BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 29^th DAY OF AUGUST 2023

ORDER

SMT. SUMA ANILKUMAR, MEMBER

Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019, before this commission seeking direction to OP for the following reliefs:-

a) To direct Respondent Association to pay to the complainant Rs.1,71,926/- towards the repair of the damages of walls and ceiling caused due to the seepage in the rooftop of flat No.10181

b) To direct the Respondent Association to pay to the complainant a compensation amounting to Rs.3,00,000/- towards mental agony suffered by the complainant and his family.

c) To direct Respondent to pay to the complainant Rs.50,000/- towards the cost of legal expenses

d) To pass any other order/orders which this Hon’ble Commission may deem fir in the facts and circumstances of the case.

2. Brief facts of this case are as follows:-

The complainant is a law abiding citizen of India, residing with his family at flat No.10181, tower 10, Prestige, Shanthinikethan apartment, Whitefield, Bangalore – 560048. The complainant has purchased the above said flat bearing No.10181 on the 18^th floor and residing since 2017. The complainant is also the member of the M/S Prestige, Shanthinikethan apartment owners welfare association. The complainant noticed the seepage issue at the roof top of his flat in December 2020, which was causing significant damage to the ceiling and walls of his flat and the interiors. After noticing the seepage from terrace/roof top on 22.12.2020, the complainant raised a complaint about seepage of the roof of his flat bearing No.10181 through helpdesk of Prestige, Shanthinikethan help desk, the ticket bearing No.P210224 was raised against the association.

3. The complainant, even after constant follow up with the help desk did not receive any response about the repair work from the association. The association had sought for legal opinion from their legal team, wherein it was confirmed and opinioned by the legal team vide E-mail dated 30.01.2022 that any repair work related to the roof., etc comes under preview of the association. The complainant was shocked to receive E-mail dated 12.01.2022 from the association help desk where it mentioned that, the association has not been resolved and the ticket is closed. The complainant thereafter approached the management of Prestige, Shanthinikethan apartment owners welfare association (PSAOWA) vide E-mail dated 03.02.2022 and marked president, secretary and treasurer in CC, raised the complaint and attach the quote received from one of the authorized vendors of the association for damage repair work inside the flat cost due to the seepage on the roof top/terrace.

4. Finally by the end of February 2022, the property manager of the said apartment assessed the damage cost to flat due to seepage on the roof. On inspection, the property manager opinioned that an immediate attention is needed as if the seepage is un attended would lead to further loosening of the concrete blocks at the roof/ceiling of the flat owned by the complainant. The complainant also asked the property manager to approach the empanelled vendors of the association to get the quotation for damage repair of the interior ceiling and walls of the flat caused due to the seepage of the flat from the terrace. The complainant communicated about the seepage assessment from property manager and the quotation from vendors of association vide mail dated 01.03.2022. Further, requested for approval for carrying on the repair work, but the association deliberately fail to reply. The complainant tried to approach the association through sending several mails, but the association did not responded to the mails. The complainant sent final mail dated 16.05.2022 giving final notice to the association management committee that if the association did not responded by 31.05.2022, the complainant will take it as refusal to fix the damages and go ahead with the repair work and claim re-imbursement,  as the complainant received E-mail dated 16.05.2022 confirming the roof top/terrace belongings to the common area and association is sole custodian for its maintenance. The complainant spent the amount of Rs.1,71,926/- towards the repair of the damages of wall and ceiling caused due to seepage from the roof. The OP association fail to refund/re-imbrues the amount spent by the complainant and hence the complaint filed by the complainant.

5. On the issue of notice the OP filed its version on 22.11.2022.

6. In the version of the OP, the OP submits that statements, allegations and averments made by the complainant are false, baseless and malafide with intention to legally extract money and there is no fault of OP. The OP also did not come under preview of “Consumer” as per section 2(7) of Consumer Protection Act 2019. The OP also submits that as per the clause of Real Estate Regulatory Authority of real estate (regulations and amendments), it is said that the developer have to give 5 years warranty to the owners of the apartment. Further that in case of any structural defect or any other defect in workmanship, quality or provision of services or any other applications of the developers as per the agreement of sale of such development is brought to the notice of the developer within a period of 5 years by the allottee from the date of handing possession. Subsequently, it is the duty of the developer to rectify such defects within period of 30 days. In case the developers fail to rectify the same, the owner of the apartment will be intended to claim appropriate compensation from the developers as approved under the said act.

