Common Order in First Appeal No.1954 of 2004 To First Appeal No.1957 of 2004
Per – Hon’ble Mr. Justice R. C. Chavan, President
These four appeals filed by the Appellants/original Complainants in Consumer Complaint bearing No.215 of 1998 to Consumer Complaint No.218 of 1998 filed before the Mumbai Suburban District Consumer Disputes Redressal Forum, question a common order dated 29/04/2004 passed by the said District Forum partly allowing these four consumer complaints and directing the Respondent/Opponent to pay to each of the Complainants a sum of Rs.20,000/- towards compensation for the deficiency in service in not providing agreed amenities.
[2] There is no dispute that the Complainants had booked flats in the building constructed by the Respondent/Opponent (hereinafter referred to as ‘the Builder’ for the sake of brevity). Builder had allegedly promised to provide swimming pool, health club, jogger’s track, dish antenna, tennis court and fountain in the garden. Proper parking space was also not provided and the compound/boundary wall was not constructed. Each of the Complainants, therefore, claimed compensation of Rs.1,50,000/- for failure to provide amenities, Rs.25,000/- for inadequate parking space, Rs.15,000/- towards compensation for mental agony. Complainants had also sought compensation of Rs.50,000/- towards delayed delivery of flats, Rs.1,00,000/- towards interest paid for delayed period of twelve months, Rs.50,000/- towards compensation for letting out the building to others without permission of the flat-owners, Rs.75,000/- for problem of inadequate water-supply, Rs.1,50,000/- for failure to provide amenities like swimming pool etc., Rs.25,000/- for inadequate parking space. Thus, in all, each of the Complainants claimed an amount of Rs.4,65,000/- together with interest thereon @ 21% p.a.
[3] Pursuant to the notices issued by the District Forum, the Builder appeared before the District Forum and contested these complaints by filing written versions inter-alia admitting execution of agreements with the Complainants for sale of flats. Builder claimed to have completed construction of the flats and delivery of possession in the month of May-1996 after obtaining Occupancy Certificate on 13/04/1996. Complainants had allegedly signed letters of possession without demur or protest. It was denied that possession was to be delivered before the month of May-1995. Various amounts of compensation claimed on account of various deficiencies alleged were denied. It was stated that the water-connection was provided as sanctioned by municipal corporation. It was stated that boundary wall was also constructed to the extent possible and, therefore, Builder prayed for dismissal of these complaints.
[4] After considering rival contentions and material placed before it, the District Forum found that there was no documentary evidence to show that the building had been occupied by someone else without the consent of the flat-owners. We also do not find any material to substantiate such a claim. Learned counsel for the Appellants could not point out any evidence to show that the building had been allowed to be used by the Builder by third parties. Therefore, claim of compensation on this count was rightly rejected by the District Forum.
[5] As far as water scarcity is concerned, there is nothing to show that municipal water supply had not been secured for the building. It appears that the Builder had even contributed for sinking new bore-wells. Therefore, we find that there was no error on the part of the District Forum in refusing to allow any compensation on this count.
[6] As far as car parking space is concerned, the District Forum observed that a Short Case Suit No.2328 of 2003 was pending before the City Civil Court in respect of car parking area and, therefore, held that the Complainants would not be entitled to any compensation on this count till the suit was decided. The finding of the District Forum is unexceptionable.
[7] As far as facilities of swimming pool, health club etc. the District Forum found that necessary amenities have already been provided and the Society had taken over the responsibility of its maintenance in terms of the order dated 04/11/2003 passed by the City Civil Court in the pending suit. The Forum, therefore, refused to grant any compensation on this count. We find that the conclusion drawn by the District Forum was correct.
[8] As regards jogger’s track, report of the Court Commissioner had been considered by the District Forum, who had observed that the jogger’s track was already provided since the year 1995 in front of Wings – ‘C’, ‘D’ and ‘E’. Learned counsel for the Appellants has not been able to show as to how the District Forum erred in accepting the report of the Court Commissioner. Report of the Court Commissioner, Mr. N. B. Karmaran has been produced before us and it does show that jogger’s track is constructed around an area admeasuring 10,000 sq. ft. Objections on behalf of the Complainants to the Court Commissioner’s report filed on 30/01/2001 shows that the jogger’s track was only a foot-path with a boundary made of tiles. We do not understand as to what else was to be there in the jogger’s track. Complainants had themselves admitted in the objections dated 30/01/2001 that the compound wall was made after filing of these consumer complaints. Therefore, we find that the District Forum rightly concluded that these deficiencies do not exist.
[9] Builder had admitted that he had not provided fountain in the garden which he had promised to provide alongwith an amenity of a health-club. Now, if there was scarcity of water, expecting the Builder to provide a fountain would be rather difficult. However, the District Forum has rightly quantified compensation to each of the Complainants at Rs.20,000/- for deficiency in service in failing to provide health-club amenity, dish-antenna, tennis court and fountain in garden. Considering that the Complainants were the owners of four tenements in the entire complex comprising of 210 residential premises and also considering the fact that these amenities, which have not been provided, were to be shared by the occupants of all the tenements, compensation of Rs.20,000/- awarded to each of the Complainants cannot be said to be inadequate.
In view of this, we find no merits in these four appeals seeking enhanced compensation. Hence, all these four appeal bearing Nos.1954 of 2004 to 1957 of 2004 stands dismissed. Parties shall bear their own costs.
Pronounced on 28th October, 2014
