Per Smt Jayshree Yengal, Hon’ble Member
1. The complainant and the opposite party have both preferred appeal challenging the order dtd.06.04.2009 passed by the District Consumer Forum, Nagpur partly allowing the consumer complaint bearing No.251/08.
2. The original complainant has challenged the impugned order being not satisfied by the same seeking enhancement and the original opposite party has challenged the impugned order being aggrieved by the same seeking quashing and setting aside of the same.
3. As the order impugned is same in both the appeals, we proceed to decide the aforesaid appeals by this common order.
4. Appellant Shahant Girdar Nandanwar in appeal bearing No. A/408/2009 is being referred as complainant and appellant M/s Anil Jindal Construction Co. Pvt. Ltd., through its Managing Director in appeal bearing No.A/386/2009 is being referred as opposite party (for short O.P.) for the sake of convenience.
5. Facts in brief as set out by the complainant in his complaint are as under.
The complainant and the O.Ps executed agreement of sale in the month of Aug., 2007 for a flat bearing No.110 in “Jindal Complex”, admeasuring 58.75 sq.mtrs. for valuable consideration of Rs.4,61,000/-, constructed by the O.Ps. The complainant paid the entire amount of consideration as agreed to the O.Ps. The O.Ps executed a sale-deed in favour of the complainant on 17.03.2008. It is the contention of the complainant that the sale-deed, which was to be executed and registered before the Registrar was already prepared by the O.Ps and at the time of registration the complainant was asked to sign the same without allowing him to read the contents of the same. The complainant after registration of the sale-deed found that the contents of the sale-deed and those mentioned in the brochure were not similar & when he tried to bring this to the notice of the O.Ps, he was informed that all the facilities would be properly provided to the complainant and he should not worry about anything, which according to the complainant was not included in the sale-deed. It is further contended by the complainant that after registration of the sale-deed, he took the possession of the flat booked by him. He noticed that there was constant leakage and seepage of water in the flat. The complainant repeatedly informed the O.Ps about it but the O.Ps failed to take any notice about it. The complainant, therefore, has to face severe inconvenience as because of the leakage and seepage in the flat, the furniture of his house is damaged and the walls of the flat have also developed cracks. The complainant has alleged Unfair Trade Practice and deficiency in service and has enumerated as many as 12 defects and deficiencies in respect of the quality of construction of the flat. The complainant has specifically mentioned that though the area of the flat as reflected is 58.75 sq.mtrs in the sale-deed and the brochure, the O.Ps have actually adopted Unfair Trade Practice by not constructing the flat as specified. The complainant further contends its complaint that the O.Ps had agreed to provide an Inverter to the purchaser of the flat with Cable T.V., etc. It is the contention of the complainant that the O.Ps failed to repair the defective construction of the flat and also provide the facilities, which it had agreed in spite of repeated reminders, he issued legal notice on 16.08.2008, calling upon it to remove the defects in construction of the flat and provide him the other facilities which it had agreed. On receipt of the aforesaid notice, the O.Ps by reply dtd.10.11.2008 denied any liability. The complainant therefore filed a consumer complaint alleging deficiency in service and Unfair Trade Practice and sought for removal of all the defects mentioned by him in his complaint in the construction of the flat, to provide all documents in respect of construction plan and Rs.1.00 Lac as compensation for mental and physical harassment and cost of proceedings.
6. The O.Ps resisted the complaint by filing their written version and denied all the adverse allegations of the complainant. The O.Ps have specifically submitted that the complainant has to pay to the O.Ps an amount of Rs.17,427/- towards the outstanding balance, which the complainant is avoiding to pay and therefore he has filed this frivolous complaint, when the O.Ps demanded it. The actual cost of flat was agreed at Rs.4,81,000/- but the same was reduced to Rs.4,61,000/- as the complainant did not want the facility of Inverter and therefore, Rs.20,000/- were deducted. However, the O.Ps had still provided the Inverter after some time. The complainant as per the agreement, was required to pay Rs.10,000/- towards deposit for the electric meter charges. However, the complainant failed to deposit the same and the O.Ps deposited the same. The complainant further insisted for hurried possession of the flat. Therefore although the construction was incomplete, the possession of the flat was handed over to the complainant. The O.Ps therefore denied to have rendered any deficiency in service or adopted Unfair Trade Practice and sought for dismissal of the complaint as frivolous. The O.Ps have also specifically submitted that alleged defects in construction of the flat requires a detailed evidence which cannot be adduced in the summary proceedings and dispute involved is of purely civil nature and therefore the complainant deserves to be dismissed on that count also.
