This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Smt. Sucharu Banerjee(Mukherjee).
The case of the complainant’s in short is that complainant purchased a flat from the opposite parties by way of registered sale deed vide No.060200472 for the year 2016 executed and registered on 3.3.2016 at DSR II, Hooghly. That an agreement was made in between the father of the complainant and opposite parties and before the registration of sale deed the father of the complainant made a declaration in writing that the sale deed will be in favour of his daughter not in his favour and accordingly the sale deed was executed and registered in favour of the complainant, Smt. Sucharu Banerjee (Mukherjee).
That the sale deed executed and registered by the opposite parties after getting the entire agreed consideration money amounting to Rs.9,50,000/- and the on the same day i.e. on 3.3.2016 the complainant got possession of the flat. After getting possession of the flat the complainant started to live there and after 15/20 days the complainant detected that the four walls and roof of the flat were not properly plastered and the plastering portion of the four walls and roof were falling down day to day and the floor made of marbles was not properly made by opposite parties. The said flat constructed with substandard materials for getting more profit illegally and unlawfully. The opposite parties have committed negligence and deficiency of service in making plastering of the walls, roof and the floor. It is also detected that the roof and four walls of the flat were also damped and damaged. The staircase of the flat has already been damaged and in this connection the complainant has stated that no railing has been constructed on the staircase and there is want of safety and security in the said staircase.
The complainant has requested the opposite parties verbally on several times to repair and reconstruct the four walls, roof, floor and staircase of the flat on 2.4.2016. The complainant further stated that the opposites parties did not execute and register the sale deed within the stipulated period as mentioned in the agreement for sale and for that the complainant had to stay in a rented house for a period of nine months and the complainant suffered financial loss for the negligent acts of the opposite parties.
The complainant further states that the possession letter, R.O.R., rent receipt of land of the flat, sanctioned plan of the schedule flat etc. have not been handed over to the complainant till today intentionally and illegally by the opposite parties and in absence of this document the complainant suffered a lot and difficulties.
Finding no other alternative the complainant compelled to file this case with a prayer to direct the opposite parties to pay Rs.1,00,000/- as compensation for mental agony and harassment, to pay Rs.2,00,000/- for repair of the four walls, roof, staircase and floor of the schedule flat or to repay the total consideration money of the flat and to pay litigation cost of Rs.50,000/-.
The O.P. No.1 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. The O.P. No.1 submits that she is the owner of the property where construction has been made. The O.P. No.1 has already been executed a development agreement and also executed a registered power of Attorney in favour of O.P. No.4 Satguru Reality Construction, a partnership firm, represented by O.P. No.2 to 3. So, the question of negligence and deficiency of service is not applicable against the O.P. No.1. After execution of registered deed of power of attorney and also executed an agreement of development, all responsibility and liability shall be borne on the O.P. No.2 to 4. The name of Smt. Jayashree Kanjilal as a party of O.P. No.1 of the complainant has wrongly inserted. As per prayer of the petition filed by the complainant is not applicable against the O.P. No.1 and answering O.P. No.1 has no fault in any manner whatsoever. Hence, this case.
The O.P. No.2 to 4 contested this case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties stated that the complainant herself inspected the flat and after choice she entered into an agreement with the O.Ps. as per the terms and conditions mutually agreed upon, that apart the complainant herself constructed the interior works as per her own choice by way of giving her necessary instruction and she also choice the marble, tiles, cementing, plastering as per her own desire and choice and use the same through the labour deployed by the opposite parties. Besides the complainant virtually made her inside construction and other works out of her own choice and as per her instruction and choice the opposite parties done the same sometimes beyond the terms of the agreement. The opposite party further stated that all the standard building materials used in her flat according to her own choice and suddenly one side wall was slightly damaged at the time of making construction of the adjoining flat, but before execution and registering her own flat the opposite parties out of their own fund repaired the said damage which drawn her entire satisfaction. These opposite parties also stated that before registration of the said flat she personally inspected the same with her father and after satisfying the same both of them choose the said flat and after completion of the same the complainant and her father also inspected and satisfied about the marbling, flooring, plastering of the same, so there was no negligence and deficiency on the part of the opposite parties before or after the selling of the said flat to the said complainant.
These opposite party further stated that other flat owners never made any objection till today regarding the said damaged staircase and dampy flat. In order to prove all such deficiency in service as well as damaged condition and inferior quality of building materials, the appointment of one engineer commissioner is required to ascertain the veracity of the statement as alleged by the complainant. Complainant filed evidence on affidavit which is nothing but the replica of complaint petition. She also filed written notes of argument which are taken into consideration for passing final order.
After perusing the complaint petition, written version, evidence on affidavit and hearing the argument of the parties this Forum is in the opinion that the complainant paid the consideration money and is in possession since the execution and registration of deed of conveyance. During the course of residence she revealed the manufacturing defects of the flat and informed the promoter /developer and requested to repair the same but her request became unheeded. So she compelled to file the instant case before this Forum praying direction as prayed in the prayer portion of the complaint petition. During the course of proceeding the opposite parties filed written version denying the allegations leveled against them. On the basis of petition filed by the complainant local inspection conducted in accordance with the order of this Forum in presence of both sides. The inspection commissioner Mr. Mrinal Sarkar filed report dated 07.08.2017 in which it is stated that Marble floors are crack, in dining room four points, bath room two points, lobby two points, bed room one point, bath room damped plinth level to 18’’ high, small bed room damp plinth level to 18” high, construction hole in the small bed room & dining room walls are not repaired, cracks in the west side bedroom wall, North side windows upper clam fixed not sufficient and outside building damp upto 2 feet. He also filed a sketch map marking the cracking in marble in red ink, damped portions are marked in green ink, wall holes are marked in red circle or round.
Thus from the commissioner report and perusing the photographs it is transparent the opposite party developer failed to construct the flat in question properly as a result the complainant during the period of living faced a lot of problem and she reported the opposite party regarding such manufacturing defect but her request has unaddressed so she filed the instant complaint before this Forum praying directions as incorporated in the prayer portion of the complaint petition. The developer is under liability to repair the damaged portion of floor, color painting and damped walls at his own cost within the stipulated period.
So the averment of the complainant regarding the defects in the construction of building is supported by corroborative evidence of report of commissioner appointed by this Forum. This Forum is in the opinion that the opposite party no 2 to 4 cannot evade their responsibility to repair the defects in construction of specified portions as stated in the commissioner’s report.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party no.2 to 4 in constructing the impugned flat by adducing cogent document/evidence so the prayer of the complainant is allowed on contest. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party No2 to 4 in respect of construction of flat.
ORDER
Hence, ordered that the complaint case being No.74/2016 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.6000/- to be paid by the OP No.2 to 4.
The Opposite Party No. 2 to 4 are directed to repair the flat of the complainant following the defects detected by the commissioner appointed by this Forum at their cost in default the opposite party No.2 to 4 are under liability to pay a sum of Rs.150,000/- to this complainant for repairing the flat of the complainant.
The opposite party No.2 to 4 are directed to pay compensation amounting to Rs.40,000/- to the complainant for mental agony and harassment.
All the payments are to be made within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party No.2 to 4 shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information & necessary action.
