DATE OF FILING : 03-10-2012.
DATE OF S/R : 27-11-2012.
DATE OF FINAL ORDER : 25-03-2013.
Asoke Kumar Chakraborty,
s/o. late Ponchanan Chakraborty,
Siddhi Vinayak Apartment, 4th floor,
Flat no. 7, Vivekananda Nagar Colony,
Andul Road, P.O. Podrah, P.S. Sankrail,
District – Howrah,
PIN – 711109.-------------------------------------------------------------------- COMPLAINANT.
Versus -
Sri Benoyendra Nath Ghosh,
son of late Gopinath Ghosh,
Siddhi Vinayak Apartment,
3rd floor, Flat no. 5,
Vivekananda Nagar Colony, Andul Road,
P.O. Podrah, P.S. Sankrail,
Howrah – 711109.
Sri Ravi Kant Srivastava,
s/o. Sri Prem Prakash Srivastava,
Andul Road, Aurobindo Sarani,
P.O. Podrah, P.S. Sankrail,
Howrah – 711109.-------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986
wherein the complainant has prayed for direction upon the o.ps. to pay compensation of Rs. 2 lacs for mental agony and harassment for non starting of the lift service in the building in question in gross violation of the agreement.
The o.p. no. 2 in his written version challenged the maintainability of the
instant complaint as the Eastern Engineering and Associates is not made a necessary party ; that the lift could not be operated as the O.P. no. 1 the land owner did not pay 50% share of the cost.
The O.P. no. 1 in his written version contended interalia that he has already
paid a sum of Rs. 1,40,000/- to the O.P. no. 2 ; that the O.P. no. 2 must obtain the license for running the lift and making over the key and other papers to the association of the flat owners.
Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
Both the points are taken up together for consideration. Annexure ‘B’ is the
sale deed. Page 14 deals with the common areas and facilities. Item 11 states in no uncertain terms that lift in the building is to be installed. In fact, the plan was sanctioned with the lift provision. So O.P. no. 2, the developer cannot have any respite from the rigours of law. If he has any bickering with the O.P. no. 1, the complainant cannot suffer. The dispute over nonpayment of the proportionate cost by the O.P. no. 1 as alleged. i.e., purely the matter between themselves. The O.P. no. 2 had other forums open to realize the proportionate cost, if any from the O.P. no. 1. The lift is already in existence and even the same was run temporarily for couple of days as per request of the complainant during her daughter’s marriage. The complainant had to bear the cost of such temporary lift operation.
Now we are of the considered opinion that the O.P. no. 2 in not making over
the management of the lift to the inmates of the building has committed gross deficiency in service and for such deliberate inaction he shall be saddled with the handsome compensation as prayed by the complainant.
Therefore, it is a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 128 of 2012 ( HDF 128 of 2012) be allowed on contest with costs against the O.P. no. 2 and dismissed against O.P. no. 1 without cost.
The O.P. no. 2 be directed to pay a compensation to the complainant to the tune of Rs. 50,000/- for mental pain, agony and prolonged physical harassment within 30 days from the date of this order.
The O.P. no. 2 be further directed to make necessary arrangement for operating the lift in full satisfactory condition after obtaining the licensee and make over the key and other papers to the association of the flat owners within 15 days from the date of this order failing legal consequences shall follow.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
