BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 02nd DECEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 2322/2007<br /> <br /> <br /> COMPLAINANT Sri. B.S. Prakash Kumar,<br /> Aged about 40 years,<br /> S/o. Sri. Srinivasa Murthy,<br /> R/a. No. 234, 13th Main, <br /> 2nd Cross, BSK 1st Stage,<br /> Bangalore – 560 050.<br /> <br /> <br /> Advocate (N.R. Nagaraj)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY Sri. R. Seetha Raghupathi Ram,<br /> Aged about 64 years,<br /> S/o. Late. Sri. Rajanandam Reddy,<br /> R/a. Archana Mansion, <br /> H.No. E-2, Site No. 1001, <br /> 3rd Main Road, Hosakerehalli,<br /> BSK 3rd Stage, <br /> Bangalore – 560 085.<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.5,94,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant being lured away with the propaganda and advertisement issued by the OP, who claims to be the developer and builder of residential apartments, thought of purchasing the flat in the apartment floated in the name and style “Srinivasa Residential Apartments”. In that regard he contacted the OP. OP agreed to sell flat No.SRA-06 situated in between 3rd and 4th floor at a total cost of Rs.22,00,000/- which is inclusive of charges payable to BESCOM, BWSSB, ugd service, lift facility, car parking, generator supply, etc. An agreement came to be executed on 16.01.2006. OP promised to complete the said building by the end of May 2006. As per the agreement complainant paid the entire flat value. OP executed the registered sale deed on 11.05.2006 without completing the said building as promised. Complainant believed the words of the OP and took possession, but OP failed to complete the construction as undertaken. Complainant has spent more than Rs.80,000/- towards the false roofing and Rs.22,000/- for fancy lighting, etc. The construction was not up to the mark, the roof was not properly cured, there was no water proofing for the roof as contemplated. Due to which there was seepage inside the apartment which spoiled the false roofing, there were cracks in the wall. Basement car parking is not completed, whole building is not painted, staircase was not provided with a railings. Thus complainant felt the deficiency in service on the part of the OP. His repeated requests and demands made to the OP to complete the construction, went in futile. For no fault of his, he was made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the lift facility is to be provided on sharing the payment of the cost incurred. He has completed the construction as per the agreement. There is no deficiency in service. The receipt of Rs.22,00,000/- towards the cost of the flat is a tentative one, which is liable for revision. Complainant is aware of the said fact. Complainant is a defaulter, he did not make payment as per the schedule. Hence he cannot allege the deficiency in service against the OP. Complainant took possession and held gruhapravesham and now making false allegations with regard to non-completion of the building. Complainant opted for highhandedness. When OP resisted the same, he has filed this false and frivolous complaint. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. <br /> <br /> 4. Thereafter this Forum was pleased to allow the complaint vide its order dated 14.02.2008 directing OP to complete the unattended work within six months and also to pay compensation of Rs.50,000/- and litigation cost of Rs.5,000/-. Being aggrieved by the said order OP preferred an Appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission in an Appeal No. 534/2008. The said Appeal came to be allowed vide its order dated 25.06.2008 and the matter is remitted back with a direction to appoint the Court Commissioner to inspect the building at the cost of the complainant and on the receipt of the Commissioner report to pass final order. On the receipt of the said kind orders one Mr. A.G. Shiva Prasad, a Civil Engineer a technically qualified person with experience in the field is appointed as a Court Commissioner. The Court Commissioner submitted his report dated 15.10.2008 along with photos and its negatives to this Forum. OP has not filed any objection to the Commissioner’s report inspite of giving sufficient opportunity. No additional evidence either documentary or oral filed after remand. Then the arguments were heard.<br /> <br /> 5. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 6. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant availed the services of the OP with regard to purchase of flat No. SRA-06 for a total cost of Rs.22,00,000/-. An agreement came to be executed on 16.01.2006. OP promised to complete the construction of the flat as per the agreement by the end of May 2006. It is also not at dispute that OP received Rs.22,00,000/- from the complainant in pursuance of the said agreement and also executed the registered sale deed on 11.05.2006. The copy of agreement to sale and sale deed are produced. Now it is the grievance of the complainant that though he took possession of the said flat the construction is incomplete. After taking possession of the flat, towards false roofing with POP he spent Rs.80,000/- and for decorative fancy lighting he spent Rs.22,000/-.