DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 125_ OF ___2012
DATE OF FILING : 18.5.2012 DATE OF PASSING JUDGEMENT: __28.02.2018
Present : President :
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Subid Mukhopadhyay,son of Sri Bhabani Mukherjee
2. Smt. Sudipa Mohanta, daughter of Bijon Mahanta
2A. Sri Subhasis Bhattacharyya, son of Bireswar Bhattacharyya
3. Mrs. Basundhara Pillai, wife of Sunil Kumar Pillai
4. Sri Bibek Roy, son of late Sanjib Roy.
5. Sri Utpal Chatterjee, son of late L.K Chatterjee
5A. Smt. Santana Chatterjee, wife of Sri Utpal Chatterjee
6. Sri Sauvik Sarkar, son of Sri Sourendra Narayan Sarkar
6A. Mrs. Susmita Sarkar, wife of Sauvik Sarkar
7. Sri Soumen Kanti Ghosh, son of Jnanendra Chandra Ghosh
7A. Smt. Anuradha Ghosh, wife of Sri Soumen kanti Ghosh
8. Sri Partha Gangopadhyay son of late A.B Ganguly
All of TARUCHHAYA APARTMENT Flat Owners Association , 16/A, Bosepara Colony also known as 16A , Bosepara Road, P.S Thakurpukur, Kolkata – 700 008.
O.P/O.Ps : Sri, Debashis Barat, son of Sri Prasanta Kumar Barat, 9, Nrishingha Dutta Road, P.S Thakurpukur, Kolkata – 700 008.
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J U D G E M E N T
Sri Subrata Sarker, Member
This case was dismissed on the point of limitation and the complainants preferred an appeal before the Hon’ble State Commission and the Hon’ble State Commission having heard the matter has been pleased to pass an order on 23.12.2016 in First Appeal no. FA/1123/13,directing remand of the case to this Forum for adjudicating it on merit and, therefore, the record is taken up now for passing judgment.
To be brief, the complainants’ case is that they purchased their flats as described succinctly in the petition of complaint from the developer i.e the O.P-1 having paid the consideration money possession of all the flats were taken over by them in the year 2007-2008. Thereafter all on a sudden, within a couple of months ,the complainants observed that a crack had developed on the southern portion drive way and pathway of their building which was likely to affect the main structure of the building. They requested the developer i.e O.P-1 to repair the same but the O.P-1 turned a deaf ear to their request and , therefore, the complainants filed the instant case ,praying for issuing a direction to O.P-1 inter alia to repair the building and also to hand over the completion certificate of the building to them. Hence, this case.
The O .P-1 has been contesting the case by filing written statement ,wherein he has stated that the possession of the flats has been made over to the complainants about four years ago and upon delivery of possession to them , all his liability whatsoever he had towards the complainant ceased to have any effect. His further case is that the crack is the result of normal wear and tear and that he has also a flat in the said subject building and as such he is ready to bear the cost of repair proportionately with the complainant.
Upon the averments of the parties following issues are formulated for consideration in this case.
ISSUES
- Whether the O.P is guilty of deficiency in service for not repairing the crack which has developed in the building.
- Are the complainants entitled to get relief or reliefs as prayed for ?
Evidence of the parties:
Both the parties have filed affidavits-in-chief which are kept in the record.
DECISION WITH REASONS
That a crack has developed in the subject building is not denied by the O.P/developer, because the O.P/developer avers in the written statement that he is ready to bear the cost of repair proportionately with the complainants.
Now the question which arises for consideration is whether the O.P, developer, has any liability to repair the crack arising in the subject building.
The fact is that the complainants have purchased the flats in the building having spent lacs of rupees and within a couple of months of their taking over possession of the flats, the cracks have developed in the building and cracks are of such a nature that the existence of the building is threatened thereby. An investigation was conducted in this case by their self engaged Architect-cum-Engineer namely Ranjit Bhatacharya and he has filed the report on 5.4.2012. In that report also it has been revealed that the crack exists in the building and the structure of the building is likely to be affected seriously unless the crack is repaired as soon as possible. This report has not been challenged by the O.P, developer. Regards being had to this aspect, we are of the opinion that the complainants have been able to prove that there exists a crack in the building and the existence of the building is in danger unless the crack is repaired.
Now to see who will repair the crack. Is the developer i.e O.P-1 liable to repair the crack? It has been stated by the complainant in their affidavit-in-chief and also the complaint petition that the crack developed within a couple of months of their taking over possession of the building. This very fact of the crack having developed within a couple of months of taking over possession of the building by the complainant ,which goes to establish that there was something wrong in the performance of the developer in so far as the structure of the building is concerned. The principle of res-ipsa-loqutor comes into play and with the application of this doctrine, we make no scruple to say that the developer performed the work of the building with a very low quality and the result of such performance of the work is the development of crack in the building. The developer cannot brush away his liability. To execute a work using low quality materials and skills in the building and to give out the purchasers that the building is in fine quality is nothing but a misrepresentation given by the developer ,O.P-1 to the complainant. So, the developer i.e O.P-1 is found guilty of deficiency in service and unfair trade practice also.
There is also another point awaiting discussion.
The developer i.e O.P-1 has not yet furnished the completion certificate of the building to the complainants and the complainants are still praying for that completion certificate. Non-furnishing of completion certificate after handing over possession of the building to the purchasers is also an act of deficiency on the part of the developer ,O.P-1 . So, in all respect it is found that the developer, O.P-1 is liable and he will have to repair the crack which is developed in the subject building.
Point nos. 1 and 2 are thus answered in favour of the complainants.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P-1 with cost which is quantified to be Rs.10,000/-.
The O.P-1 is directed to repair the cracks ,as pointed out in the petition of complaint and also in the report of the Engineer and which have developed in the subject building, at his own cost and also to hand over the completion certificate of the flats to the respective complainants and also to pay cost as referred to above to the complainants within a month of this order, failing which the amount of cost will bear interest @10% p.a till realisation.
In the facts and circumstances of the case we pass no order as to compensation.
Let a free copy of this order be given to the parties concerned at once.
Member Member
Dictated and corrected by me
Member
