National Consumer Disputes Redressal
Ashok Kumar Shivpuri vs Ashok B. Chajjar, Cmd, Arihant ... on 6 September, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3152 OF 2018 (Against the Order dated 04/04/2018 in Appeal No. 54/2016 of the State Commission Maharashtra) 1. ASHOK KUMAR SHIVPURI ARIHANT SPARSH, FLAT NO. 702, 7TH FLOOR PLOT NO. 13&14,SECTOR-26, VASHI, NAVI MUMBAI-400703 MAHARASHTRA ...........Petitioner(s) Versus 1. ASHOK B. CHAJJAR, CMD, ARIHANT ENTERPRISES (ARIHANT SUPER STRUCTURES LTD.) ARIHANT ENTERPRISES (ARIHANT SUPER STRUCTURES LTD) ARIHANT AURA, 25TH FLOOR, B-WING, PLOT NO. 13/1, TTC INDUSTRIAL AREA, THANE-BELAPUR ROAD, TURBHE NAVI MUMBAI - 400705 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : In person For the Respondent : Mr. Mohit Bhansali, Advocate Dated : 06 Sep 2019 ORDER PER MRS. M. SHREESHA, MEMBER Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 04.04.2018 in Appeal No. A/16/54 passed by the Maharashtra State Consumer Disputes Redressal Commission (in short "the State Commission"). By the impugned order the State Commission has partly allowed the Appeal filed by the Complainant observing as follows:
"According to appellant who is original complainant, there is no dispute that on 15/04/2012 physical possession of flat no. 702 was given to the complainant in the said building but without assured amenities and facilities mentioned as above. Appellant also pressed for higher compensation than awarded by the learned forum below. We find that learned forum while passing an award directed opponents to provide facilities at their expenses alike sample flat in the same building 'Arihant Sparsh' situated on first floor. The facilities as mentioned above ought to be incorporated in the operative order impugned in this appeal so that builder shall provide facilities accordingly and satisfaction be recorded by learned Executing Forum that all such facilities as were assured in the brochure inside the home are provided. The complainant shall record his satisfaction when all such amenities are provided and builder shall submit written undertaking before learned executing forum that such facilities would be provided as were mentioned in the brochure. We, however, do not disturb the order of compensation on account of mental anguish granted in the sum of Rs.25,000/-, which appears just and sufficient as also costs of litigation in the sum of Rs.10,000/-, since complainant is adequately protected regarding payment of compensation and default clause was inserted into the award, which obliged opponent to pay the amount with interest in case of failure or non-payment as directed in the award. We therefore dispose of this appeal as partly allowed as above. Inside home brochure facilities shall be provided by the builder as directed accordingly in respect of flat no. 702 in 'Arihant Sparsh' building on 7th floor. According to learned advocate for respondent, respondent had offered payment of compensation but appellant had refused to accept the amount. If that is so, evidence in this regard be furnished to executing forum so that opponent may be relieved of burden of interest."
2. The Additional Thane District Consumer Disputes Redressal Forum, Belapur, Navi Mumbai (in short "the District Forum") has observed as follows:
"The Complainant has argued that the opposite party did not provide any facility in the flat of the complainant as was agreed and also the material used is sub-standard. On the other hand the argument made by opposite party is that there is no deficiency in service given by the opposite party. The report submitted by the Court Commissioner does not support the complaint complainant. From this it is proved that the accusations made by Complainant are baseless the proofs submitted by both the party's are perused by the Forum. The complainant with reference to various facilities has stated in this proof that opposite party did not provide the said facilities to the Complainant. The Complainant has stated that opposite party has used sub standard material while constructing the Flat of Complainant. The Complainant has submitted certain Photographs of flat in Documentation. It is important to note at this point that Mrs. Mausumi Sengupta was appointed as the Court Commissioner by Forum. She has submitted her Report to the Forum. It is observed from the Report that Complainant did not co-operate with the Court Commissioner when she was inspecting the Flat of the Complainant. The Complainant did not permit her to inspect the Flat. This way Complainant has himself prevented factual position of his Flat to be placed before the Forum and did not co-operate to bring forward the facts. The Complainant has not produced any independent proof. To Prove that opposite party has not provided any facility as agreed. Even then as per the admission by the Opposition party in his statement, some minor work to be carried out in the Flat of the Complainant. The opposite party has submitted the photographs of the sample Flat-102. It can't be said on the basis of the written statement of the opposite party himself that they did the work of complainant's Flat and provided the facilities as per the sample Flat. It is responsibility of the opposite party to construct other Flats and provide facilities there in as per the sample Flat. But, as per the statement of opposite party itself certain other work yet to be completed in the Flat of the Complainant & opposite party is willing to do that. Taking into Account all this matter, the Forum has come to conclusion that opposite party left some deficiencies in providing facilities to the complainant. It is natural that complainant and his family would undergo mental torture for non completion of the work in the flat of the Complainant on agreed terms. Therefore, for this reason Forum has opined that the Complainant is entitled to receive compensation from the opposite party."
