State Consumer Disputes Redressal Commission
Malay Chatterjee vs M/S. Rajwada Group on 8 January, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/619/2017 ( Date of Filing : 23 Aug 2017 ) 1. Malay Chatterjee S/o- Lt. Radha Kanta Chatterjee, 56D/1, Salimpur Lane, P.O.- Dhakuria, P.S.- Garfa, Kolkata-31. 2. Ruma Chatterjee W/o- Malay Chatterjee,56D/1, Salimpur Lane, P.O.- Dhakuria, P.S.- Garfa, Kolkata-31 ...........Complainant(s) Versus 1. M/s. Rajwada Group 25, Mahamaya Mandir Road, P.O.- Garia, P.S.- Sonarpur, Kolkata-86 2. Parveen Agarwal, partner, M/s. Rajwada Group 25, Mahamaya Mandir Road, P.O.- Garia, P.S.- Sonarpur, Kolkata-86. 3. Bikash Agarwal, partner, M/s. Rajwada Group 25,Mahamaya Mandir Road, P.O.- Garia, P.S.- Sonarpur, Kolkata-86. 4. Rajkumar Agarwal, partner, M/s. Rajwada Group 25,Mahamaya Mandir Road, P.O.- Garia, P.S.- Sonarpur, Kolkata-86. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Suvendu Das, Advocate Mr. Sougata Banerjee, Advocate For the Opp. Party: Sri Asis Das, Advocate Dated : 08 Jan 2020 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of a couple/purchaser against a partnership construction firm and its partners on the allegation of deficiency of services on the part of Opposite Parties in a dispute of housing construction.
In a capsulated form, the complainants' case is that pursuant to an Agreement for Sale dated 03.05.2014 between them and OP No. 1 construction firm on 14.09.2015, they have purchased one self-contained flat measuring about 1070 sq. ft. super built up area on the 1st floor being flat No. 4/1U along with one covered car parking space on the ground floor, in a G+4 storied building lying and situated at premises No. 30, School Road, P.S.- Sonarpur, Kolkata- 700151, Dist- South 24 Parganas within the local limits of Ward No. 26 of Rajpur-Sonarpur Municipality at a total consideration of Rs. 31,39,000/-. On the self-same date, the complainants got the letter of possession. After receiving the possession of the flat in question, the complainants did not shift there immediately. However, in the month of November, 2016 when the 'Griha Pravesh' ceremony/ritual had taken place, the complainants found that dirty water was leaking and coming out from adjoining flat and water started to be stagged in the master bedroom and bathroom. The Complainants immediately called the Caretaker of the building but did not found any improvement. The complainants have alleged that gradually thin cracks appeared in the walls of the schedule flat blistering and efflorescence also appeared in the walls of the schedule property. The walls of master bedroom and other room and places including bathroom are getting damped. It is also found that lock of the master bedroom is also not functioning at all. The complainants have made several correspondences to the OPs over the bad workmanship by unskilled workers of mason and plumbers and using materials of inferior quality etc. However, as no step was taken by the developer, the complainants asked one technical expert and engineer to inspect schedule flat and reports on defects. After investigation of the schedule flat, the said engineer submitted the report where it has been mentioned that mainly two types of defects have been observed- one is blistering and another due to efflorescence. The complainants by one mail dated 27.04.2017 asked the OPs to remove the aforesaid defects within 3 weeks of the receipt of the letter but the said requests remain unheeded. Hence, the complainants approached this commission with prayer for following reliefs, viz.- (a) an order directing the OPs to repair the defects of blistering and efflorescence cracks in the wall or coming dirty water from the adjacent flat through leakage, damped in master bedroom and other rooms including bathroom of the flat and lock of the master bedroom of the flat; (b) an order directing the OPs to pay a sum of Rs. 5,00,000/- as compensation of their deprivation to use and enjoy the flat; (c) to pay a sum of Rs.1,00,000/- for suffering harassment and mental pain and agony and (d) to pay Rs. 30,000/- litigation costs.
