COMPLAINT FILED ON: 25.09.2009

DISPOSED ON: 14.01.2011

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

DATED THIS THE 14^TH JANUARY 2011

       PRESENT:- SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER  

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainant in person filed this complaint to resolve the issue of leakage permanently, which they are unable to resolve for the past three years. Further to recover the painting charges of Rs.25,000/- from OPs and to collect an amount of Rs.2,00,000/- for further repairs of the ceiling and walls of the flat and towards mental agony and stress.

2.      In the complaint it is stated that the complainant is the owner of flat 102 in DSR Cosmos, Bellandur, she is facing severe leakage problem in her flat from above flat 202. On 26.06.2006 before taking the possession of the flat, it was brought to the notice of the builder (i.e. OP-1) that there is seepage into the flat in common bathroom, dinning hall wall and master bathroom when the flooring of the bathrooms in flat 202, were re-done twice because the slope of the flooring as per the satisfaction of OP-2 owner of flat 202. Also the common washbasin was shifted to the wall adjoining common bathroom, causing structural changes which includes water / sanitary lines. She has tried several times to convince OP-2 for the past three years from 2006, but all efforts have gone in vain. OP-2 always argued that builder (OP-1) is at fault as the builder has done structural changes to the flat. Whereas the builder (OP-1) agreed that it was only on the request of OP-2 the changes undertaken. OP-2 argues on “it’s always responsibility of person who’s house has leakage, not the one from whose house it’s coming” as mentioned by him in the e-mail dated 14.12.2007. This matter was also brought the notice of society, when OP-2 was the president, but there was no help from the society. The complainant approached Karnataka State Legal Service Authority, OPs did some temporary repair work in June – 2008 or probably both bathrooms were not used regularly / simultaneously, which stopped leakage for two months and again resurfaced in September – 2008. The complainant approached the legal service authority again on 20.10.2008; where the OPs were advised to take correct action, but all the requests by the authorities have gone in vain. The water started dripping into house of the complainant making it unhygienic for the stay and the leakage is spreading to the electrical points in the flat causing danger to life and property. She has re-painted the house spending Rs.25,000/- due to the previous leakage when it was confirmed the issue was fixed, which has gone waste and the ceiling has cracked due to the continuous leakage. Thus the complainant filed this complaint.

3.      On appearance, OP-1 filed version contending that there is no relationship of consumer between the complainant and OP-1 and there is no deficiency of service on the part of the OP-1. OP-1 being developer and has constructed the apartment and handed over the possession to respective purchasers and to this complainant in 2006 itself. As per the construction agreement OP-1 is not responsible for any defect in the building noticed after a period of six months from the date of handing physical possession to the purchaser. It is denied that there is leakage of bathroom flat No.202 and have structural changes. In fact in letter dated 16.11.2009 it is stated that no structural changes have been effected in flat No.202 and the inspection of flat 102 was carried out and the report of the inspection duly signed by the tenant of flat No.102 clearly shows that there is no leakage. It is denied that on 26.06.2006 the complainant brought to the notice of OP-1 that there is seepage in the flat in common bathroom, dinning hall wall and bathroom. If there were any such complaints the same is to be brought knowledge of the association of the apartment and the association has to take care of repairs if any. It is admitted that the complainant approached Karnataka State Legal Service Authority and the OP carried out the inspection of flat No.102, the report of inspection duly signed by tenant of the complainant clearly shows that the toilets are dry and there is no leakage. Hence it is prayed to dismiss the complaint with exemplary costs.

4.      OP-2 filed version contending that he is also one of the purchaser along with the complainant, the flat bearing No.202.  OP-2 is not at all concerned with the complaint, the complaint is not maintainable. The other allegations made in the complaint are denied. The allegation that the matter was brought to the notice of the society when OP-2 was president of the society and no help was offered, is not in the knowledge of OP-2, as the complainant has not given any complaint in writing. It is stated that during the pendency of the complaint before the legal service authority, the builder has attended the work / repair mentioned by the complaint and completed the same as agreed before the legal service authority. The complainants were not satisfied with the work again raised dispute before the Karnataka State Legal Service Authority and they were directed to settle the dispute before competent court. There is no consumer relationship between the complainant and OP-2. The complainant is liable to pay compensation for filing frivolous and false complaint. OP-2 has suffered huge expenses towards traveling, loss of leave, mental tension, torture due to the illegal attitude of complainant making him party to the proceedings, as being a software engineer at present working at Pune to attend the Forum, the complainant to pay sum of Rs.2,00,000/- towards compensation. Hence it is prayed to dismiss the complaint with exemplary costs.

5.      The complainant filed response to the version of OP-2 and filed affidavit evidence to substantiate the complaint averments. One Mr. Sathyanarayana Reddy filed affidavit evidence in support of defence version of OP-1 and produced documents.

6.      Written arguments submitted by both the parties, the arguments heard. Points for our consideration are:  

      Point No.1:- Whether the complainants proved the        

                          deficiency in service on the part of

                            the OPs?

Point No.2:- Whether the complainants is entitled

                   for the reliefs now claimed?

       Point No.3:- To what Order?

7.      We record our findings on the above points are:

Point No.1:- Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

8.      At the out set it is not at dispute that OP-1 being the developer and builder had put up the apartments in DSR Cosmos / Constructions Bellandur. The complainants being the mother and daughter entered into construction agreement and agreement of sale of undivided interest in the schedule property with OP-1 on 13.06.2005. After the completion of the construction OP-1 executed sale deed dated 18.08.2005 in favour of the complainants. The possession of the flat No.102 was taken by the complainants on 01.09.2006. The complainants claims that on 26.06.2006 before taking the possession of the flat, it was brought to the notice of  OP-1 that there is seepage into the flat in common bathroom, dinning hall wall and master bathroom, because of the flooring bathroom in flat No.202 being re-done twice and the slope of the flooring made for the said flat, as per the satisfaction of OP-2 owner of flat No.202. Further it is the case of the complainants that common wash basin in flat No.202 was shifted to the wall adjoining common bathroom causing structural changes, on account of the same there is leakage from flat No.202. OP-2 being the owner of flat No.202 has not taken any steps to prevent the leakage of water from his flat No.202 situated just above flat No.201. The proceedings were taken before the State Legal Service Authority. During pendancy of those proceedings OP-1 has taken steps to stop seepage of water from flat No.202, but again the leakage continued into the flat of the complainant, she approached the Legal Service Authorities, but OPs failed to appear, as a result the proceedings were closed with a direction to the complainants to approach the Court of law to get necessary reliefs.

9.      We have perused the proceedings order sheet of the Karnataka State Legal Service Authorities produced by complainants. Order sheet dated 21.06.2008 reveals that the complainant and OP-1 settled the dispute amicably and OP-1 reported the authority that he has solved the problem of the complainant. The complainant also agreed that the problem is solved for the present, but it may again re-occur. The authority observing that in the event of re-occurrence, the complainant can approach the authority, with that observation closed the matter.

10.    On 05.11.2008 the complainant again approached said Legal Service Authority complaining that the leakage has re-occurred; to settle the dispute OP-1 may again be summoned. The State Legal Service Authority posted the matter on 02.12.2008 for submission of OP-1. Subsequently on 30.05.2009 both these OPs failed to appear before the Authority for their submission and they had informed on phone that they are unable to attend the proceedings and they have already attended repairs. In view of the same the State Legal Service Authority closed the matter with a direction to complainant to approach the court of law to get necessary reliefs.        

11.    After going through the proceedings before State Legal Service Authority, it becomes clear that both these parties participated in the proceedings and OP-1 as a builder submitted before the Authority that he has attended the repairs. Now defence of the   OP-1 is after 6 months from the date of handing over physical possession of the flat, OP-1 is not responsible for any defects in the building. In our view the leakage problem is not subsequent developed problem after handing over the possession of the flat, even at the time of taking possession of the flat there was leakage and the same was brought to the notice of the OPs. Therefore OP-1 cannot be permitted to contend that it is not responsible to attend the repairs of leakage in the flat of the complainants. The e-mail dated 26.06.2006 sent to OP-1 by the complainants clearly reveals that the complainants have brought to the notice of OP-1 that there is leakage in the common bath room, dining hall wall is wet along with toilet ceiling wall and the external wall of the toilet adjoining wall of the master bathroom toilet and the complainants have been requesting to look at the leakage since one month and OP-1 was requested to solve the matter to enable them to take possession.

12.    During the pendency of the proceedings OP-1 addressed letter to OP-2 on 16.11.2009 with regard to leakage issue in flat No.102 stating that they have not done any structural changes in flat No.202 and at present there is no leakage in the flat No.102 and also it is completely dried. Flat No.102 was inspected by Supervisor in the month of October – 2009; as per his intimation by that time the flat was dried and there is no leakage. OP-1 has also produced the copy of the letter dated 22.10.2009 addressed by OP-2 to this Forum wherein it is stated that after receipt of the notice on the complaint, he called the complainants for inspection of the flat No.102 for leakage problem. On 22.10.2009 they along with the complainant and Supervisor visited flat No.102. All the walls and ceilings are dry in and around both the bathrooms, Supervisor also informed that roughly one month back he inspected flat No.102 and that time all walls and ceilings were dry. The owner of flat No.302 and the complainant inspected flat No.102 before the Supervisor came. According to Ranjan owner of flat No.302 all the walls and ceilings are dry. Further OP-1 has also produced the letter copy dated 07.11.2009 addressed by OP-2 to Owners Association requesting to inspect and see the condition of toilet in flat No.102. On the said letter one Praveen Kumar stated to be tenant of flat No.102 has put his signature stating toilets are dry.

13.    The complainants submitted that the signature of the tenant’s cousin was forcibly taken on the letter with regard to that the tenant’s cousin has submitted letter stating that he was not inclined and authorized to sign that even then his signature was taken. It is submitted that due to the structural changes made in the flat No.202 belonging to OP-2, the leakage has started; now  OP-1 by applying tile joint has temporarily stopped the leakage. Again the leakage may re-occur OP-1 has to undertake the work to prevent leakage problem permanently by replacing the water and sanitary pipe line. In our view though there is no leakage of water in the premises of the complainants at present, in view of OP-1 having stopped the leakage temporarily by applying tile joint. OP-1 being a builder has to take the steps to rectify the defect permanently to stop leakage of water in the premises of the complainants by replacing the water and sanitary pipe lines. The very fact of effecting structural changes for the flat No.202 thereby causing leakage of water into the premises of the complainants on the part of OP-1 amounts to deficiency in service.    

14.    In these proceedings OP-2 cannot be directed to take necessary steps to prevent the leakage of water from his premises into the premises of the complainants; as the dispute between the complainants and OP-2 with regard to the same is not a consumer dispute. OP-2 is also one of the purchaser’s of the apartment. Only in the Civil Court the complainant can claim necessary releifs against OP-2. Under these circumstances we proceed to pass the following:               

                                      O R D E R

The complaint is allowed in part. OP-1 is directed to rectify the defect of leakage of water in to the premises of the complainants permanently by replacing the water and sanitary lines of flat No.202 and pay litigation cost of Rs.3,000/- to the complainants.

Complaint against OP-2 dismissed.

This order is to be complied within four weeks from the date of this order.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 14^th day of January – 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: