Consumer Complaint No.172 of 2014
Date of filing: 10.9.2014 Date of disposal: 15.7.2016
Complainant (s): 1. Sri Rabindranath chakraborty, S/o. Late Umapada Chakraborty, resident of 2/46 Mahabir Marg, ‘C’ Zone, Durgapur, District: Burdwan, PIN – 713 205, W.B.
2. Sri Aditya Karmakar, S/o. Sri Bimalakanta Karmakar, resident of Bisheswari Khandra, PO: Khandra, PS: Ondal, District: Burdwan.
-V E R S U S-
Opposite Party: Smt. Snigdha Choudhury, W/o. Sri Subrata Choudhury, resident of Nabapally, Benachiti, Durgapur – 13, District: Burdwan.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant (s): Ld. Advocate, Tapan Kumar Jash.
Appeared for the Opposite Party: Ld. Advocate, Chandrachur Ghosh & Tapan Kumar Ghosh.
J U D G E M E N T
This complaint have been filed by the Complainants u/S. 12 of the Consumer Protection Act, 1986, alleging deficiency in service as well as unfair trade practice against the OP as the OP did not provide the facilities and amenities to them as per the terms and conditions of the agreement for sale as well as the deed of conveyance till filing of this complaint.
The brief fact of the case of the Complainants is that in order to fulfill their residential accommodation they decided to purchase flats and accordingly they entered into an agreement with the OP in the year 2010 and 2011 in the apartment namely ‘Mayer Anchal’. The cost of the flat of the Complainant-1 was scheduled at Rs.9, 00,000=00 and the cost of the Complainant-2 was fixed at Rs.7, 44,000=00. The Complainants have already paid entire consideration money and the OP has delivered the possession of the respective flats to the Complainants without providing all the facilities agreed to be provided in accordance with the terms of the agreement. Registered deed of sale was executed on 08.05.2013 and the Complainants being compelled took possession in their respective flats in absence of the facilities agreed to be provided and incomplete conditions in several respects. After taking possession in their flats the Complainants on several occasions requested the OP to provide lift facility in the G+5 storied apartment namely ‘Mayer Anchal’ in accordance with the agreement. But the OP refused to provide the lift facility in the apartment. The OP by violating the sanctioned plan constructed four flats in the ground floor on the space allotted for parking of the two wheelers and four wheelers of 33 flats owners. Consequently there is a problem of free ingress and egress of the two and four wheelers due to congestion caused by the developers by making illegal construction upon the space allotted for parking. Inspite of repeated requests the developer-OP did not take steps to make extra roofing on top roof to prevent seepage of water in every flat of the 5th floor during rainy season. The OP as per law did not make provisions of emergency exit necessary in case of accident and disaster. Not only that there is no provision of lightening arrester for the building. The OP also did not construct the fencing wall around the flats which is a matter of serious security and safety. All the flat owners including these Complainants have agitated their grievances before the assistant Director, CA & FBP on 30.10.2013. In response to that complaint the CA & FBP issued a notice upon the OP but due to non-response on the part of the OP mediation process failed and ultimately the CA & FBP, Durgapur Regional Office expressed their inability to mitigate the grievances of the Complainants. As the grievances of the Complainants had not been redressed by the OP having no alternative the Complainants have approached before this Ld. Forum by filing this complaint praying for direction upon the OP to install the lift facility in accordance with the agreement, casting extra roofing on the top roof to prevent seepage of water at the flats at 5th floor, removing illegal construction on the area allotted for parking which are causing inconvenience in free egress and ingress of the two and four wheelers, to provide the facility of emergency exit and lightening arrester, finish incomplete works in respect of fencing which is causing serious problem in safety and security of the life of the family members of the Complainants, to pay a sum of Rs.1,00,000/- as compensation to each of the Complainants due to mental pain, agony and harassment and litigation cost of Rs.40,000/- in total to them.