<br /> <br /> 8. It is further contended by the complainant that due to inferior construction and lack of water proofing of the roof properly there was seepage into the flat of the complainant. To substantiate the said fact complainant has produced certain photographs. The Commissioner report fully supports this contention of the complainant. OP has not disputed the said photographs. In addition to that OP has not denied the fact of seepage of the water in the flat of the complainant as well as cracks being seen in the wall. In addition to that the said photographs clearly speaks to the fact that the car parking is not completed, there is no painting, for the staircase there are no railings. The main grievance is with regard to non-providing of the lift. The Commissioner report also support the contention of the complainant. No lift is provided as on that date. The photographs show the lift pit, wall, etc. Now it is contended by the OP that there is an agreement to provide the lift facility on the basis of sharing of the cost incurred in the installation of the lift. We find this defence of the OP appears to be baseless.<br /> <br /> 9. When we go through the contents of the undisputed documents like sale agreement dated 16.01.2006, it clearly speaks to the fact that Rs.22,00,000/- includes lift installation and lift operation. Of course the documents produced by the OP with regard to the facilities noted in the brochure there is an insertion of certain clause by handwriting, which shows the lift facility is on the basis of sharing the payment. So this handwriting appears to be an after thought one, because the copy of the said brochure produced by the complainant does not contain this overwriting. In all probability OP in order to save his skin out of sin must have made such an endorsement to suit his convenience. <br /> <br /> 10. In addition to that when we go through the registered sale deed, the copy of which is produced the annexure namely the common area facility as contemplated under Karnataka Apartment Owners Act speaks to the fact of lift, chamber room, lift measurement, etc. That means to say OP is bound to provide the lift facility and the installation is at his cost, because that cost is already covered under the payment made by the complainant to the tune of Rs.22,00,000/-.<br /> <br /> 11. We have gone through the version and the other documents produced by the OP, they are self-contradictory. On the other hand the complainant is able to prove that the construction made by the OP is incomplete, it is tainted with certain defects. The Commissioner report also supports the said contention that in the car parking area a small house has been constructed and let out to 3rd party on rental basis. Only 80% of the building is completed, no security is provided and there is a deviation of the building construction with the sanctioned plan. For the spot inspection notes prepared by the Court Commissioner both complainant and OP have signed. Under the circumstances those observations and findings of Court Commissioner is binding on both parties. When that is so, OP having received Rs.22,00,000/-, failed to keep up his promise, thereby accrued the wrongful gain to himself and caused the wrongful loss to the complainant, that too for no fault of his. The hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainant. Though complainant invested his hard earned money, he is unable to reap the fruits of his investment. <br /> <br /> 12. The complainant has contended that he has spent Rs.80,000/- towards POP false roofing. For this there is no proof, no documents are produced, no affidavit of the person who carried out the said false roofing is filed. It is further contended that he has spent Rs.22,000/- towards fancy lights, for this also no documents are produced. Of course complainant says that he took handloan of Rs.6,00,000/- from 3 persons by executing the 3 pro-notes each for Rs.2,00,000/-. The said amount is received in the month of November 2006, whereas complainant is required to pay the entire amount on or before May 2006. So for this simple reason also we find that those documents will not come to the aid of the complainant to claim interest and other things. In addition to that false roofing fancy lights are the choices of complainant, they have nothing to do with construction agreement etc.<br /> <br /> 13. As already stated by us in the above said paras, OP has failed to establish the fact that he has completed the construction of the said flat as per the agreement in all respect. So we are of the view that complainant is able to prove the deficiency in service on the part of the OP. Under such circumstances the complainant is entitled for certain relief. In our considered view the justice will be met by directing the OP to pay a compensation of Rs.1,00,000/- and complete the unattended work including painting, plastering, lift installation and operation, water proofing of the roof, providing railings to the staircase as per the observations and findings recorded by the Court Commissioner and provide car parking as contemplated within 6 months from the date of communication of this order. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to pay a compensation of Rs.1,00,000/- together with a litigation cost of Rs.5,000/- and complete the unattended work within 6 months as observed in para. 13 of the body of this order. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 02nd day of December 2008.) <br /> <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />