State Consumer Disputes Redressal Commission
Mrs.Chanchala Thejomaya vs Sheikh Mohammed Haneef & Others on 21 October, 2011
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED THIS THE 21st DAY OF OCTOBER 2011 PRESENT HONBLE JUSTICE MR.K. RAMANNA : PRESIDENT SRI. A.M. BENNUR : MEMBER SMT. RAMA ANANTH : MEMBER Appeal No.3828/2010 Mrs.Chanchala Thejomaya D/o Padmappa Poojary, Aged about 44 years, Proprietor: Prajna Construction, R/ A Arya Samaj Road, Mangalore-575 003 (By Shri/Smt Sart Chandra Bijai Appellant/s Opposite Parties before the DF -Versus- 1. Sheikh Mohammed Haneef S/o Abbas Saheb, R/a A-1,Yenepoya Clusters, Jeppu-Bappal, 2. Mr.Mohammed Salim, S/o Sri.Abbas Saheb, R/a A-1,Yenepoya Clusters, Jeppu-Bappal,Mangalore-575007 Represented by Hameed Kandak, S/o U.K.Ahmad, Kabeer Manzil, Gorigudda, Mangalore- 575 002 3. Mr.Felix Britto, S/o Antony Britto, R/at " Paradise" Maddadka, Kuvettu Post, Belthangady TQ-574224 Represented by Mrs.Patsy Britto, 2nd Floor, Sukhsagar Apartment, Opp.S.C.S Hospital, Mangalore 4. Mr.Primus Basil Rodrigues, S/o Fredrick Rodrigus, R/a U.C.S Bhat Compound, Arya Samaj Road,Mangalore-575003 Represented by his attorney and wife, Smt.Celine Primus Basil Rodrigues, R/a Sukhsagar Apartment, Opp:S.C.S.Hospital, Mangalore 5. Sukhsagar Apartments Society, A registered association of the Apartment owners in Sukhsagar Apartments Condominium having Office at Opp:S.C.S.Hospital, Mangalore, Represented by its President. Felix Britto, S/o Anthony Britto, Residing at Flat No.SS4, Sukhsagar Apartment, Opp:S.C.S.Hospital, Mangalore (By Shri/Smt Nataraj Ballal ) ..Respondent Complainant before the DF ORDER
SRI. A.M. BENNUR, MEMBER This is an appeal filed under Section 15 of the C.P Act of 1986 by the OP in Complaint No.43/2004 on the file of District Consumer Disputes Redressal Forum, Mangalore being aggrieved by the order dated 31-05-2010.
The brief facts of the case are as under :
2. The complainant No.1 to 4 are the owners of the apartment in the project floated by the Op in the name and style Sukhsagar. Complainant No.5 is the Apartment Owners Association. At the time of entering into a contract, Op being promoter and builder of the said project promised to provide two lifts, municipal water supply with underground sump and arrangement for lifting water to the overhead tank, electrical panel, one D.G. set room, car parking slot etc., Inspite of collecting all the necessary charges pertaining to the said amenities Op failed to provide the same.
The repeated demands made to Op to provide said amenities and facilities as per deed of declaration went in vain.
For no fault of the complainants, they were made suffer both mental agony and financial loss. There is a deviation in construction and violation of building byelaws. Complainants in order to have peaceful living in the said flats, through Op No.5 spent money got the amenities and then made a claim to Op. Op did not heed to their demands. Hence, complainant felt deficiency in service and unfair trade practice on the part of the Op. Accordingly, filed the complaint.
3. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to her, complainants have already filed Original suit No.217/03 on the file of Civil Judge, Mangalore seeking relief of permanent injunction with respect to the ground floor. Even she too has filed suit. When the matter reached the Competent Civil Court complainant cannot allege deficiency in service. OP is ready to provide the said basic amenities and facilities subject to complainant to pay entire flat value. Complainants are the defaulter. They have not paid the entire cost of the flats in spite of demand made by the Op.
So no fault lies with the Op.
Some of the complainants have taken forcible possession of the flats. The so called statement of accounts furnished by the complainant with regard to the incurring of expenses to attend to the said amenities and facilities are false. Complaint is devoid of merits. Among these grounds Op prayed for the dismissal of the complaint.