3. The District Forum has partly allowed the Complaint as detailed hereunder:
"The Complaint No. 277/2012 is partially admitted.
The Forum declares that opposite party has given deficient services to the complainant.
The opposite party is directed that they should provide all the facilities and do work with their own expenses in the Flat 702 of the Complainant as it was shown in the sample Flat.
The opposite party should pay the Complainant Rs.25000/-. As Compensation for giving deficient services. Similarly should pay Rs.25000/- as compensation for Mental Agony.
The opposite party should pay Rs.10000/- to the complainant compensate for the expenses incurred by him on making complaint to the Forum.
The opposite party should act within 30 days from the date of issue of the order. If not done so then opposite party will be liable to pay interest @ 18% pa from 10.12.2015 till the date of receipt of Actual payment by the Complainant of the amount of compensation mentioned in Clause 4.
Certified copies of this order be sent to both the parties free of cost."
4. The Revision Petitioner appearing in person, vehemently argued that the District Forum did not take into consideration the mental agony suffered by the Complainant on account of deficiencies in the common area, the delay in delivery of possession and has only ordered for rectification of defect with a very meagre compensation. Even though the Appeal was preferred against the order with the State Commission, the State Commission did not take into consideration the extent of deficiencies in the said apartment.
5. It is not in dispute that the Complainant purchased a flat in 'Arihant Sparsh' and paid 85% of the total sale consideration prior to 14.05.2010 in compliance of the demand notice made by the Developer. The State Commission has observed that as per the sale deed the possession was promised to be delivered by December, 2012. It is the Complainant's case that despite requesting the Developer several times to deliver possession and also writing letters on 21.07.2012 and thereafter, the Developer gave possession of an incomplete house only on 15.04.2012. It is the case of the Complainant that though 85% of the work was completed by 14.05.2010, the Developer took two years and more for giving possession with incomplete works despite receiving 97% of the total sale consideration.
6. The Complainant, who was present in person vehemently contended that on account of delay in delivery of possession he has to stay in the rented accommodation for 17 months. It is submitted that, it was only on account of the promises made by the Developer regarding air conditioning in the lobby and designer stair case apart from other amenities that he had agreed to purchase the flat. The Petitioner seeks the following reliefs:
Reimbursement of Rent paid for "Divya Jyoti", Sector-29, Vashi, Navi Mumbai, Stayed in due to delay caused by Builder for the period from 01.12.2010 to 30.06.2011 on rental @ Rs.12,000/- per month.
Rs.84,000/-
Stayed at "Arihant Ansh" under above circumstances from 15/06/2011 to 15/04/2012 on rental @ 16,000 per month.
Rs.1,60,000/-
Services in common area- non provision of facility A/C in Lobby Designers Stairs on 300 steps Rs.2,00,000 Rs.4,50,000/-
Walls, Doors, Grill Painting in the Flat.
Rs.1,00,000/-
Replacement of Mirror 6' X 6' one piece, in passage Rs.25,000/-
4 ACs in 3 and half bedrooms 1.5 Ton x 3, 1.00 ton x 1 Rs.1,60,000/-
2 ACs in drawing room 1.5 Ton each Rs.1,00,000/-
Deficiency in flooring (Itanlian marble) 316.05 sq. ft.
Rs.2,00,000/-
Non provision of Generator set based power back UP in Flat NO. 702 (total Flats 31 Nos in Bldg.) Rs.50,000/-
Ratify Compensation for mental agony from Rs.25000/- to be considered Rs.50,000/-
Ratify compensation for expenses incurred including Legal expenses should be from Rs.10,000/- to be enhanced.