The petition of complaint has been contested by the OP by filing written version stating that the Complainants have neither any cause of action nor have any right nor have any locus-standi to institute the present complaint, so this complaint is fit to be dismissed with cost. It is contended by the OP that this complaint is barred by the law of limitation; this Forum has no jurisdiction to entertain this complaint because the present dispute is civil in nature which is maintainable before the regular Civil Court of Law. The OP has stated that the Complainant-1 entered into the agreement for sale on 26.04.2011 and the Complainant-2 on 30.04.2010 with the OP and the terms and conditions as agreed between them are not identical and as the cause of action is not the same and identical the Complainants have no joint interest in the subject matter and for this reason this complaint is liable to be dismissed. It is mentioned in the written version that in the agreement for sale of the Complainant-2 installation of lift is absent, so the Complainant-2 is not entitled to enjoy the lift facility in terms of the agreement dated 30.04.2010. For installation of lift installation of transformer by the WBSEDCL is necessary for which requisition was made and a sum of Rs.5, 76,664=00 has already been deposited by the OP with the WBSEDCL on 24.05.2012 by a demand draft and the WBSEDCL had issued a money receipt against such payment, but till date WBSEDCL did not take any step to install the transformer inspite of several requests. So there is no laches and/or deficiency in service on behalf of this OP as she had take all possible steps for installation of lift. But in respect of the matter of WBSEDCL the OP has no control. The OP has submitted that as per the sanctioned plan entire buildings and flats were constructed and there is no deviation in the matter of construction of the buildings/flats specially the flats of the Complainants and the Complainants before taking possession have inspected their flats in all respect. It is false that the OP did not take any step to prevent seepage of water in every flat of 5th floor during rainy season and so far as the emergency exit is concerned, there is a provision for emergency exit in every flat and the same has been closed as per the request of the purchasers for their inconvenience and this OP is ready to open the said emergency exit which was blocked by iron grill window as per the request of the flat owners and the OP had never violated the sanctioned plan. In the parking space there is no provision for keeping four wheelers and this OP had never encroach the parking zone by making construction thereon, so the allegation of the Complainants is false and manufactured. For providing lightening arrester electric earthing was made so that the building may not be damaged by the lightening, therefore this allegation as made out by the Complainants is also false and fabricated. Moreover there is no provision in the agreement for providing lightening arrester to the Complainants/flat purchasers and if they desire then they can install the same at their own cost. The fencing has already been done around the flats which is evident in the locality. So the OP has done nothing which amounts to deficiency in service and unfair trade practice, hence the Complainants are not entitled to get any relief as sought for. Accordingly prayer is made by the OP for dismissal of the complaint with cost.
The Complainants have adduced evidence on affidavit along with certain papers and documents in support of their contentions. The Complainants have also made a prayer by making application for appointment of an Executive Engineer for inspection in the respective flats. Accordingly the said application was allowed and some questions were put before the expert by the Complainants and the Expert has replied the same. No cross-examination was done either by the Complainants or the OP in respect of the said reply. The OP has submitted some papers and documents in support of her contention.
We have carefully perused the record, documents submitted by the contesting parties, ruling filed by the Ld. Counsel for the Complainants, replies given by the Ld. Expert and heard argument advanced by the Ld. Counsel for the parties.
At the very outset we have noticed that the Complainants have filed this complaint having same interest jointly and for this reason as per the provision of the Consumer protection Act, 1986 they have filed a separate petition u/S. 12 (1) (c) of the said Act at the time of filing of this complaint. Inspite of filing the said petition due to inadvertence no specific order was passed by the Ld. Forum at the time of it admission hearing. As the Consumer protection Act, 1986 was introduced to provide better protection of the interest of the consumer and as it is a beneficial legislation, we are not inclined to give much emphasis on the mere technicalities. So at the time of final argument we take up the petition for hearing and it is seen by us that admittedly the interests of the Complainants are almost same and identical in nature as the OP did not provide them the facilities and amenities as per the deed of conveyance till filing of this complaint. Therefore the Complainants having same interests are entitled to file one complaint jointly. So the petition filed by the Complainants u/S. 12 (1) (c) is hereby allowed.
The OPs has stated that the instant complaint is not maintainable because the subject matter is related with civil dispute and hence this complaint can only be adjudicated by the regular Civil Court. In this respect we are to say that firstly in view of the Section 3 of the Consumer Protection Act, 1986 this complaint is maintainable before this Ld. Forum as the Consumer forum had been established for providing speedy remedy of the grievances of the consumers. Moreover in view of the landmark judgment of the Hon’ble Supreme Court in the case of Lucknow Development Authority vs. Sri M. K. Gupta, this complaint is very well maintainable as this case is related to the construction of buildings/flats. Regarding pecuniary and territorial jurisdiction of this complaint we are of the view that as the Complainants got possession in their respective flats and the OP has already executed the deeds of conveyance in favour of the Complainants, the cost of the flats cannot be added in the reliefs claimed in view of the judgment passed by the Hon’ble National Commission in the First Appeal No. 91/2015 on 19.02.2016 in the case of Southern Apartment Owners Association & Another vs. Housing Consultancy Private Limited & Another. So this complaint is maintainable in respect of pecuniary jurisdiction and as the entire matter has been occurred within the territorial jurisdiction of this Ld. Forum, the complaint cannot be said as barred by territorial jurisdiction. The OP has mentioned that the Complainants have no locus-standi to file this complaint, in this respect we are of the opinion that admittedly the Complainants purchased the flats from the OP and for this purpose entire cost of the flats were paid by them. Not only that the OP provided possession and executed deeds of conveyance in favour of the Complainants. But as the OP has failed to provide certain facilities to the Complainants as per the terms and conditions of the sale deed, hence this complaint is initiated. In the present complaint the Complainants can easily be termed as consumers and the OP being the service provider has failed to provide due service as per the sale deed, then the Complainants have obviously locus-standi to file this complaint. Hence we do not get any substance in the contention of the OP in this regard.
Now we are to see as to whether there is any deficiency in service and/or unfair trade practice on behalf of the OP or not. We have noticed that there are some admitted facts in the case in hand i.e. the Complainants entered into two separate agreements for sale with the OP with a view to purchase two separate flats in their names, entire consideration amount towards the cost of the flats were paid, money receipts issued by the OP, the Complainants got their respective possessions in their flats, deed of conveyance was executed by the OP in favour of the purchasers-Complainants. The allegations of the Complainants are that inspite of repeated requests to the OP the facilities and amenities was not provided to them as per the sale deed and this reason they are feeling insecurity and facing harassment, mental pain and agony. For redressal their grievance this complaint is initiated. The rebuttal case of the OP is that she had provided all the facilities and only in respect of the lift her contention is that inspite of depositing consideration amount towards installation of transformer before the WBSEDCL in the year 2012, the WBSEDCL did not take any step to install the same and until and unless the same is installed by the WBSEDCL installation of lift cannot be done by this OP. In respect of the other facilities as mentioned by the Complainants, the OP has submitted that as those facilities are beyond the sale deed, the Complainants cannot get the same. Dismissal of the complaint has been prayed for by the OP.
We have carefully gone through the agreement for sale of the Complainants and the sale deeds, which has been filed by the Ld. Counsel for the Complainants by way of ‘firisti’. As the deed of conveyance has been executed in favour of the Complainants, the agreement for sale does not bear any value. It is seen by us that the Complainants are entitled to get lift facility as per the sale deed for which they have paid due consideration money to the OP. But admittedly till filing of this complaint the OP did not provide the said facility to the Complainants for which they are facing harassment and problem in everyday life. The contention of the OP in this respect is that she has no mal-intention and for installation of lift in the buildings/flats installation of transformer is necessary and for this purpose the OP deposited required amount with the WBSEDCL in the year 2012, but since then as the WBSEDCL did not install the same, lift could not be installed by her. As the facility of lift is mentioned in the sale deed, she is ready to provide the same as and when the WBSEDCL will install the transformer. It is true that though the OP paid the entire consideration amount to the WBSEDCL for installation of transformer in the year 2012, but admittedly the WBSEDCL did not install the same as per contention of the OP. In this connection the OP was asked by this Ld. Forum as to what step was taken by the OP against the WBSEDCL for non-compliance of their liability, but no fruitful result is forthcoming on behalf of the OP in this context. Simultaneously due to non-installation of the transformer as mentioned by the OP, installation of lift cannot be made, such contention has no legs to stand upon because as the facility of lift has been mentioned in the sale deed, the OP cannot take shelter under inaction of the WBSEDCL after execution of the sale deed. It was the duty of the OP to be more cautious and vigilant in this regard. As she gave less importance in this matter, such inaction of the OP can easily be termed as deficiency in service because due to inaction of the WBSEDCL or whatever it may be, the purchasers should not be suffered and the OP has no right to stand upon the legs of the WBSEDCL as the Complainants have purchased the said facility upon making payment of due consideration money and for this reason the Complainant are very much entitled to enjoy the said facility. We have noticed that since execution of sale deed i.e. 08.05.2013 and 13.05.2013 the Complainants are facing such harassment due to inaction of the OP, which cannot be entertained in the eye of Law.
In respect of casting of extra roofing on the top roof to prevent seepage of water as alleged by the Complainants the OP has admitted that there is seepage of water on the top roof and she took steps to prevent the same, but no fruitful result has been yielded. In this regard we are of the view that as per the sale deed the top roof falls within the common facilities and for this reason the Complainants are very much entitled to use the same. If there is seepage of water the obviously the Complainants are facing problem during rainy season. Under this circumstances the OP is under obligation to remove the abovementioned problem and as the problem has not yet been removed by the OP, such action can be termed as deficiency in service on the part of the OP.
Regarding removal of illegal construction on the area allotted for car parking space, facility of emergency exit, provision for lightening arrester, finishing of incomplete works in respect of the fencing at the questioned apartment, we are of the opinion that as the OP did not make any promise or commitment to the Complainants to provide those facilities and moreover as the same is not mentioned in the sale deed executed in favour of the Complainants, we cannot travel beyond the said sale deed at this stage. Therefore the Complainants are not entitled to get any relief regarding the above facilities.
The Complainants have prayed for compensation from the OP due to deficiency in service. Admittedly it has been mentioned earlier that non providing of the lift facility and removal of seepage of water from the top roof by the OP amounts to deficiency in service, hence the Complainants are entitled to get some amount towards compensation due to deficiency in service on behalf of the OP in that respect. As the grievances of the Complainants has not been redressed by the OP and they have to approach before this Ld. Forum by filing this complaint, admittedly for this proceeding they have incurred some expenditure towards litigation cost. We are of the view that the Complainants are also entitled to get some amount as litigation cost from the OP.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed in part on contest with cost. The OP is directed to install lift in the building/flat within a period of 45 days from the date of passing of this judgment, in default, the OP shall pay Rs.100=00 per day to each of the Complainants for the default period. The OP shall take positive step to remove seepage of water from the top roof of the questioned building within a period of 45 days, in default; the Complainants will be at liberty to put this order in execution as per provision of law. The OP is further directed to make payment of Rs.1, 000=00 to each of the Complainants towards compensation due to unnecessary harassment, mental agony and litigation cost of Rs. 1, 000=00 in total to the Complainants (Rs.500 + Rs.500) within a period of 45 days from the date of passing of this judgment, in default, the Complainants are at liberty to put this order in execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