4. Then the litigating parties lead their evidence and after hearing the arguments DF was pleased to allow the said complaint vide its order dated 31/05/2010. Being aggrieved by the same, now the OP has come up with this appeal on the following grounds:
That the DF has not considered the facts and circumstances of the case in a proper perspective manner. The conclusion arrived at, inferences drawn, findings recorded, reasons assigned are opposed to law, facts and probability of the case. The DF arbitrarily allowed the amendment of the complaint which has actually changed the nature of the original complaint. Though there is a proof of filing of rival civil suits, it is lost sight by the DF.
Op is able to establish that the complainants are the defaulter and have kept arrears of flat amount but it is ignored by the DF. The so called Court Commissioner report is one sided. This is fact is also lost sight by the DF. There is no basic proof that the complainant had spent such huge amount for the repairs, alteration towards amenities. When that is so, DF erroneously made Op/Appellant liable to pay the same. If the said order is not set aside, it is the Op/appellant who will be put to greater hardship and prejudice. Among these grounds, OP/appellant prayed for allowing the appeal.
5. Heard the arguments.
6. In view of the above said facts, the points now that arise for our consideration in this appeal are as under:
1.
Whether the impugned order under appeal is unjust and improper?
2. If so, whether it calls for the interference from this commission?
3. To what order?
7. We have gone through the pleadings of the parties both oral and documentary evidence, the impugned order under appeal, the grounds urged in the appeal memo and the arguments advanced. In view of the reasons given by us in the foregoing paragraphs, our findings on point No.1 & 2 are in negative and point No.3 as per final order
-:REASONS:-
8. At the outset it is not in dispute that these complainants No. 1 to 4 have purchased the flat in the project floated by the Op in the name and style Sukh Sagar Apartments condominium. Complainant No.5 is the Association of said Flat Owners. The grievance of the complainant is that Op expected to provide all the basic facilities as per deed of declaration dated 29/03/1996. Though they have paid the flat value to the Op.
Op failed to keep up the promise inspite of repeated request and demand made by the complainants. Complainants for no fault of their, are made to suffer both mental agony and financial loss. Though complainants invested their hard earned money they are unable to reap the fruits of their investment because of the hostile attitude of the OP
9. The evidence of the complainants which finds corroboration with the contents of the undisputed documents appears to be natural, cogent and consistent. There is nothing to discard their sworn testimony. It is a quality of evidence that is more important than that of quantity. As against this unimpeachable evidence of the complainants, the defence set out by the Op appears to be defence for defence sake just to shirk their responsibility and obligation. Op has come up with strange defence that the complainants are defaulters and they have not paid full amount of the flat.
If it would have been a fact Op would have produced the documents and lead the evidence in that regard. But Op failed to substantiate the said defence.
10. There is an allegation by the complainant that Op in violation of building byelaws made illegal construction and failed to provide basic amenities and facilities. The Court Commissioner has submitted his report. When Op failed to provide the said facilities, in order to make their stay in the said flats safe and happy through Complainant No.5 complainants got attended to the said amenities by spending huge amount. This part of the evidence of the complainants also deserves to be believed. If Op has really provided the said amenities and facilities she would have substantiated the same but no such documents are produced.
11. The DF has thoroughly considered each and every aspect of the matter, made a thread bare discussion with regard to both oral and documentary evidence and pleadings of the litigating parties and rightly come to the conclusion that there is a deficiency in the service on the part of Op.
That conclusion appears to be just and proper. On the other hand appellant has failed to show before this Commission that the Impugned Order suffers from legal infirmity, unsustainable in law and it is erroneous. There is no proof that the said order suffers from any error apparent on the face of record requiring our interference. Appeal appears to be devoid of merit. We dont find any illegality or irregularity in the impugned order passed by the DF. Accordingly we answer Point No.1 and 2 and proceed to pass the following:
ORDER Appeal is dismissed. No order as to costs.
The Deposit if any made by the appellants before this Commission be transmitted to the DF concerned, for needful.
PRESIDENT MEMBER MEMBER *s