Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
Since these appeals involves identical facts and common question of law, are disposed of by this common order.
It may be mentioned that both these appeals are filed by the original complainants since they are not satisfied with the reliefs granted in their favour by partly allowing their respective complaints. Both the set of complaints, who are husband and wife in each complaints are the flat purchasers from a building belonging to respondent/opponent no.2-Shri Niwara Co-op. Housing Society Ltd. (herein after referred as ‘Society’). Their flats were constructed by respondent/opponent no.1-M/s.Sterling Constructions (herein after referred as ‘Builder’) as per the agreements with the society dated 02/11/2000. Said agreement was entered between the society and the builder with a view to get consumed additional FSI made available to them. The builder was given rights to sell the flats newly constructed and amongst them appellants/complainants from both the appeals purchased their respective flats as per the individual agreements entered with the builder.
Appellants/complainants in Appeal no.A/11/395 -Mr.Atul Manmohan Joshi and his wife Swati entered into an agreement dated 25/03/2003 and agreed to purchase the flat which they occupy bearing no.B-5 situated on 7th floor in building no.5, while appellants /complainants from Appeal no.A/11/396-Ajay Manmohan Joshi & his wife Anagha also as per their agreement dated 25/03/2003 agreed to purchase flat no.A-6 situated on 7th floor on building no.5. They have received possession of the respective flats somewhere in the year 2003.
According to complainants the construction of their respective flats was not of good quality. The builder, as promised in the brochure, has not provided compound wall with watchman cabin, decorated entrance with lighting, children play area, sufficient car/motor cycle parking area and exhaust fan in the kitchen, etc. Similarly, the society did not issue them the share certificates after admitting them as members. Similarly, they questioned the letter dated 05/04/2005 given by the society to the builder about successfully completing the work i.e. construction of the building in which flats of the complainants are situated. They also complained about the lift and submitted that it is not of ISI standard. Therefore, ultimately both appellants/complainants filed their respective complaints on 06/10/2005 inter-alia claiming the relief of asking for compensation @ `1,25,000/- per month for two years, total amounting to `2,50,000/- for harassment and mental agony and costs of `5000/- incurred towards the telephone, postage, e-mail, courier, fax, taxi, bus, auto rickshaw, train, legal costs, etc. and prayers are made accordingly.
Complainants-Atul Manmohan Joshi and his wife Swati filed complaint no.414/2005, while appellants/complainants-Ajay Manmohan Joshi and his wife Anagha filed complaint no.415/2005.
Appeal no.A/11/395 refers to complaint filed by Atul Manmohan Joshi and his wife Swati, while Appeal no.A/11/396 refers to complaint filed by Ajay Manmohan Joshi and his wife Anagha.
Forum in its wisdom partly allowed the consumer complaints and directed the builder to construct compound wall, watchman cabin and the entrance as per the sanctioned plan to the society. It further directed to install an exhaust fan in the flats of respective complainants and further directed the builder to pay costs of `3,000/- to the respective complainants. The complaint as against society stood dismissed. However, not satisfied with the reliefs granted, as stated earlier, these appeals are preferred by respective complainants.
At the time of hearing appellants/complainants remained present, however, respondents preferred to remain absent and, as such, only the appellants could be heard.
At the outset referring to the prayer clauses and the reliefs claimed, it may be mentioned that only the compensation for two years @ `1,25,000/- per year, supra, is the relief which is not granted and, therefore, the appeals should be restricted only to this aspect, even though the appellants tried to refer other aspects about giving a time bound direction to the builder to complete the work as directed by the forum, directions since the society did not allot the parking area alleging double payments i.e. `25,000/- as entrance fee to the society as well as depositing said amount with the builder claiming refund of `25,000/- paid to the builder, issue of occupation certificate and the leakages to the flats of the complainants and that paint and plaster were pilling and the entrance gate was not as per the one as could be described as decorative, children play area was not provided.
Referring to the respective agreements, the amenities such as beautiful decorative entrance, children play area, beautiful landscape garden, since being not a part of the agreement, no deficiency in service on the part of the builder could be alleged. Paint and plaster pilling complaint clearly refers to the subsequent events not necessarily connected with the quality of work of construction. It may be a result due to the wear and tear due to weather conditions, etc. The leakages as clarified in the notes of arguments before the forum were already attended by the complainants and they tried to claim reimbursement for the expenses incurred but there is no evidence to that effect and no reimbursement could be claimed by way of consumer complaints. Furthermore, no such reliefs are claimed in the consumer complaints, supra.
In respect of refund of amount of `25,000/- according to complainants, they made a double payment, one to the builder and another to the society. There is no question of giving time bound direction since direction to complete the compound wall and to provide watchman cabin, entrance with light is in favour of the society and the society can get it implemented.
As far as occupation certificate is concerned, that is also not the relief claimed in expressed terms. However, as per the defence raised by the builder, there are some dues of MHADA required to be collected and which were payable by the society. Further, there are certain alterations made by the complainants in their respective flats. Therefore, considering these aspects and the fact that the relief is not expressly claimed, the builder also cannot be held responsible in terms of deficiency in service to obtain occupation certificate, which, perhaps, cannot be obtained unless MHADA dues are cleared and which is responsibility of the society and its members to do so.
As far as compensation claimed @ `1,25,000/- for two years is concerned, there is hardly any evidence led to justify the same. It may be pertinent to note that society has already issued a certificate, satisfied about the construction carried out by the builder. This fact cannot be overlooked. On payment of `25,000/- and after complying the necessary requirement of the society, as per their bye-laws, society has admitted complainants as their members and issued them the share certificates. Therefore, forum denying compensation of `2,50,000/- claimed by each one of the complainants cannot be said as wrong inviting interference with the same. Thus, finding the appeals devoid of any substance, we pass the following order:-
ORDER
Appeal nos.A/11/395 & A/11/396 stands dismissed.
In the given circumstances, no order as to costs.
Pronounced on 26th April, 2013.
