State Consumer Disputes Redressal Commission
Smt. Ratna Deb vs Valley Contruction Co. Pvt. Ltd. on 25 July, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 25.07.2013 Case No. FA-495/11 (Arising from the order dated 9.8.2011 passed in Complaint Case No. 989/2005 by the District Consumer Forum-X, Udyog Sadan, C-22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi-16.) SMT. RATNA DEB - APPELLANT W/o Late Sqn. Ldr. K.K. Deb, Himalayan Paradise, Ganeshpur Uttar Kashi, Uttaranchal. Versus 1. VALLEY CONTRUCTION CO. PVT. LTD. - RESPONDENTS C-58, Ground Floor, East of Kailash, New Delhi-65. 2. GREATUS CONSULTANTS PVT. LTD. C-58, Ground Floor, East of Kailash, New Delhi-65. CORAM : S.A. SIDDIQUI - MEMBER (JUDICIAL) S.C. JAIN - MEMBER 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? S.A. SIDDIQUI (ORAL) JUDGEMENT
1. Smt. Ranta Deb filed this appeal against the respondents having been aggrieved against judgment and order dated 09.08.2011 passed by the District Consumer Forum-X, Udyog Sadan, C-22 & 23, Institutional Area (Behind Qutub Hotel), New Delhi-16 in Complaint Case No. 989/05.
2. Brief facts giving rise to the filing of this appeal are noted below:
(a) The complainant purchased a cottage/dwelling house from the respondents in the project situate on Uttarkashi Gangotri Highway in the state of Uttaranchal and paid a sum of Rs. 8.50 Lacs on 31.3.02 through cheque in favour of Respondent-1. Acknowledgement was received through Respondent-2. The respondents assured the complainant that possession of the cottage will be positively haned over by 15.8.02, however, the possession was given a bit late on 16.10.02 without any furnishing. After obtaining the possession, complainant was performing Griha Pravesh Pujan on 16.10.02.
When the Pujan was being performed, some people of the respondents entered into the premises for completion of unfinished and remaining work causing lot of inconvenience to the complainant.
(b) It has been alleged that respondents did not comply with the specifications which were promised at the time of agreement. Details of discrepancies/deficiencies are as under:
SNO ITEMS SHORTCOMING/DEFICIENCY/DEFECTS
1.
Doors & windows Not provided/instead plywood planks installed at the time of possession and immediately thereafter. The same was provided after handling over the possession. Glass panes of the windows are extremely think and of poor quality. Poor quality wood used as promised. No polishing work done. No antitermite treatment done on the doors and windows.
2. Flooring Mosaic/marble flooring not done as promised. Inferior/old/stained/broken quality of tiles were used.
3. Kitchen
4. Registration of title documents Not done even though promised to be done by the Respondents and for which extra money to the tune of Rs. 17,500/- was charged vide their letter dated 01.4.2002.
5. Bathroom and Bath fittings Bathroom size smaller. Geysers were not with/of ISI mark/brand and the same were defective and not working. 2 of the fittings (taps) were broken.
6. Plumbing The system/fittings were of poor quality and defective and leaking with water seepage into the walls. Septic tank pipes not installed properly leading to the foul smell emanating in the whole house.
7. Generator&Street L. Not provided
8. Foundation Poor quality. Not with termite treatment.
9. Finishes Exterior & Interior Not done as per specifications. Berger/Snowcem not used as promised. Ordinary water proof cement was being layered on the exterior.
10. Roads & Infrastructure Cottage is situated at the lowest levels and the drain water from the places get collected. No metallic roads are provided as promised. No Ghats provided as promised. Surrounding area dirty.
11. Electrical/water con.
Not done
12. General Inferior & poor workmanship lacking in basic amenities
13. Security & Association Non-existent. The complainant does not know shoes responsibility it shall be for the upkeep and maintenance of the surrounding road and amenities and for the cottage neighbourhood security. No boundary wall is provided and thefts are rampant.
14. Chimney and Fireplace Not provided. Instead bathroom shifted on request.
15. Bathroom & Kitchen area Bathroom smaller in size. Kitchen area short (less) by 2 feet.
16. Bathroom & Kitchen partition Not made
17. Kitchen slab Not made
18. Land Area Less and hence parapet not made on sides leading to neighbours water reaching the complainants house.
19. Septic Tank Made for all on the main road near the cottage endangering breakage from passing vehicles
20. Earthquake proofing Not done even when the area is on a very high risk seismic zone and earthquake prone.
c. It is evident that respondents painted a rosy picture and made false promises and did not comply with any of the promises as contended in their specifications supplied to the complainant at the time of entering into agreement. The complainant/appellant was compelled to file a complaint before the District Consumer Forum seeking directions to the respondents to remove the defects and to pay a compensation of Rs. 5 Lacs for getting the incomplete cottage in final shape. Complainant also sought direction to quash the illegal demand of Rs. 1,18,483/- made by the respondents and also for award of compensation to the tune of Rs. 3 Lacs.
