State Consumer Disputes Redressal Commission
Mrs. Carole Lucy Lobo Dixon vs Mr. Nestor Thomas Sequeira on 18 December, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA C.C. No. 20/2013 Mrs. Carole Lucy Lobo Dixon W/o Nigel Dixon Major of Age, R/o flat No. SF2, 2nd Floor, Libra Harmony, Mapusa, Bardez-Goa. ... Complainant v/s Mr. Nestor Thomas Sequeira Aged 43 years, Proprietor of M/s. Libra Enterprises, Having office at Relino Apts, Naika Vaddo, Cala ngute Bardez-Goa R/o Amit Apts, Alto-Betim Bardez-Goa. ... Opposite Party Complainant is represented by Adv. Shri. J.J. Mulgaonkar. OP is represented by Adv. Shri. B.D. Nazareth. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 18/12/2014 ORDER
[ Per Justice Shri. N. A. Britto, President] By this consumer complaint filed by the complainant on or about 16/12/13, the complainant seeks to recover from the OP, a builder, total compensation of Rs. 44,33,850/- under various heads. Earlier, the complainant by legal notice dated 2/8/13 demanded from the OP, compensation of Rs. 75,30,000/- under eleven heads. The complainant then got her flat/building/site inspected by architect Shri. S.S. Bhobe on 13/7/13, who prepared an estimate of repairs of Rs. 20,63,545/- and submitted his report dated 5/8/13.
2. Later, the complainant has restricted her claim to the figures mentioned in the said estimate/report dated 5/8/13, stating that in case the said figures are contrary to those mentioned in the legal notice. This she has stated in the complaint as well as in the affidavit filed in support thereof on 3/2/14. Lastly, the complainant came with an offer for settlement on or about 4/12/14 to the OP, without prejudice to her rights, for Rs. 12,35,450/- which offer was rejected by the OP, outright.
3. The complainant is a Irish national of Goan origin holding a PIO card, and first has been a resident of Moicavaddo, Pilerne, and then of Chog-m Road, Alto Porvorim, from 30/3/09 to 5/3/13, residing in rented premises of one Alvito Francisco DSouza. The complainant came to occupy the suit flat after 20/02/2013.
4. The OP is a builder doing his construction business in the name and style of Libra Enterprises, and, at the relevant time was in the process of constructing a building to be known as Libra Harmony in a plot of land admeasuring 928 sq.mts. of chalta No. 5, P.T. sheet No. 42 at Mapusa. The said building Libra Harmony was a small project consisting of eleven flats out of which three flats were meant for the benefit of the owners of the said plot and 8 flats were to be sold. The average set back of the building is approximately of 4.20 to 4.40 meters.
5. The complainant claims that she came across the website of the OP. The copy of the website is at page 30. The complainant then approached the OP and the complainant was furnished with a copy of the approved plan, the construction licence dated 12/02/09, the agreement between the OP and the owners of the property, and, the draft copy of the agreement, and, thereafter the complainant executed an agreement with the OP dated 29/4/09 and duly registered the same with the Sub-Registrar. In terms of the said agreement, the OP was to construct and sell to the complainant a two bedroom flat bearing No. SF-2 admeasuring 102 sq.mts plus an area of 28 sq. mts. of open terrace on the second floor of the said building for a total consideration of Rs. 26 lacs. The possession of the flat was to be handed over to the complainant within 24 months. The flat was to have specifications as per Annexure-II and the payments were to be made as per schedule of payment of Annexure III, of the said agreement. The fittings were to be provided as specified by letter dated 11/05/09 (copy at page 92).
6. The septic tank was came to be completed in November, 2012. The OP obtained occupancy certificate on 19/2/13. After exchanging lot of correspondence, the complainant took possession of the said flat on 20/2/13 under a possession certificate of the same date, duly signed by both the parties. In this Certificate, the complainant stated that she did not have any claim of any nature against the OP with respect to the said flat. The complainant actually paid to the OP, a sum of Rs. 24,70,000/- after deducting a sum of Rs. 1,30,000/- as the complainant had requested the OP not to execute certain works of painting, kitchen cabinets, sink and granite slab, as the complainant wanted to get a modular kitchen installed. A sum of Rs. 81,886/- was also adjusted on the same day towards the cost of some additional works carried out by the OP.
7. After the filing of the complaint, various works have been carried out by the OP, and, they have been reflected on the photographs. For example the works outside the building were not completed, when the complainant took possession of her flat and this can be seen from photographs at page 178 onwards. Since then, the works have been completed and the same can be seen from photographs at page 376 onwards. For example, photograph No. 13 on page 178 corresponds to the photograph No. 1 at page 376. Since then an additional transformer has also been provided by the OP, as required by the Electricity Department, and the complainant has also been given permanent electricity connection.
8. The complainant appears to have been in a tearing hurry to obtain possession of the suit flat, which she did on 20/2/13, even before there was a proper way to get into the building, as can be seen from photos at pages 178 and 179. Then the Complainant wrote a letter dated 8/6/13 to the OP requesting for execution of sale deed between 9th and 15th July, 2013 which was accordingly executed on 9/7/2013. The right course of action for the complainant would have been to call upon the OP to complete the incomplete works and then take possession. The complainant might have taken possession in a hurry with surroundings incomplete in order to save on rent she was paying to the premises rented out to her, by the said Alvito DSouza.
9. In the said letter dated 8/6/13 (copy at page 226) the Complainant stated that the complainant felt in retrospect that the OP probably had done his best under the circumstances/finances and they were content as long as property was completed to a reasonable quality within a reasonable time frame. The complainant also stated that she was a straight forward person who spoke as she found.
10. The complainant then by letter dated 5/7/13 complained of sippage and requested the OP to visit the site together with the engineer to assess and rectify the problem. On 30/7/13 the Complainant again wrote to the OP complaining of water leakage into Delias flat and tripping of electricity, etc.
11. The complainant, to support her complaint, filed her own affidavit, and those of her architect Shri. S.S. Bhobe, of Delia Noronha, purchaser of flat FF-3 on the 1st Floor, of Oswald Morais who did some work for the complainant of fixing ridge tiles and water proofing for Rs. 6000/-.
12. On the other hand, the OP filed his own affidavit and that of his contractor Shri. V.K. Nadkarni, his Engineer Shri. Oswald DMello. Each flat has been provided with 3 chambers. If architect Shri. S.S. Bhobe stated that the inspection chambers were small in size, the OPs contractor Shri. Nadkarni has stated that the inspecting/checking chambers are in excess of the minimum requirement, and, the OPs engineer Shri. DMello has stated that the check chambers which have been provided are in terms of the building bye laws. There is no counter to the facts stated by them, and, therefore, it can be concluded the inspection chambers are not at all small as sought to be made out by architect Shri. S. S. Bhobe.
13. After completion of her evidence, the complainant filed her additional affidavit on 3/11/14 to bring on record that the said Mrs. Delia Noronha had started unauthorized construction activity by putting up a shutter and padlock in an open space in the compound which was transferred to her by the OP for Rs. 40,000/- and at the time there was an altercation between the complainant and the said Delia Noronha. It is also stated that the said Mrs. Delia came to attack the complainant and her husband with an hockey stick. Photographs have been produced to support the said statement.
The said Mrs. Delia Noronha, as per the OP, was a close relative of one of his employees, at whose instance the flat was sold to the said Delia Noronha on cost to cost basis without any profit margin. Be that as it may, the said Delia Noronha is not an OP in this complaint and the complainant would be free to take appropriate action against her in an appropriate Forum.
