Hon’ble Mr. Rajib Das, Member.

Precisely, the basic fact of the complaint herein that the Complainants purchased a flat from the O.Ps in “Hasi Apartment” at Guriahati Road, Word No.14, Cooch Behar, Pin- 736101 through a valid deed of conveyance being No. 080203630 of 2020. The Complainants also purchased garage space of 120 Sq. feet alongwith the flat namely 6-C and the garage was named as No.7. After purchasing the flat on November, 2020 the Complainants started lining in the aforesaid flat but after some period, hardship started in dwelling in the said flat as water seepage was going on from the roof of the flat and several structural cracks and plastering cracks was seen on several parts of the flat the Complainants being anxious of their life and limb and facing sufferings in livelihood, the Complainants arranged for an inspection by Sri Manab Kumar Bose (AMIE, FIV, M-tech) C & S engineer on 15.11.2021. Sri Manab Kumar Bose gave his certificate of finding of inspection where he clearly stated that there are so many cracks in the plaster and structure and the condition of the roof of the said flat is not good and required to be immediate repair of the roof of the flat and cracks in the flat. On being informed the O.P. No.1 conducted a repair on failing of which all this cracks will be increased and the condition of the roof of the flat will be decorated and water seepage from the roof will be increased. On being informed the O.P. No.1 conducted a repair on the roof on 14.02.2022 under supervision of Sri Manab Kumar Bose, subsequently, Sri Manab Kumar Bose reported that in spite of the repair work done by the O.P. No.1 on roof of the flat in dispute (6-C) still there are on the roof of the flat of the Complainants (6-C) several structural cracks, the interior of the flat also has several cracks on the main roof surface as visible on ceiling and horizontal frame. The thickness of the slab of lop roof is not adequate and putting load on roof top continuously is strictly not advisable.

Seeking appropriate action from O.P. No.1 in respect of the thorough repair of their flat the Complainants requested the O.P. No.1 to do the repair as per expert’s opinion and supervision, but in vain, the O.P. No.1 was avoiding the matter of repair of the flat of the Complainants. The Complainants also raised complain against the OP that the four wheeler parking space was not a good condition and heard to be used and as per the complain it also an act of deficiency in service.

Moreover, the O.P. No.1 was committed to provide electric wiring with copper wire throughout the apartment but it was not done with copper wiring fully and which is risky may endanger the safety of the Complainant’s life.

Another issue of the dispute is about completion certificate. As per the law of the land the O.P. No.1 is duty bound to handover the completion certificate of the apartment to the Complainants by his own way. But that completion certificate is yet to be obtained by the complaint.

Under the circumstance the Complainant sent and serve a legal notice through their Advocate Sri Sontosh Kr. Sah to the O.Ps  regarding the situation and pointed out the problems, they have faced and  facing and sated that all this sufferings are due to negligent act of the O.Ps which deems to deficiency in service, unfair trade practice and claim the refund of the consideration money of the flat + value of the four wheeler space + another costs by the Complainants.

On receiving the Lawyers notice of Sri S.K. Sah, the O.P. No.1 replied through Advocate Mr. Manwar Hossain Khandakar on 16.04.2022 where he strongly denied all the sufferings of the Complainants denied all the allegations as deficiency in service, unfair trade practice and raised new allegation against the Complainants that the Complainants have illegally converted the flat from 3 BHK to 2 BHK which caused all this damages and defects as the Complainants used heavy hammer when the walls of the flat of the Complainants was demolished by themselves. And the O.P. No.1 marked these act of said conversion and demolition of walls as a criminal activity committed by the Complainants and lodged a FIR before the Kotwali PS against the Complainants.

Subsequently, being refused and denied for any responsibility regarding the problems of the Complainants.

The Complainants filed a complaint before this D.C.D.R.C., Cooch Behar on 27.04.2022 in which the Complainants stated all the sufferings of them in living in the flat in dispute, the Complainants categorically mentioned their four grievances against the O.P. No.1 firstly, the flat in dispute had not been constructed properly and that’s why the flat has been damaged and the living in the flat in dispute becoming measurable and the O.P. No.1 sold the flat which had some constructional defect which caused several cracks in various parts of the flat in dispute even in roof top and ceiling of the flat were found cracked and continuous leakage of water is/was going on from the crack of the ceiling of the flat in dispute. Secondly, as per the deed of convince i.e. the agreement between the Complainants and the O.P. No.1 the electric wiring in the whole apartment as well as the flat in dispute shall be done by copper wire but after inspection by competent expert appointed by the Complainants the Complainants came to know that the electrical wiring, has been provided by the O.P. No.1 is not copper wiring but it is of aluminum wire which may caused physical injury even death of the Complainants and thus the O.P. No.1 has committed unfair trade practice and as well as deficiency in service. Thirdly, a completion certificate must be handed over to the Complainants issued by the appropriate authority except that completion certificate some specific rights upon the purchased flat in dispute have been infringed and the mutation of the flat in dispute in the names of the Complainant could not be done, this act of O.P. No.1 is a gross negligence on his part. And finally and fourthly the four wheeler parking space (No.0007) at ground floor appeared damaged within a short period and parking space is heard to be used by the Complainants as the parking space was constructed reluctantly and with gross negligence by the O.P. No.1 and which act of the OP is marked as unfair trade practice by the Complainants.

