State Consumer Disputes Redressal Commission
Smt. Sarita Lohia & Anr. vs Smt. Pooja Gupta & Anr. on 30 August, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 30.08.2013 Complaint No.350/2010 1. Smt. Sarita Lohia & Anr. W/o Sh. Manoj Kumar, R/o 67 & 68, 2nd Floor, Pocket-9, Sector-24, Rohini Delhi-110085 2. Sh. Manoj Kumar S/o Sh. Petra Sen R/o 67 & 68, 2nd Floor, Pocket-9, Sector-24, Rohini Delhi-110085 Complainants VERSUS 1. Smt. Pooja Gupta W/o Sh. Mahesh Gupta R/o 172 173, 3rd Floor, Pocket-9 Sector-24, Rohini Delhi-110085 2. Smt. Sulekha Gupta W/o Sh. Rakesh Gupta R/o 93, Pocket-22 Sector-24, Rohini Delhi-110085 3. Smt. Neetu Gupta W/o Sh. Sushil Gupta R/o KP-57, Pitampura Delhi-110034 ..Respondents CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.C.Jain, Member Judgment
1) The present complaint has been filed by the complainants jointly who are Husband and Wife and facts of the case are:-
That complainants were allured by the Husbands of the three OPs, who are Builders and Promoters and were involved in the business of purchasing the plot and constructing different floors on that plot and selling the floors to the customer/prospective buyers of the houses. The OPs in partnership with each other purchased piece of land bearing number 67 and 68 of pocket-9 Sector-24, Rohini and each plots was admeasuring 60 square meters and OPs jointly on plot no. 67 and 68 proposed to construct separate floors on the plot for purpose of selling of the same to different family/buyers OPs during the course of construction through their representatives who are their husbands contacted the complainants for selling their second floor and assured the complainant that the construction quality of the building shall be of supreme quality and they shall adhere to all modern, standard and high quality of construction, while constructing the individual floor of the building and that all the electrical fittings, fixture, marble, stone and all other material which shall be used in constructing the building shall be of ISI mark and its quality shall compete with the best of the construction and also promised to install the lift for common use of residents/occupants of first, second and third floor.
2) The complainants states that caught in the illusionary talks of the representatives of the Opposite Parties they entered into a deal with the representatives of the Opposite Parties who were husbands of the opposite parties and practically de-facto owners of the property agreeing to purchase the under construction second floor for a sum of Rs. 22,00,000/- out of which Rs. 11,00,000/- was to be paid to OP-1 & 2 and rest Rs.11,00,000/- was to be paid to OP-3. In pursuance of the commitment of the OPs for providing high quality construction fittings, fixture and lift, the complainants entered into two separate agreement/sale deed one with OP-1 & 2 and the other with OP-3 on 18.03.2010 and they were duly registered with sub registrar Rohini Sector-24, Delhi.
3) The agreement/sale deed entered between the parties states:-
That all the previous dues, demands, arrear, house tax, electricity charges, water charges etc. of the said property hereby conveyed upto the date of execution of the sale deed shall be paid and borne by vendors and thereafter the same shall be paid and borne by the vendees Para 6 of the agreement/sale deed states that that the vendors for their legal needs and bonafide requirements have agreed to sale the entire second floor portion only without terrace/roof light of the above said property with all its rights titled install fixture, fitting connection undivided and indivisible proportionate land right common lift, common facility of entrance..of the said property in to the vendees).
Para 13 of the agreement/deed states:-
That the venders hereby assure the vendees that all the fixtures, fittings, originally required for household purposes including electric items/appliances installed in the said property are of high quality and if proved otherwise the vendor shall be liable and responsible for the same and indemnify the vendees for all loses, damages, litigation proceedings etc. suffered by them in this regard.
4) The complainants states in their complaint that before taking possession of the second floor of the property they found number of defects and they brought them into the notice of the OPs for rectification of the same and also told the OPs that lift has not been installed at all, to which OPs had promised to provide common lift for first, second and third floor occupants and on assurance of the OPs that everything will be repaired/replaced as per their requirements and on their promise, that things which are not provided shall be provided very soon and lift will be installed within a short time and it is only after all these promises of the OPs, the complainants states that they took possession of second floor and starting living in the second floor apartment, but, soon after started living in the apartment they found number of defects in the constructions as well as in the material used by the builders i.e. OPs. The complainants states that they made repeated request to the OPs to rectify the defect and replace the defective items and to complete the apartment as per the promises made by, them, but, nothing was done by the OPs neither any action was taken by them to install the lift.
5) The complainant in short mentioned the following defects in the building construction, fixtures and the material:-
i.
POP work done in the building apartment started falling.
ii.
Stone affixed on third portion of the house started falling because of poor workmanship and tightening of the stones and no lock was provided at the main gate of the property making the complainants prone to any criminal activity any time.
iii.
Railing of the stairs was not of stainless steel as was assured and railing was provided of hopeless quality which also started falling.
iv.
The whole of the plaster as well as the paint has starting peeling off from the walls of the property.
v.
Entire wall of the property are soaped with seepage.
vi.
The grills of the balcony were also not of steel which was promised.
vii.The floors of the property have got huge cracks and all wooden doors are bent from day one due to which it is very difficult to bolt the doors and even no carpenter facility was provided by the OPs to check even this type of small problems caused by the poor quality material and workmanship.
viii.
No chimney and fancy lights were installed at the premises and even basic requirement of water connection and electricity connection was not provided by the builder/OPs despite their assurances.
ix.
Work of installation of the lift was not started despite the fact that the complainant shad time and again requested and pleaded before the OPs that they have old parents who are residing with them and without the lift they will not be able to reach the floor to enjoy its peaceful living.
x.
Electricity bills of the temporary connection installed by the builders amounting to Rs. 11,367/- was not paid by the OPs which was of the time when the building was under construction and electricity company had added that amount in their electricity bill which they were forced to pay to avoid disconnection.
xi.
Wooden doors of the kitchen are of not good quality and are shaky which causes a lot of inconvenience at the time of entry and exit.
xii.No water motor was installed at the premises as was promised, neither shed/iron cover to protect the motor was provided, completion certificate of the building was not provided as was assured by the OPs and despite the fact that OP-3 on behalf of herself and other OPs had even handed over an affidavit that they have applied for the completion certificate from the DDA which is still awaited inspite of their affidavit the OPs have not supplied any completion certificate.
xiii.
MCB box installed at the property consisted of poor quality and jumbled up wires due to which MCB box of the complaints property got burnt, which the complainants himself got replaced.
6) Apart from above defects the complainants states in its complaint that on persisting follow up with the OPs to rectify the above defects and replace the poor quality material and install the lift, the OPs sent their representative to them, who in the guise of getting the lift installed in the premises got signed one blank document and ask for a cheque of Rs. 5,00,000/- being his share towards installation of the lift and on persistent argument with the representative of the OPs that no amount towards lift was to be paid as the same was included in the consideration amount for purchase of the apartment, but when nothing came out and on OPs insistence that without the said payment of Rs. 5,00,000/- lift will never be installed, nor they will allow any other to installed the lift in the premises and the parents of the complainants shall continue to suffer. The complainants states that as they were the most sufferer and needy because of non installation and operation of the lift they were coerced to handover the cheque emotionally blackmailing them and the complainants having no other option had to bow down before the Opposite Parties and handed over the cheque bearing number 076621 for a sum of Rs. 5,00,000/- drawn on Nainital Bank, Pitampura Branch, New Delhi towards installation of lift.
7) The complainants time and again requested the OPs to handover the original cheque and the blank document they got signed from them but OPs failed to do so. Also, repeated request of the complainant to the OPs to take corrective steps in the building by practically renovating all of the building, also fell on deaf ears and the opposite parties threaten the complainant to forget the installation of the lift for ever if they continue to persist on their other grievances. The OPs also refused to make the payment of the property tax upto the date of execution of the sale deed which they were bound to pay.
8) The complainants further states that they issued stop payment instructions to the bank for not paying the cheque of Rs. 5,00,000/- as mentioned above, but the OPs knowingly presented the cheque and when it was returned back the OPs filed a criminal case against the Complainant-2 under section 138 of Negotiable Instrument Act 1881 to pressurize the complainant for payment of the same and also issued a legal notice to the complainants as well.
The complainants to avoid harassment which may result out of proceedings of the criminal case the Complainant No.-2 having no other option paid a sum of Rs. 5,00,000/- vide account payee banker cheque bearing no. 234259 dt. 02.06.2010 drawn on Nanital Bank with an endorsement on the back of the cheque that the same is given under protest and keeping all his rights reserved by Sh. Manoj Kumar Lohia i.e. the complainant-2. The proceeds of the banker cheque were duly credited into the account of the OP-1 maintained with bank of Maharashtra, Sector-24, Rohini, Delhi.
9) The complainants in order to reaching to the correct conclusion and to have an idea of the deteriorating state of the property because of poor quality construction, also filed on an affidavit surveyor report of the defect and the poor construction of the material used and non-installation of the lift from a qualified Civil Engineer Sh. R.L.Aggarwal Retd. Executive Engineer, CPWD who is having vide experience of building and construction material which he got during his long stint as executive engineer in Central Public Work Department from where he got retired.
10) The complainants served two legal notices to the OPs, but OPs never reply to the notices, but approached the complainants and requested them to resolve the matter amicably and not to sue them. Complainants states that being peace loving citizens they responded to the request of the OPs and ask them to refund the Rs. 5,00,000/- illegally taken by them for getting the lift installed, and also requested them to get the property repair/refurbished by using quality fittings, fixtures as per the spirit of the agreement entered between the them as well as commitments made at the time of initial negotiation and also to pay a compensation for the illegal acts of the Opposite Parties. However, despite agreeing and assuring the complainant for the same the OPs failed to take any action/steps in that direction and stopped replying to the complainants.
11) Aggrieved by the behavior and attitude of the OPs, the complainants filed the present complaint praying therein to direct the OP to jointly and severely paying a sum of Rs. 10,00,000/- as the estimated cost of renovation of the property alongwith Rs. 10,00,000/- towards compensation for mental agony and harassment and has also prayed to direct the OPs to jointly and severely refund the sum of Rs. 5,00,000/- charged illegally from the complainant-2, for installation of lift with interest at the rate of 18% p.a. from the date the amount was credited in their account till it is paid.
The complainants has further prayed to direct the OPs to pay Rs. 2,00,000/- incurred by them towards installing the fixtures and fittings and further to pay an amount of Rs. 1,50,000/- towards litigation charges, and has prayed for directing the OPs to operationalize the lift and also to obtain statutory license from concerned authority for operation of the lift, and has further prayed for directing the OPs to supply no due certificate inter-alia as regard the property/house tax for the said property/building from the MCD and to direct the OPs to produce no due certificate from the electricity department and has further prayed to direct the OPs to pay miscellaneous expenses to the tune of Rs. 10,000/- and Rs. 8,000/- towards the cost of professional fees paid by the complainant towards the inspection of the premises from the quality expert.
12) Registered AD notices were sent to the OPs and initially all the OPs appeared on 20.10.2011 but later on none appeared on behalf of the OPs and ultimately on 23.07.2012 all the three OPs were proceeded with ex-parte.
13) Complainant filed their evidence by way of affidavit and complainants also filed the affidavit of Sh. R.L.Aggarwal alongwith an additional affidavits during the course of proceedings of Sh. R.L.Aggarwal Retd. Executive Engineer CPWD.
14) The complainants by their un-rebutted evidence and pleading have proved their case. OPs initially put their appearance and took copies of the complaint alongwith all the relevant documents but afterwards none appeared on behalf of OPs which shows that the OPs were not interested in contesting their case and in a way has accepted the submissions made by the complainant in their complaint.
15) In Ratneshwar Mishra V/s Premlata Devi & Another AIR 1986 Patna 308, Honble High Court had categorically held that in cases where respondents do not choose to contest the claim of the appellant.the court cannot refuse to act on the ex-parte evidence.. otherwise also this proposition is well settled.
16) The complainant had also filed several photographs of the building/second floor which clearly exhibits jumbling of the wire in the MCB box, peeling of the plaster and POP, poor quality of doors and windows, different colors of stone used by the builder, falling of the stone from the walls of the building, non providing of any shed over the water motor, deteriorating situation of the stairs railing, poor quality of the workmanship of the doors and windows etc. Sh. R.L.Aggarwal in his affidavit, head-wise, has given his estimate of the expenses likely to be incurred in taking remedial steps to make the property reasonably in habitable condition and Sh. R.L.Aggarwal has also bifurcated the expenses to be incurred as follows:-
i.
Installation and tightening of the screws on the stones at the outside walls including cost of material and labour= Rs.40,000/-.
ii.
The cost of installation of elevator/lift at the premises left over in the middle likely to cost between 8 to 9 Lacs (the complainants has also filed the estimate of the lift from M/s Adams Lift and Escalator Pvt. Ltd. for an amount of Rs. 9,80,000/- and other from Real Elevators Ltd. for an amount of approx. Rs. 8,20,000/- .
iii.
Cost of cement and plaster in the inside walls of the property with material and labour to make the wall even by doing fresh plasters=Rs. 60,000/-.
iv.
Cost of setting the doors and windows, replacing the damage wood, applying fitting in the glass with the quality polish with material and labour= Rs. 25,000/-
v.
Cost of replacing the doors/window fitting which are of inferior quality and have lost chrome shine with material and labour cost =Rs. 50,000/-.
vi.
Cost of replacing the inferior quality of marble stone use in the flooring with material, labour, polishing etc. Rs. 1.75 Lac.
vii.
Cost of change the sanitary fittings with process for the removal of dampness from the floor track due to bad quality of work done at the upper floor with material and cost =Rs. 80,000/-
viii.
The cost of replacing/rectifying the railing at balcony already fall and down in half length with material and labour = Rs.55,000/-.
ix.
Cost of re-undertaking the work of affixing the POP properly and the distemper etc. alongwith polishing of the doors with material and labour =Rs. 1.25 Lac.
x.
Cost of installation of wooden hand railing to be provided to the iron frame work as railing is very week and had started breaking, due to poor building and less thickness of the steel rod is likely to incur cost with material and labour=Rs.90,000/-.
xi.
Adding all these estimate the complainants have to incur in order to make the property in a reasonable safe, habitable conditions shall be approximately Rs. 7,00,000/-. Apart from the cost of lift. Sh. R.L.Aggarwal had also submitted in its expert report that construction quality is very poor the electrical fittings in bathroom, bedroom, drawing room, kitchen etc. are to be done a fresh. Also MCB box installed at the premises/property has to be reinstalled which is expected to cost approx. Rs. 50,000/- to Rs. 60,000/- including material and labour.
xii.
Sh.
R.L.Aggarwal had further estimate in his affidavit that the above mentioned estimates has been given by him after checking the condition of the property personally as per his earlier report dt. 20.07.2010.
17) From the expert report of Sh. R.L.Aggarwal as well as the submissions made by the complainants in its complaint and after perusing the photographs filed by the complainants with the complaint and from un-rebutted evidence of complainants we are of the view that the OPs had been totally deficient in providing services to the complainants and had not honored the terms of their agreement and had used inferior quality of material and workmanship in construction of the second floor of the house and complainants deserves to be compensated for the same. From the readings of the Paras of the deed/agreement it is also very much clear that the lift was to be provided by the OPs as they had given the rights of the lift for use to all the first second and third floor occupants and not providing the lift in the premises amounts to deficiency of service on the part of the OPs as well as OPs are liable for adopting unfair trade practices.
18) For the purpose of Consumer Protection Act, the word compensation has a wide connotation as has been provided by the Supreme Court in Ghaziabad Development Authority V/S Balbir Singh (2204) 7 CLD 861 (SC). The work compensation appearing in Section 14(i) (d) of the Act has been explained by the Supreme Court as under:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
19) Accordingly we orders as follows:-
i.
The OPs shall pay an amount of Rs. 5,00,000/- to the complainants for repair, replacement of the defective items at their own to make the property reasonably in a habitable condition, this will meet ends of Justice.
ii.
OPs shall refund the amount of Rs. 5,00,000/-(Rs. Five Lakh Only) taken from the complainant towards the cost of lift which otherwise they were required to provide as per agreement and this amount shall be paid with interest @ 9% p.a. from the date of encashment of the pay order till the date of this order.
iii.
The OPs shall pay an amount of Rs. 60,000/- towards compensation for mental agony and harassment caused to the complainants as well as for adopting unfair trade practices by them, this amount shall include cost of litigation also.
iv.
The OPs shall provide the lift in the premises and make it operational after getting the certificate from the concerned authorities within a period of three months of the date of receipt of this order.
20) The above orders are joint as well as several against all the OPs.
21) Order no. i-iii shall be complied with by the OPs within a period of thirty days from the receipt of the above orders failing which the complainants shall be entitled to interest on the entire awarded amount @ 9% per annum from the date of this order till date of payment and order no. iv has to be complied within a period of three months from the receipts of the order as mentioned in order
(iv).
22) A copy of the order be made available to the parties free of cost as per law and case file be consigned to record room.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima