Per Mr S M Shembole, Hon’ble Presiding Member
Challenge in this appeal is the order dtd.09.02.2007 passed by Addl. District Consumer Forum, Nagpur in execution application No.EA/04/79 u/s 25 of Consumer Protection Act, 1986 (hereinafter called as “the Act”), disposing of it finally, holding that the respondent / o.p. – builder has complied with the order dtd.09.06.2004 passed by the Addl. District Consumer Forum, Nagpur in case No.CC/02/182.
Brief facts giving rise to this appeal are that:-
1. Appellants / complainants have purchased a flat from the respondent / o.p. – builder. Thereafter, they had filed the complaint bearing No.CC/02/182 against the respondent, contending inter alia that the builder being deficient in rendering the service to them, not providing the amenities as agreed. On hearing both the sides, the complaint came to be allowed vide judgement & order dtd.09.06.2004, directing the respondent builder to pay compensation at Rs.38,000/- and further to provide amenities as agreed.
2. Feeling aggrieved by the judgement & order dtd.09.06.2004 respondent – builder filed appeal bearing No.A/04/1224, which came to be partly allowed vide judgement & order dtd.04.08.2004. Thereafter, appellants / complainants had filed execution petition u/s 25 of the Act. Pending the execution petition, an interim order came to be passed. Not being satisfied with the interim order, the appellants had filed an appeal bearing No.A/07/2627 and the same came to be disposed of by State Commission vide order dtd.23.08.2006, directing Addl. District Consumer Forum, Nagpur to dispose of application finally. Thereafter, by impugned order dtd.09.02.2007 the Addl. District Consumer Forum, Nagpur disposed of the application, holding that the o.p. builder has complied original order dtd.09.06.2004 of the Forum by providing amenities, etc. Pending the execution petition, Architects Mr Rajesh Gotmare and Mr D W Kukde were appointed as commissioner and their reports dtd.21.08.2005 and 03.08.2008 were obtained on record.
3. Not being satisfied with the impugned order the complainants filed this appeal.
4. We heard appellant No.1 / complainant No.1 Mr Jayant Kolhe in person and Mr Kotwal, Adv. for the respondent / o.p. – builder, at length.
5. According to the appellant / complainant – Jayant Kolhe, as per directions of the Addl. District Consumer Forum, Nagpur vide its order dtd.0.06.2004 respondent / o.p. builder was required to provide following amenities:-
a. One collapsible channel gate at the main entrance.
b. Kone Lift
c. Tinted glasses in all the windows as per agreement.
d. Separate Car parking
e. Painting to all the rooms in the flat
f. A/C fitting at 4 places as per agreement
g. Skirting in the washing base.
h. Repairing of Cracks found on the marble flooring in all the rooms of the flat for which extra amount of Rs.15,000/- was paid.
i. Sanitation Pipe fitting defects.
j. Leakages in the bedrooms, bathrooms and also through windows
k. Telephone connectivity in all the rooms from the DP at the ground floor.
6. During the pendency of the execution proceedings the builder has provided two amenities fully, three amenities partly and five amenities that are – separate parking, pending work of A/C fitting, compensation towards cracks on the marble flooring, skirting to basin, etc. are yet to be provided. To which it is denied by Ld. Counsel for the respondent – builder and submitted that all the amenities are provided and order of Addl. District Consumer Forum, Nagpur is complied.
7. As the litigation is going on since the year 2004 we felt it just and proper to ascertain the exact position of the amenities provided in the flat, in question and therefore, we suggested the parties to appoint commissioner and accordingly, Adv. Mr Sanjay Nandanwar was appointed as a Commissioner.
8. As per the directions of this Commission Adv. Sanjay Nandanwar visited the flat, in question and inspected the same in the presence of appellant – Mr Jayant Kolhe and representative of respondent – builder and submitted his report dtd.22.02.2012.
9. On receipt of Commissioner’s report, we directed both the parties to submit their say. In spite of several opportunities to respondent – builder, he did not submit his say. However, appellants submitted their say by filing Pursis dtd.12.03.2012. They did not agree with the report of Commissioner – Adv. Mr Nandanwar and alleged that Adv. Mr Nandanwar in collusion with the representative of respondent – builder submitted false report, concealing some facts. It is also alleged that though Adv. Mr Nandanwar had given intimation to visit flat on 13.02.2012, he visited on 12.02.2012 without any prior intimation to them. On perusal of the Commissioner’s report we find, inadvertently, he had given notice of 13.02.2012 instead of 12.02.2012 to the parties and accordingly he had mentioned in his report. Therefore, we find no substance in the allegation of the complainant on this point.
10. As far as the position of the flat is concerned, the Commissioner’s report reflects that he has given the report as per the situation except cracks in marble flooring. Because in the report he has shown only one hair crack to the marble floor in three bedrooms, though the photographs of marble flooring produced by the appellants, reflect that there are several cracks in the flooring. Since the respondent failed to submit his say on the Commissioner’s report and also reply to the say, given by the appellants, we have no hesitation to accept the position of marble flooring as shown in the photographs produced by the appellants alongwith their Pursis dtd.12.03.2012.
11. As far as other four amenities are concerned, the report of Commissioner - Adv. Mr S Nandanwar, clearly reflects that it is consistent about the car parking as per the earlier Commissioner’s report and also the contention of the appellants that it is a open car parking. According to the appellants, it was agreed by the respondent - builder to provide independent close parking. Pointing out from the commissioner report of Architect Mr Gotmare, it is contended by appellant – Jayant Kolhe that Mr Gotmare has submitted false report in collusion with respondent – builder, showing covered parking with all sides, etc. But we find no substance in this contention of appellants / complainants. Firstly because, though the report of Arch. Mr Gotmare does not reflect that the parking provided to the appellants is covered with all sides, the entire report cannot be said to be false. The earlier report of Arch. Smt R Dande clearly reflects that common parking space provided with terrace & flooring with 10 ft set backs on both the sides. This report of Smt Dande is consistent with other items shown by Mr Gotmare in his report. Copy of agreement also does not reflect that it was agreed to provide parking, covered by all sides. Clause 13 of the agreement reflects that separate car parking with roof cover and well flooring shall be provided. It falsify the contention of the appellants that it was agreed to provide separate car parking covered with all sides. The Commissioner’s report of Adv. Mr Nandanwar as well as other Architects, clearly reflect that the parking space with terrace and flooring is provided. In our view, separate parking does not meant that it should be independent and covered with all sides. Hence, the contention of the appellants that the respondent – builder has committed deficiency in providing parking place cannot be accepted.
12. As far as the painting work is concerned, the Commissioner report submitted by Adv. Mr S Nandanwar reflects that painting of three rooms is old and two rooms is comparatively new. According to the appellants also as per the interim order dtd.08.11.2005 the painting work of three bedrooms was done by builder and painting of kitchen & hall was done by the appellants and therefore, appellants have claimed reimbursement of Rs.9,000/- and we allowed the same.
13. As far as A/C point fittings are concerned as per the appellants the work of only three A/C point fittings is done by the builder and only one point was remained. Therefore, the appellants have claimed Rs.1,250/- towards fitting of A/C point done by them. Since it is not disputed by the respondent – builder by submitting its say, we allow the claim.
14. As regard to the remaining amenities, complainants have claimed amount of Rs.15,000/- towards the lacunas like cracks in marble flooring, leakages on windows / walls, skirting works, etc. The report of Commissioner – Adv. Mr S Nandanwar also reflects that there is leakage through gap of aluminum windows, etc. As it is not disputed by the respondent – builder we accept it and allow the appellants’ claim of Rs.15,000/-
15. Apart from the above claim, the appellants have claimed interest but unless appellants got the repairs done by investing their own amount, in our view, they cannot claim the interest. In our view, considering the lacunas in the work of amenities which are to be provided to the appellants, the item wise amount i.e. Rs.9,000/- towards painting work, Rs.1,250/- towards A/C point fitting, Rs.15,000/- towards repairs of cracks, leakages on windows, skirting work, etc. would be just & sufficient.
16. For the foregoing reasons, without considering the other facts, we are inclined to allow the appeal partly and pass the following order:-
ORDER
i. Appeal is partly allowed.
ii. Respondent / Builder is directed to pay to the appellants / complainants the cost of Rs.9,000/- towards paining, charges of Rs.1,250/- towards Air Conditioner point and cost of Rs.15,000/- towards repairs of cracks in marble flooring, leakage on window, and skirting, totaling to Rs.25,250/-.
ii. No order as to cost.
iii. Copy of this order be furnished to the parties.
