State Consumer Disputes Redressal Commission
Gilco Developers & Builders Pvt. ... vs Parminder Singh on 13 January, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 952 of 2013
Date of institution: 3.9.2013
Date of Decision:13.1.2015
Gilco Developers & Builders Pvt. Limited, Head Office @ 2169, Sector 61,
SAs Nagar (Mohali), Punjab through its Managing Director Sh. Ranjit
Singh son of Naib Singh.
.....Appellant/Opposite Party
Versus
Parminder Singh son of Jaspal Singh, resident of Flat No. 203 (Second
Floor), Gilco Tower Kharar, District SAS Nagar (Mohali), Punjab.
.....Respondent/Complainant
First Appeal against the order dated 19.7.2013
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Gurminder Singh, Advocate
For the respondent : Sh. H.S. Saini, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/opposite party(hereinafter referred as "the opposite party") has filed the present appeal against the order dated 19.7.2013 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as "the District Forum") in consumer complaint No.505 dated 6.11.2012 vide which the complaint filed by the respondent/complainant(hereinafter referred as 'the complainant') was accepted with a direction to the Op to pay to the complainant a sum of Rs. 3 lacs to enable him to effect 2 FIRST APPEAL NO. 952 OF 2013 repairs of the defective wood work and wooden flooring and to construct cabinet in the kitchen on the left side and also to provide strip of black granite and skirting in the living area; also pay a sum of Rs. 1 lac on account of compensation for mental agony and harassment and Rs. 10,000/- as litigation expenses.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite party on the allegations that he wanted to buy a three bed room flat for his family. He had visited the Ops and had checked their sample flat. The complainant after giving the assurance and promises of the opposite party that an exact replica of the sample flat would be given to the complainant agreed to pay a flat in the Gilco Towers. As per the terms and conditions settled between the parties, the exact replica of the sample flat qua the flooring and wooden work and other material was to be given to the complainant. The complainant made full payment as was allotted Apartment No. J-203, Second Floor vide their letter F1-0170 dated 13.12.2010. He was given the possession of the flat on 12.1.2011 and was also issued a No Due Certificate. The complainant had spent all his life savings in the said flat but was shocked to see that the flat sold to him was nothing like the sample flat with regard to woodwork and material used in flooring. One side of the modular kitchen as shown in the sample flat was totally missing and assurance was given by the opposite party to the complainant that the specifications of the flat will be according to the sample flat but in fact the OP used cheap flooring tiles and very poor quality and colour in wood work. Complete black granite strip on the flooring and 3 FIRST APPEAL NO. 952 OF 2013 skirting was missing from the flat given to the complainant. The complainant approached the opposite party number of times to get the dispute resolved but to no avail, rather the office of the opposite party asked the complainant to pay an extra amount of Rs. 24,550/- as security in lieu of electricity connection whereas the complainant had already cleared all the dues and no due certificate was issued on 10.1.2011. The Ops had not acted according to their assurance, therefore, there is no deficiency in services on the part of the OP. Legal notice was given to the Op but no reply was given. Hence, the complaint with a direction to the Ops to pay a sum of Rs. 5 lacs on account of defective material used/cost difference, Rs. 20,000/- expenses incurred to resolve this issue by visiting the office of the Ops, mental pain and agony Rs. 2 lacs, legal expenses Rs. 25,000/- and Rs. 7,45,000/-.
3. The complaint was contested by the OP, who filed reply taking preliminary objections that the was not maintainable as it was based on false, frivolous and baseless facts; with regard to the material used in the flat; the complainant had checked the same at the time of purchasing and taking the possession and had signed in token of acceptance of the material used in it to his entire satisfaction; complicated questions of law and facts were involved, therefore, these cannot be settled in summary proceedings and the matter be relegated to the Civil Court, the complainant had not approached the Forum with clean hands. Even after taking the possession on 12.1.2011 the complainant had not paid any heed for executing the Sale Deed; the present complaint has been filed when the Ops were 4 FIRST APPEAL NO. 952 OF 2013 making a plan to resume the flat; the complaint was bad for mis- joinder and non-joinder of necessary parties; the complaint was barred by the illegal action of the complainant; the complainant's brother Amardeep Singh owner of Flat No. J-202 has also filed a complaint before the Forum and in that case the Local Commissioner had specifically mentioned that the flat has maintenance problem only rather than material/specification problems; the complaint No. 496 of 2011 titled as "Amardeep Singh Vs. Gilco Developers" was also filed on the same cause of action and similar issues were mentioned in that complaint and that there was no evidence with regard to any defect in the quality, specifications and other material; there was no evidence that in the living area strip of black granite and skirting has not been provided. On merits also, the preliminary objections taken in the reply were reiterated. A sum of Rs. 24,550/- is being charged as refundable security as demanded by the PSPCL. The complaint is without merit and it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Dr. Parminder Singh Ex. CW-1/1, allotment letter Ex. C-1, possession offer letter dt. 12.1.2011 Ex. C-2, no due certificate Ex. C-3, electricity bill payment details Ex. C-4, legal notice Ex. C-5, copy of order of DF, Mohali Ex. C-6. On the other hand, the opposite party had tendered into evidence affidavit of Col. Manmohan Singh, Chief Administrator Ex. RW-1/1, 5 FIRST APPEAL NO. 952 OF 2013 handing/taking over possession with terms and conditions Ex. R-1, site report Ex. R-2, order of DF, Mohali Ex. R-3.
6. After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the learned District Forum allowed the complaint as referred above.
7. In the grounds of appeal, it has been contended by the counsel for the appellant that in case there was any defective material used in the construction of the flat then it should have been pointed out immediately after taking out the possession and for a period of 5½ months, the complainant did not make any complaint. The complainant has filed the complaint seeking compensation to the tune of Rs. 5 lacs but its justification has not been given. Even that report of the Local Commissioner has not justified the use of any sub- standard material and Local Commissioner in his report has also mentioned that there is no difference of the material used or specifications of the flat except Cabinet at the upper level is missing, which was not a part of the service contract entered into between the complainant and the appellant-Company. The cabinet in the kitchen has been provided as per the sanctioned plan and approved by the Architect. The claim of the complainant based upon sample flat is unsustainable and not enforceable. Moreover, there was no rationale to award Rs. 3 lacs as compensation for the alleged deficiency and Rs. 1 lac as compensation. So far as Woodwork is concerned instead of MDF Board cabinets, Pre-Laminated MDF Board Cabinets has been given, which is more costly then the agreed, therefore, it was 6 FIRST APPEAL NO. 952 OF 2013 submitted that the order passed by the learned District Forum is against the facts on the record; it is liable to be set-aside.
8. In case we go through the pleadings of the parties, the complainant had applied for the flat and construction of those was almost finished. He checked it and he was allotted flat No. J-203 vide letter dated 13.12.2010 and vide letter dated 12.1.2011 possession was allotted.
9. Now it has been pleaded by the complainant in the complaint that the flat given to him was not according to the sample flat. Ex. R-1 is the handing/taking over of Gilco Towers Flat No. J-203 in which detail of Civil Work which includes flooring, ceiling, fitting, kitchen, furnishing etc. has been given. As per the allegations in the complaint, it was pleaded that the wood work and the material used in flooring and one side kitchen cabinet was incomplete, tiles used were of cheap quality. The wood work was of very poor quality and colour. The complete black granite strips on the flooring and skirting was missing.
10. In this case the Local Commissioner was appointed to assess what are the defects in the work of the flat allotted to the complainant, his report is Ex. R-2. He has mentioned that in the living area a strip of black granite and skirting given for design was not provided. Wooden shutters used in the sample flat for wardrobes are deco painted MDF Board whereas in the flat in question these are pre-laminated MDF board. On the left side of the kitchen, one cabinet above the counter has not been provided. After assessing this report, the learned District Forum came to the conclusion that there is no 7 FIRST APPEAL NO. 952 OF 2013 evidence to give the findings with regard to any defect in the quality, specifications and other material used in the flat of the complainant except that in the living area strip of black granite and skirting has not been provided and for that purpose a sum of Rs. 3 lacs has been allowed. During the course of arguments, the counsel for the appellant has pointed our attention towards the photographs of the kitchen filed in the appeal file in which the sample flat kitchen and the kitchen in the flat in question has been given. It is clear that wooden box on the left side in the upper area is missing. So far as living area is concerned and skirting and the black strip has not been given. Photographs of the sample flat as well as the flat in question has been given by the Local Commissioner, which shows black strip of granite in the living area, which is missing in the sample flat as well as skirting. Against this report of the Local Commissioner, no objection was filed by the Ops, therefore, now they cannot dispute that the skirting was provided and only strip of black granite was not provided. Otherwise in the flooring of the living/dining room, vitrified tiles were used as in the sample flat. Since there is no specific agreement, which was required to be executed between the parties as per PAPRA and in case no such specific agreement has come on between the parties then certainly, the specifications should have been according to the sample flat. Therefore, the counsel for the appellant has not been able to rebut this preposition that in the flat allotted to the complainant one cabinet in the left side of the kitchen is missing and in the living area strip of black granite and skirting was missing.
8FIRST APPEAL NO. 952 OF 2013
11. Now the next question comes whether the compensation allowed to the complainant is in consonance with the deficiency in services for providing the missing things referred above. Counsel for the appellant has argued that the compensation of Rs. 3 lacs is quite excessive and he has given the quotation of Alcon Modular and the total cost of 'L' shape Corner Cabinet has been worked out as Rs. 6,664/-, however, the cost of the skirting and black granite strip in the living room has not been calculated. Normally, the skirting will be of vitrified tiles and the black strip of granite. The estimate cost/cost can be just by way of estimation when it has not been brought on the record and its estimation cost can be around Rs. 50,000/-. In that way, the compensation allowed to the complainant as Rs. 3 lacs is quite excessive. The compensation should be in accordance with the deficiencies pointed out. Similarly compensation with regard to the harassment given to the complainant is also quite excessive; on that ground, the impugned order is required to be modified. Instead of Rs. 3 lacs on account of wooden cabinet in the kitchen, black granite strip in the living area and for skirting, we reduce the compensation from Rs. 3 lacs to Rs. 60,000/- and compensation for harassment from Rs. 1 lac to Rs. 20,000/-. Litigation expenses will be remaining the same.
12. In view of the above discussion, we allow the appeal. The order of the District Forum is modified. Instead of what has been given by the District Forum, the complainant will now be entitled to as under:-
9
FIRST APPEAL NO. 952 OF 2013
i) Rs. 60,000/- on account of deficiency in the flat for not providing wooden cabinet on the left side of the kitchen, black granite strip and skirting in the living room;
ii) Rs. 20,000/- as compensation; and
iii) Rs. 10,000/- as litigation expenses. within one month from the receipt of copy of the order.
13. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 1,25,000/- in compliance with order dated 16.9.2013. Out of these amounts, Rs. 90,000/- alongwith interest be remitted to the respondent and rest of the amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
14. The arguments in this appeal were heard on 8.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 13, 2015. (Jasbir Singh Gill)
as Member