State Consumer Disputes Redressal Commission
Kanta Thakur vs Hp Housing Urban Development Authority on 18 June, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. (1) First Appeal No: 363/2010. Date of Decision: 18.06.2012. Smt. Kanta Thakur D/O Shri T.R. Thakur, Presently posted as Senior Assistant, Directorate of Industries, Udyog Bhawan, Bemloe, Shimla, 171001, H.P. Appellant Versus Himachal Pradesh Housing Urban Development Authority, Nigam Vihar, Shimla-171002, H.P. Through its Chief Executive Officer-cum-Secretary. Respondent For the Appellant: Mr. O.P. Chauhan, Advocate. For the Respondent: Mr. Peeyush Verma, vice Mr. Manish Sirkek, Advocate. (2) First Appeal No: 379/2010. Date of Decision: 18.06.2012. Himachal Urban Development Authority, (HIMUDA), Nigam Vihar, Shimla-171002, H.P. Through its CEO-cum-Secretary. Appellant Versus Smt. Kanta Thakur W/O Shri T.R. Thakur, Presently posted as Senior Assistant, O/O Directorate of Industries, Udyog Bhawan, Bemloe, Shimla-1. Respondent Coram Honble Mr. Justice Surjit Singh, President Honble Mr. Chander Shekhar Sharma, Member Honble Mrs. Prem Chauhan, Member Whether approved for reporting?[1] For the Appellant: Mr. Peeyush Verma, vice Mr. Manish Sirkek, Advocate. For the Respondent: Mr. O.P. Chauhan, Advocate. O R D E R:
Justice Surjit Singh, President (Oral) By this common order, we are disposing of two appeals, particulars whereof are mentioned in the title of this order. Both the appeals arise out of same order, i.e. order dated 14.07.2010, of learned District Consumer Disputes Redressal Forum Shimla, whereby a complaint, filed by Smt. Kanta Thakur, appellant in F.A. No.363/2010, and hereinafter referred to as complainant, has been allowed and respondent, Himachal Pradesh Housing Urban Development Authority, appellant in F.A. No.379/2010, and hereinafter referred to as opposite party, has been ordered to refund the price of a flat, charged from the complainant, with interest at the rate of 9% per annum, and also to pay damages for humiliation, harassment etc. quantified at `50,000/-. Costs of `5,000/-, have also been ordered to be paid by the opposite party.
2. Facts, relevant for the disposal of the two appeals may be noticed. Complainant, who is employed as Senior Assistant, in the Industries Department, at Shimla, applied to the opposite party for allotment of a Type B category flat in Phase 1, below BCS, New Shimla, under the 8th partially self financing scheme. Price of the flat was `4,53,300/-. She paid the entire amount of price, i.e. `4,90,812/-, by September, 1999, by raising loan of substantial portion of the amount of price, from her employer. Flats were already constructed when the complainant applied. Allotment letter was issued in her favour.
3. Possession was though offered soon after the allotment, there were several defects in the flat, due to which it was inhabitable. Complainant asked the opposite party to remove the defects, so that she could take the possession. Her request was not given due attention. Through a letter dated 15.07.2002, copy Annexure C-3, she was informed by the CEO-cum-Secretary of the H.P. Housing Board, i.e. the predecessor of the opposite party that the defects as pointed out by her, stood removed and she should take the possession.
4. It appears that the complainant wrote back to the said CEO-cum-Secretary that the defects still persisted because there is another letter dated 07.09.2002, copy Annexure C-4, addressed by the said CEO-cum-Secretary to an Executive Engineer of H.P. Housing Board, per which on inspection carried out by the Chairman, on 02.08.2002, leakage of water from the slab was noticed.
5. In the year, 2005, complainant served a legal notice, copy Annexure C-5, upon the opposite party asking it to deliver the possession of the flat within 15 days, after removing the defects and to pay damages to the tune of `5.00 lacs. When there was no response to the notice, complaint, under Section 12 of the Consumer Protection Act, 1986, was filed on 20.09.2005. Complainant sought issuance of directions to the opposite party to deliver the possession or in the alternative, to refund the price of the flat with interest at the rate of 18% per annum, to pay `5.00 lacs, as damages and also to pay litigation expenses.
6. Opposite party filed reply. It pleaded that the complaint was barred by time, as the cause of action accrued in the year 1999, while the complaint was filed in the year 2005. On merits, it was denied that there were any defects in the flat. It was stated that possession was offered to the complainant in the year 1999 itself, but she dilly-dallied the taking of the possession and, therefore, she was not entitled to any damages.
7. Learned District Forum appointed a Local Commissioner, who reported that there were traces indicating that leakage had been taking place in the roof earlier, but it appeared that repair had been carried out and it could be found only after rainy season whether the leakage still persisted or had been rectified. Inspection was carried out by the local Commissioner, on 06.03.2010.
8. Learned District Forum allowed the complaint and ordered the opposite party as aforesaid. One appeal is filed by the opposite party. It challenges the direction issued by the learned District Forum for return of the price, with interest and the payment of damages to the tune of `50,000/-. Second appeal is filed by the complainant, who is aggrieved by the order of refund of the price and also the quantum of damages. According to her, she is entitled to the possession of the flat after removal of defects and payment of a sum of `5.00 lacs, by way of damages.
9. We have heard learned counsel for the parties and gone through the record.
10. Plea taken by the opposite party that the complaint was barred by time, cannot be accepted, reason being that the cause of action pleaded by the complainant is a continuing one, as the possession of the flat, after removal of defects, had not been delivered to her till the filing of the complaint. It is true that there is a letter dated 15.07.2002, Annexure C-3, written by the opposite party to the complainant informing her that the defects pointed out by her, stood cured and she should come forward to take the possession, but it stands proved from another document of the opposite party itself, i.e. letter dated 07.09.2002, Annexure C-4, that the Chairman of the H.P. Housing Board, on visit to the flat, on 02.08.2002, found that there was leakage from the roof. This fact gives a complete lie to the plea raised by the opposite party that the complainant herself was responsible for not taking the possession of the flat and that the opposite party had removed the defects, as pointed out by her, which fact stood intimated to her through letter dated 15.07.2002, copy Annexure C-3.
11. Flat was still found to be having traces of leakage in the year, 2010, when a Local Commissioner appointed by the learned District Forum inspected the spot, though he (the Local Commissioner) also reported that the roof appeared to have been repaired and it remained to be seen whether there was any leakage or not, during the rainy season. Report clearly indicates that the repair of the roof had been carried out after the rainy season of the previous year, but before the rainy season of the year 2010. That is why, he stated that it could be found only after the ensuing rainy season whether the leakage still persisted or stood cured. Also the fact that traces of leakage were there suggests that the leakage had taken place not in the long past because had it been so, after curing the leakage, the opposite party was supposed to have done distempering and painting etc. to make the flat ready for being handed over to the complainant.
12. As a result of the above stated position, the plea of limitation raised on behalf of the opposite party is rejected.
13. Coming to the merits, as already indicated while dealing with the issue of limitation, leakage in the roof was noticed by the Chairman of the opposite party himself on his visit on 02.08.2002. Traces of leakage indicating that it (the leakage) was not more than one year old were seen by the Local Commissioner also as we have noticed hereinabove. Therefore, even on merits, the opposite partys plea that defects, as pointed out by the complainant, stood removed in the year 2002 itself and that she herself was to blame for delay in the delivery of possession, cannot be said to be correct.
14. As regards the question of quantification of damages, complainant has stated that she has been living in rented accommodation and paying `2,000/-, as rent. We find no evidence in support of the plea, except her affidavit which she filed along with the complaint. She did not file any document supporting this plea. In her affidavit which she filed by way of evidence, she kept silent about the averment regarding amount of rent being paid by her. Also, she did not place on record any documentary evidence indicating that she had been living in rented accommodation.
15. However, as per Government orders, the complainant would have been entitled to house rent allowance at the rate of `600/-, as per slab system, had she been living in her own house. Therefore, it can legitimately be assumed that she has sustained pecuniary loss atleast to the tune of `600/-, per month, on account of non-delivery of possession of flat to her. Possession ought to have been delivered to her in September, 1999, when the last instalment of price of flat was paid by her to the opposite party. If we calculate the damages at the rate of `600/- per month, from a day, not beyond three years, prior to the filing of the complaint, i.e. September, 2005, complainant will be entitled to damages to the tune of `70,200/-, (Rs.600/- per month x 117 months).
16. As regards the appeal of the complainant against the order for refund of the price, it is clear from a bare reading of the complaint that the preferential relief asked for by her is delivery of possession. Otherwise also, the flat is already mortgaged with the employer of the complainant, from whom she raised loan, for the purchase of the flat, in question.
17. As a result of the above discussion, appeal filed by the opposite party is dismissed. Appeal filed by the complainant is allowed and the order passed by the learned District Forum is modified as follows:-
a) Opposite party shall deliver the possession of the flat, in question, to the complainant within three months from today, after removing all the defects including leakage of roof, replacement of some windowpanes and replacement of A.C. sheets, to which there is a reference in the report of the Local Commissioner;
b) opposite party shall pay `70,000/-, on account of damages to the complainant within one month from today, failing which it shall be liable to pay interest, at the rate of 9% per annum, from the date of this order, till the payment of the aforesaid amount of money. It has been pointed out that damages awarded by the learned District Forum, have already been deposited with this Commission and, therefore, this direction regarding damages shall be taken to be in respect of the difference between the amount awarded by us as damages and the amount of `50,000/-, awarded by the learned District Forum, in case on verification, it is found that the amount of `50,000/-, has already been deposited; &
c) opposite party shall pay to the complainant a sum of `10,000/-, on account of litigation expenses of the complaint, as also this appeal.
18. This order shall be placed on the record of F.A. No. 363/2010 and one authenticated copy on the record of F.A. No.379/2010.
19. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member June 18, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?