RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No. 82 of 2000
1- General Manager, Ansal Housing & Construction
Limited, Sapru Marg, Lucknow.
2- Project Manager, Ansal Housing & Construction
Limited, Sapru Marg, Lucknow. ….Appellants.
Versus
Ravindra Kumar Shukla s/o Shri K.N. Shukla,
R/o 10, Agrawal Quarters Bhadaiwan, Behind
P.S. Bazarkhala, Lucknow. …Respondent.
Present:-
1- Hon’ble Sri Vijai Varma, Presiding Member.
2- Hon’ble Sri Raj Kamal Gupta, Member.
Shri V.S. Bisaria for the appellants.
Shri Alok Sinha for the respondent.
Date 17.5.2018
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
Aggrieved by the judgment and order dated 2.8.1999, passed by the Ld. DCDRF-II, Lucknow in complaint case No.716 of 1998, the appellants have preferred the instant appeal.
Facts leading to this appeal, in short, are that the respondent/complainant had purchased a house from the appellants/OPs by paying a sum of Rs.1,79,867.00 but the formalities for the possession of the house was made on 1.6.1998 and when the complainant saw the house he found that there were many defects in it. So, the complainant made complaint about the same to the OP for removing the defects but nothing was done then the complainant filed a complaint case before the Forum below wherein the OP submitted their WS mentioning
(2)
therein that the possession of the house was already given to the complainant and after delivery of the possession the complainant did not remain consumer of the OP and therefore, the complaint filed by him was not maintainable. Besides, the complainant did not make any objection regarding the defects at the time of taking the possession. The OP has not committed any deficiency in service hence, the complaint is liable to be dismissed. Thereafter, the ld. Forum passed the impugned order on 2.8.1999 as under:-
"विपक्षी को निदेश दिया जाता है कि तीन माह में परिवादी को रू026500/- का भुगतान करे दें अन्यथा इस समस्त धनराशि पर 2% प्रतिशत मासिक ब्याज देय होगा।"
Feeling aggrieved with the impugned order that the appellants have filed this appeal mainly on the grounds that the complainant had not made any complaint regarding the defects when he was taking possession of the house as there was no defect in the house. Besides the estimate provided by the complainant were of about a year later from the date of possession but the ld. Forum has passed the order against the facts and evidence which is liable to be set aside and the appeal allowed.
Heard the counsel for the parties and perused the records.
In this case, it is not disputed that the complainant had purchased a house from the appellant/OP and delivery of possession was given to the complainant. The disputed point according to the complainant is that there were many defects in the house for which the OP was apprised of but they did not do anything and therefore, the OP committed
(3)
deficiency in service in providing the defective house to him.
So now, it is to be seen as to whether the OP committed deficiency in service. If so, its effect.
Counsel for the complainant has argued that the complainant did not remain a consumer of the OP as it is only after taking the delivery of the house in question that this complaint has been filed and therefore, there was no relationship of consumer and service provider between the complainant and the OP and hence, the complaint was not maintainable. Another argument advanced by the ld. counsel for the appellant is that the complainant did not make any complaint at the time of taking the delivery of the possession and hence, it was wrong on his part to state that the house was having many defects. But in this regard, we find that after taking possession of the house in a formal manner, when the complainant found the defects in house then he had made complaints to the OPs, as is evident from letter dated 4.6.1998 (annexure 16) filed by the complainant. The complainant did make complaint about the defects in the house immediately after taking the possession of the house, so it is wrong on the part of the OPs to state that there were no defects in the house and if there were defects then even after taking delivery of the possession of the house, the complainant had cause of action against the OPs for providing the defective house to the complainant and therefore, he remained consumer of the OPs despite delivery of the possession because it is the duty of the OPs to provide the house without any defects. So the complainant as a consumer was entitled to file a
(4)
complaint before the Forum below. It also transpires that the complainant had submitted an estimate of the expenditure to be incurred for removing the defects in the house. So from the evidence on record, the ld. forum had rightly concluded that the OPs committed deficiency in service in providing the house with defects to the complainant. The ld. Forum, thereafter, has awarded a sum of Rs.20000.00 as compensation for repairs though the complainant had sought Rs.90,000.00 for expenses to be incurred on the repairs. Considering the defects in the room, Kitchen and bathroom, the ld. Forum has rightly awarded the amount of Rs.20,000.00 but awarding of Rs.5,000.00 for mental and physical torture was a bit higher and therefore, the compensation for mental and physical torture, under the circumstances of the case, should have been only Rs.1500.00. Besides, the award of interest @2% p.m. was too much and it should only be 12% p.a. The appeal, accordingly, deserves to be partly allowed and the impugned order amended.
ORDER
The appeal is partly allowed and the impugned judgment and order is amended to the extent that instead of compensation of Rs.26,500.00, Rs.23,000.00 shall be payable and the rate of interest will be 12% p.a. in place of 2% p.m.
Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Raj Kamal Gupta)
Presiding Member Member
Jafri PA II
Court No.2
