State Consumer Disputes Redressal Commission
H.P.Housing & Urban Development ... vs Sh. Ravi Bhushan on 3 March, 2010
H
H.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
SHIMLA-9.
F.A. No. 317 of 2009 Decided on 3.3.2010.
H.P.Housing & Urban Development Authority
(HIMUDA) Nigam
Vihar Shimla 171002
Through its Chief Executive
Officer-cum-Secretary.
....Appellant.
Versus
Sh. Ravi Bhushan S/o Sh. Lekh Raj Sood,
R/o Flat No.6, Block 15 Phase-III
Below BCS New Shimla.
..Respondent.
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Honble Mr. Justice Arun Kumar Goel (Retd.), President.
Honble Mrs. Saroj
Sharma, Member.
Honble Mr. Chander
Shekher Sharma, Member.
Whether approved for reporting
?
For the Appellant. Mr. K.C.Sankhyan,
Advocate
for the
appellant.
For the Respondent. Mr.
Ravi Bhushan
Respondent is present in person.
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ORDER
Per Mr. Chander Shekher Sharma (Member).
1. This appeal is directed against the order of District Forum, Shimla in Consmer Complaint No. 179/2004, dated 31.7.2009 whereby complaint of the respondent was partly allowed and appellant was directed to comply with the recommendations made by the expert in Annexure C-4 within one month and parties were directed to bear their own costs.
2. The facts of the case as they emerge from the record are that the appellant being the public authority viz. H.P.Housing Board had floated a self financing scheme and in the said scheme the respondent had purchased one flat for Rs. 10.25 lacs on lease and possession was given to him on 8.5.2002 vide possession letter Annexure C-1. As per the allegations made in the complaint, at the time of taking possession, some visible defects were pointed out to the officers, which were not rectified by the appellant. Thereafter the respondent shifted in the said flat after some time.
Since he was ill and when he started living in the said flat more deficiencies in the flat were found. These were pointed out to the appellant and despite various requests made by the respondent, those were not removed. In this background Complaint U/s 12 of the Consumer Protection Act, 1986 was filed against the respondent wherein number of deficiencies in the flat have been enumerated in detail in para No.3 of the complaint.
3. The appellant contested and resisted the complaint and its version in the reply was that there is no deficiency of service/unfair trade practice on its part and sub-standard material was not used in the construction of the house as alleged by the respondent. Flat was in a habitable condition. It is further pleaded that the respondent was estopped from ventilating the grievance before the Fora, on the ground that at the time of taking possession he executed Annexure R-2, which divulges that he has accepted premises to be in a habitable condition and the defects as pointed out by him were rectified by the appellant.
4. Respondent in support of his case filed his own affidavit and affidavit of Sh. Satish Kumar Mehta, Architect by way of additional evidence and various documents Annexure C-1 to C-III viz. letter of possession issued by Housing Board Authorities dated 13.5.2002 to the respondent and receipt amounting to Rs. 540/- and technical report of expert Annexure C-IV alongwith site plan Annexure C-V and photographs Annexures C-VI to Annexure C-XIII .
5. We have heard learned counsel for the parties and have also gone through the record of the case minutely. Mr. K.C.Sankhayan, learned counsel for the appellant argued that there is no deficiency of service on the part of his client and respondent was estopped by his act and conduct to file the complaint. From the perusal of Annexure R-2 it is clearly evident that the defects pointed out at the time of taking possession of the flat have been rectified and now there is no defect in the flat. As such the complaint of the appellant deserves to be dismissed.
6. The respondent argued his case in person. Main thrust of argument was that there is grave deficiency of service on the part of the appellant in the present case, and this fact is clearly evident from the technical report of expert Mr. Satish Kumar Mehta, Architect, Annexure C-IV. Further per him this fact is also corroborated by the photographs annexed with the complaint and he supported the order of the Fora below.
7. After hearing the learned counsel for the parties as well as after going through the record of the complaint, we are convinnced that the order of District Forum, below does not calls for no interference in this appeal, as it does not suffer from any infirmity. There is no substance in the arguments of the learned counsel for the appellant, that there is no deficiency on the part of the appellant and the respondent is estopped by his act and conduct, by executing Annexure R-2 in the case. In this document he has stated, that defects have been rectified by the appellant. Reason being that deficiency of service on the part of the appellant is clearly evident from the technical report of expert Annexure C-IV wherein number of defects have been pointed out in the construction of the house. The relevant portion of the said report Annexure C-IV is extracted below for ready reference.
Specification of Building :
The existing building is a frame structure erecting with cement concrete, brick masonary and pleastered accordingly. During visual inspection seepage was there in Kitchen, Toilet and Dinning Room from the wall. That seepage is creating problem to the existing structure. Moreover few short comings identified by him during inspection, like doors, Wall Paint, slope of bathrooms, bathroom tiles, flooring work is not done properly, few short comings are existing there. These all short comings existing due to having not quality construction at site. Few basic point are not considered during construction which are creating inconvenience to Dr. Ravi Bhushan.
Position of Structure :
The said building is four storyed building and the same is newly constructed by H.P.Housing Board. The building is situated above the road.
During visual inspection of the said building it was found that in the existing flat there are many short comings like doors/windows frames are unveven and gaps are there. The cement flooring has been provided in the two bed rooms and store. There are thick dark blotches which gives an ugly look and there is unpolished floor left. These blotches are to be removed by rubbing and scratching etc. as sub standard material is used. If it is done then it will cause cracks in cement and the same would require either cement layer or vinyl flooring. It would require at least Rs. 9,000/- including labour which will take nearly 10 to 12 days.
The overhead water tank has been provided on the 5th floor level and in summers the water rarely reaches there.
The water has to be lifted through electric pump and it will Cost approximately Rs. 10,000/-. Besides sometimes when there is proper supply in the other part of year the tank overflows and the leakage is caused which causes weakness to the load bearing walls and columns of the building and dampness to the kitchen causing harm to woodwork done in the kitchen. Besides it is found that the primer is not used in the frames of the windows/doors and the same is catching rust and damaging the doors and windows. There is no ladder provided for checking water tanks, it creats lot of inconvenience for the inhabitants.
The wall paint has been spoiled due to seepage in the flat, which is not good sign of good construction. Door panels are not as per proper specification seems during inspection. Slope of bathrooms is not proper it is creating problem in the cleaning the bathroom. Damaged tiles are fixed on walls, which create great nuisance and ugly looks to its inhabitants because after paying this much amount flat should be as per construction quality. To providing the type of accommodation is mental torture to the person. So these short comings in the construction should be removed.
Quality and specification should have been maintained during construction. If Government organisation are providing this type of short comings then how it is possible for a common man to maintain proper quality/ specification/these type substandard flats should not be allotted for habitation and living.
8. Photographs Annexure C-VI to C-XIII also clearly depict the defects in construction of the flat in the present case. There appears to be no force in the argument on behalf of the appellant, that the premises allotted to him being in habitable state, and defects were rectified. Annexure C-IV is fully collaborated by the photographs appended with the complaint which shows number of defects in the flat and as such the appellant cannot take benefit of the document Annexure R-2 executed by the respondent. Reason being that he had taken possession of the house under compelling circumstances and had no option. And as a builders, the appellant is a high contracting party.
9. Even no cogent and conveniencing evidence has been filed to rebut the evidence of the expert/photograph by the appellant. Hence, this is a clear cut case of deficiency of service/unfair trade practice on the part of the public authority i.e the appellant who had provided flat to the respondent with numerous defects which are clear from the report of expert Annexure C-IV and even stairs have also not been provided to the 5th storey, where the water tanks have been kept which is causing great inconvenience to the respondent when these tanks overflow or need repairs.
10. We are supported for the view that we have taken by the decision of Supreme Court of India, in Lucknow Development Authority V/s M.K. Gupta, 1994 (1) CPC 1 S.C.
11. Before parting with this case we are constrained to observe, that public authorities like appellant in whom the confidence is reposed for providing quality houses, for which agreed amount is also paid by the customers, like respondent in the present appeal it has betrayed the trust reposed for providing flat which is having numerous defects as noted above.
12. No other point was urged.
13. In view of the aforesaid discussion we find no reason to interfere with the order of District Forum, Shimla in Consumer Complaint No. 179/2004, decided on 31.7.2009, and the same is upheld.
Consequently this appeal is dismissed leaving the parties to bear their own costs.
13. All interim orders passed from time to time shall stand vacated forthwith.
14. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel) (Retd).
President (Saroj Sharma) Member (Chander Shekher Sharma) Member Suneera 3.3.2010.