3. In their written statement, respondents alleged that the son of the complainant/appellant desired to purchase a cottage in the name of his mother. Accordingly, the parties entered into a contract contained in the registration form duly signed/executed by 31.3.02. It was agreed upon that the cottage shall be constructed in accordance with the layout plan and Sale Deed shall be executed in favour of the complainant for a total consideration of Rs. 8.50 Lacs. However, it was agreed that any additional work (additions, alteration or renovations) shall be separately charged. The complainant/appellant and her son induced the respondents to carry out various additional works with the promise that expenses for the additional work done by the respondent-1 shall be promptly paid. Respondent-1 left no stone unturned in the matter of completion of work at the earliest and as a goodwill gesture shifted the entire luggage of the complainant to Uttarkashi and arranged for her free accommodation so that she can watch the construction work but she created hurdles and used to harass and abuse the staff and labour at site and respondent No. 1 suffered great ordeal of inconvenience and hurdles which resulted in delay in execution work. The complainant withheld legitimate dues with respect to extra work on flimsy grounds and with malafide intention. She started raising false and concocted disputes and took strengthening plea that extra work done was covered under the agreed consideration of Rs. 8.50 lacs. The project was delayed for a very short duration within the knowledge of the complainant but the factors causing short delay were not attributable to respondent-1. The delay was caused due to complainants own conduct as she desired number of alternations and changes. She was provided alternative accommodation free of cost. The allegations of the complainant regarding deficiencies/defects in construction work were disputed. It was wrong to allege that specifications promised were not complied with.
4. It was further alleged in written statement that extra work was carried in accordance with the agreement between the complainant and respondent-1. After completion of the extra work, complainant locked the cottage and left for an unknown destination. During the course of complaint proceedings, complainant reached a settlement with the respondent-1. Complainant promised to pay a sum of Rs. 88,000/- in full and final settlement of the extra work done. Respondents agreed for this amount in order to buy peace but the complainant/appellant resiled from her settlement and actually paid a sum of Rs. 50,000/- against the agreed amount through cheque, which was duly encashed by the respondent-1. It was further alleged that similar work was carried out in 28 other cottages but none of the occupants ever raised any complaint.
5. Parties led evidence in support of their cases.
6. Vide order dated 20.4.09, Mr. V.K. Prasad, retired Executive Engineer, was appointed as a Local Commissioner with the direction to visit and inspect the cottage of the complainant in the presence of the parties and submit report. Local Commissioner accordingly inspected the premises and later on submitted detailed report.
7. Ld. District Forum on the basis of evidence on record came to the conclusion that in order to compensate the complainant for some delay in delivery of possession of the cottage and having regard to other aspects of the matter, the complaint was disposed of holding that complainant shall not be liable to pay anything more towards extra work done by the respondent and the amount of Rs. 50,000/- already paid by her shall be taken to be full and final payment of the bills on account of extra work done. The respondent shall also pay a sum of Rs. 5000/- towards cost of litigation but the complainant was not satisfied with this order dated 9.8.2011 and preferred this appeal interalia on the main grounds, besides the others:
(a) That the impugned order dated 9.8.2011 was bad in law and therefore, liable to be set aside.
(b) Ld. District Forum committed grave error in heavily relying upon the report of the Local Commissioner despite the fact that Local Commissioner appointed by the District Forum was man of the respondents. He tried his level best to protect the interest of the builder in his report and thus submitted a false report.
(c ) That the District Forum ought to have appreciated the fact that alleged bill of Rs. 1,18,483/- claimed by the respondents towards alleged extra work was totally false. The bill submitted by the respondents was purported as counterblast to the complaint filed by the appellant.
(d) Ld. Forum failed to consider that as per the brochure, the respondents had to fully furnish the cottage fitted with good quality of products including Metallic Roads, Drinking water line, Electricity, Plantation, Club House, Mediation centre, Ghats, Viewpoints etc but the same were not provided.
(e) Ld. District Forum came to an erroneous conclusion in holding that the report of the Local Commissioner revealed that most of the specifications agreed to between the parties had been complied with and deficiencies alleged by the appellant did not exist.
(f) That the Ld. District Forum failed to appreciate that electricity and water connection were disconnected by the respondents and forced the appellant to pay Rs. 50,000/- for restoration. The complainant/appellant being an old and helpless lady had no option but to pay a sum of Rs. 50,000/- to the respondents. As a matter of fact, respondents never carried out any extra work as alleged.
(g) Ld. District Forum also failed to consider the payment of adequate compensation with regard to delay in handing over of the possession despite the fact that respondents had admitted that there was delay in handing over the possession.
Even the construction was not completed when possession was handed over and there was no free access to the cottage. There was no proper metallic road reaching to the cottage.
(h) Ld. District Forum ought to have appreciated that respondents had made the life of the appellant miserable and taking the benefit of her absence planned theft in the cottage of the appellant and took away all valuable belongings including jewellery, cloths and relevant documents of investment etc., which resulted into huge loss of Rs. 20 Lacs (approx) and this was directly attributable to the respondents.
8. The Respondents, Valley Constructions Co. Pvt. Ltd., filed their reply stating therein that Impugned order dated 9.8.11 passed by DCDRF-X were passed after an independent enquiry was conducted by Sh. V.K. Prasad, retired Executive Engineer at the direction of the court. In his report, the Local Commissioner observed that most of the specifications agreed between the parties were complied with by Respondent-1 and the deficiencies as alleged by the appellant did not exist despite this a shame and bogus appeal has been filed which deserves to be dismissed with exemplary cost. Appellant had taken recourse to blackmailing the respondents. It was maintained that on the basis of strong demand of the complainant and her son, various additional works were carried out by the Responent-1 but instead of clearing the bill promptly for the extra work done, they turned their back and raised various issues so much so that respondents was compelled to buy peace and agreed to receive only Rs. 50,000/- towards the cost of extra work done. The respondents all the time performed its promises regarding the completion of the work and delivery of possession in time. Small delay in delivery was not attributable to the respondent-1. It resulted due to bad conduct of the complainant/appellant. The respondents as a gesture and goodwill shifted entire luggage of appellant to Uttarkashi and also provided free accommodation to the complainant/appellant. The complainant/appellant even created all sorts of nuisance towards Respondent-1 and also towards other occupants of the cottage. She did not even spare holy persons residing in the neighbouring cottages. She withheld legitimate dues of respondent-1 regarding extra work done on flimsy grounds. Complainant took a dishonest plea that the extra work done was covered under agreed consideration of Rs. 8.50 Lacs. Ultimately an agreement between both the sides was reached and complainant promised to pay a sum of Rs. 88,000/- in full and final settlement of the claim for the extra work. The respondents agreed to buy peace and avoid undue harassment.
9. After completion of the extra work, the appellant instead of paying the cost created all sorts of hurdles with malafide intention. Appellant even locked the cottage and left the premises and went to an unknown destination. Thereafter she filed a consumer complaint.
10. It was also maintained that Respondent-2 is a merely Marketing Agent of Respondent-1 and he was wrongly impleaded as Respondent-2. All the allegations of the complainant/appellant regarding deficiencies/defects in construction work were denied. It was maintained that all the construction work were done as per specifications and in compliance with the agreement made with the purchaser and the builder. This was amply proved by the Local Commissioner appointed by the District Forum. All sorts of alleged shortcoming/deficiencies/defects in work were denied. It was also denied that the Local Commissioner filed his report without verifying the facts. The report was based on hard facts verified on the spot in presence of both the parties. It was further maintained that the appellant is a chronic litigant and trouble maker and has been a cause of nuisance to everyone from the very beginning. Already Sale Deed has been executed in favour of the appellant/complainant and she has been given possession of the cottage. She is not entitled to any compensation for alleging losses. Thus, the appeal filed by the complainant/appellant is baseless, deviod of any merit and deserves to be dismissed.
11. We have heard Smt. Ratna Deb present in person and also heard Sh. Vishal Khattar, Advocate for the Respondents.
12. The appellant/complainant argued that the construction of the cottage was not carried out in accordance with the specifications. There was huge gap between the promises and performances. A Full and detailed description of defects and deficiencies have been given in the complaint. She emphasized that there was sufficient material on record to prove her claim.