The Opposite Party Nos. 1 to 4 i.e. the partnership construction firm and its partners by filing a written version have stated that the flat in question is situated on the first floor in G+4 storied building. As the subject flat was lying vacant for considerable period without any maintenance, the complainants found leakage of water from adjacent flat. The OPs have stated that there was no possibility of leakage of water. They have further stated that the complainants never informed them about cracks appeared on the walls and also blistering and efflorescence appeared in the walls and they informed the matter to them only on 09.11.2016. The OPs have further stated that the complainants have never agitated of using sub-standard materials and bad workmanship after receiving possession letter. According to OPs, the allegation of the complainants being baseless, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. They also given reply against the questionnaire set forth by their adversaries. Both the parties have relied upon several documents. It may be pertinent to record that in order to ascertain the alleged deficiencies on the part of developer, one Mr. Chittaranjan Ghosh was appointed as Engineer Commissioner, who after inspection submitted his report through affidavit which is lying with the record. At the time of final hearing, both the parties have filed brief notes of arguments in support of their respective cases.
The pleadings on the parties and the evidence on record make it quite clear that pursuant to the agreement for sale dated 03.05.2014, the complainants purchased one self-contained flat measuring about 1070 sq. ft. super built up area on the 1st floor being flat No. 4/1U along with one covered car parking space on the ground floor in a G+4 storied building lying and situated at premises No. 30, School Road, P.S.- Sonarpur, Kolkata- 700151, Dist- South 24 Parganas within the local limits of Ward No. 26 of Rajpur-Sonarpur Municipality at a total consideration of Rs. 31,39,000/- from the OP No. 1 partnership construction firm represented by OP Nos. 2 to 4 on 14.09.2015. In fact, the deed of conveyance was executed by OP No. 3 being authorised signatory of OP No. 1 partnership construction firm. It also remains undisputed that on 14.09.2015 i.e. on the self-same date of execution of deed of conveyance, the OPs handed over the possession of the flat in question in favour of the complainants and the complainants are in possession of the subject flat.
The complainants have lodged the complaint basically on the allegation of defect or using of bad quality materials and inferior workmanship and also use of inferior quality of wood in the flat in question. The allegation of the complainants, as appeared from the petition of complaint are: (a) use of bad quality materials and inferior workmanship and also inferior quality and wood for the door; (b) dirty water was leaking and coming in from adjoining flat and water supported staged in the master bedroom and bathroom; (c) thin crack appear in the wall to the schedule flat, blistering and efflorescence etc. it is alleged by the complainants that he had made several correspondences with the OPs over the bad workmanship by unskilled workers and mason and plumbers using materials of inferior quality etc. but all went in vain.
In order to prove the alleged deficiencies, at the behest of complainants, one Mr. Chittaranjan Ghosh, Engineer Commissioner was appointed in connection with this case on 26.05.2018. The Engineer Commissioner held inspection in presence of both sides and after inspection submitted his report with an affidavit on 02.08.2018. The report of inspection as per points for inspection are as follows:
Sl. No. Points for Inspection Inspection Report
1.
To see and report, whether the said flat being No.4/1U situated on the South-West side of the First floor of the building in Block-4 of the G+4 storied building at premises/Holding No.30, School Road, P.S. Sonarpur, Kolkata-700151 of the complainants is in habitable condition or not;
The flat is not habitable as at present unless defects there are not addressed, repaired and make good properly. There are problems in Main Door, water pipe line, bathroom and kitchen waste line etc.
2. To investigate and evaluate the existing condition of damaged plaster of the interior and exterior walls of the said flat of the complainant;
Portion of plaster of interior and exterior wall were damaged due to damp. To repair the same approximately Rs.50,000/- will be required as a rough estimate.
3. To see and note down, whether there is any damped in the floor, walls, ceiling of the said flat;
There were damped wall in the said flat.
4. To see and note down, whether there is blistering and efflorescence effected in the walls of the said flat;
There was blistering and efflorescence effected in the walls of the said flat.
