BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1465/2007 against C.C. 1452/2003, Dist. Forum-II, Visakapatnam.
Between:
1) R. Vidya Sagar, S/o. R.I.D. Raju
Age: 37 years,
D.No. 50-26-13, Flat No. FFI
Srinivasa Mansion Apartments
Post Office Road, TPT Colony
Seethammadhara, Visakapatnam
Executive Partner
Heritage Developers
2) Kandukuri Venkata Rajendra Kumar
S/o. K. Venkatapathi Raju,
Age: 31 years, Partner
Heritage Developers
D.No. 45-40-39,
Sri Lakshmi Kameswari Enclave
Main Road, Akkayapalem
Visakapatnam-16.
3) Boyisetty Revathi
W/o. B. Ajay Kumar
Age: 32 years, Partner
Heritage Developers
D.No. 4-57-1/14, Lawsons Bay Colony
Ushodaya Residential School Road
Visakapatnam.
4). Putla Suresh Babu
S/o. P. Polayya, Age: 41 years
Partner, Heritage Developers
Flat No. 404, Niharika Palace Apartments
TPT Colony, Seethammadhara
Visakapatnam-13. *** Appellants/ Ops.
And
Smt. Soma Majumdar
W/o. Ashish Kumar Majumdar
Flat No. 2, III Floor,
Balajinagar, Visakapatnam. *** Respondent/
Complainant.
Counsel for the Appellant: : M/s. S.V. R. Subrahmanyam
Counsel for the Respondent: : M/s. N. (P) Anjana Devi.
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
SMT. M. SHREESHA, MEMBER.
&
SRI K. SATYANAND, MEMBER.
TUESDAY, THIS THE TWNTY THIRD DAY OF MARCH TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
1) Appellant builders preferred this appeal against the order of the Dist. Forum directing it pay Rs. 2 lakhs with interest @ 12% p.a. together with compensation of Rs. 20,000/- and costs of Rs. 5,000/-.
2) The case of the complainant in brief is that the appellants are builders. They agreed to undertake construction of Flat No. 2 in III floor of Niharika Residency under the agreement Dt. 4.12.2000 for a consideration of Rs. 8 lakhs with a promise that they would complete it within 12 months and further agreed on failure to hand over the possession within the said period he would pay liquidated damages with interest @ 18% p.a.,. They also agreed to install electrical transformer, obtain municipal water connection, and cable connection up to the mains and other amenities as per the agreement entered into. Despite the fact that she had paid a sum of Rs. 10 lakhs by 15.10.2001 for installation of transformer, providing municipal water connection they did not do so. In fact they had received additional sum of Rs. 2 lakhs They should refund the said amount. Therefore she filed the complaint to direct the appellants to 1) install transformer 2) provide municipal water connection 3) install lift and 4) on failure to comply the above pay Rs. 4 lakhs together with Rs. 2 lakhs collected extra with interest and compensation of Rs. 1,50,000/- for negligence and costs.
3) The appellant builders resisted the case. However, they admitted that they are the builders, entered into an agreement for construction of Flat No. 2 in III floor of Niharika Residency for the complainant. They had delivered possession and in fact she has been residing in the flat since first week of May, 2003. They had complied the agreement by installing the transformer providing municipal water and cable connection. The consideration paid by the complainant did not include charges for installation of transformer, providing municipal water and cable connection up to the mains. The complainant herself had purchased bathroom tiles, marbles and electrical fittings, tiles and sanitary fittings etc. and that she had to bear the
expenditure. In fact there was an understanding that flat owners had to deposit costs towards additional bore well with the welfare association. The complainant had to pay Rs. 13,470/- towards balance of work done by them. There is neither negligence nor deficiency on their part. The complainant is not entitled to any compensation. Therefore, they prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A15 marked. Refuting her evidence the appellants filed the affidavit evidence of R. Vidya Sagar its executive partner reiterating the facts mentioned in the counter.