Since litigation has started on 17.11.2012 Rs.1,00,000/-
Total Rs.16,79,000/-
7. Learned Counsel appearing for the Respondent argued that only a few putty works remain and therefore the District Forum had rightly awarded compensation of ₹25,000/- after having gone through the inspection report. He also submitted that the Complainant did not permit the Court Commissioner to visit the flat and also did not produce any independent evidence to prove deficiency. It is also the case of the Respondent that the so called disputes raised by the Complainant pertains to painting of grill, nailing of grill, the screw in the hinges, painting of bolts, smooth locking, a few plaster patches, mirror provided in two parts in the passage, designer steps, no proper italian marble used, split AC in bed room and ground floor lobby etc. He submitted that the amenities which was suggested by the Respondent are tentative and as far as AC is concerned, the same was decided not to be provided as those facilities are already altered with the knowledge of flat buyers and that the Complainant had supressed the copy of list of amenities provided in the registered agreement.
8. It is seen from the record that there was an inspection done by an Advocate Commissioner appointed by the District Forum, who had given a report that 'there is no evidence of any serious technical problem, but, however, 4 to 5 vitrified floor tiles ought to be changed and putty should be done in the dry balcony'. It was also stated that the marble can be filled and polished periodically to get the better texture and finish; that the spot on the granite is natural; that shade variation is seen in few tiles but there is no installation problem; that rubber steal ought to be rectified; that for better appearance window railings could have been grouted to the wall etc.
9. Both the Fora below have relied on the inspection report and have given aforenoted reliefs. However, it can be seen that there is a delay in the delivery of possession without the promised amenities and the facilities. The State Commission, while partly allowing the Appeal observed that all the facilities promised shall be given by the Developer and the Complainant shall record his satisfaction that all such amenities have been provided and builder shall submit a written undertaking before the District Forum in the execution proceedings that all facilities mentioned in the brochure will be provided.
10. Brief perusal of the Brochure shows that the following amenities have been promised:
"Around Your Home: Grand Entrance Lobby, Terrace Garden & Swimming Pool, Open Air Jacuzzi Health Club with Gym & Steam Room. S.S. High Speed Lift & Service Elevators, Pure Acrylic Texture External Paint, DG Set/ Power Back-up for Lifts, Basement & Stilt Car Parking Space (Payable) for each flat Pampering all floor Lobbies & Elegant Air-conditioned Ground Floor Lobby, Video Door Security System with Camera at Entry Gates.
Inside Your Home: 4 Burner Gas Hob, Exhaust chimney, Water Purified, Kitchen Waste Crusher, High End Premium Quality c.P. fittings and Branded Sanitary ware, Luster Paint with POP in all rooms, Granite Top Kitchen Platform, Full Tiles above Platform, Concealed Wiring with Ample electric points & Modular Switches Aluminium Sliding Windows & Mosquito nets with Tinted Glass, Ceramic Flooring on Attached Terraces High Quality doors & Hardware."
11. The contention of the Respondent that the amenities promised in the brochure do not figure in the Agreement and therefore there is no deficiency of service cannot be accepted in its totality as fact remains that any assurance given in the brochure is the initial promise made based on which the flat purchaser makes a decision whether to purchase the subject flat or not.
12. The inspection report does not mention whether all these amenities promised in the brochure were provided or not. Since, 7 years have already lapsed the question of having another inspection would only defeat the interest of justice. Needless to add, we have also perused the photographs filed by the Complainant with respect to the current position.
13. It is pertinent to note that the Opposite Party did not prefer any Appeal Challenging the order of the District Forum and therefore finding of deficiency of service against the Respondent has attained finality. The only point for consideration is whether the Complainant is entitled to the enhanced compensation.
14. For all the reasons noted above, we only modify the order of the State Commission to the extent of enhancing the compensation from ₹25,000/- to ₹3,00,000/-, while confirming the rest of the rest of the order of the State Commission. This Compensation is being awarded keeping in view the concurrent finding of both the fora below that the facilities which are mentioned in the brochure have not been provided in its totality and also keeping in view the delay in delivery of the possession of the subject flat. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation.
15. In the result, this Revision Petition is allowed in part and the order of the State Commission is modified to the extent indicated above.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER