Date of Filing: 16.04.2010
Date of Order: 18.03.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 18TH DAY OF MARCH 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 854 OF 2010
B.S. Sudha
W/o. B.K. Srinath
No. 40/11, 3rd Floor, III A
Aishwarya Castle, Northern Road
6th Block, Jayanagar, Bangalore 82
Rep. by PA Holder and Husband
B.K. Srinath Complainant
V/S
1. S. Sathyanarayana
S/o. Late B. Subbaraya Setty
2. S. Jayalakshmi
W/o. S. Sathyanarayana
3. S. Amitha Vikram
S/o. S. Sathyanarayana
(Deleted)
All are residing at:
No. 91, G-Floor, Surveyor Street
Basavanagudi, Bangalore 04
4. Archana
W/o. T.N. Harikrishna
No. 698/5, Vishnu Nilaya, 12th Cross
7th Block, Jayanagar, Bangalore 82 Opposite Parties
ORDER
By the President Sri S.S. Nagarale
This is a complaint filed under section 12 of the Consumer Protection Act, 1986.
The facts of the case are that opposite party No. 1 is husband of opposite party No. 2 and father of opposite party No. 3 & 4. The entire property consists of ground, first, second & third floor and opposite party is offered to sell entire second floor of their property. Accordingly, after negotiations the complainant purchased 2nd floor of the said property for valuable consideration under a registered sale deed dated 27.03.2007. The complainant has been put in possession of property and she became owner of the entire 2nd floor portion. Under the terms of registered sale deed opponents are required to construct lift for the benefit of the occupants of the building within six months from the date of sale. In fact complainant purchased property on the clear promise and undertaking from the opposite parties to construct and provide the lift. Complainant made repeated requests to construct and provide lift as agreed. Opposite parties even postponing to construct and provide the lift at one or other pretext. Complainant’s family consists of herself, her son and aged and sick mother-in-law. For the lack of lift to reach the second floor complainant is unable to shift her family. She is forced to reside in a rented premise. Opposite parties are bound to construct the lift and construct staircase along with lift. Opposite parties are liable to pay damages in a sum of Rs. 13,000/- p.m. from 27.09.2007 till date and also to pay the same till the lift along with staircase facility is provided. Complainant got issued legal notice. Therefore, the complainant prayed that direction be issued to the opposite parties to construct and provide lift along with staircase to the schedule property within a specific period failing which permit the complainant to obtain requisite sanction plan and license from the concerned authorities and construct and put up lift and recover the costs from the opponents and direct the opposite parties to pay Rs. 3,90,000/- with interest as damages.
2. Opposite parties No. 1, 2 & 4 filed defence version stating that this forum has no jurisdiction to entertain the complaint. It is not a consumer dispute. The dispute is triable by Civil court. The definition ‘complainant’, ‘complaint’, ‘consumer dispute’ and ‘service’ as defined in section 2(1) of the Consumer Protection Act do not cover the claims arising under the present dispute. The opponents submits that it is impossible to put up lift in schedule building as the entire building is aged more than 100 years old and it cannot resist pressure, weight and operation of lift. The clause inserted in the recital of the alleged deed cannot be enforced as it is impossible to put up lift and same is void. The alleged damage of Rs. 13,000/- p.m. claim is baseless, false and frivolous. Complaint is barred by time. Further, the opposite party submitted in the version that if the Hon’ble forum comes to conclusion to permit complainant to construct the lift and staircase North Eastern side of the second floor of the property same shall be at the costs, consequences and liability of the complainant and same should be carried out without causing any loss, damage to the structures of the main building. The opponents are not liable to pay damages of Rs. 3,94,000/-. The opposite parties are prayed to dismiss the complaint.
3. Affidavit evidence and documents are produced.
4. Arguments are heard.
5. The points for consideration are:
1. Whether the complainant has proved deficiency of service?
2. Whether the complainant is entitled for relief?
REASONS
6. It is admitted case of the parties that complainant has taken sale deed from the opposite parties in respect of property on 27.03.2007. As per the sale deed clause 7 the vendor has agreed to construct a lift for the benefit of occupants within six months from the date of sale deed. As per the recital contained in the sale deed at para 7 of the document the opposite parties are bound to provide lift to the building within six months from the date of sale deed. But, so far the opposite parties have not provided the lift. Therefore, the complainant was forced to file complaint. The complainant has proved beyond doubt deficiency of service on the part of opposite parties. The opposite parties also admitted that lift was not provided to the building. They have further submitted that in case Hon’ble forum comes to conclusion to permit complainant to construct the lift it should be carried out without causing any loss, damage and alteration to the structure of the main building. By this defence also it is made clear that as per them lift was not provided to the complainant as promised in the sale deed. Sale deed is a registered document. The recitals contained in the registered document are binding on the parties. The opposite parties cannot escape from the terms and conditions of the sale deed. By taking unfounded defence it is very unfortunate that though the opposite parties have agreed to construct the lift for the benefit of occupants of the building within six months from the date of sale deed but even after lapse of three years the opposite parties have not provided the lift facility. Therefore, the complainant is right in seeking relief from the hands of forum. The complainant has prayed that opposite parties be directed to pay Rs. 3,90,000/- as damages at the rate of Rs. 13,000/- p.m. from September 2007 till the date of filing complaint. For this relief complainant is not entitled. There is no legal basis to claim damages at the rate of Rs. 13,000/- p.m. The complainant submitted that she is residing in rented house and paying Rs. 13,000/- rent p.m. and she seeks recovery of the rent amount because on account of not providing lift facility she was forced to live in rented house. This type of relief cannot be granted from the hands of this forum. Therefore, the claim of the complainant for damages of Rs.3,90,000/- is refused. Taking into consideration of all the facts and circumstances of the case the complaint is liable to be allowed partly. In the result I proceed to pass the following:
ORDER
7. The complaint is partly allowed. The opposite parties are directed to construct and provide lift to the schedule property within three months from the date of this order failing which the complainant will be at liberty to obtain requisite sanction plan and license from the concerned authorities and to construct and put up lift to the building and recover cost of the construction of lift from the opposite parties. The complainant shall keep the account of expenses, documents and receipts of payments etc. as per the plan, estimate and recover the cost of installing the lift from the opposite parties.
8. The complainant is entitled for Rs. 3,000/- as costs of the present proceedings from opposite parties.
9. Send the copy of this Order to both the parties free of costs immediately.
10. Pronounced in the Open Forum on this 18TH DAY OF MARCH 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
