State Consumer Disputes Redressal Commission
Mr. Koushik Saha & Others vs Ranjit Chakraborty & Another on 11 September, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/229/2012 (Arisen out of judgement dt. 11.4.12 in Consumer Case No. HDF 41 of 2011 of DCDRF, Howrah) DATE OF FILING : 15.05.2012 DATE OF FINAL ORDER: 11.09.2012 APPELLANTS 1. Mr. Koushik Saha S/o Late Dr. Loknath Saha Residing at Mohiary Rathtala Post-Andul-Mouri P.S. Domjur Dist. Howrah. 2. Ms. Monalisa Banerjee Wife of Mr. Sudip Banerjee Residing at Mohiary Daspara Post-Andul-Mouri P.S. Domjur Dist. Howrah. 3. Mr. Koushik Chowdhury S/o Late Kishan Chand Chowdhury Residing at Andul Chowdhury Para Post-Andul-Mouri P.S. Sankrail Dist. Howrah. RESPONDENTS 1. Ranjit Chakraborty S/o Late Asutosh Chakraborty Residing at Flat No. 3F 3rd Floor of Uttarayan Apartment at Mohiary Ghosher Bagan Bathtala (Opposite L.K.Hospital) Post-Andul-Mouri P.S. Domjur Dist. Howrah. 2. Mrs. Kalyani Chakraborty W/o Mr. Ranjit Chakraborty Residing at Flat No. 3F 3rd Floor of Uttarayan Apartment at Mohiary Ghosher Bagan Bathtala (Opposite L.K.Hospital) Post-Andul-Mouri P.S. Domjur Dist. Howrah. BEFORE : MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Raju Mondal, Mr. Arindam Chatterjee, Ld. Advocates FOR THE RESPONDENT : Mr. Kaushik Chandra Gupta, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 11.4.12 passed by the Howrah District Consumer Disputes Redressal Forum in Complaint Case No. HDF 41 of 2011 wherein the Ld. District Forum allowed the petition of complaint on contest with cost against the Ops along with a direction upon the Ops to pay compensation to the tune of Rs. 1,00,000/- to the complainants together with a further direction to pay litigation cost of Rs. 5,000/- and to carry out the necessary construction as per terms of the original sanctioned plan dt. 28.2.08 within one month from the date of the order.
The case of the complainants/Respondents before the Ld. District Forum, in brief, was that the complainants purchased a flat from the Ops for valuable consideration and are in possession of the respective flat. According to the complainants, subsequently it transpired that there were deviations from the sanctioned plan in respect of the flats in question and that there was a shortage of floor space to the tune of 41 sq. ft.
According to the complainants, such deviation from the original sanctioned plan at the instance of the Ops tantamounted to deficiency in service and hence, the petition of complaint for proper redressal.
The OP No. 1 contested the case by filing a written version thereby denying all the material averments mentioned in the petition of complaint contending inter alia that the petition of complaint has been filed on some misconceived ideas and that in the absence of any deficiency in service at the instance of the Ops the petition of complaint was liable to be dismissed.
Ld. District Forum while disposing of the petition of complaint has observed that it is an admitted position that the Ops committed marked deviations from the building plan in the matter of construction of the flat in question and that the Honble High Court at Calcutta, in F.M.A. 1287 of 2010, has been pleased to direct the OP No. 1 to submit a revised building plan within the stipulated period along with a further direction upon the Howrah Zilla Parishad to examine and consider the same after complying with all the formalities and in the process, the Honble Court has made it clear that the concerned authority will strictly go by the requirements of building bye-laws and other rules and regulations and shall not permit any deviation from the rules framed thereunder. According to the Ld. District Forum, upon receipt of such direction from the Honble High Court at Calcutta, the authority in question conducted a special enquiry on the point of deviation etc. and that the report dt. 2.3.10 submitted by the said authority established the fact of deviation as raised by the complainants. Ld. District Forum has also observed that there are several deviations in the construction of the flats in question from the initially admitted sanctioned plan and this tantamounted to deficiency in service at the instance of the Ops/Appellants, to which they have got no answer at all and accordingly, dismissed the petition of complaint as mentioned above.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Case laws referred to by the Appellants :-
1. (2009) 12 Supreme Court Cases 369
2. (2005) 7 Supreme Court Cases 605 DECISION WITH REASONS At the time of hearing it has been submitted on behalf of the Appellants that the Ld. District Forum has utterly failed to appreciate the actual state of affairs and as such, has arrived at a wrong and improper decision, which is not at all sustainable under the law. According to the Ld. Advocate for the Appellants, there is no hide and seek policy at the instance of Appellant/OP No. 1, inasmuch as, the Appellant has already admitted that there are some deviations in the construction of the flat in question from the approved building plan, but subsequently in terms of the present construction the Appellant has submitted a revised building plan, which is under consideration and the Complainants/Respondents should bear out the inconvenience so caused, which was not at all the intention of the Appellant. The Appellant will mend the defects in due course of time, for which some more time is necessary. The Complainants/Respondents are very much aware of the present situation, but taking advantage of the adverse circumstances faced by the Appellants, the complainants are unnecessarily taking recourse to law, which is extremely detrimental to the interest of the Appellant and the Ld. District Forum having utterly failed to appreciate this acute situation, which is being faced by the Appellants, has passed an order which is not at all sustainable under the law. While concluding his submissions the Ld. Advocate for the Appellants has submitted before us the principles laid down in a decision reported in (2009) 12 Supreme Court Cases 369 to the effect that The averments in the complaint by the consumer cannot be taken as a gospel truth and that the Consumer Courts should exercise their power after considering the relevant factors and materials brought on record by both sides. According to the Ld. Advocate for the Appellants, when the Appellants have admitted deviations and have produced all the cards before the Ld. District Forum, the Ld. District Forum ought to have considered those aspects of the case and should not have penalized the Ops/Appellants by inflicting compensation and cost upon the Appellants. According to the Ld. Advocate, on these scores the impugned judgement is liable to be set aside and the Appeal should be allowed.
We have duly considered the submissions so put forward on behalf of the Appellants and have also gone through the materials on record including the impugned judgement and find that in this case the complainants have come forward with a case to the effect that they are the purchasers for value in respect of the flat in question and that after purchase it came to light that there were marked deviations from the approved building plan and that there was shortage of floor space also, which, according to the complainants, tantamounted to deficiency in service and hence, the petition of complaint. The Ops, on the other hand, have tried to come up with a story to the effect that there was no deficiency in service at the instance of the Ops and as such, the petition of complaint was liable to be dismissed. On careful perusal of the impugned judgement we find that the Ld. District Forum has really traversed the pros and cons of respective partys case and has arrived at a just and proper decision. When admittedly there are marked deviations from the approved building plan at the instance of the Ops/Appellants, question of ignoring that does not arise at all. Even after the direction of the Honble High Court, Calcutta, the Appellants having not cared to mend the defects question of taking any lenient view also does not arise at all.
We have carefully gone through the impugned judgement and find that the Ld. District Forum has considered the relevant factors brought on record by both the parties reasonably well and has arrived at a just and proper decision. If that be the position, we think that the decisions relied upon by the Appellants are not at all applicable to the instant case. Having considered the present Appeal in the light of above discussions we find no merit in the present Appeal, which, in our opinion, should be dismissed. In the result, the Appeal fails.
Hence, it is ORDERED that the Appeal stands dismissed on contest but without any order as to cost.
The impugned judgement stands confirmed.
MEMBER MEMBER