14. The OP then filed his own affidavit in rebuttal on 13/11/14. The OP also filed an application with photographs on 10/3/14 to show that the compound wall, the approach road and the area for parking were complete. The complainant also filed another additional affidavit vide application dated 4/4/14 to place on record the expenditure incurred by her for water proofing stating that out of a total quoted amount of Rs. 2,06,000/- by Silveira Fabrication she had paid a sum of Rs. 1.20 lacs plus Rs. 10,000/-. The complainant does not say whether any more amount is to be paid to the said Silveira Fabrication. The completed fabrication can be seen from photos produced by the complainant which are at page 469.
15. The OP by application dated 22/4/14 placed more photographs on record to rebut the complainants case that the check-in chambers were covered with khadapa stone or that they had collapsed. Complainant filed yet another application dated 5/5/14 with a further report from architect Shri. S.S Bhobe dated 28/2/14. Photographs produced by OP, with application dated 22/4/14, are certainly later in point of time then the additional report of Architect Shri. S.S. Bhobe dated 28/2/14 produced with photographs.
16. The OP has also produced more photographs with application dated 26/6/14 and 30/07/14 to show the completion of works.
17. Now we shall proceed to discuss the claims for compensation made by the complainant.
18. The complainant demanded Rs. 5 lacs on account of delay in delivering possession of the suit flat to the complainant, in her legal notice dated 2/8/13. This notice was sent on legal advice and was expected to claim the amounts, if any, with some sense of responsibility. In the complaint too, the complainant has claimed Rs. 5 lacs towards delay, Rs. 1.76 lacs as loss due to inflation and Rs. 2.76 lacs as loss towards payment of rent.
19. These claims have been made vide prayers
(a), (b) and (c) of the complaint. There is no doubt that there was a delay of about 22 months in delivering the possession of the suit flat to the complainant. Who was responsible for this delay? We shall see a little later. If at all, the complainant might have been entitled to a sum of Rs. 2.76 lacs or there about, being the rent the complainant paid @ Rs. 10,000/- or Rs. 13,000/- per month to the said Alvito S. DSouza as per receipt dated 22/03/13 (receipt at page 95) on account of delay. However, she would not be entitled to the same, for reasons discussed hereinafter. The complainant has given no details whatsoever as regards the sum the complainant claims she was required to pay on account of inflation to complete the interior works. In our view, the complainant is not entitled to any of the amounts claimed by her vide prayers (a), (b), (c) of the complaint for reasons more than one.
Firstly, the complainant at the time of taking possession on 20/2/13 vide possession certificate of the same date (copy at page 112) gave a solemn assurance to the OP that she did not have any claim of any nature as against the OP with respect to the above flat. This certificate has also got to be read with complainants letter dated 8/6/13. Has the said written assurance or undertaking given by the complainant has no meaning at all in law, more so when the complainant claims, in one of her emails referred to hereinabove, that she is a straight forward person who spoke as she found?
On behalf of the complainant, it is submitted that the said assurance was given by the complainant on a letter head prepared by OP. Next, it is submitted, that the same was given under duress. We are not inclined to accept either of these submissions.
There is no whisper in the complaint or for that matter in the affidavit-in-evidence given by the complainant as to the circumstances in which the complainant gave the said letter of acceptance of the flat clearly and unequivocally stating that she did not have any claim of any nature against the OP with respect to the said flat. The complainant is certainly bound by the said assurance or undertaking given by her, and, in law the complainant cannot wriggle out from the said assurance. She is bound by the said undertaking. It is well settled now, that the Indian Contract Act applies to all (see Marine Container Services, AIR 1999 SC 80) and the terms of an agreement are generally binding on the parties (see Bharat Knitting Company, AIR 1996 SC 2508). In view of the said assurance or undertaking in the acceptance letter dated 20/2/13 the complainant is not entitled to any of the amounts prayed for by her vide prayer (a) to (c) of the complaint.
20. Secondly, the complainant pleaded that she made payment of Rs. 5.20 lacs upon signing the agreement but within a few weeks the OP demanded another sum of Rs. 3.9 lacs.
The Complainant claims that she made the payments due under the schedule in good faith and, to cut complainants long story short, the complainant claims that the OP treated the complainant callously as his ATM. The boot appears to be on the other foot.
21. The OP claims that the Complainant and other purchasers did not make timely payments. The OP in his written version (para 7) as well as in his affidavit has given a schedule of payments made by the complainant. The OP has stated that although the payments towards the casting of the 1st and 2nd slab were demanded by the complainant vide letter dated 6/8/10, the payment was effected towards the 1st slab only on 10/12/10 and for the second slab on 20/12/10 i.e. after delay of more than 4 months. The OP has further stated that a cheque given by the complainant for Rs. 1.3 lacs on 19/10/11 demanded by him by letter dated 13/10/11 was returned for insufficient funds and the same were later released on 21/11/11. The OP has further stated that there was a delay of another 7 months for payment of Rs. 1.3 lacs for plumbing which were payable on 18/8/11 but were in fact paid only on 31/3/12. The OP has further stated that the installment towards tiling which was demanded by letter dated 11/2/12 was paid only on 11/5/12 after a period of 3 months. The OP has admitted that possession was to be handed over within 24 months but has stated that the same was subject to the complainant effecting payment in terms of the schedule to the Annexure- III, and from the payment details given by him, it is evident that the complainant herself has been guilty of delayed payments and the total delay is commensurate with the period taken for execution of work.
22. The OPs version on this score is corroborated by complainants letter dated 7/9/10 wherein the complainant admitted that they had geographical problem and the funds were tied up in fixed deposits in India. The OP also wrote to the complainant on 3/9/10, enclosing a photograph of the building taken on 31/8/10, stating that he was moving at a quick pace but required finance to make it happen and that the installment for the 1st slab was overdue by a month. The other letter written by the complainant is dated 23/9/10.
23. On behalf of the complainant, it is submitted that the delayed payments is not commensurate with the total delay of 22 months. We are not inclined to accept this submission. The complainant seems to suggest that if there was delay on her part to pay a particular installment, say by three months, the OP would be entitled for extension of 3 months to deliver the possession. This approach cannot be accepted in building industry. It is not unknown that the builders take money from their prospective purchasers and go about doing the construction spending the same. They dont spend from their pockets. This is a case where by the said agreement dated 29/4/09 the OP had agreed to construct for the complainant the suit flat and unless the complainant made timely payments, the OP could not have given the complainant timely possession. The complainant has been a defaulter time and again in making timely payments as demonstrated by the OP and therefore the complainant could not have expected the possession within 24 months. If the prospective purchasers do not make timely payments the entire schedule of completion goes out of hand. If payments are not made in time, labourers cannot be paid and material cannot be purchased. Labourers will then move to another construction site, etc. This position was known to the complainant and she admitted in her letter dated 8/6/08 that the OP did the best he could under the circumstances/finances and that they were content that the property was completed to a reasonable quality and reasonable time frame. The complainant is bound by the said admission and therefore ought to be estopped from claiming astronomical figures for delay in handing over the possession of the suit flat. It appears that the complainant had no problems with the OP atleast till 8/6/13. The problems arose with the onset of monsoons. On totality of facts, the Complainant is not entitled to any compensation in terms of prayers (a) to (c) of the complaint.