In this complaint the Complainants denied the allegation raised in the reply letter of Advocate Mr. Khandakar of any conversion inside the flat in dispute and stated they have not renovate or broken any wall by using heavy weight hammer. The Complainants has been living in the flat in dispute as it was at the time of purchase.

Hence, the Complainants prays for an order directing the O.Ps to refund Rs.43,93,500/- with interest.

Secondly, an order directions the O.Ps to compensate Rs. 2 Lakhs to the Complainants for non isue of completion certificate prior to registering of their flat with interest till the date of payment of compensation.

Thirdly, for an order directing the OP to substitute the Complainants with another appropriate residential flat suitable habitation in the same purchase price.

Fourthly, for an order of Rs. 3 Lakhs/ towards mental pain and agony against the O.Ps for their wrongful act and deficiency in service.

Fifthly, Rs. 50,000/- litigation cost.

The complaint was admitted and the O.Ps were noticed to appear and submit the written version with affidavit. The O.Ps appeared and the O.P. No.1 submitted the written version on affidavit. And in the written version the OP denied all the sufferings of the Complainants in living in the flat in dispute due to seepage of water from the roof but he never deny the present condition of the flat in dispute and the fact of plastering Creaks, structural cracks, seepage of water from roof of the said flat but on the contrary the O.P. No.1 raised allegation against the Complainants that the Complainants changed the texture of the flat in dispute by demolishing/ breaking the walls inside the flat in dispute and due to use of heavy weight hammer to demolish/ break those walls so no responsibility of the damages in the flat in dispute is lying upon the O.P. No.1.   

Secondly, about the electric wiring the OP denied any changing of wiring inside the flat in dispute. And only copper wire has been used inside the flat in dispute. But the main connection was by special type of aluminum wire which is exclusively provided by the WBSEDCL as per their rules and convention or practice.

Thirdly, OP denies any negligence in handing over the completion certificate as the OP had applied for the completion certificate on 12^th April, 2022 which is yet to be obtained.

Fourthly, O.P. No.1 denies that the four wheeler parking space in heard to be used but admitted that the damage has been occurred due to thrush of the wheel of the four wheeler.

After words, towards the disposal of the case both the parties had submitted many documents, evidences, produced witness, examination and cross-examination of witness held before the Commission by the Complainants but the O.P. No.1 decline to cross-examine the witnesses who submitted their evidence on affidavit submitted through the Complainants then both the parties submitted their written argument and also submitted oral argument.

Now the time for the Final Order.

Points for Determination

1. Whether the Complainant suffered from the seepage of water from the roof of the flat in dispute?
2. Whether there as any damages occurred by the Complainant, breaking the partition walls inside the flat in dispute or the damages was occurred as the construction of the flat in dispute was week in nature, as the flat in dispute was constructed negligently with infer raw materials and intentionally avoided the existing rules for construction for his own benefit of the O.P. No.1?
3. Whether the O.P. No.1 has handed over the completion certificate, if not what are the bad consequence faced by the Complainants in any way?
4.  Whether the four wheeler parking space have been damaging day by day?
5.  Whether the electricity arrangements are not adequate and proper is there any lack of service, negligence about safety of the Complainants? 
6.  Whether the Complainants entitled to get the relief as prayed for?
7. Whether any other relief if any the Complainants entitled to get?

Before determining the above points of determination, this Commission has come to the conclusion the complaint is not barred by limitation the complaint is not bad for non-joinder of necessary party. The complaint is not bad in the matter of cause of action and any kind of jurisdiction after perusing the record.

Decision with Reasons

Point No.1.

