National Consumer Disputes Redressal
Sanjeet Kumar Sharma vs M/S. Sdb Infrastructure Pvt. Ltd. & 3 ... on 20 December, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3185 OF 2016 (Against the Order dated 09/08/2016 in Appeal No. 1384/2014 of the State Commission Punjab) 1. M/S. SDB INFRASTRUCTURE PVT. LTD. & 2 ORS. (FORMERLY SOM DATT BUILDERS PVT. LTD.)THROUGH ITS VICE PRESIDENT MR. A.K. KAUL, CORPORATE OFFICE AT SDB HOUSE 56-58, COMMUNITY CENTRE, EAST OF KAILASH, NEW DELHI 2. S.K. SHARMA, AUTHORISED SIGNATORY, M/S. SDB INFRASTRUCTURE PVT.LTD.,(FORMERLY SOM DUTT BUILDERS PVT. LTD.)CORPORATE OFFICE AT SDM HOUSE 56-58, COMMUNITY CENTRE, EAST OF KAILASH, NEW DELHI-110065 3. ZORA SINGH, GENERAL MANAGER, M/S. SOM DUTT'S LANDMARK, KHARAR-LANDRAN ROAD, VILLAGE SANTE MAJRA, SECTOR 110, MOHALI, TEHSIL AND DISTRICT-SAS NAGAR MOHALI PUNJAB ...........Petitioner(s) Versus 1. SANJEET KUMAR SHARMA S/O. RAMESH KUMAR SHARMA, R/O. FLAT NO. 502, RUBY TOWER NO. 06, SOMDATTS LANDMARK, SECTOR 116, VILLAGE SANTE MAJRA, KHARAR-LANDHRAN ROAD, MOHALI, TEHSIL & DISTRICT-SAS NAGAR, MOHALI PUNJAB ...........Respondent(s) REVISION PETITION NO. 3450 OF 2016 (Against the Order dated 09/08/2016 in Appeal No. 1420/2014 of the State Commission Punjab) 1. SANJEET KUMAR SHARMA S/O. ROMESH KUMAR SHARMA, R/O. FLAT NO. 502, RUBY TOWER SEC-116, SOMDATT LANDMARK, KHARAR LANDRAN ROAD, MOHALI TEHSIL & DISTRICT-SAS NAGAR MOHALI PUNJAB ...........Petitioner(s) Versus 1. M/S. SDB INFRASTRUCTURE PVT. LTD. & 3 ORS. THROUGH ITS M.D., CORPORATE OFFICE AT SDB HOUSE 56-58, COMMUNITY CENTRE, EAST OF KAILASH NEW DELHI 2. S.K. SHARMA, AUTHORIZED SIGNATORY, M/S. SDB INFRASTRUCTURE PVT. LTD., CORPORATE OFFICE AT SDB HOUSE 56-58, COMMUNITY CENTRE, EAST OF KAILASH NEW DELHI-110065 3. MONGA REALTORS PVT LTD., THROUGH ITS M.D., SCO-672, 2ND FLOOR SECTOR 70, MOHALI TEHSIL & DISTRICT-SAS NAGAR MOHALI PUNJAB 4. ZORA SINGH, GENERAL MANAGER, M/S. SOM DATTS LANDMARK, KHARAR-LANDRAN ROAD,VILLAGE SANTE MAJRA, SECTOR 110, MOHALI, TEHSIL AND DISTRICT-SAS NAGAR MOHALI PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER
For the Petitioner : For SDB Infrastructure : Mr. Somesh Arora, Mr. Deepak N.
and Mr. Swastik D., Advocates For the Respondent : For the Respondents : Mr. Harish Mehla, Advocates with
the Complainant in person
Dated : 20 Dec 2018 ORDER
PER HON'BLE M. SHREESHA, MEMBER
Challenge in these Revision Petitions under Section 21 (b) of the Consumer Protection Act (in short "the Act") is to the orders dated 09.08.2016, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short "the State Commission) in First Appeals No. 1420 of 2014, preferred by the Complainant and First Appeal No. 1384 of 2014 preferred by the M/s. SDP Infrastructure Pvt. Ltd., its authorized signatory and also the General Manager (hereinafter referred to as "the Developer"). By the impugned order, the State Commission has dismissed the Appeals preferred by both the Complainant and the Developer.
2. The facts in brief are that the Complainant booked Flat No. 302 in Ruby Tower on 01.11.2011, by paying a sum of ₹3,00,000/- vide cheque No.152551 and it was agreed that the remaining sale price of the flat would be paid within one month. Thereafter the Complainant paid ₹2,50,000/- on 28.11.2011 and ₹26,50,000/- on 30.11.2011, which cheques were encased by the Developer. The possession of the flat was to be delivered at the time of the execution of the sale deed and it was averred that the Complainant paid the entire money taking a loan from HDFC. It was pleaded that the sale deed was executed on 07.12.2011, but the Developer charged ₹76,709/- on 06.12.2011 towards service tax charges. The covered car parking charges were ₹1,00,000/- and the Developer settled the same for ₹50,000/- but did not provide the car parking to the Complainant.
3. It was averred that though the Developer claimed that the best construction material would be used, the water fittings were of poor quality, the joints of the floor tiles were opened, window panes were substandard and further the common amenities like lawns, children park, jogging track shown in the brochure were not as per the promised specifications. It was also stated that the balcony had cracks, quality of the wood work was poor, fire fighting equipment was not working and the Complainant was asked to sign the maintenance agreement one day prior to the execution of sale deed i.e. on 06.12.2011. When the Complainant complained to the Developer a police Complaint was lodged against him and the Complainant was forced to withdraw his formal complaint. It was averred that there are two ducts which are adjoining the bathroom and the kitchen and due to these ducts there was seepage in the bathroom, kitchen and rooms. In 2012, the Complainant paid ₹6,317/- for two quarters from April to September, 2012 it also included service tax of ₹1,392/-. ₹50,000/- was charged towards power backup and the said facility is available at ₹12.60 paise per unit. When there was a failure of power supply, the electric motor of power backup gave supply to the Flat. Whenever the electric cut ended, the power backup motor did not stop due to which the Complainant was constrained to bear double units of the electricity one from PSPCL and the other from power backup. It was averred that the Developer also charged IDC of ₹25,000/- without any agreement and therefore, they are liable to refund the amount with interest.
4. It was stated that the Complainant got an estimate prepared from an expert architect Mr. Kulwinder Singh, who assessed the repair charges at ₹8,61,000/-. Despite repeated requests, the Developer did not choose to rectify the defects and hence the Complainant approached the District Forum seeking direction to refund charges towards service tax with interest @18% p.a. from 06.12.2011; interest @ 18% p.a. on ₹50,000/- collected towards car parking from 30.11.2011; refund of ₹25,000/-charged towards IDC along with interest @ 18% from 30.11.2011 and payment of ₹8,61,000/- on account of repair charges with interest @ 12% p.a. from 08.12.2011 together with compensation of ₹5,00,000/- and costs of ₹25,000/-.
5. The Developer filed their Written Version denying the allegations made by the Complainant. It was averred that the possession of the Flat was handed over to the Complainant on 06.12.2011; sale deed was executed and registered on 08.12.2011; service tax was paid to the Government and therefore it cannot be refunded; the rates for use of car parking was based on the category of car parking and ₹50,000/- was charged for open car parking; Parking No. P-R6-502 was allotted to the Complainant; that the Complainant had checked the Flat prior to taking possession and a possession letter was also signed on 06.12.2011 and therefore now he cannot raise objections regarding quality of constructions, fittings etc. It was further averred that the Complainant was a defaulter of ₹35,867/-; maintenance agreement was executed between the parties on 06.12.2011, on 22.07.202 the Complainant indulged in unruly behavior for which the Police Complaint was also lodged; the quality of water was checked and it was found clean and that the Complainant was in the habit of exaggerating small issues. It was further stated that the Complainant stopped paying the maintenance bill after 30.09.2012 and subsequent to taking possession after 15 months the Complainant has raised the issues of water, fittings, aluminium doors, windows etc.
6. It was admitted by the Developer that ₹25,000/- was charged towards IDC; that ₹50,000/- was charged for providing power backup facility at ₹12 per unit; that common services like club, gym, swimming pool, lawn, roads, water supply, sewerage system, street lighting and elevators were provided and the Complainant stopped paying maintenance charges despite availing maintenance from 01.10.2012 to 31.12.2013 and a sum of ₹35,867/- was outstanding against the Complainant.
7. The District Forum based on the evidence adduced partly allowed the Complaint directing the Opposite Party to pay a lump sum compensation of ₹1,00,000/- together with expenses of ₹2,000/- with default condition of interest @ 9% p.a.
8. Dissatisfied by the order of the District Forum both the Complainant and the Developer preferred First Appeals No. 1420 of 2014 and 1384 of 2014 respectively. By the impugned order, the State Commission has concurred with the finding of the District Forum and dismissed both the Appeals.