24. For landscaping the complainant demanded a sum of Rs. 5 lacs in the notice dated 2/8/13 and same is the amount sought by the complainant in terms of prayer (h) of the complaint which amount has now been reduced by architect Shri. S.S. Bhobe to Rs. 50,000/- in the estimate prepared by him. The complainant claims that the complainant, was given a brochure (copy at page 31) and through the brochure and the website (copy at page 30) the OP represented to the complainant and other prospective purchasers that the complex would have parking, landscaping, etc. Complainants architect Shri. S.S. Bhobe, has estimated a lumpsum amount of Rs. 50,000/- without any details, for landscaping. The OP has stated that the approved plan produced by the complainant clarifies the entire position and the amenities to be provided were specifically spelt out in the agreement. The OP also states that till date the OP has not deleted the details of the project from the website and the website would reveal that there is no misrepresentation. The OP has also stated that the average set back is about 4.20m to 4.40 meters and on the northern side there is the septic tank and soak pit and the setbacks have to facilitate parking and movement of vehicles. We agree with the OP. We wonder what landscaping could be done in a setback area of about 4.2 meters when passage has also to be kept for the passing and parking of cars. This claim is based only on self serving statement of the complainant. Moreover, neither the website nor the so called brochure shows any such landscaping. In our view, the complainant would not be entitled to the said amount of Rs. 5 lacs or any part thereof in terms of prayer (h) of the complaint.
25. The complainant has claimed an amount of Rs. 32,000/- towards completion of the complainants parking bay in terms of prayer (n) of the complaint. No such demand was made in the notice. Shri. S. S. Bhobe in his report states that parking provision has been made in the project for 11 cars while no provision has been made for a single car parking.
The said Shri. S.S. Bhobe does not appear to have read the sale deed made in favour of the complainant. The plan shows that provision has been made for parking, not for parking enclosures. The sale deed dated 9/7/13 states that the The sellers/owners and the confirming party (i.e. the builder) declare and confirm that the purchaser (i.e. the complainant) shall be entitled to a parking space in the property wherein the building is constructed and the said area is identified under letters B and C in the plan/sketch annexed hereto(copy of the sketch at page
137). The said Shri. S.S. Bhobe has worked out the cost of Rs. 32,900/- for completion of the said parking space forgetting that what the complainant was entitled to in terms of the sale deed was only for a parking space as identified on the sketch for which nothing more was required to be done. The said space was approved by the complainants husband by letter dated 13/6/13 and was referred to earlier by the complainant as a place for garage/parking. The said parking space can now be seen well laid on photograph at page 487 with complainants car parked, which the complainant can make use of without any difficulty and which has been earmarked for the complainant. There is also an admission in letter dated 2/7/14 (copy at page 509) that there is plenty of common parking surrounding this building for the use of all residents. This is what has been shown on the approved plan. The complainant therefore is not entitled for the sum of Rs. 32,900/- or any part thereof in terms of prayer (n) of the complaint.
26. The complainant has also sought for the recovery of Rs. 16,000/- towards the electricity connection, in terms of prayer
(l) of the complaint. As already stated, the complainant was given the possession of the suit flat on 20/2/13. Initially, it appears that the complainant and two other purchasers came to occupy the three flats and they were drawing electricity from a three phase connection through a common electricity meter which was in the name of the owner of the property. Even as late as 25/10/14 only four flats are being occupied (see page 502). One does not know whether the complainant paid any amount towards the consumption of electricity from the time the complainant obtained possession of the suit flat.
The problem between the complainant and the OP on this score appears to have started after the OP, by letter dated 11/10/13 demanded from the complainant Rs. 31,545/- to set up a separate transformer costing Rs. 3,47,000/- as per the demand of the Electricity Department, that multi dwelling residential buildings should have their own transformers, and, also after letter dated 30/11/13 (copy at page 229) the OP demanded from the complainant a sum of Rs. 57,922/- for the period from March, 1913 to October, 1913 towards electricity charges. Earlier, the OP had written a common letter dated 25/11/13 to all the apartment owners of Libra Harmony informing them that the current connection was on temporary meter and the rates for the same were higher than normal and that the outstanding electricity bill was Rs. 40,926/- which was required to be cleared. Subsequently, during the pendency of these proceedings the complainant has been provided a permanent electricity connection, after a new transformer was commissioned, after it was approved by Department of the Electricity on or about 30/7/14. The OP was certainly liable to provide a permanent electricity connection to the complainant, and, in case the Department had insisted for additional transformer the OP was bound to bear the additional expenditure for the same.
