Judgement
This appeal is directed against the final order passed by Ld. D.C.D.R.F, Darjeeling dated 18/04/2018 in reference to CC/12/D/2017.
The fact of the case in a nutshell is that the appellant Rajesh Gupta and Smt. Soumya Raj Gupta, the husband and wife, had purchased a flat covering 367 sq. ft. under the situated within Darjeeling Municipality area from the owner and developer Santa Bahadur Chettri and Smt. Harka Maya Chettri in the year 2010 and started to reside there without mutating their names in the R.O.R. Subsequently, they have sold out the same to the respondents by executing a deed of conveyance on 19th August, 2015. And it was stipulated in the said deed if the right title interest in the said property of the appellants are found defective and if the purchasers sustained any loss or damage caused or expenses in that event, the vendor shall be duty bound to reimburse the full purchase price of rupees eight lakh and with all costs of construction or improvements of the property sold on. After purchasing the flat the complainant/respondent started to reside there and found there was a leakage in the Varanda of the flat for which sewage water was seeping into rooms which caused the entire flat inhabitable and unhygienic. So, the complainant/respondent asked the vendor that is the appellants to make arrangements for construction of seepage of water and also asked the appellants to provide a space upon the roof top of the building for installation of water tank there, as he was agreed to do the same in the deed of sale and also make arrangement to mutating the name of the complainant/respondent in the R.O.R. Finally, the appellant had refused to perform or discharge his obligations as per terms of deed of conveyance dated 17/08/2015 and for that reason the complainant/respondent has filed the consumer complainant and issue notice upon the appellants as opposite parties to that case. Appellants/opposite parties had contested the consumer complaint by disputing the allegations of complainant submitting the written version where it was contended that the consumer complaint was not maintainable in law as the complainant/respondents were not the consumers as defined in the Consumer Protection Act and the charges leveled against the appellant were baseless. Ld. Forum after hearing both sides and on the basis of pleadings and documents has passed the instant judgement which has been challenged here in the shape of appeal by the OP/appellant and contended that the order of the Ld. Forum were full of errors, illegal, unauthorized in law and liable to be set aside. The respondent/complainant has contested the appeal after receiving the notice of the appeal. Accordingly, the appeal was heard in presence of both sides.
D E C I S I O N W I T H R E A S O N S
At the time of adjudication Ld. Forum has fixed four points for determination. So, at the time of disposal of the appeal we shall consider the points categorically and separately regarding the adjudication of the same for the sake of convenience and brevity.
Point No: – (1) Are the complainant consumers under section12 (1) (D) of the Consumer Protection Act, 1986?
The Ld. Forum has opined that although the appellants/OPs was not developers but the owner of the flat is question and had sold the said flat to the complainant for a consideration. Accordingly, the complainants/respondents are to be treated as consumers according to the definitions of the consumers under the Act. Ld. Advocate of the appellant at the time of argument mentioned that according to the provision of the Consumer Protection Act when the relations subsists between the developers and the buyers of the Flat and if the buyer of the flat has agreed to purchase the flat from the developers in consideration of money or otherwise, he shall have to be treated as consumer. Here, in this case, no relation subsists as developers and buyers. Here the appellant neither constructed the building nor developed the land or promoted the building. He has purchased the flat from the developers and land owners and started to reside there. Thereafter he handed over the same to the complainant/respondent by executing a deed of sale and here mere relations between buyer and seller is here and not the developers and consumers are there. After going through the definition clause of Consumer Protection Act, this commission find that the argument in this regard of Ld. Advocate has no legal sanctity as because the relation between the appellant and respondent has build up by a deed of conveyance dated 17/08/2015 where the appellant had under taken to perform his obligations if the buyer sustains any damage which was found defective at the time of occupation of the flat. The case of the respondent is that after commencement of the occupation of the flat, they found for the sewage water was seeping into the room while there was no seepage of sewage facility there. And for that reason, they came before the Ld. Forum for protecting their rights as per provisions of Consumer Protection Act for deficiency of service on the part of the appellants.
So, in the view of this Commission the Ld. Forum has rightly answered the point no. (1) in favour of the complainant/respondent.
Point No: - (2) Is the complaint barred by limitation?
Ld. Forum at the time of adjudication of this point found that the complainant had come before the Forum within the period of limitation and nothing was revealed to the contrary of the finding of the Ld. Forum during the hearing of this appeal.
Point No: - (3) Is there negligence and deficiency on the part of the Ops?
Ld. Forum has answered this point in favour of the complainant/respondent. Ld. Forum in its judgement mentioned that in the deed of conveyance dated 17/08/2015 there was a clause stated that the vendor shall provide the purchaser a space or a place to adjust the water tank of 500 liters on the roof top of the said building and shall also contribute 50 per cent to the fees to be paid to the municipality for the mutation or any rent to pay to L.R department. In ordering portion Ld. Forum has asked the appellants to allot a space on the roof top off the building for placing a water tank with a capacity of 500 liters. Ld. Advocate of the appellant at the time of argument mentioned that after selling out of the property in question the appellant has divested his all interests in the property in favour of the complainant/respondent. Right now, the appellant has no right title interest in the said building where the flat is located. So, it is not legally permissible to direct the appellant to allot a space in the roof top of the building for a water tank.
We agree with the view of the Ld. Advocate in this regard as because while the entire interest of the property of the appellant was sold out in favour of the respondent then they had no legal right to allot a space in the roof top of the said building for a water tank for the benefit of the respondents. In spite of the fact that it was stipulated in the deed of conveyance. This piece of condition in the deed of conveyance is illegal as per provisions of section 25 of transfer of property Act. Therefore, the order of the Ld. Forum directing the appellant to provide a space of water tank for the use of the respondents is found illegal one. The further direction of the Ld. Forum upon the appellant to mutate their names at first in respect of the said flat is also not acceptable one as because while the appellant has already sold out their interest at first and right now, they cannot mutate their names in respect of the said flat. Regarding the order of Ld. Forum in respect of direction upon the appellant either to repair the seepage of sewage to the full satisfaction to the complainants or to pay Rs. 20,000 towards the repair of sewage system is challenged by the appellant here and Ld. Advocate of the appellant at the time of argument mentioned that at the time of purchase the respondents did not find any defect when the deed of conveyance was executed. After residing for a certain period there, they have detected the defect of sewage system which is nothing but only to gain some unauthorized money from the appellants taking advantage of the clause in the deed where it was stipulated that if any damage sustained by the respondent then the vendors would refund the full purchase price that is rupees eight lakhs. This condition inserted in the deed of conveyance is contrary to law and hits the provisions of section 25 of TP Act. Perhaps Ld. Advocate tries to establish the principle and doctrine of “caveat emptor” theory where the buyer has the responsibility to check the goods prior to purchase the same. But this doctrine does not applicable here where the defect was not apparent at the time of purchase and it was subsequently deducted at the time of inhabitation. So, the order of Ld. Forum in this score directing the appellants either to repair the seepage of sewage to the full satisfaction of the complainants or to pay Rs. 20,000 towards the repair of the sewage system found to be appropriate. On the other hand, the term “full satisfaction” is the relative term having no ground reality. For that reason, it will be better to ask the appellant to pay Rs. 20,000 to the respondent for repair of the sewage system in the same flat. Instead of Rs. 30,000/-.
Point No: - (4) Are the complainants entitled to reliefs as they claimed for?
The Ld. Forum has answered this point in favour of the respondent and this Commission do not find defect or error in the same order as because we have already discussed that the deficiency of service on the part of the appellant arising out of the obligations through the deed of conveyance dated 17/08/2015 is clearly established. Ld. Forum has directed the appellants to pay compensation of Rs. 20,000 and litigation cost of Rs. 10,000 in favour of the complainant are found excessive one as because the complainant/respondent has conducted this case personally without help of any legal counsels and litigation cost of Rs. 10,000 is found to be excessive one. The compensation amount of Rs. 20,000 is also found to be excessive one. And that amounts of compensation and litigation cost should be reduced. Thus, the appeal succeeds in part.
Hence it is ordered: -
That the appeal be and the same is allowed in part on contest without any cost. The appellants are hereby absolved from the direction of the Ld. Forum to allot a space on the roof top of the building for placing a water tank with a capacity of 500 liters. They are also not bound to mutate their names first in respect of subject matter in dispute as because they have no right title interest in the said property. The appellants are asked to pay Rs. 10,000 as compensation and Rs.5,000 as litigation cost along with Rs. 20,000 as repair of the sewage system of the flat in dispute to the respondents within 30 days from the date of receiving the copy of final order of this appeal. The remaining portion of the order of Ld. Forum remains to be same. Let a copy of this order be supplied to the parties free of cost. The copy of this order be communicated to Ld. D.C.D.R.F through e-mail.