So far the record of this case is concerned and informative data found in the record, it appears before the Commission that the condition of the flat was dwelling is not good because of seepage of water from the roof of the flat and a fear of injury to the life and limb as to whoever suddenly may the ceiling of the flat may collapse or any broken piece of plaster may fall down on their body. The situation creates mental agony, tension in mind for the Complainants thus the sufferings in livelihood is proved and the decision goes in favour of the Complainant.

Point No.2.

About the allegation of breaking the interior wall of the flat converted the texture of the flat by demolishing the wall with some heavy weight hammer by the Complainant and as a result of that act of the Complainants caused injury and damage to the various parts of the flat. This allegation is to be proved by evidence of witnesses and by the documents on record by the O.P. No.1. Here in this point the OP is measurably failed to prove his allegation against the Complainants as firstly none of the witnesses of the OP had seen the occurrence of demolishing of wall of flat in dispute. None of the witness could not say the actual date of demolition of walls by the Complainants not even the month or year, one witness namely Sri Swarup Mandal prepared an evidence on affidavit submitted before the Commission but later that evidence on affidavit of Swarup Mandal was not pressed and on the next day witness Swarup Mandal withdrawn the evidence on affidavit prepared by him. On the other hand none of the 6^th floor resident never raised any objection or complains for any illegal construction done by the Complainants before any committee or authority. On the contrary it appears from the record that even in the meetings of the committee amongst the Hasi Apartments residents none blamed the Complainants for any of their act or acts. On the other side in almost all meeting amongst the members of the Hasi Apartment shown that there are another sufferer owner of No.6-D flat Sri Kousik Dey also facing problem of water seepage ceiling  suffering as same as the Complainants from mental agony. It is mentioned that suffering of Kousik Dey started prior to the Complainants and he complained before the aforesaid committee of the Hasi Apartment it proves that the seepage of water from the ceiling is dropping on the rooms is a old problems and this problem is gradually increasing towards here and there on the 6^th floor more over in many meeting the problem of water seepage have been  discussed and to solve the problem opinion of the engineer should be taken and the full repairing to be done concerning the O.P. No.1 as the committee thought that the responsibility of repairing should be taken by the O.P. No.1 because the flat owners of the 6^th floor no way responsible for the various cracks as structural cracks, plastering cracks and leakage on the roof top. Only the O.P. No.1 who constructed the apartment reluctantly, negligently and decreased the standard quality of construction with a ill motive to earn more money from sells of flats. This illegal policy of business is marked as unfair trade practice by the Commission. Moreover, the Complainant engaged Sri Manab Kr. Bose an well-known competent experienced Civil Engineer to inspect their flat and seek certificate of opinion about their flat also seek his suggestions to solve the problems. Mr. Bose inspected the flat in dispute and subsequently Mr. Bose the aforesaid Civil Engineer gave his opinion. Thereafter a repair work on some portion was done. Photograph of the repairing have been submitted by the Complainants which are not challenged by the O.P. No.1 under the supervision of Mr. Manab Bose and subsequently Mr. Manab Kr. Bose issued another certificate of opinion where he described the post repair condition of the roof top and the cracks which are seen here and there. Though the O.P. No.1 tried to establish that this inspection is illegal and unauthorized Mr. Manab Bose is a part of conspiracy fabricated by the Complainants having common monitory interest. On the other hand the O.P. No.1 wanted the answer of some questions from Mr. Manab Bose as per RTI Act and again tried to establish that Mr. Manab Bose have no right to inspect the flat and the Complainants also have no right to engage any expert engineer independently but nowhere in the deed of convince it is mentioned that no expert can be engaged by the Complainants and nobody can inspect the flat. However, Mr. Manab kr. Bose replied the questions categorically and in the last para in reply of the question by the O.P. No.1 Mr. Manab Kr. Bose informed the O.P. No.1 that all such cracks ( plastering cracks, structural cracks, roof cracks connecting to beam present on the main roof surface visible on the ceiling as well as on the horizontal beam) may be a cause of continuous slugging or hitting by big hammer upon the partition walls, lintels, beams for demolition of the partition walls for changing 3 BHK to 2 BHK flat of a new building. But this certificate of opinion as well as the reply of the question given by Sri Manab Kr. Bose to O.P. No.1 cannot establish the allegation of demolishing breaking the walls inside the flat in dispute converting the texture of the flat. And as it is not proved that the Complainants did anything bad so that the cracks of various type seepage of water from the roof top may occur so the Commission again expressed that the Point No.2 is accordingly decided in favour of the Complainants.

Point No.3.

The O.P. No.1 have not handed over the completion certificate till date. The completion certificate was to be handed over to the at the time of execution sale deed but the O.Ps totally neglected to arrange the completion certificate, but it was exclusively the responsibility of the O.P. No.1 to hand over the completion certificate to the Complainants, which the OP neglected since long time and the Complainants are yet to obtain the completion certificate which is a clear example of gross negligence on the part of the OP and as a result of such a negligent act of O.P. No.1 caused mental and physical harassment to the Complainants as well as mental agony. Moreover, for the want of completion certificate the Complainant failed to mutate their flat by the L.R. Department Govt. of West Bengal as the completion certificate is very much required at the time of mutation, except the completion certificate mutation process cannot be started thus the Complainants have been deprived by the O.P. No.1. From the absolute right and record of ownership. Hence, Point No.3 is accordingly decided in favour of the Complainants. 

Point No.4.

4^th point about the four wheeler parking space. The condition four wheeler parking space (007) is damaged to a great extent and it is admitted to be fact by the O.P. No.1. So, the OP is liable to take the responsibility of the damage of the four wheeler parking space because the construction of the floor of the parking space is not up to the mark and standard, deficiency in service and unfair trade practice by the O.P. No.1 is hence establish. Point No.4 accordingly decided in favour of the Complainants.

Point No.5.

About the electricity arrangement in the flat in dispute it is fact the Complainants have not faced any loss or injury in respect of the electricity arrangement but there are possibilities of unwanted incident which may be dangerous for the resident of the flat as the electrical supervisor Mr. Siddharata Choudury pointed out some inadequacy in respect of the safety and security of the resident of the apartment as well as the Complainants  here lies the deficiency in service on the part of the OP.

Hence, Point No.5 accordingly decided in favour of the Complainants.

And thus the Points No. 6 & 7 accordingly decided in favour of the Complainants.

It is significantly required to be mentioned that in this case the O.P. No.2 & 3 appeared before the Commission but af6terwards both O.P. No.2 & 3 did not contest the case O.P. No.2 & 3 was decided to be heard ex-parte. However, it appears from the case record that, neither of the above mentioned O.P. No.2 & 3 responsible for allegation in the complaint. All the responsibilities goes to the O.P. No.1 i.e. Dipankar Pal. The O.P. No.2 & 3 merely and only handed over the land to the O.P. No.1 that’s all. The Complainants have not any allegation, as such, against the O.P. No.2 & 3 which indicates that the Complainants add the name of the O.P. No.2 & 3 as Proforma O.Ps.

Hence, considering all aspects, it is decided by this Commission that the O.P. No.2 & 3 both are excused from this case, no liability remains upon the O.P. No.2 & 3.

In the result the complaint case succeeds on contest with cost against O.P. No.1.

Hence, it is

Ordered

That the complaint case No. CC/21/2022 be and the same is allowed on contest with cost.

The Complainant do get an award for a sum of Rs. 37,93,500/- (Thirty Seven Lakhs Ninety Three Thousand Five Hundred only) for the value of the flat in dispute added with registration expenses with interest on 5% yearly from the date of filing of this complaint till the date of payment of awarded money of Rs.37,93,500/-.

Secondly, the O.P. No.1 shall give an amount to the Complainants of Rs. 1 Lakh for compensation of deficiency in service, negligence and unfair practice.

Thirdly, the O.P. No.1 shall give an amount to the Complainants amounting to Rs. 1 Lakh for mental pain and agony and suffering in livelihood for the wrongful act and deficiency in service by the O.P. No.1.

Fourthly, O.P. No.1 shall deposit an amount of Rs. 1 Lakh in favour  of the Consumer welfare fund and fifthly, Rs.25,000/- for litigation cost shall be paid by the O.P. No.1.

So, O.P. No.1 have to pay total Rs. 41,18,500/- (Forty One Lakhs Eighteen Thousand Five Hundred only) as explained above within 30(thirty) days from the date of passing the Final Order failing which the Complainants shall be entitled to get interest @6% per annum on the awarded money from the date of passing the order till the date of realization.

Further it is ordered that the Complainants shall hand over the flat in dispute and vacate the flat as soon as the O.P. No.1 completed his payment towards to comply the above mentioned order of this Commission maintaining all legal procedure. The Complainants may also remove the interior decoration at time of leaving the flat but any portion of the flat in dispute must not be damaged and the removal of the interior decoration shall be in presence of the O.P. No.1 and all in interest will be imposed upon only the purchase value of the flat and the registration.

D.A. to note in the trial Register.

Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.

The copy of the Final Order is also available in the official website: www.confonet.nic.in.

Dictated and corrected by me.