Complainant through Lrd. Adv. Jadhav
Opponents through Lrd. Adv. Wagh
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(25/04/2014)
This complaint is filed by the consumer against the builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant is a resident of Warje Malwadi, Pune – 58. The opponent no. 1 to 3 are dealing in the profession of construction. The opponent no. 1 is the proprietor and the opponent no. 2 and 3 are sons of opponent no. 1. The opponent no. 1 had floated scheme in the name and styled as “Jadhav Heights” at Datta Nagar, Warje-Malwadi, Pune, in the year 2011. The complainant was in need of house for his family and he approached to the opponent no. 1 in the month of July 2011. After negotiation, he had booked flat with the opponent no. 1 by depositing an amount of Rs. 1,00,000/- on 25/08/2011. Thereafter the complainant has made payment from time to time. An agreement to sale was executed on 22/09/2011. The complainant had purchased flat no. 4 on second floor of the said building. The complainant was in need of early possession of the flat and after discussion; the possession of the flat was to be given in the month of Feb. 2012. Hence, the complainant had left his rented premises in the month of February. As the construction was not completed in time, he had to stay for 5 months in the rented premises by paying rent of Rs. 4,000/- per month. In the month of July 2012, he had received possession of the flat. Even after making payment of entire consideration, the possession was delayed and there were so many deficiencies in the construction. The area of the flat was agreed as 640 sq. ft. but after taking measurement, it was found as 560 sq. ft. There were cracks in the wall and seepage of water had damaged painting of the wall. The electric wires and material, which were used is of low standard. The doors were unpainted. The area of the toilet was very small, as it can not be used properly. The complainant had issued notice to the opponent for paying compensation as regards less area, deficiencies in construction and rent amount. The opponent had replied the notice and demanded excess amount of Rs.1,74,000/- for alleged extra work. The opponent has not complied with the agreement, hence that amounts to deficiency in service. The complainant had asked compensation of Rs. 2,66,360/- for less area, Rs. 24,000/- on the ground of rent paid by him, Rs. 20,000/- for repairing of the duct area, Rs. 1,000/- for the repairs of toilet door, Rs. 50,000/- towards compensation for mental and physical sufferings and Rs. 15,000/- for cost of the litigation.
2] The opponent resisted the claim by filing written version in which it has denied the contents of the complaint. It is the case of the opponent that the agreement was in between complainant and the opponent no. 1 only and the opponent no. 2 and 3 have no concern with the said transaction. It has flatly denied that there was delay for delivery of the possession of the flat. The complainant was insisting for early possession before completion of the work. The opponent handed over the possession of the flat in good faith. It is flatly denied by the opponent that there is less area as alleged by the complainant. It is further denied that there are deficiencies in the construction as alleged. It has also denied that the complainant had required to stay in the rented premises due to delay in delivery of the possession of the flat. The opponents have denied the compensation, which was demanded by the complainant on the ground of mental and physical harassment and cost of the litigation as well as deficiency in service. The opponents have prayed for the dismissal of the complaint.
3] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant has established that there is deficiency in service as alleged? | Partly proved |
2. | Whether complainant is entitled for compensation? | In the affirmative |
3. | What order? | Complaint is partly allowed. |
REASONS :-
4] The undisputed facts in the present proceedings are that the complainant had purchased the flat in dispute from the opponent no.1. The agreement, which is placed on record by the complainant, is disclosing that the opponent no. 1 alone executed the said agreement. But it is the contention of the complainant that the opponent no. 2 and 3 are sons of the opponent no. 1 and they have collected amount from the complainant on behalf of the opponent no.1. Hence, they are also necessary parties.
5] As per the agreement between the parties, the possession of the flat was to be delivered on or before 18 months from the execution of the agreement as well as after making payment of all the dues payable by the purchaser. It reveals from the agreement itself that it was executed on 22/09/2011. It further reveals from the documents i.e. receipts issued by the opponents that the last payment was made by the complainant on 27/08/2012. Then as per the terms and conditions of the agreement, the opponent can withheld the possession for 18 months from making last payment i.e. 27/08/2012. Admittedly, the possession of the flat was taken by the complainant in the months of July 2012. In such circumstances, it can not be said that there was delay in delivery of the possession of the flat. Hence, the complainant is not entitled for compensation on the ground of rent, which was paid by him to his landlord. He is also not entitled for compensation for delay, which was caused for the delivery of the possession of flat, as alleged by the complainant.
6] The complainant has asked compensation for less area of the flat. According to the complainant, as per terms and conditions in the agreement the area of the flat must have been 640 sq.ft. But when he got measured the flat from Unique Engineers, the area was found 560 sq. ft. The report of Unique Engineers is produced on record by the complainant. It reveals from the said report that the expert had not measured the entire flat. It has just mentioned in the affidavit and report that the area of the toilet is 2.6 x 2.9 ft., area of the hall is 9.3 x 10.3 ft. and the area of the bathroom is 9.3 x 10.1 ft. In order to work out the exact area, the entire flat is to be measured and after applying proper DSR, the built-up area can be worked out. The concerned expert had not followed the proper procedure; hence the report of the expert can not be accepted as it is. However, it reveals from the map of the flat, which is annexed with the agreement, the area of the toilet, which has been shown in the map is more than the area, which has been referred by the expert. It is significant to note that, the opponent has not adduced any documentary or oral evidence in order to rebut this evidence. It is alleged by the complainant that he had faced inconvenience as regards less area of toilet and other rooms of the flat. In such circumstances, it is the opinion of the Forum that the complainant is entitled for Rs. 1 lac on the ground of less area and inconvenience faced for the same. The complainant has produced photographs showing deficiencies in the construction. It appears from the photographs that there is damage to the painting of wall due to seepage. The quality of the construction also appears to be low. It is alleged by the complainant that they had required to spent expenses for the repairs. In these circumstances, it is the opinion of the Forum that the complainant is entitled to compensation for repairs and deficiencies to the tune of Rs. 25,000/-. The complainant is also entitled to receive an amount of Rs. 10,000/- towards compensation for mental and physical suffering and cost of the litigation.
7] It is alleged by the opponent that still an amount of Rs.1,74,000/- is due from the complainant. But the opponents have not produced any account to substantiate the said allegation. Hence, the said claim of the opponent can not be considered. In the light of the above discussion, this Forum answer the points accordingly and pass the following order.
** O R D E R **
1. Complaint is partly allowed.
2. The opponents are directed to pay to the
Complainant an amount of Rs. 1,00,000/-
(Rs. One Lac only) towards less area and
inconvenience, an amount of Rs. 25,000/-
(Rs. Twenty Five Thousand only) towards
compensation for repairs and deficiencies
and an amount of Rs. 10,000/- towards
compensation for mental and physical suffering
and cost of the litigation i.e. total amount of
Rs. 1,35,000/- (Rs. One Lac Thirty Five only)
within six weeks from the date of receipt of
copy of this order.
3. On failure to pay the abovementioned
amount within six weeks, it shall carry
interest @ of 9% p.a. from the date of
filing of the complaint till its realization.
4. Copies of this order be furnished to
the parties free of cost.
5. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 25/04/2014
