Complainant through Adv. B. R. Choudhari 

Opponents absent (Ex-parte)

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Per : Mr. V. P. Utpat, President                      Place   :  PUNE

// J U D G M E N T //

(23/08/2013)

          This complaint is filed by the flat owner against builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986.   The brief facts are as follows,

1]       The opponent no. 1 to 3 are the partners of the partnership firm, which is named and styled as M/S Sudarshan Constructions Company.  They have decided to construct a project of flats, which is named as “Hill Breeze Apartment”.   The complainant has purchased flat no. 202, which is situated on the second floor from the said scheme, as per agreement dtd. 18/08/2001.  The possession of the flat was given to the complainant on 2/5/2002.  The complainant is residing in the said flat.  Since date of possession, she has noticed various defects in the construction.

 a]      There is deficiency in electrification.  Boards and material,

which is used is not up to the mark and due to defective material,

complainant is getting electric shocks.

b]       The painting of the flat is not proper and as per agreement.

c]       The flat of the opponent no. 2 is just below the window of the

          complainant and he had extended balcony by using tin, which

          affects the health of the family members of the complainant and

          the said construction is illegal.    

d]       Flat no. 301 and 302 are just above the flat of the complainant

          and there is leakage of water from those flats.  Hence, walls of

          complainant’s flat are damaged, which has required repairs.

e]       Lift is not installed, even though it has been shown in the plan

          and the building is 5 storied building.

f]        The Tower of mobile company is installed on the terrace of the

          said building without consent of flat owners.

f(a)     The opponent has not provided completion certificate and

          conveyance deed.

          According to the complainant, all these defects in the construction are amount to deficiency in service.  Hence, opponents be directed to remove the defects and pay compensation of Rs. 5 lacs for deficiency in service, compensation of Rs. 5 lacs for mental and physical sufferings.  The complainant has also demanded cost of Rs. 5000/- for the present litigation.

2]      The opponent no. 1 to 3 though properly served appeared but failed to file written version, hence the complaint proceeded ex-parte against them.

3]      After considering the pleadings of the present complaint, scrutinizing the voluminous documents, such as agreement, copy of plan, office copy of notice and reply given by the opponent, following points arose for my determination.  The points, findings and reasons thereon are as follows.

 REASONS :-

4]      The evidence in the form of affidavit as well as documents remained unchallenged, as opponents have not filed any written version or affidavit in order to rebut the contentions of the complainant.  It reveals from the notice reply given by the opponent, which is produced by the complainant himself that the opponents have denied the contents as regards deficiency in service.   According to them, the possession of the flat was given in the year 2002 and the complaint is filed in the year 2010.  As per the terms and conditions of the agreement, particularly para no. 12,  if within a period of three years from the date of handing over the flat to the purchaser brings to the notice of the Promoter any defect in construction or erection in the flat, the Promoter shall rectify the defects at his own cost and if such defects are not removed then flat purchaser is entitled to receive reasonable compensation.  Undisputedly, the possession of the flat was taken by the complainant in the year 2002.  The complainant is not entitled to seek any relief as regards defects in the flat after three years i.e. after May 2005.  Hence, the complainant is not entitled for compensation for the defects as described in the complaint.

5]      The complainant has asked compensation for not providing lift, completion certificate and conveyance deed.  As per the provisions of Maharashtra Ownership Flat Act, the builder and Promoter is under obligation to provide completion certificate and conveyance deed.  Admittedly, the building in dispute is five storied.  The said building is situated within the Corporation area.  Then, the facility of lift is mandatory.  Even though this facility is not mentioned in the agreement, it has been shown in the plan, which is filed by the complainant.  It is significant to note that the opponents have not provided completion certificate and it appears from the same that they have not received the completion certificate, as construction as well as provision of lift s not as per the norms and sanction given by the Corporation.  In such circumstances, I held that the complainant is entitled for the provision of lift, completion certificate and conveyance deed.  But complainant is not entitled for removing defects in the construction as these reliefs are time barred as per the terms and conditions of the agreement.  The complainant is entitled for compensation for deficiency in service to the tune of Rs. 10,000/-, compensation for physical and mental harassment to the tune of Rs. 5,000/- and cost of the litigation to the tune of Rs. 2,000/-.  In the result, I answer accordingly and pass the following order.     

**  ORDER **

1.                 Complaint is partly allowed.

2.                 It is hereby declared that the opponents

have caused deficiency in service by not

providing provision of lift, by not giving

completion certificate and by not executing

conveyance deed to the complainant.

3.       The opponents are directed to provide

lift for the said building at their own cost

and also provide completion certificate

and execute conveyance deed in favour

of society within six weeks from the date

of receipt of this order.

If the opponents failed to execute conveyance

deed within stipulated period, complainant

is at liberty to apply for the same to competent

authority.

4.       The opponents are further  directed to pay

Compensation of Rs. 17,000/- (Rs. Seventeen

Thousand only) to the complainant  for

deficiency in service, mental and physical

sufferings as well as cost of the litigation

within six weeks from the date of receipt of

this order.

5.       Copies of this order be furnished to the

parties free of cost.

6.       Parties are directed to collect the sets,

which were provided for Members within

one month from the date of order, otherwise

those will be destroyed.