9. Learned counsel for the Developer vehemently contended that there was no deficiency on behalf of the Developer and drew our attention to the report dated 29.03.2018 and submitted that the time on the photograph is 2 p.m. and is dated 18.03.2018. The Developer also filed their Written Submissions stating that they had brought the inconsistencies in the inspection report dated 29.03.2018 to the notice of Shri Vikrant Sood and provided him all necessary documents to be examined that the construction had in fact taken place in accordance with the specifications in the brochure. After examining all the necessary documents Shri Vikrant Sood revised his inspection report dated 01.05.2018 and agreed that the tiles used in construction were in accordance with the brochure; the crack in balcony was superficial and was due to temperature variation which was filled and painted by the contractor; CP fittings are of good quality and as per brochure; water testing report shows that water is of drinkable quality; modular kitchen etc. was of reliable quality and as per brochure and the cracks in the balcony were superficial and were filled in and repainted by the Developer and the same was permitted to be done by the Respondent himself. Learned counsel vehemently contended that the seepage was caused on account of the Complainant deliberately causing damage to the floor tiles in Flat No. 602 that caused seepage in Flat No. 502 and that the Complainant is in default of making payment of ₹1,54,444/- for the common area maintenance since 30.09.2012.
10. The question whether there was any deficiency of service on behalf of the Petitioner is to be seen taking into consideration both the inspection reports. For better understanding of the case the observation in the first inspection report regarding the defects are enumerated as hereunder:
"1. Seepage of water (moisture) in flat No. 502 from roof & walls is because of water came from floor tiles of flat No. 602 (flat above 502 on top floor). Here it is important to inform you that floor tiles are not found to be Vitrified tiles (as claimed in proposed specifications brochure of this project given at the time of sale) on floor of Drawing room/Lobby, Bedrooms, Washroom & Kitchen Flat No. 602. The contractor used ceramic tiles in bathrooms & Kitchen and semi vitrified tiles in bedrooms & lobby area. At the time of combined inspection with Er. Zora Singh, he was claiming that KAJARIA Vitrified tiles have been used, but when checked it was found that a local brand NAVEEN ceramic tile had been used all over. These non branded Ceramic / Semi Vitrified tiles absorb water especially through floor of washrooms & kitchen and extra water make seepage to underneath floor i.e. roof of flat No. 502 by gravitational effects.
Note; (Vitrified tiles does not absorb water but Ceramic/ Semi Vitrified tiles absorb water & let the water pass through it gradually with gravity)
1.(a) Other main reason is bad workmanship during the laying of floor tiles. It seems, work was conducted by unprofessional team which resulted in gaps in tile joints (not even filled these joints/ gaps with epoxy). These gaps in floor tiles results in water seepage to flat no. 502.
2. As moisture entrapped for a long time because of seepage in roof & walls for flat no. 502. This regular seepage make atmosphere of flat very much unhygienic & unhealthy especially for children & elder ones.
3. It was observed that CP fittings of Kitchen & Washroom has not mark of any brand on it to verify whether it is ISI or non ISI. Contractor staff was also unable to tell about its brand or any bill to verify. So it was found that it is very much un repairable local brand even any spare of these are not available in market.
4. As further inquired the wood work of kitchen is not wood indeed, it's MDF (that is a non-water proof product we can say Gatta board in local language) surprisingly cover with laminated paper sheets.
5. It was observed that raw material used for aluminium window fittings & fixtures are not ISI mark, results in loosening of fixtures & fittings that causes gaps prone to the rainwater in bed rooms & Drawing room. It also results in cool waves in winter season & loss of AC cooling in summers.
6. As our team inspected the water storage of the Ruby Tower- 6 on ground floor, it was found that it wasn't serviced for a long time. As attached pics proves that even spider webs not disturbed on service opening of both storage tanks & deposits of algae & fragments on top surface of water also seen in pics. Same position observed on storage tank of top floor which supply direct water in flat No. 502. Floor & walls of storage tank should be covered with vitrified tiles as per guidelines, because uncovered area exposed to water results in release of sand & cement particles in water that results in dust particles in drinking water & other taps.
7. All the internal doors along with that of washrooms are not made of wood indeed its same MDF (Gatta board) material, which is neither waterproof nor repairable.
8. Smell in one washroom is because of leakage in any drainage dirty water pipe of flat no. 502 or 602.
9. During inspection some major cracks observed especially outside & inside of balcony area (pics attached), these cracks occur due to poor workmanship, joints of RCC & bricks work should be treated carefully during construction (covered with wire mesh before plaster)"
11. Learned counsel appearing for the Complainant submitted that the Developer has violated Section 14(1)&(2) of the Punjab Apartment and Property Regulations Act, 1995 with respect to occupation and completion certificate; that the seepage of water from the roofs and walls from Flat No. 602 due to poor quality tiles laid with poor workmanship resulted into gaps in the tile joints and these gaps in the floor tiles caused the water seepage and has vehemently denied that the Complainant has deliberately destroyed the tiles before the inspection. The Complainant in his Revision Petition prays for enhancement as amount of ₹1,00,000 awarded by fora below is a meagre amount specially taking into consideration all the defects pointed out in the first inspection report.
12. Learned Counsel appearing for the Developer also drew our attention to the second report given by the technical director of M/s.Highways & Infrastructure Engineers dated 10.05.2018 in which it is stated as follows:
"I have received from SDB Infrastructure Pvt. Ltd. Mohali letter no. SDL/CI/2608 dt. 09.05.2018 addressed to you through e-mail dated 09.05.2018. They have sent me detailed information like technical specifications of material, purchase orders, work orders, water test report etc., which they didn't show me during my first inspection dated 10-03-2018. They have asked me to review the inspection report in view of factual position and documented proof and sent revised report for the further action.
I have scrutinized all the documents and in view of detailed information, documented proof in shape of Purchase orders, Work orders, Technical specifications of material, I am resubmitting my report below:
As testing report of Naveen tiles shows that its properties qualifies as per relevant ISI Codes & its incoice No. CHD 140003599 dated 22.01.2009, shows purchase of "Unglazed Vitrified Tiles Premium" of Naveen Ceramic brand. Testing Report & Invoice of Kajaria antiskid tiles in washrooms & kitchen area also justifies its quality & brochure of SDB Ltd. also confirm use of Antiskid tiles in washrooms & Kitchen area. So its advisable to refill its joints wherever required, as its part of regular maintenance. Special grouts with hardeners are available in the market.
During Primary inspection cracks in balcony area at brick & concrete joints found because of temperature variation are filled & painted by contractor, found okay. As it's also part of regular maintenance.
Contractor also claiming that C.P. fitting installed are of heavy and good quality & its spare parts are available in their store all the time, also assuring its spare & service in future.
Latest water testing report from NABL Laboratory shows that water is of drinkable quality & its impurities with in permissible limits.
As contractor is claiming that he used proper waterproofing agents during construction, there after minor patches of efflorescence in flat are visible. Its suggested to repaint the flat, at effected areas waterproof putty & Paints should be used.
Invoices & other related documents attached of Modular kitchen, Doors, Aluminium fittings shows its quality & installation from reliable sources. It is suggested to replace its faulty fixtures as a regular maintenance immediately to keep it in proper working condition.
I will suggest you and as well as Builder to have mutual discussion and sort out the matter amicably. If necessary a joint meeting with the builder may be arranged in my office at Patiala."
Thereafter, there has been a series of correspondence between the Complainant and Er. Vikrant Kumar Sood, who has given the report and the Complainant in his reply email dated 10.05.2018, specifically questioned as to why the report was given as no such request was made by him; that the technical person never visited his Flat for the second time then how could the crack in the balcony been found and that having found gaps in the window and algae in the water and seepage, now has changed his stand without even visiting the Flat for the second time. It is pertinent to mention that as per the email dated 11.05.2018, it is apparent that the second report was between the Engineer and the Developer. There are no substantial reasons as to why the second report was given without informing the Complainant. Both the fora below after taking into consideration the evidence on record, photographs and the pleadings put forward, have given a finding that there was a deficiency of service on behalf of the Developer and awarded ₹1,00,000/- towards compensation. Taking into consideration the first report given by the Commissioner that major cracks were observed inside and outside the balcony area; these cracks appear due to poor workmanship; joints of RCC and brick work should be treated carefully during construction; that all internal doors should be replaced with finished wooden doors storage water tank should be services thoroughly; that walls of both the storage tank should be covered with branded vitrified tiles; that faulty fixtures and fittings should be replaced and sealed properly together for all weather conditions; that MDF kitchen fittings should be replaced within ISI mark waterproof board covered with branded Cen mica; that all CP fittings should be replaced with ISI branded CP fittings; that water proofing treatment is strongly recommended on affected areas of roof and wall and that the all ceramic/ semi vitrified tiles should be replaced with fully vitrified tiles and joints to be filled with epoxy, it is observed that the compensation granted by the State Commission is meager and we enhance the same to ₹5,00,000/-. The rest of the reliefs with respect to refund of car parking charges, service tax, IDC charges and other repair charges are being disallowed as we do not see any grounds or evidence to allow the same. It is clarified that the Complainant shall not make any further claim and shall get the repairs effected with tis lump sum amount.
13. In the result, the Revision Petition No. 3450 of 2016 filed by the Complainant is allowed in part enhancing the compensation from ₹1,00,000/- to ₹5,00,000/- together with costs of ₹25,000/-. The Revision Petition No.3185 of 2016 filed by the Developer is dismissed accordingly, however, without cost. Time for compliance is four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint.
...................... M. SHREESHA PRESIDING MEMBER