5) The Dist. Forum after considering the evidence placed on record opined that apart from Rs. 8 lakhs paid under the agreement she had paid Rs. 2,00,000/- evidenced under receipts Exs. A2 to A8. However, the complainant had to bear the expenses for installation of transformer, water and cable connection up to the mains. However, the opposite parties could not prove that they had provided the above facilities and therefore directed them to pay Rs. 2 lakhs with interest @ 12% p.a., from 15.10.2001 till the date of realization together with compensation of Rs. 20,000/- and costs of Rs. 5,000/-.
6) Aggrieved by the said decision, the builders preferred the appeal contending that the Dist. Forum did not appreciate the fact that the construction was made as per the terms of the agreement. They have also installed transformer, provided municipal water connection and cable connection as agreed to seven other flat owners. In support of its contention the appellants filed an I.A. 476/2010 to receive the order Dt. 10.5.2007 in C.C. No. 1484/2003 on the file of Dist. Forum-I, Viskapatnam filed by one Smt. Moturi Sarojini Devi against the very same builder wherein the Dist. Forum after considering the evidence placed on record had categorically opined that the transformer was installed on 4.3.2004, lift was provided in September, 2004, and municipal water supply was also provided. The said document is received since the complainant did not file any counter and as the matter pertains to the very same property by another flat owner. It is marked as Ex. B1. A perusal of the order shows that basing on the very affidavit evidence filed by the complainant besides Ex. B1 photographs showing installation of lift, erection of transformer, installation of bore well and also municipal water supply the Dist. Forum opined that those amenities were provided as per the agreement. However, in the said case holding that there was delay in delivering possession and failure for providing amenities a compensation of Rs. 35,000/- was awarded.
7) It is unfortunate that when the appellants not only in its counter but also in its affidavit evidence mentioned that they had complied the defects pointed out in the complaint, the complainant did not choose to file affidavit denying the version nor examined any of the flat owners to prove that they were not provided. Equally the blame should be thrown on the appellants for not proving the installation of transformer and providing of municipal water etc. The appellants relied on a subsequent order of the Dist. Forum wherein the very same dispute was raised between another flat owner and the appellants/builders.
8) Though the provisions of C.P.C. are not applicable to proceedings under the Consumer Protection Act even by applying principles of natural justice, equities etc. this Commission can undoubtedly take subsequent evidence as provided under Order VII Rule 11 of C.P.C. into consideration. Since the complainant did not dispute installation of these facilities subsequent to filing of the complaint and in the light of Ex. B1 we have to hold that the builders have complied the same.
9) It is not in dispute that the complainant had paid Rs. 2 lakhs towards installation of transformer, municipal water and cable connection. Despite the fact that the complainant had alleged several irregularities she could not prove by leading any cogent evidence. She could have taken a Commissioner and got it verified. In view of assertion of certain facts which were equally controverted by the appellant, it is for the complainant to prove that there was deficiency in service on the part of appellants. No doubt when the appellants had to contest several cases filed against them some of the documents had been filed in some other cases however, same were not filed except taking contentions. As the complainant did not dispute about these installations which she had complained were complied evidenced from Ex. B1, we are of the opinion that the complainant was not entitled to refund of Rs. 2 lakhs.
10) In view of the fact that there was delay in installation as evidenced from the terms and conditions of the agreement, necessarily she was entitled to some compensation. In Ex. B1 a compensation of Rs. 35,000/- was awarded not only for delay in delivery of possession but also delay in providing the amenities mentioned above. In regard to same apartments there cannot be two orders particularly in regard to the above mentioned amenities. Therefore the order of the Dist. Forum directing the appellants to refund Rs. 2 lakhs is set-aside. However the compensation as well as costs that were awarded by the Dist. Forum in the circumstances are well justified. We do not see any irregularity in regard to compensation awarded. There was delay on the part of appellants and therefore they ought to have compensated the complainant.
11) In the result, the appeal is allowed in part. setting aside the order of the Dist. Forum as far as refund of Rs. 2 lakhs is concerned and rest of the order is confirmed viz., payment of compensation of Rs. 20,000/- and costs of Rs. 5,000/- awarded by the Dist. Forum. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) ________________________________
MEMBER
Dt. 23. 03. 2010.
*pnr
“UP LOAD – O.K.”
