1)(c) of C.P.A., where there are numerous complainants having same interest complaint can be filed with permission of the District Forum on behalf of or for the benefit of all the complainants so interested. In this complaint, the complainants are seeking relief for the other affected residents of Ashok Tower Complex. Therefore, it was necessary for them to seek permission from this Forum. On perusal of complaint, there is no prayer seeking permission of this Forum for filing complaint on behalf of or for the benefit of other residents of Ashok Tower Complex. In absence of such permission, the present complaint is not maintainable.
5) As to Point No.2 to 4 :- According to the complainants, they visited the site for inspection before taking possession in the year-2010. They noticed that a massive canopy/porch structure had been built instead of the originally designed canopy/porch. According to the complainants, as per the original plan of 2004, height of the porch was of 4 meters, width was of 2.5 meters and length was of 8.84 meters. According to them, as per the amended plan of 2009, height of porch is 6 meters, width 4 meters and length is of 18.5 meters. The complainants have produced xerox copies of plan of building, photographs and one xerox copy of certificate without date from Shri Brijesh Kanabar, B.Arch., Mumbai. The O.P. has denied the variance in respect of canopy/porch. On perusal of Roznama dated 20th June, 2012, the complainants sought time for submitting report from government approved expert to show the variance in the 2009 revised plan of canopy/porch. The matter was adjourned for filing government approved expert report. Thereafter, the complainants have produced certificate from Shri.R.H.Inamdar, B.Arch., dated 7th July, 2012 showing the variance in the revised plan of 2009. The learned advocate for the opponent has submitted that signature on this certificate does not appeared to be of Shri R.H.Inamdar. This certificate is based on the true copies of the plans obtained from M.C.G.M. and provided by the complainants. The copies of those plans are not produced on record alongwith report to support the contents of the certificate. The certificate is also not supported by the affidavit of the said Architect. There is nothing on record to show that the said Architect is government approved. According to the learned advocate of the opponent considering the abovesaid facts, the certificate produced by the complainants on record can not be relied upon. On query to the complainants, they were not able to say whether the certificate is signed by Shri R.H.Inamdar himself or by other person. They are also not aware whether he is government approved architect. It is also not supported by the affidavit of the said Architect. Copies of the plans relied upon by the Inamdar are not produced on record alongwith the certificate. Therefore, the genuineness of the certificate produced by the complainants is doubtful and hence it can not be accepted. Thus, there is no evidence on record to show the variance in the plan approved in 2009. Moreover, it is not disputed that canopy/porch is constructed as per the plan approved by M.C.G.M. Therefore, it will not be proper for this Forum to direct changes in canopy/porch constructed as per approved plan.
6) It is submitted by the complainants that they have already produced certificate from the Architect showing the variance in 2009 plan. On the other hand, it is submitted by the learned advocate for the opponent that mere production of certificate is not sufficient to prove the facts. For this purpose, she has placed reliance on the judgment of Hon’ble National Commission in the case of Life Insurance Corporation of India & Anr. –Versus- Ashok Manocha decided on 25th March, 2011. In para 10 of the judgment, the Hon’ble National Commission has laid down as under :
It is well settled that pleadings cannot be held as evidence and in the absence of any evidence in support of the case set up, the certificate produced by the Petitioner from the hospital is of no help to the Petitioner because as stated above the Petitioner took no steps to prove the same; production of a document is different from proof of the same.
In instant complaint before us also, the complainants have merely produced one certificate from Architect without proper proof. Therefore, it can not be accepted as evidence. Thus, the prayer of the complainants in the representative capacity seeking relief for the affected residents of Ashok Tower Complex can not be considered by this Forum for want of leave from this Forum for filing of the complaint. The evidence on record is not sufficient to show the deviation from the original plan. Therefore, the complainants are not entitled for the relief as claimed. Hence, we proceed to pass the following order.
ORDER
1) Complaint stands dismissed.
2) Parties are left to bear their own costs.
Pronounced
Dated 3rd December, 2013