She suffered a lot mentally as well as financially. She invited our attention towards objections raised against the Local Commissioner report. Annexure-9 is the copy of the objections moved before the District Forum. In her objections, she has mentioned that builder used old, cracked, stained tiles and workers of the respondents tried to clean the tiles with chemical and in the process damaged the tile completely. Due to poor quality wood and plywood, termite infested doors, windows and cupboards were used and glass pans were broken at several places. Paint work was not done and exterior, interior, doors, windows grill, carpeting and plumbering work was incomplete. Builder even installed poor quality defective geysers and water tank. Builder also built another cottage in front of the complainants cottage with the result a small passage was left which was only sufficient for walking. No streetlight, generator, metallic road reaching to the cottage were provided. Local Commissioner, Sh. V.K. Prasad, as a matter of fact was manipulated by the builder to give a favourable report. She also drew our attention towards report sent to S.P., Uttarkashi (copy as Annexure A-10). In this report, she has complained that she purchased cottage from the builder Mr. Sanjay Dodhi who cheated her. Complainant filed a consumer complaint in Delhi and was staying in Faridabad for court hearing. This report was sent on 10.10.10.
Two months back she received a call from Mr. Amit informing her that her house was broken and her belongings were lying scattered. She suspected the involvement of the builder in the alleged theft which resulted in huge loss of house hold goods, jewellery (god and silver), brass, decorative items, costly silk saris, shawls and cash of Rs. 20,000/- and utensils.
13. On the other hand, counsel for the respondents forcefully argued that the construction has been made fully in accordance with the specifications. The report of the Local Commissioner goes to fully belie version of the complainant. There is no reliable evidence on record to strengthen her claim. There was no builder hand whatsoever in alleged theft of the burglary committed in the cottage. The possession of the cottage has been already handed over to the complainant after carrying out of extra work suggested by her but she failed to make the payment of extra work and created all sorts of nuisance. She resorted to all kind of false suit to extract extra pound of flesh from the builder who was so kind towards her from the beginning. There was very small delay in handing over the possession which was negligible and during the period of her stay at Uttarkashi, she was provided free accommodation by the builder.
14. There is no doubt that complainant purchased a cottage in the project of the respondents and made a full payment of Rs. 8.50 Lacs. She was not satisfied with the workmanship done by the builder and pointed out several discrepancies and deficiencies, which were strongly disputed by the respondents. For proper adjudication of the dispute between the parties, Local Commissioner, Sh. V.K. Prasad, retired Executive Engineer was appointed who submitted detailed report. The Local Commissioner made it clear that he inspected the disputed premises/cottage in the presence of Smt. Ratna Deb and Mr. R. Notiyal, representative of the Respondents Company and also got relevant photographs of the site which were appended with the report. In his report, the Local Commissioner reported that most of the specifications agreed between the parties were complied with. The deficiencies alleged by the complainant did not exist. The construction was made as stated above and appropriate steps with respect to earthquake, proofing norms may have been followed at the time of construction. Plumbering work was satisfactory and proper drainage system was in place. Water and electric connections were provided. The road and infrastructure was also in proper condition. Thus most of the allegations of the complainant/appellant were found non-existent.
15. The complainant/appellant is an old lady of about 72 years. She had to run from pillar to post in order to get habitable cottage. According to the complainant, the construction carried out by the builder was of poor quality and fittings and fixtures were not in accordance with the specifications. The report of the Local Commissioner belies most of the allegations and apprehensions of the complainant/appellant. However, it cannot be said that they were totally baseless or non-existent.
16. The Tribunal/Forum while adjudicating the matter must ensure substantial justice. In the process hard facts must be taken into consideration. In the present case, there has been bitter dispute between the builder and the customer/purchaser. The builder is always stronger party being a resourceful person in comparison to an ordinary buyer. Builder is more likely to manipulate the things in his favour, therefore, all the complaints of the appellant should not be lightly taken and brushed aside. Few of her complaints may be true and real. The matter is peculiar in nature and direct evidence was hardly available.
17. Keeping these things in mind, we broadly agree with the finding of the Ld. Lower Court but we are of the considered view that the Ld. District Forum ought to have suitable awarded compensation. We, therefore, fixed an amount of Rs. 60,000/- as compensation to be paid by the Respondent-1 towards mental pain, agony and harassment meted out to the complainant/appellant. To this extent, Impugned order dated 9.8.2011 stands modified ORDER The appeal is, therefore, partly allowed. It is directed that Respondent-1 shall not receive anything more than Rs. 50,000/- already paid by the complainant/appellant towards extra work done. Respondent-1 is further directed to pay a sum of Rs. 60,000/- as compensation and Rs. 5,000/- towards cost of litigation within a period of 30 days from date of knowledge of this judgement and order.
12. A copy of this judgement and order as per the statutory requirement be provided to the parties free of charge and one copy be sent to the District Consumer Redressal Forum-X to place it on the record of the Complaint Case No. 989/2005 and for compliance, thereafter the file be consigned to Record Room.
(S.A. SIDDIQUI) MEMBER (JUDICIAL) (S.C. JAIN) MEMBER rn