National Consumer Disputes Redressal
K.H.K. Rangam vs Tycoon Builders And Anr. on 11 November, 2005
Equivalent citations: I(2006)CPJ27(NC)
ORDER
B.K. Taimni, Member
1. Appellant was the complainant before the State Commission, where he had filed a complaint alleging deficiency in service on the part of the respondents.
Very briefly the facts of the case are that the complainant entered into an agreement dated 10.6.1991 for purchase of a flat of 1550 sq. ft. but when there was some difficulty, another agreement was entered into between the parties dated 12.1.1992, by which area of the flat went up to 1625 sq. ft. and the possession was to be given on 1.8.1992, which was given on 4.3.1993. Several defects were also mentioned in the complaint as also the fact that the common facilities like dish antenna, uninterrupted power supply and watchman-shed, mentioned in the agreement has not been provided. It was also stated that extra charges amounting to Rs. 1,85,000 has been received by the respondent opposite party, which need to be returned. It is in these circumstances that a complaint was filed before the State Commission, with the following prayer:
(a) Order the O.Ps. to rectify all the defects in the complainant's flat as set out in para above or in the alternative to pay a sum of Rs. 1,00,000 in relation to the claim
(b) Direct the O.Ps. to pay Rs. 44,100 for deficiency in the measured area of the flat as explained in para 13 above.
(c) Direct the O.Ps. to pay the cost of telephone bills made from Singapore to the time of Rs. 15,000 as stated in para 11.
(d) To order payment of loss in delay of delivery at the rate of Rs. 6,000 per month for the period from August, 1992 to Feb., 1993 to talling Rs. 42,000 as per para 10.
Or To direct the O.Ps. to pay interest @ 18% p.a. on Rs. 6,000,000 from August, 92 (Date when delivery was to be made) till the date of occupation amounting to Rs. 71,400 as per para 10.
(e) Damage of Rs. 1,000 for not installing lift from the time of occupation till it was installed in August, 1993.
(f) Damage of Rs. 2,00,000 on account of unauthorised construction in open terrace proportionately to the complainant as per para 15.
(g) To direct the O.Ps. to refund the excess money out of the Rs.1,05,000 received as explained in para 10.
(h) To direct the O.Ps. to provide Dish Antenana, uninterrupted power supply and watchman... as stated in para 14 or in the alternative to direct O.Ps. to pay a sum to cover the cost of installation and construction of the above for the benefit of all the flat owners. The complainant undertakes the responsibility of providing the above mentioned when the above sum is made available to the complainant.
(i) To award damages for mental agony, harassment, torture, inconvenience, pain and suffering a liquidated sum of Rs. 50,000 to be incorporated.
2. The State Commission, after hearing the parties dismissed the complaint as it did not find any deficiency in service on the part of the respondent.
3. Aggrieved by this order, the appeal has been filed by the original complainant. Before us the respondent was represented only on 31.3.2003, after that there has been no appearance from anyone from the opposite party.
4. Vide order dated 16.11.2003, State Commission was directed to appoint a Local Commissioner to ascertain about the area handed over to the appellant/complainant as also whether the generators were installed in the premises and also whether two pent houses are unauthorised constructed by the contractor? The Local Commissioner inspected the premises in the presence of representative of both the parties and has submitted a report which is on record. After this, none appeared on behalf of the respondents despite substituted service by way of publication in the Indian Express and Dina Thanti dated 15.9.2005. Since none appeared despite repeated notice, respondent is being proceeded ex parte.
5. We heard the learned Counsel for the parties and perused the material on record. Five instances of deficiencies have been alleged before us by the learned Counsel for the appellant. We will deal with one by one.
6. Firstly, there has been delay in delivery of possession. As per the terms of the agreement, the possession was to be handed over on 1.8.1992 whereas it was delivered only on 4.3.1993. So there is obviously a delay of slightly over seven months. It is stated that as per the terms of the agreement, in case of delay the respondent was to pay Rs. 6,000 per month till the delivery of the possession. We see no such clause in the agreement. There is no evidence of any such alleged assurance given by the respondent on 10.6.1992. Since in this case, there has been a delay of 7 months, hence the appellant, in our view, shall be entitled for interest @ 12% p.a. on the deposited amount for a period of 7 months to compensate him for the delay in delivery of possession of the flat in question.
7. Second plea is that the area of the promised flat was 1625 sq. ft. In the complaint, the appellant mentioned the area to be 1562 sq. ft. but as per report of the Local Commissioner appointed by this Commission, the area of the handed over flat is reported to be 1532 sq. ft. thus, leading to a difference of 93 sq. ft. There is no dispute that the cost of the area was charged from the appellant was Rs. 700 sq. ft. Since there is a short fall area of 93 sq. ft. as per the report of the Local Commission on record, the appellant shall be entitled to Rs. 65,100 on account of the short delivery in the area in flat delivered by the respondent to the appellant.
8. Third plea relates to the extra amount charged by the opposite party from the appellant. It is the case of the petitioner that the original flat was costed at Rs. 4,95,000 and for the subsequent flat another Rs. 1,85,000 was demanded and paid which the respondent had no right to demand as it was only a question of change of flat. After perusing the material on record, we find that while as per the first agreement, the area of the flat was 1550 sq. ft. area of the flat and as per second agreement it was 1625 sq. ft. with passage of time as also increase in area in the flat allotted to the appellant, if there has been a cost escalation it cannot be disturbed for the simple reason that it was resulting from increasing area. In any case, Consumer Forums are not entitled to go into the question of pricing, hence we are not going into the merit in this plea.
9. Fourth plea is that lift has been provided with a delay of 5 months. (Admittedly possession of the flat was given in March, 1993 and lift was installed in August, 1993). This has not been denied for which complainant had claimed Rs. 1,000, we see no reason why this should not be granted to the appellant for delay in installing the lift and causing inconvenience to the aged couple, i.e., complainants. This prayer is granted. The appellant shall be entitled to the prayed amount of Rs. 1,000.
10. The last plea relates to the amenities like Dish Antenna, uninterrupted power supply and watchmen shed. When we see the agreements entered between the parties dated 10.6.1991 and 12.5.1992, there is no reference to provision of all these common facilities, demanded/mentioned by the appellant/ complainant. For this the complainant relies upon a separate agreement entered between Venkataraman and others with Smt. Varsha Keshwani, proprietrix. Any agreement entered between two other parties in whatever connection, (one of the party to this agreement is not a party before the State Commission or before us), we are in no position to give any relief in this regard, as they are not mentioned anywhere in the agreement entered into between the parties before us. What will bind the parties are the terms of this agreement. In the absence of any of these common facilities finding mention in the agreement, we are not inclined to grant any relief on this account as we see no deficiency in rendering service as per clauses of the agreements on record. In our view, construction of two pent houses even if unauthorisedly constructed shall have no bearing on the case of the appellant. If it was unauthorisedly constructed these pent houses, it is for the authority concerned to take action, we are concerned with deficiency in service provided to the appellant, nothing more than that. As and when they are demolished by M.M.D.A., bringing harm to the appellant, cause of action will arise then and not before that. There is no information placed on record that they have been demolished till date. No cause of action arise for alleging deficiency in service on the part of the respondent.
11. In view of above discussion, the appellant shall be entitled to reliefs (granted vide paras 6,7 and 9 above) along with interest @ 9% from the date of filing of the complaint till the date of payment. The appellant shall alsobe entitled to cost which we fix at Rs. 5,000. The appeal is allowed in above terms.