State Consumer Disputes Redressal Commission
Mr.Ojas Wandalkar vs M/S S.R.Builders on 30 August, 2022
Cause Title/Judgement-Entry KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION BASAVA BHAVAN, BANGALORE. First Appeal No. A/925/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/587/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Ojas Wandalkar aged about 32 years S/o Dilip Wandalkar 2. Mamata Wandalkar aged about 30 years, W/o Ojas Wandalkar Both R/at Flat No.310, 3rd Floor, Oakwood Apartment VMV Layout Horamavu, Bangalore-560 043. ...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093. Rep. By its Managing Partner, P.Koteshwara Rao 2. V. Dhanjaya Aged about 48 years S/o V.M. Venkatappa, Rep. By his power of attorney holder, P.Koteshwara Rao, Managing Partner, S.R. Builders, having its office at No.402, Sri Mitra Estates, 10th Cross, Nagavara P ...........Respondent(s) First Appeal No. A/926/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/580/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Suraj Suresh Raikar aged about 35 years S/o Suresh Sadananda Raikar R/at Flat No.305, 3rd Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043. ...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093. Rep. By its Managing Partner, P.Koteshwara Rao 2. V. Dhanjaya S/o V.M. Venkatappa, Rep. By his power of attorney holder, P.Koteshwara Rao, Managing Partner, S.R. Builders, having its office at No.402 Sri Mitra Estate 10th Cross, Nagavara Palya, C.V.Raman Nagar Post, Bangalore-560 093. ...........Respondent(s) First Appeal No. A/927/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/585/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Mukesh Ranjan aged about 30 years,S/o Sharwan Kumar Sinha W/o Mukesh Ranjan
Both R/at Flat No.102, 1st Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
2. Swati Ranjan aged about 29 years W/o Mukesh Ranjan Both R/at Flat No.102, 1st Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of aney holder,P.Koteshwara Rao, Managing Partner, S.R. Builders, having its office at No.402,Sri Mitra Estates 10th Cross, Nagavara Palya, C.V.Raman Nagar Post, Bangalore-560 093. ...........Respondent(s) First Appeal No. A/928/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/583/2015 of District Bangalore 1st & Rural Additional) 1. Mr.T.Suji Kumar Dora aged about 36 years, S/o T.Udaya Rao Dora, R/at Flat No.09, Ground Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner S.R. Builders, having its office at No.402, Sri Mitra Estates, 10th Cross Nagavara Palya, C.V.Raman Nagar Bangalore-560 093. ...........Respondent(s) First Appeal No. A/929/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. CC/766/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Issac Thambi aged about 35years S/o S.K.U. Thambi R/at Flat No.409, 4th Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
Rep. by power of Attorney Holder Sara Issac ...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner, S.R. Builders, having its office at No.402,Sri Mitra Estates, 10th Cross,Nagavara Palya, C.V.Raman Nagar,Post, Bangalore-560093 ...........Respondent(s) First Appeal No. A/930/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. CC/765/2017 of District Bangalore 1st & Rural Additional) 1. Mr.S.R.Puttalingaiah aged about 39 years S/o Revanasiddaiah R/at Flat No.403, 4th Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner, S.R. Builders, having its office at No.402 Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V.Raman Nagar Bangalore-560 093. ...........Respondent(s) First Appeal No. A/931/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. CC/767/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Sandesh.S.Bhat S/o Dr.K.Sundara Bhat R/at Flat No.309, 3rd floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
2. Vidyalakshmi W/o Sandesh S.Bhat Both R/at Flat No.309, 3rd floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner,S.R. Builders, having its office at No.402,Sri Mitra Estates, 10th Cross,Nagavara Palya, C.V.Raman Nagar Bangalore-560 093. ...........Respondent(s) First Appeal No. A/932/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/581/2015 of District Bangalore 1st & Rural Additional) 1. Mrs. Akshatha Baliga aged about 31 years W/o Chidananda Baliga R/at Flat No.203, 2nd Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
2. Chidananda Baliga S/o K.Mohananda Baliga Both R/at Flat No.203, 2nd Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner,S.R. Builders, having its office at No.402,Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V.Raman Nagar P Bangalore-560 093 ...........Respondent(s) First Appeal No. A/933/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/586/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Kumaraswamy.U.Hiremath S/o Umesh S.Hiremath R/at Flat No.303, 3rd Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner,S.R. Builders, having its office at No.402,Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V.Raman post Bangalore-560 093. ...........Respondent(s) First Appeal No. A/934/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/588/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Ratish.T.N. aged about32 years, S/o Umesh S.Hemanth C/o Ojas Wandalkar, Flat No.310, 3rd Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R. Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder,P.Koteshwara Rao, Managing Partner,S.R. Builders, having its office at No.402,Sri Mitra Estates, 10th Cross,Nagavara Palya,C.V.Raman Nagar Post, Bangalore-560 093. ...........Respondent(s) First Appeal No. A/935/2017 ( Date of Filing : 19 Apr 2017 ) (Arisen out of Order Dated 22/02/2017 in Case No. Complaint Case No. CC/584/2015 of District Bangalore 1st & Rural Additional) 1. Mr.Asok Babu aged about 40 years S/o Raveendra Babu K R/at Flat No.003, Ground Floor, Oakwood Apartment VMV Layout, Horamavu, Bangalore-560 043.
...........Appellant(s) Versus 1. M/s S.R.Builders No.402, Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V. Raman Nagar Post, Bangalore-560 093.
Rep. By its Managing Partner, P.Koteshwara Rao
2. V. Dhanjaya S/o V.M. Venkatappa,Rep. By his power of attorney holder, P.Koteshwara Rao, Managing Partner,S.R. Builders, having its office at No.402,Sri Mitra Estates, 10th Cross, Nagavara Palya, C.V.Raman Nagar Post, Bangalore-560 093. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Huluvadi G. Ramesh PRESIDENT HON'BLE MR. Krishnamurthy B.Sangannavar JUDICIAL MEMBER HON'BLE MRS. Smt. Divyashree.M MEMBER PRESENT: Dated : 30 Aug 2022 Final Order / Judgement Date of Filing :19.04.2017 Date of Disposal :30.08.2022 BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED THIS THE 30th DAY OF AUGUST-2022 PRESENT HON'BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT Mr.K.B.SANGANNANAVAR : JUDICIAL MEMBER Mrs M.DIVYASHREE : LADY MEMBER APPEAL NOs.925 to 935 of 2017 COMMON ORDER IN APPEAL NO.925/2017 BY Mrs. M.DIVYASHREE : LADY MEMBER
1. The above appeals are filed under Section 15 of Consumer Protection Act, 1986 by Respective Complainants aggrieved by the order dated 22.02.2017 passed by I Additional District Consumer Disputes Redressal Forum, Bengaluru in Consumer Complaint Nos.580, 581, 582, 583, 584, 585, 586, 587 and 588/2015, 765, 766, 767 and 768/2015 (for short District Forum and the parties as arrayed in the complaint cases).
2. The brief facts of these cases are that the complainants with an intention to purchase the flats approached OP-1 who is the builder/developer of the property and after going through the brochure and after negotiation; the complainants purchased the flats by paying Sale Consideration and entered into Construction Agreement. The details of the purchase of flats by all the complainants from the OPs are as shown below:
Name of the complainants Date of Registration of Sale Deed Consideration amount passed Construction Agreement dated Mr. Suraj Suresh Raikar 04.07.2013 Rs.15,60,800/-
22.02.2013 Mrs. Akshatha Balig 02.07.2013 Rs.15,48,000/-
02.03.2013 Mr. Ojas Wandalkar 24.07.2013 Rs.21,04,000/-
05.06.2013 Mr. T. Sujit Kumar Dora 11.07.2013 Rs.21,04,000/-
19.11.2012 Mr. Ashok Babu 07.08.2013 Rs.15,48,000/-
22.07.2013 Mr. Mukesh Ranjan 04.07.2013 Rs.15,65,000/-
22.11.2012 Mr. Kumarswamy U Hiremath 15.07.2013 Rs.15,48,000/-
14.05.2013 Mr. Ojas Wandalkar 28.10.2013 Rs.27,75,000/-
21.08.2013 Mr. Ratish T.N 28.10.2013 Rs.27,75,000/-
21.08.2013 Mr. S.R. Puttalingaiah 22.07.2013 Rs.15,48,000/-
14.05.2013 Mr. Issac Tambi 15.07.2013 Rs.21,04,000/-
18.06.2012 Mr. Sandesh S Bhat 02.07.2013 Rs.21,04,000/-
18.06.2012 Mr. Vijay Peter D'Souza 18.07.2013 Rs.17,65,000/-
22.11.2012 The allegation of the complainants are that OPs failed to issue Occupancy Certificate pertaining to the project Oakwood, there is no proper functioning of the sewage treatment plant and the pipes relating to sewage are not connected to BWSSB pipe lines, car parking area is decreased, the electrical pipes are not properly installed and the electrical meters were installed near the play ground area of children and having no proper security from sun light and rain. Further alleged that the rain water harvesting not been installed properly and also not provided solar water heaters in the apartment. Further OPs failed to provide a toilet for workers/servant/security and also not provided the intercom. OPs even did not make any attempt for getting BWSSB Cauvery water. Hence alleged deficiency in service on the part of OPs for not providing service and raised the Consumer Compliant before the Forum below. Upon service of notice, OP1 appeared through his counsel and filed version. OP2 remained absent and thereby placed exparte. The Forum below after enquiry held that OP1 is sole responsible and is deficient in their service, and thereby allowed the complaint in part against OP1 and dismissed the complaint against OP2.