5. To see and note down, the leakage of waste water or rain water pipe lines and/or sanitary installations. Leakage of water supply pipe line, roof leakage joint work, crumbling of plaster etc.;
There are leakage of waste water, rain water pipe lines, sanitary installations, leakage of water supply pipe line, crumbling of plaster etc.
6. To see and note down, the condition of the wooden leaf of the doors, furniture and internal decoration of the said flat.
Lock in entrance door is defective.
7. To see and note down, any other local feature of the said flat as would be pointed out by the petitioner at the time of taking inspection and investigation of the said flat by the Ld. Commissioner.
At the time of Inspection, above mentioned defects were pointed out by the petitioner in presence of representative of opposite party.
8. To submit detailed report before the Hon'ble Commission.
A report on Affidavit is here by submitted before the Commission as per the direction of the Hon'ble Bench.
Evidently, the OPs have filed a written objection against the said report but did not file any questionnaire to test the veracity of statement of the Ld. Engineer Commissioner submitted through an affidavit. Therefore, when the report of the Ld. Engineer commissioner has not been contradicted, there is hardly any reason to disbelieve the report submitted by the Ld. Engineer Commissioner. The Ld. Engineer Commissioner after inspection has observed that the flat is not habitable at present unless the defects are not addressed, repair and make good properly. He has also reported that there are problems in main door water pipe line, bathroom, and kitchen waste line etc. The Ld. Engineer Commissioner found damped wall in the flat, blistering and efflorescence affected in the walls of the flat, leakage of waste water rain water pipe line sanitary of instalment, leakage of water supply pipe line etc. The Ld. Engineer Commissioner has also reported that the portion of places of interior and exterior wall were damaged due to damp and to repair the same, approximately Rs. 50,000/- will be required as a rough estimate.
Therefore, it is quite apparent that on the date of execution of deed of conveyance i.e. on 15.09.2014, the OPs delivered the possession of the flat in question to the complainants but after taking possession of the flat, complainants noticed several defects in the flat for which they have come up in this commission with the instant complaint on 23.08.2017 i.e. well within the period of limitation as envisaged under Section 24A of the Act.
Needless to say, the OPs undertook to deliver the flat in complete habitable condition without any shortcomings. However, from the inspection report, the true picture has come out. The OPs /developer should have handed over the flat in question in complete habitable condition without any defects but when after taking possession, the complainants noticed several defects and the same has been corroborated from the report of Ld. Engineer Commissioner, there is no reason to disbelieve that the OPs were found deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
Considering the facts and circumstances, we think an order directing the OPs to repair the defects as mentioned in prayer (a) to the petition of complaint within 75 days from date in default to pay a sum of Rs. 5,00,000/- will meet the ends of justice. The adamant attitude of the OPs for non-compliance with the requests of the complainants to remove those defects has caused harassment and mental agony to the complainants for which they are entitled to compensation and considering the facts and circumstances of the case we think, a compensation of Rs. 1,00,000/- in the facts and circumstances of the case will sub-serve the object of justice. Under compelling circumstances, the complainants have to come up in this commission for redressal of their grievances for which they are entitled to litigation costs which I quantify at Rs. 10,000/-.
With the above discussion, the complaint is allowed on contest with the following directions:
(i) The Opposite Party No. 1 partnership construction firm represented by OP Nos. 2 to 4 are jointly and/or severally directed to repair defects of blistering and efflorescence cracks in the wall, coming dirty water from the adjacent flat through leakage, damped in the master bedroom and other rooms including bathroom of the schedule flat and lock of the master bedroom of the schedule flat within 75 days from date in default they must compensate the complainants by paying an amount of Rs. 5,00,000/-;
(ii) The Opposite Party No. 1 partnership construction firm and its partners and/or jointly and severally are directed to pay compensation of Rs. 1,00,000/- for harassment and mental agony of the complainants;
(iii) The Opposite Party No. 1 partnership construction firm is directed to pay Rs. 10,000/- to the complainants as costs of litigation;
(iv)The above payments must be paid within 90 days in terms of the above order.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER