This appeal is directed against the final order dated 2/8/2018 delivered by Ld. DCDRF, Siliguri in connection with CC no. 140/S/2013. The brief note of the case is that the respondent of this appeal Soumen Bhattacharya has registered a consumer complaint against the appellant Tarai Infrastructure Limited before the Ld. DCDRF, Siliguri to the effect that he purchased of flat for residential purpose from the Opposite party/appellant company at Amit Tower by a registered deed of sale on 19/11/2010. In the 4th floor of the said complex including cover parking space as per agreement. The agreement of sale of the flat was executed on 8/4/2009 which virtually ended to a sale deed on 19/11/2010. The further case of the complainant/respondent is that he purchased the said flat, fully believing the offer facilities including grill windows, installation of power generators, health club, gymnasium including telephone, security etc which were spelt out in the broucher and the complainant/appellant got possession of the said flat on 1/01/2011. Though the said flat provided to him did not have grills in three number of windows and for that reason, complainant/respondent had to install the three gills at his own expenses for his safety. His residential complex does not have generator facilities, health club, gymnasium, security facilities etc and the complainant was forbidden in enjoying such facilities as it was not provided by the promoter builder that is the appellant though the same was included in agreement and printed broucher.
His further case is that after occupying the said flat he faced problems like wall shocking, water leakage through the sides of the windows frames and the he requested the appellant/builder to take proper steps but it was not undertaken on the part of the appellant/Opposite Party . The complainant/respondent then consulted with the engineer for assessment of the repairing works and engineer has assessed the cost of such repairment covers rupees 54,085 and in addition to another 10,000 rupees. The appellant builders did not pay any heed to the inconvenience caused due to deficiency of service on the part of the appellant and he has sold out the said flat by practising unfair trade. The appellant/ opposite party of consumer complaint has contested the case by filing written version and denied all the material allegations levelled against the appellant and contended inter alia that the allegations levelled against the appellant on the part of the appellant was unfair, absurd and illegal one and was coupled with motive to obtain illegal pecuniary gain and such frivolous consumer complaint should be dismissed with cost. The consumer complainant was adjudicated by the Ld. DCDRF, Siliguri.
After recording evidences adduced by both sides and on perusal of the relevant documents and after hearing the both sides, Ld. Forum has delivered the impugned order by which the Forum has directed the appellant/Op to pay rupees 64085 as repairing cost, rupees 20,000 as installation cost of three number of grills and rupees 20,000 as compensation and rupees 10,000 as litigation cost.
Being aggrieved with the said order this appeal follows on the ground that ld. Forum has failed to appreciate the actual dispute, ld. Forum has failed to appreciate the facts and circumstances of the case. Ld. Forum has wrongly appreciated the report of the engineer appointed by the complainant/respondent himself . the further defence of the appellant/ O.P. also covers that Ld. Forum has failed to appreciate the actual terms and conditions enunciated in the deed of sale. Ld. Forum has failed to understand the actual dispute between the parties and the order of Ld. Forum is imaginary and liable to be dismissed.
The Consumer Complainant S Bhattacharya as respondent of this appeal has contested the appeal through his conducting Ld. Advocate. The appeal was heard in presence of Ld. Advocate of both sides.
Decision with reasons
The main dispute after hearing both sides comes to our notice that three unit of grills at the time of possession was not provided in the flat of the respondent at the time of taking possession and at the time of registration of the sale deed. Another dispute is that respondent had to suffer during inhabitancy of the said flat in respect of water leakage and other inconvenience.