7. The Forum after hearing both the sides and perusing the documents on record partly allowed the complaint as aforesaid. The Forum by the impugned order has directed the O.Ps as follows.
i. To repair the construction of the main door and leakage in the toilet, kitchen, parapet wall and plaster in the rooms within one month of the date of order or to pay Rs.10,000/- towards the aforesaid repair work.
ii. To refund an amount of Rs.18,231.50 towards the less area of 25 sq.ft. given to the complainant.
iii. To pay Rs.10,000/- and Rs.1,000/- to the complainant as compensation for mental & physical harassment and cost of proceedings respectively.
The Forum has considered the report of the Commissioner, appointed by the Forum as prayed by the complainant. The Commissioner has submitted his report after conducting an inspection in presence of both the parties. The said report mentions that there are cracks developed near the main door of the flat and therefore, the said door cannot be shut and there is leakage and seepage in the rooms and toilets and the plastering on the parapet wall is not complete and thus has accepted the defect in construction and therefore passed the impugned order.
8. As already mentioned, both the parties have challenged the impugned order being not satisfied and aggrieved by it.
9. We heard counsels for both the sides and perused the written notes of arguments filed by both parties and documents, copy of the complaint, written version and documents filed on record by both parties and the Commissioner’s report filed on record.
10. The only issue that survives for our consideration is whether the construction is defective and area of the flat is not as per the agreement / sale-deed, and whether liability can be fastened on the O.Ps.
- The Architect Commissioner – Mr Ajay Thombre has enumerated as many as may five defects in the construction namely, crack near the frame of the main door, therefore door cannot be shut, leakage in the rooms and the toilet, kitchen window cannot be operated, no parking place provided, no plastering in the storage loft over the bathrooms and bedrooms and built-up area is less than specified at the time of booking the flat. The only inference that can be drawn from the aforesaid report of the Commissioner is that there are defects in the construction.
- As regards the built-up area as on site – the Commissioner has observed that the total built-up area given to the complainant is 56.54 sq.mtrs. i.e. 608.60 sq.ft. while the brochure and the sale-deed, the area of 58.75 sq.mtrs. i.e. equal to 635.15 sq.ft. is reflected. Thus, the O.Ps have given 25 sq.ft. area less to the complainant. Undisputedly, the O.Ps are liable to refund the consideration received in excess to what he has actually given and get the defect in construction repaired or to compensate it. We find no error in the valuation of the Forum, who has allowed the refund of excess amount received from the complainant as per the rate assigned in the sale-deed.
- For the foregoing reasons we find no glaring infirmity or illegality in the impugned order. The O.Ps have not brought any evidence on record to show that the impugned order is illegal or the Forum has exercised its jurisdiction illegally.
- Although the complainant has sought for enhancement of compensation alleging as many as 12 defects in the construction of the flat and has sought for compensation of Rs.1.00 Lac. However, he has failed to bring any evidence in support of the aforesaid claim of compensation. The only documentary evidence on record is the report of the Commissioner. The Forum has rightly accepted the same. On that count also we find the impugned order is legal and sustainable in law.
- For the foregoing reason, we find appeal bearing Nos. 408/2009 filed by the complainant and appeal bearing No. 386/2009 filed by the O.Ps are devoid of merits and therefore, deserve to be dismissed.
In the result, we pass the following order.
ORDER
i. Both the appeals bearing Nos. 386/2009 and 408/2009 are hereby dismissed.
ii. The impugned order dated 06.04.2009 passed by District Consumer Forum, Nagpur in consumer complaint bearing No. 251/2008 stands confirmed.
iii. No order as to costs in these appeals.
iv. Copy of the order be supplied to both parties free of cost.