3. It is this order being assailed in these appeals by complainants on the ground that, the Forum below failed to award compensation for causing pain, suffering, financial loss and mental agony. Further contended that the Forum below directed OP to refund BWSSB charges to the Association or complainants without referring to interest claimed by complainants. Further contended that the Forum below erred in passing the order stating the clause 8 from Construction Agreement that the builder is not responsible for any defect in the building that is noticed after one year from the date of occupation is unfair. Thus sought for reliefs as the Commission deems fit.
4. Commission heard learned counsel on record and perused the impugned order passed by Forum below in Consumer Complaint Nos.580, 581, 582, 583, 584, 585, 586, 587 and 588/2015, 765, 766, 767 and 768/2015, dated 22.02.2017 and perused the records. Now Commission has to decide whether impugned order passed by the Forum below is contrary to the facts and law as appealed?
5. It is undisputed facts that the respective complainants purchased the flat by registering the Sale Deed. It is also not in dispute that the complainants occupied the possession of their respective flats in the year 2013. The Sole allegations of the respective complainants are that OPs failed to provide the facilities as per the approved plan. It is to be noted herein that the Forum below in order to prove the case of the complainants appointed the Court Commissioner in order to bring the truth out. The Court Commissioner after the joint inspection of site of the schedule property in Oakwood Apartment submitted Commissioner Report. The description of the Commissioner report is as follows:
As per Sanction As per Actuals Building Height 14.95m 15.64m Front Setback 5m 4.85m Rear Setback 5.5m 5.08m from building line 3.82m from the Balcony Side Set back 6m 4.96m from transformer yard side Nos. Of Car Parks 55 nos. (38 covered, 17 open) 49 nos. Covered car park in Basement only.
The report also discloses that balcony of 1.23 provided in the ground, first floor in the rear set back which is deviation from approved sanction plan.In two houses wall in between balcony and living/bedroom has been removed to accommodate space in living/bed room. STP has been provided and outlet is knowingly let out to the main road, to the rain water drainage which is not permissible.The report also reveals that it is difficult to park the car in the parking area. Leaks observed in the basement floor roof ceiling and walls, the electrical meters provided in the ground floor of apartment is semi covered which need proper protection from accidental entry and protection from rain and sun light.There is no provision for toilet in the ground floor for security personal and servant and visitors.There are two toilets provided in the first floor along with the club house. Drainage system sewage system has been connected to STP and the outlet is being let-out to the external drain which is not permissible as per by law.
6. The allegations of the Appellants that the Forum below erred in passing the order stating of the clause 8 from Construction Agreement, cannot be accepted because after taking the possession of the apartment the complainants could have questioned the quality of work before the expiry of the notice period i.e. before one year from the date of occupation as stated in the Construction Agreement. Moreover the compensation of Rs.6,50,000/- claimed by appellants cannot be granted as the appellants had already taken possession of the flat and enjoying the same. Further the prayer of providing a toilet for visitors/workers/servants/security persons etc., cannot be provided because it is observed in the Commissioner Report that already there are two toilets provided in the first floor, the appellants can ask the respondent no.1 to allot those toilet for outsiders.
7. Thus considering the Commissioner Report and the decision of the Hon'ble Apex court reported in the case of Faqir Chand Gulati v. Uppal Agencies Private Limited, III 2008 CPJ 48 (SC) the Forum below allowed the complaint in part with cost. But facts remained that the Forum below failed to consider some of the facets reported in the Commissioner Report i.e. regarding STP, Car parking, Leakage in the basement floor and ceiling and walls etc. As such this Commission proceed to decide the case finally. The Forum below erred in not addressing other prayers and relief sort and passed the impugned order which in our view is contrary to the facts and required to be considered, since the Forum below failed to ascertain what are all the pending works and what definite directions could be issued against OP1/respondent no.1 for which complainants is entitled or otherwise. In other words, to give a complete stop for their dispute, to exercise the wisdom keeping in mind the object of Consumer Law and to that effect to exercise some judicial wisdom.
8. It is to be noted herein that the Forum below directed OP1/respondent no.1 to deposit BWSSB charges and make endeavour to get BWSSB water connection if for any reason if not possible for OP1/respondent no.1 to get BWSSB water, OP1/respondent no.1 is directed to refund the amount collected from the complainants or to handover the BWSSB deposit amount to the owners of the complainants apartment associations, without referring to interest and damages claimed by the complainant/appellant. The respondent no.1/OP1 has retained the deposit with them for more than 05 years and enjoyed the interest of the said deposit without getting water connection from BWSSB for supply of Cauvery Water for drinking purpose. The OP1/respondent no.1 in Construction Agreement under Schedule II has agreed to supply 24 hrs water supplies through deep tube well and drinking water (Cauvery). In such circumstances, in our view it is appropriate to direct OP1/respondent no.1 to refund the BWSSB deposit amount along with interest @ 06% p.a. from the date of deposit till realization. The next prayer of the appellants herein is with regard to providing the car parking as per the plan. The Commissioner report reveals that as per sanction the number of car parking is 55 out of which 38 is covered and 17 is open, but as per actual it carries 49 covered car park in basement. The report also reveals that it is difficult to park the car in the parking area. As such OP/respondent no.1 is directed to make necessary arrangement to resolve the issue by which the difficulty arises to park the car in the parking area and can allot the car parking space to each of the residents of the flats. For any reason OP/respondent no.1 failed to provide car parking, OP/respondent no.1 must refund the deposit amount collected from appellants/complainants towards car parking charges along with interest @ 6% p.a. from the date of payment. The last prayer of the appellant/complainant is with regard to rectify the Sewage Treatment plant in the project and to rectify water seepage. The Commissioner Report discloses that STP has been provided and the outlet is knowingly let out to the main road, to the rain water drainage which is not permissible, further the drainage system sewage system has been connected to STP and the outlet is being let-out to the external drain which is not permissible as per by law. Hence OP1/respondent no.1 is directed to rectify the water seepage in the basement and make provision technically to stop water logging in the ground floor entrance and further direct OP1/respondent no.1 to rectify the sewage treatment plant and ensure to make provision to utilize the treated water as per the guideline of pollution control board. In such view of the matter, impugned order requires some modification. Accordingly, Commission proceed to allow the appeal in part and proceed to pass the following;
OP1/respondent no.1 is directed to refund the BWSSB deposit amount to the appellants or association along with interest @ 06% p.a. from the date of deposit till realization.
OP1/respondent no.1 is further directed to make necessary arrangement to resolve the issue by which the difficulty arises to park the car in the parking area and can allot the car parking space to each of the residents of the flats.For any reason OP1/respondent no.1 failed to provide car parking, OP1/respondent no.1 must refund 50% of the deposit amount collected from appellants/complainants towards car parking charges along with interest @ 06% p.a. from the date of payment till realization.
OP1/respondent no.1 is directed to rectify the water seepage in the basement and make provision technically to stop water logging in the ground floor entrance and further direct OP1/respondent no.1 to rectify the sewage treatment plant and ensure to make provision to utilize the treated water as per the guideline of pollution control board.
Further OP1/respondent no.1 is directed to pay Rs.10,000/- to each of the complainants/appellants towards cost of litigation.
OP1/respondent no.1 is also directed to follow the directions given by the Forum below regarding obtaining of Occupancy Certificate from the competent authority and taking all safety measures to cover the electric meter from sun light and rain.
OP1/respondent no.1 is directed to comply this order within 03 months from the date of receipt of this order.
9. Notify the order to the District Commission and parties in these appeals for their information.
10. Keep the original Order in Appeal No.925/2017 and copies thereon in rest of the connected appeals to complete the records.
Lady Member Judicial Member President *GGH* [HON'BLE MR. JUSTICE Huluvadi G. Ramesh] PRESIDENT [HON'BLE MR. Krishnamurthy B.Sangannavar] JUDICIAL MEMBER [HON'BLE MRS. Smt. Divyashree.M] MEMBER