It appears also to this Commission that while the complainant/respondent started to reside in the flat he found the northern side of the wall portion was started to shocking of the wall and water leakage was there through window sides. Frames and more particularly this sufferance was exaggerated through the Monsoon period. The series of letters which was produced in this case on the part of the consumer complainant, It established beyond any doubt that such problems which were facing by the complainant was brought into the notice of the developer/appellant who has intentionally ignored the obligations which he undertaken at the time of execution of the agreement of sale of the said flat to the complainant. The Ld. Forum has relied upon the assessment report of one private Engineer Sri Kamal Kanta Roy who at the instance of the complainant has assessed the repair cost of the said defect of flat and assessment of cost on the part of Civil Engineer KK Roy was submitted by the respondent before the Ld. Forum where the Ld. Forum could not find any reasonable ground to disbelieve the said assessment report of the engineer. The said Engineer KK Roy was cross-examined by the appellant by putting questionnaires and the said engineer has furnished the replied against said questionnaires and ld. Forum has considered the said reply to questionnaires and accepted the report of the engineer which appeared to the Forum was genuine and acceptable.
After going through all the relevant documents placed before this Commission, it is also established beyond any doubt that while the complainant started to reside in the said Flat he faced many difficulties as regards poor construction work of the flat, the inner and outer wall started to become soaked, damaged and it was repeatedly brought of the notice to the appellant. The appellant tried to establish that he sent a person to the complainant who was entrusted to go through the said repairment work but he was not allowed by the respondent/complainant. The appellant/OP during the course of hearing before the Ld. Forum, had ample opportunity to adduce sufficient evidence to apprise the Ld. Forum that the appellant has intended shouldering the responsibility for removing all defects in the flat of the complainant/respondent. But no such evidences could be tendered before the Ld. Forum and as a result Ld. Forum was convinced with the evidences of the complainant side that the appellant company has intentionally overlooked the problems of a bone fide purchasers sufferings and his interest was not duly protected. At the time of argument, Ld. Advocate of the appellant mentions before this Commission that the possession of the flat was handed over to the complainant/respondent “as is where is basis”. And in the sale deed the complainant has taken over the possession of the flat after certifying that there was no defects and for that reason, the consumer complaint was totally barred in law and he could not be given any protection under the provisions of Consumer Protection Act. Ld. Advocate of the respondent vehemently countered this argument referring the provisions of Section 28 of Indian Contract Act that in every agreement by any clause of such agreement if any party is restricted from enforcing his rights such clause to be treated as void to that extent of restrictions.
It is also settled principle of law that even if there is any obstantee clause in the agreement of sale then also the buyer has the protection to raise the difficulties before the service provider while he came to realise the deficiencies after living there. Ld. Advocate of the appellant challenged the authenticity of the estimation report. Engineer Kamal Kanta Roy as because, the Ld. Forum did not ask the said Engineer to have an assessment report and nor it was referred to him for expert opinion. It is not acceptable report as because the complainant/respondent during the course of hearing did not submit any prayer before the ld. Forum for having an expert opinion regarding the difficulties he was facing and quantum of damages to be assessed by any expert . The Suo motu assessment of an Engineer on the part the complainant/respondent was not acceptable in law. Ld. Forum has failed to understand the actual position of law and the finding of the Ld. Forum on the basis of report of Engineer K K Roy is defective one and the entire findings and decision of the Ld. Forum is baseless and based on surmise and conjecture and liable to be dismissed.
After going through the report of civil Engineer K.K Roy of 30/12/2013 and the reply to the questionnaires of the appellant from the end of the said Engineer the commission find that the Ld. Forum had the ample scope to rely upon the said document and finding of the Ld. Forum appears to us in this regard justified one.
In conclusion of hearing the appeal, the Commission find that the respondent/complainant had to endure huge sufferings due to deficiency of service on the part of the appellant and for that reason, the adjudication of the Ld. Forum goes in favour of the complainant/respondent and this Commission find no infirmity or irregularity in the order of the Ld. Forum and this Commission also do not find any reason to make interference upon the order of the Ld. Forum to this score.
Thus, the appeal appears to be devoid of any merit.
Hence, it is,
Ordered,
That the appeal be and same is hereby dismissed on contest without any cost.
The order of Ld. Forum dated 2/8/2018 in CC no. 140/S/2013 is hereby confirmed. Let a copy of this order be send to parties free of cost and also be sent to the Ld. DCDRF, Siliguri by E-mail.