One fails to understand as to why the Complainant chose to go for a separate e/meter w.e.f. 16/12/13 instead of paying Rs. 57,922/- as demanded by the OP by letter dated 30/11/13. Was it to avoid the payment? It is also not the case of the Complainant that she paid any electricity charges from February to October 13, and if so, how much. The OP says that he paid for Complainants consumption of electricity upto 15/12/13.
We accept his version. In case the complainant has made any payment to the Department of Electricity to obtain a separate connection in her name from 16/12/13, she is entitled to seek the refund of the deposit, if any, made by her to the Department of Electricity. The complainant would not be entitled to Rs. 16,000/- or any part thereof as claimed by the complainant in terms of prayer
(l) of the complaint, more so when the Complainant has now been provided with permanent electricity connection.
27. The complainant has claimed a sum of Rs. 1 lac in terms of prayer (d) towards petrol charges and other expenses incurred by her in making daily trips to Mapusa to carry out the supervision of the site. Similar demand was also made in the notice. The complainant has produced no proof in support of the said assertion except her self-serving statement.
The complainant was certainly not requested by the OP to supervise the construction and in case the complainant spent the said amount of Rs. 1 lac she did so at her own risk which was otherwise not contemplated under the agreement for construction and sale between the parties.
The complainant is not entitled for the said sum in terms of prayer (d) of the complaint.
28. The complainant demanded by notice a sum of Rs. 15 lacs towards the water proofing of the building. The complainant has reduced the same and has now claimed an amount of Rs.
4,17,800/-
for water proofing of the building in terms of prayer (j) of the complaint, and, the complainants expert Shri. S.S. Bhobe has estimated the amount for erection of a shed, chemical water proofing and internal painting at Rs. 3,05,300/-. For dampness and leakages in the flat, in our view, the complainant as well as the OP are both responsible. The dampness can also be seen from photos at page 173 onwards. Shri. Bhobe has calculated the cost of chemical water proofing of Complainants flat at Rs. 1,50,800/- and over full slab at additional Rs. 91,800/-. However, we fail to understand that in case a shed with a corrugated sheet roofing is erected, where on earth there would be a need to do water proofing by chemical coat, since for heavy monsoons like those in this part of the country, the ultimate solution for dampness and leakages below the terrace is by erection of a shed with metallic or other sheets over the terrace. We say that the complainant is responsible for the dampness/leakage in her flat, because the complainant got the work executed from her own contractors by making her own payment in preference to the OPs man who was sent to do the said work. The complainant has stated in her letter dated 8/6/13 as follows:
all said and done, we are happy here and I am grateful that the tiles from Libra arrived in time. Our own contractors (whom we will be paying) managed to get the final waterproofing and ridge tiles done over our section of the roof What is more the quality of their work is really good.
Nagesh turned up to complete the roofing but too late for us.
We will not be asking for re-imbursement of this. But will give you a copy of our bill so that you are not doubly charged by your own sub-contractor. The OP seems to be right in contending that incase the complainant did the water proofing on her own through her own contractors and by paying for the works done inspite of their person having gone to complete the work, the OP cannot be blamed for the same. The complainant probably had to swallow her comment that the quality of her contractors work was good, since within a month or so the complainant had to complain of seepages and leakages. The OP is also to be blamed for the said dampness/leakages as the OP did not provide any projections or panipatti on the eastern side of the complainants flat and left it without paint. The projection on the northern western and southern sides can be seen from the photographs, particularly photograph No. 1, at page 223. Shri. Bhobe in his report dated 5/8/13 has observed that there was seepage of water in many places through the walls and also through the roof slab; there were two big patches of dampness on the eastern wall of the kitchen; the said eastern wall of the kitchen is actually a common wall shared by the kitchen of the adjacent flat; and as the floors of both these flats are at different levels, the roofs are also at different levels; that the roof of the kitchen of the adjoining flat is a flat terrace, opens to sky and as such the eastern wall of the complainants kitchen is partly a common wall shared by the adjoining flat and partly an external wall exposed to the open; that the external part of the kitchen wall was not completely finished; that there was no panipatti constructed to prevent the rain water flowing along the surface of the wall; that construction of the panipatti or water groove is a must on any external wall (specially if there is no slab projection or chajja above; and in this case there is neither any slab projection nor any chajja above, to protect the said wall; that the painting of the said external part of the kitchen wall has been left half way without being completed; that in the study room the roof slab have many patches of dampness, clearly suggesting that the rain water percolated through the RCC slab; that the sloping RCC slab was over laid with mangalore tiles through which, in his opinion, the water percolated through the gap in the mangalore tiles which were not properly laid; that the water should not have percolated through the RCC slab, suggesting the construction of the slab being of poor quality with unfilled cracks.
29. In our view, based on his report, the seepages through the roof can be attributed to the work done by the complainant through their own contractor while the seepages through the walls can be attributed to the OP.
30. The Complainant demanded 15 lacs towards proper water proofing of the building but reduced the same to Rs. 4,17,800/- in terms of prayer (j) of the complaint.
31. As already stated, the full proof method, so to say, to prevent dampness and leakages, in this part of the country on account of heavy monsoons, is to erect a shed with roofing sheets whether of metal, corrugated or otherwise for which Shri. Bhobe estimated an amount of Rs. 99,200/-. If that job is done, and has now been done by the complainant, there is no need for doing any chemical water proofing as suggested by Shri. Bhobe.
The complainant has completed the said job as can be seen from the photographs at page 469. For that the complainant claims in her additional affidavit, that she engaged the services of Silveira Fabrication who gave a quotation of 2,06,000/-. Out of Rs. 1,97,000/- quoted by Silveira Fabrication, the complainant has so far spent only a sum of Rs. 1,20,000/- plus Rs. 10,000/-. She does not say that any further amount is required to be paid by her to Silveira Fabrication. We are now at the end of 2014. Vis--vis the estimate given by Shri. Bhobe of Rs, 99,200/- for erection of the shed, the Complainant has spent Rs. 1,30,000/- only. This sum can certainly be awarded to the complainant towards the erection of the said shed with corrugated sheets to prevent dampness and leakages.
Dampness and leakages would be latent defects which could not be known earlier and would be certainly required to be rectified by the OP or paid for by the OP, notwithstanding the undertaking given by the complainant at the time of taking possession of the flat on 20/2/1913.
We are not inclined to admit the payment of Rs. 6000/- to Shri. Oswald Moraes on or about 17/6/13 as this work could have been carried out by the OPs man who was deputed to carry out the same and which work the Complainant took upon herself to do at her own cost. However, we are inclined to award to the complainant the sum of Rs. 19,000/- vide receipt dated 29/8/13 paid by the complainant to one Yellapa to carry out certain works of water proofing to the staircase close to the complainants flat.
To that, we would add another sum of Rs. 62,700/- which would be required for internal painting of the full flat, as estimated by Shri. Bhobe. Where on earth was there a need to get an estimate of painting in case the complainant had already spent Rs. 80,000/- prior to 22/12/12? This bill appears to be of the painting of the flat done by the complainant prior to taking possession for which deduction was given to her, in the sale price. We would add another sum of Rs. 500/- spent by the Complainant for filling gaps of window frames as against estimated amount of Rs. 2800/- by Shri. Bhobe. The complainant therefore would be entitled to a sum of Rs. 2,12,200/- in terms of prayer (j) of the complaint.
32. A submission was made on behalf of OP that Shri. Bhobe was appointed without notice to the OP. Understandable. But what option was the complaint left when the OP did not turn up with his engineer, as requested by the Complainant by her letter dated 5/7/13?
Though the Complainant has not claimed the sum of Rs. 15,000/- + Rs. 4000/- spent by her towards the fees of Mr. Bhobe, we are inclined to award the same to the Complainant.
33. The complainant would not be entitled to sum of Rs. 10,000/- in terms of prayer (m) towards the construction of the security gate as it appears that the said gate was not at all contemplated as per agreement and the Complainant has erected the same for her own benefit without calling upon the OP to provide for the same in case she was entitled to in terms of the agreement or otherwise.
Complainant cannot be expected to do the expenditure at her own whims and fancies and recover the same from the OP.
34. The complainant demanded an astronomical sum of Rs. 10 lacs in terms of the notice as well as prayer (e) of the complaint for mental harassment, stress, agony, etc. The complainant would be certainly entitled to a reasonable amount for mental harassment, the complainant had to undergo, on account of the dampness and leakages which the Complainant had to face in a newly constructed flat and considering the facts of the case we assess the said amount at Rs. 1 lac in terms of prayer (e).
35. The complainant demanded Rs. 5 lacs towards the cost of demolishing and reconstruction of chambers and reduced the same to Rs. 1,92,150/- in terms of prayer (f).
The complainant demanded Rs. 15 lacs towards erecting boundary walls and security gates and reduced the same to Rs. 5,08,000/- in terms of prayer (g). The complainant demanded Rs.
50,000/- to clear the debris as well as claimed the same in terms of prayer (i) of the complaint. Complainant has not carried out any expenditure on the said items nor the Complainant has produced receipts in support of the same. The Complainant demanded Rs. 6 lacs and reduced the same to Rs. 2,80,000/- in terms of prayer (k) of the complaint for repainting sub standard exterior painting.
The complainant did not demand any amount for construction of approach roads but in terms of prayer (o) prayed for the same in a sum of Rs. 3,75,000/-. Complainant admits that it was not constructed initially but a thin layer has been partly put. Photographs at page 466 seen with photograph at page 376 would falsify such a claim.
36. The Complainant says she had paid Rs.
10,000/- to the OP for the maintenance of the building and yet she and other residents have to personally clean the staircase and common areas. The Complainant say that the OP has misappropriated the amount. The OP says that the said amount deposited towards maintenance fund has been utilized for cleaning the common areas and payment of water bills in respect of the entire building. The say of the OP appears to be more plausible and for that reason, the complainant has not sought for recovery of the said amount and hence the complainant would not be entitled for the same.
37. In terms of the agreement, the OP was required to either execute a sale deed in favour of the complainant or to the Management of a Cooperative Society. The OP has stated that sale deeds of six flats out of 8, have been executed and he had requested the purchasers to from an association but there appears to be no understanding between the flat owners to form the same. The OP says he is ready and willing to get the association registered. We see the said Delia, in one of the photos, with a hockey stick in her hand. What made her to show the hockey stick, we do not know. We need only observe that it is in the interests of the purchasers to form an association for the purpose of maintenance of the flats.
38. In our view, the complainant is not entitled to any of the amounts claimed by her except those awarded by us. The said amounts have been demanded/sought by the complainant, as if the complainant has taken over as a contractor of the OP in place of the said K.V. Nadkarni and Associates, to do the works meant for the entire building. The Complainant did not seek for any directions to the OP to get any of the works done. In our view, the complainant would not be entitled to any compensation for works not done and for doing works for the entire building, as most of the works have now been completed by the OP as can be seen from the photographs produced. One does not even know whether the Complainant would have been allowed to do any of works meant for the entire building.
39. In view of the above discussion we allow the complaint partly, and, hereby order the OP to pay to the complainant a sum of Rs. 3,31,200/- within a period of 30 days, and, in case the same is not paid, within 30 days, it shall carry interest at the rate of 9% until it is paid. The complainant would be entitled to a sum of Rs. 10,000/- as costs of the complaint.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President sp/-