State Consumer Disputes Redressal Commission
City And Industrial Development ... vs Smt. Anita Bapu Sonavane on 30 April, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. A/06/1935
(Arisen out
of Order Dated 26/06/2006 in Case No. 299/01 of District Forum Thane)
City and Industrial Development Corporation of Maharashtra
Ltd.,
Cidco Bhavan, CBD Belapur, Navi Mumbai, Through its
Authorised Signatory
Shri. Subhash J. Gosavi
Maharashtra
...........Appellant(s)
Versus
Smt. Anita Bapu Sonavane
Building No. D/39/0:2, Ground Floor, Sector 21 &
22, Income Tax Colony, Belapur, Navi Mumbai
Maharashtra
...........Respondent(s)
BEFORE:
HON'BLE MR. S.R. Khanzode PRESIDING MEMBER
HON'BLE MR. S.B.Sawarkar MEMBER
PRESENT:
Ms.Madhura Nadgauda, Advocate for the Appellant
None
......for the Respondent
ORDER
Per Honble Mr.S.R.Khanzode, Presiding Judicial Member This appeal takes an exception to an order dated 26/06/2006 passed in consumer complaint no.299/2001, Smt.Anita Bapu Sonawane v/s. C.I.D.C.O., CBD Belapur, Navi Mumbai by District Consumer Disputes Redressal Forum, Thane.
Undisputed facts are that the appellant/opponent/CIDCO (herein after referred as CIDCO), which is a new township development authority of Navi Mumbai, floated a special concession or special privilege Housing Scheme in which already constructed tenements which were un-disposed were put for sale on the condition of as is where is basis. Special concession of 25% plus 2% was also given on the price. It was made clear that some of the tenements put for sale accordingly may require some repairs. Respondent/complainant
-Anita (herein after referred as complainant Anita) applied under the said scheme to get one tenement at CBD, Belapur on 01/04/1999. Accordingly, she was given tenement bearing no.2 building no.D-39, Sector 21 & 22 on the ground floor at CBD, Belapur having an area 40.690 sq.meters plus court yard (8.720 sq.meters) for a total consideration of `4,60,505/-. Agreement accordingly was also executed in her favour by CIDCO on 29/04/1999 and the tenement was put in her possession on the same day.
2. It is the contention of the complainant that in the first monsoon there were leakages and she attributed the cause to the inferior quality of construction vis--vis deficiency in service on the part of CIDCO. She got repaired the tenement at her own costs at `49,385/- (as stated in complaint para 8) and filed this consumer complaint on 02/05/2001 to get reimbursement of the said expenses incurred along with expected expenses for repairs of `96,000/- and `80,000/- as compensation for mental torture, inconvenience suffered, etc. total amounting to `2,25,385/-. The consumer complaint was initially allowed on 27/02/2003 and it was subjected to a challenge in appeal. The matter was remanded back as per the decision in appeal and, therefore, fresh trial of this consumer complaint was held and finally stood disposed of by impugned order dated 26/06/2006, which is under challenge in this appeal at the hands of CIDCO. By the impugned order, appellant CIDCO was directed to pay compensation of `34,510/- plus `15,000/- as compensation for mental agony along with interest @ 12% p.a. if the same is not paid within a period of two months from the date of impugned order.
3. At the time of hearing respondent/complainant-Anita preferred to remain absent and hence Ld.counsel Ms.Madhura Nadgauda appearing for the appellant/CIDCO is heard.
Perused the record. It appears that during the pendency of this appeal, complainant Anita had sold her tenement to one Arvind Amaldar Singh and, accordingly, applied to CIDCO for transfer in the name of purchaser Arvind Amaldar Singh on 14/05/2008 and, accordingly, tenement stood transferred in the name of the purchaser by CIDCO on 19/09/2008. These subsequent developments are not informed by the respondent/complainant-Anita.
However, appellant CIDCO brought the necessary material of the transfer on record including the application of complainant- Anita for said transfer. This is perhaps the reason complainant -Anita preferred to remain absent in spite of substituted service by paper publication on her.
She is obviously not residing at the place i.e. the address of the tenement in question.
4. Thus, because of the transfer of the tenement, she is no more remain a consumer of CIDCO and, as such, the consumer complaint itself ought to have been dismissed on this count.
5. Coming to the merit of the case, we find that it is a money claim to get reimbursed the expenses of the repairs incurred and future expenses which might be required. This cannot be a consumer dispute. Besides this, to award any compensation to complainant, there must be a specific allegation and proof of deficiency in service. The forum must come to the conclusion of establishing deficiency in service on the part of appellant CIDCO and then only it can award compensation within the meaning of section 14(1)(d) of the Consumer Protection Act, 1986 (Act for brevity). In the instant case, forum neither discussed nor recorded any finding about the deficiency in service on the part of the appellant/CIDCO and, thus, the impugned order gets vitiated accordingly. Alleged deficiency in service to which a reference is made by recounting the facts is about the inferior quality of construction work of the tenement. CIDCO in the written version referred to two aspects that the tenement was offered on a special concessional price on as is and where is basis and in the scheme advertised, it was specifically pointed out that some tenements may require repairs and only after inspection of the tenement, complainant -Anita made an application to get the tenement in question. Therefore, issue of complaint about inferior quality of construction or complaint about leakages cannot be entertained.
6. At the second instance, it is submitted that complainant- Anita on the terrace of the tenement used to cut her fire wood with an axe and also to do other work which might have caused damage to the surface of the terrace and which might be a cause for leakages. CIDCO specifically denied the allegation about the inferior quality of work.
Complainant did not adduce any evidence about the inferior quality of construction work. Apart from that in her application dated 05/04/1999, she had specifically gave a declaration that she is willing to accept the tenement on as is where is basis, she had already inspected the tenement and was willing to accept the same as it is and she will not make any complaint about any deficiency (of construction work) in respect of the said tenement. Under the circumstances, her case of complaining that the construction work was of inferior quality and the leakages witnessed in the next monsoon are attributed to the inferior quality of construction work and, therefore, there is deficiency of service on the part of the appellant/CIDCO, is a submission which cannot be accepted. Forum ignored these aspects and arrived at a wrong conclusion.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER Appeal is allowed. Impugned order dated 26/06/2006 is quashed and set aside and, in the result, consumer complaint no.299/2001 stands dismissed.
Respondent Smt.Anita Bapu Sonawane to bear her own costs and pay `25,000/- as costs to the appellant /CIDCO.
Pronounced on 30th April, 2013.
[HON'BLE MR.
S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR.
S.B.Sawarkar] MEMBER Ms.