Complainants through Lrd. Adv. Ghogale
Opponents through Lrd. Adv. Deshmukh
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(23/01/2014)
This complaint is filed by the flat purchasers against the builder and promoter for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows.
1] The complainant has purchased flat from the opponent bearing no. 701, which is situated at building Supriya Classic, situated at Baner-Mahalunge Road, Baner, Pune – 45. According to the complainant there are deficiencies in the construction of the said flat and the amenities, which had been shown in the agreement and brochure, are not provided by the opponent. The agreement of the said flat was executed on 21/4/2004. The opponent agreed to deliver the possession of the flat in the month of April 2006. But the possession was not delivered as per terms and conditions. As the complainants were residing in rented premises, their lease period was over, they were forced to vacate the rented premises, hence they were occupied the suit flat. After occupation, the complainants have found various deficiencies in the flat. There were leakage and seepage and the water fall in every room. The tiles of the flat were spotted and of substandard quality. The complainant had required to replace the tiles and spent expenses of Rs. 1,25,000/-. The material, which was used by the opponent, was also of not good quality. The complainants have engaged contractor for water proofing and removing leakages and seepage. They have spent an amount of Rs. 2 lacs for the said work. Separate water connections were not provided to each flat. Potable water was not provided. The opponent had not executed conveyance deed and formed society even after collecting legal charges of Rs.20,000/-. The complainants have claimed compensation of Rs.19,70,650/-, which includes compensation of Rs. 15 lacs for mental and physical harassment and rest of the compensation is as regards expenses incurred by the complainant for removing deficiency in service.
2] The opponent resisted the claim by filing written version. It has denied the contents of the complaint in toto. It is specifically denied that the opponent has caused deficiency in service. It is also denied that opponent never agreed to deliver possession of the flat in the month of April 2006. The delay was caused as the complainants had required certain changes. The allegations as regards expenses incurred for removing deficiencies are denied by the opponent. It is also denied that the opponent has not provided potable water and the facilities. The complaint is filed at belated stage and without any substance. It is further contended that the complainant themselves are guilty for not paying maintenance charges and other charges. The complaint is not maintainable. The opponent has prayed for dismissal of the complaint.
3] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainants have established that opponents have caused deficiency in service by the opponents? | In the affirmative |
2. | What order? | Complaint is partly allowed. |
REASONS :-
4] The undisputed facts in the present proceeding are that the complainants have purchased duplex flat from the opponent. There is no dispute regarding delivery of possession of the flat as well as payment of the consideration amount between the parties. The sum and substance of the grievance made by the complainant that, delay was caused for delivery of the possession of the flat. The opponents have not used standard material; quality of the construction was low. There were seepage and leakages and water fall, for that complainants have required to carry out repairs to remove the deficiencies. In order to substantiate these allegations, complainants have produced evidence of expert i.e. Chartered Engineer Mr. D. T. Dalal, who has filed report along with his affidavit. It reveals from his report that complainants have spent an amount of Rs. 2,01,366/- for the replacement of the material and complainants are further entitled to receive Rs. 2,66,725/- for repairs. It reveals from the report of expert that he had personally visited the site, took measurement and submitted his report. The report is in detail. The complainants have also submitted the bills and receipts as regards purchase of material and services from traders and sub-contractors. In order to rebut this evidence, the opponent has not produced any kind of evidence, except a satisfactory note, which is given by the complainant and it reveals from the same that the opponent had carried out certain minor work. But despite that work, the deficiencies were not removed.
5] The complainant has contended that the opponent has collected amount for legal charges, which were required for the formation of society, but no society is formed by the opponent. In that context, the opponent has contended that it has formed Apartment, but no documentary evidence is produced on behalf of the opponents. There is no record as regards execution of conveyance deed i.e. Deed of Declaration. The learned Advocate for the complainant strongly argued before me that, when there is evidence of expert and the same is unchallenged, then that can be considered for awarding compensation on the point of deficiency in service. The complainants have placed reliance upon judgment of Hon’ble National Commission between “M/S Merridian Promoters Pvt. Ltd. V/S Shri. Harish Narayan Raghani” in Rev. Pet. No. 2508/2012, dated 5th Sept. 2012. It reveals from the facts of the said proceeding that expert witness has submitted the valuation report as regards expenses incurred for removing deficiencies and that has been relied upon and compensation was awarded. In the present proceeding, the complainants have asked compensation for removing defects in the construction. After considering the report of expert witness Shri. Dalal, this Forum is of the opinion that, the complainants are entitled for compensation for removing deficiencies, as complainants had required to spent expenses. As per the report of Shri. Dalal, the valuation for the said deficiencies is Rs. 4,68,091/-. The complainants are entitled to receive that much amount from the opponent. The complainants are also entitled to receive Rs. 20,000/- as compensation for mental and physical sufferings and cost of the litigation. In all the complainant is entitled to receive an amount of Rs.4,88,000/- from the opponent. In the result we answer the points 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.
3. The opponents No. 1 to 3 are hereby directed
to pay jointly and severally an amount of
Rs. 4,88,000/- (Rs. Four Lac Eighty Eight
Thousand only) towards compensation for
deficiency in service, mental and physical
sufferings and cost of the litigation, to the
complainant, within six weeks from the
date of receipt of this order.
4. If the amount is not paid within six weeks from
the date of receipt of this order, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
5. Copies of this order be furnished to the
parties free of cost.
Place – Pune
Date- 23/01/2014