7. The OP further submits that the complainant has purchased the apartment unit on July 12 2017 and had noticed the seepage issue in the year December 2020 i.e 3 years after the period of purchase of apartment unit. Such being the facts and circumstances the complainant has no right to claim anything against OP and the developer is entitled to carry out the defects within period of 30 days. The OP also suggests that the complainant has various other remedy under civil law. The OP further submits that the duty of the association are to organize social, cultural and recreational facilities and amenities for the residence to assign the responsible for carrying out day to day administration of the apartment. The aims of the association are to protect the members, to encourage religious and educational activities in the society. The main object of the association is to keep in custody of all the original documents land, building and license issued by any authorities in relation to the said building or land. Hence there is no deficiency in service on the part of OP and the case to be dismissed.

8. The complainant filed their affidavit evidence and 17 documents marked as Ex.P.1 to Ex.P.17. OP have filed their affidavit evidence along with 1 documents marked as Ex.R.1. Both the complainant and OP have filed their written arguments. Heard both the counsel.

9.  On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proves the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

10.  Our answers to the above points are as follows:-

Point No.1:- Partly affirmative.

Point No.2:- Partly affirmative.

Point No.3:- As per the final order.

REASONS

11. Point No.1&2:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, this points are taken up together for common discussion.

12. As per the document submitted as Ex.P.15 i.e the sale deed of the above said flat No.10181, 18^th floor, tower 10, in “Prestige Shanthinikethan”, Whitefield, Bangalore – 560048, the complainant and his wife Smt. Neethu Chandrababu have purchased the flat on 12.07.2017 from M/S Chaitanya Properties Pvt. Ltd., M/S Prestige Estates projects Ltd. (Mr. Swaroop Anish - Executive director - Business development) seller and builder respectively.

13. As per the section 14(3) of the RERA Act 2016, the developer shall be liable to rectify any structural defect or any other defect if it in brought to the notice of the developer within period of 5 years.

   “Adherence to sanctioned plans and project specifications by the promoter:-

 (3) In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within 30 days and in the event of promoter’s failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.”

As the complaint is emerged after 3 years of purchase i.e within the period of 5 years. The responsibility to rectify the damages fall on the builder and seller. Therefore the builder M/S Chaitanya Properties Pvt. Ltd., and seller M/S Prestige Estate projects are directed to refund the amount of Rs.1,71,926/- to the complainant and the OP i.e M/S Prestige Shanthinikethan Apartment Owners Welfare Association is directed to take responsibility of refunding to the complainant,  the amount of Rs.1,71,926/- from the builder and seller. The OP being the association and care taker of the apartment, holds responsibility of the problem when approached them by the complainant. The OP should have guided the complainant to approach the buyer and seller for the problem faced by the complainant. Instead OP has shown sheer negligence and has closed the ticket even though they were the care takers of the problem of the members/owners of the apartment. The OP is directed to take care of maintenance of the Terrace area as it is in the common area. Hence we answer both Point No.1&2 in partly affirmative.

14. Point No.3:- In view of the above discussion referred, we proceed to pass the following order:-

ORDER

i) The complaint filed by the complainant is allowed in part.

ii) The builder M/S Chaitanya Properties Pvt. Ltd., and seller M/S Prestige Estate projects to refund the amount of Rs.1,71,926/-.

iii) The OP is further directed to pay Rs.10,000/- as compensation towards negligence and Rs.5,000/- as litigation charges to the complainant.

iv) The OP is directed to take responsibility in refund of the amount of Rs.1,71,926/- to the complainant from the builder and seller i.e builder M/S Chaitanya Properties Pvt. Ltd., and seller M/S Prestige Estate projects.

v) The repair if any pending on the terrace/roof of the apartment to be rectified by the builder and seller. The OP is directed to take care of the maintenance of the terrace/ roof in near future as it is the common area.

vi) Copies to be served to both the parties without cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^th day of AUGUST, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;