State Consumer Disputes Redressal Commission
Consumer Protection And Action ... vs M/S. Akshar Associates on 30 May, 2022
Details DD MM YY
Date of Judgment 30 05 2022
Date of filing 26 06 2001
Duration 04 11 20
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
Court No. 1
Complaint NO.164/2001
WITH
Complaint NO. 165/2001
WITH
Complaint NO. 166/2001
WITH
Complaint NO. 167/2001
WITH
Complaint NO. 197/2001
WITH
Complaint NO. 198/2001
CC/164/2001
1.Consumer Protection Council 581/B, "Shailey" Complex, 9, Nehru Park Society, Nr. Gujarat High Court, Ahmedabad-380009.
2. Akshardeep Apartment owners of Block B B/h. Sanchar Colony, Ellis-bridge, Ahmedabad-380006.
1. Beenaben S. Parikh (amended on 5.8.2018) 22, Radhanpur Society, Bhairavnath Road, Maninagar, Ahmedabad-380022.
2. Dr. Riteben D. Batavia A-704, Spectrum Tower, Shahibaug, Ahmedabad.
3. Shri Kishorbhai R. Gantara 308, Sudarshan Complex, Nr. Mithakhali Under-bridge, Ashram Road, Ahmedabad-380009. ...Complainants Vs
1. M/s. Akshar Associates, Proprietor Mr. Raojibhai Haribhai Patel (Builder, organizer & developer of Akshardeep Apartments "Akshar",316/B, Sector-I, Lane no. 15, Satyagrah Chhavni, Jodhpur Tekra, Satellite road, Ahmedabad-380015.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 1 of 41(Old Address:10, Medicare centre, behind M.J. Library, Ashram Road, Ahmedabad- 360006)
2. Shekhar Shah Associates Architects 1stFloor,Patidar Bhavan Beside Police Station, Navrangpura, Ahmedabad.
(Deleted as per para 3 of the order of the Hon‟ble National Commission dated 6.9.2017)
3. Mr. Jagdish Associates (Structural Engineer of Akshardeep Apartment), Residing at, 207/2478, Pratiksha Apartments, Sola Road, Naranpura, Ahmedabad - 380013.
(Office at, premium house, Lad Society, Vastrapur, Ahmedabad.)
4. Pankaj G. Modi (supervisinglicence engineer, Having licence no. 1149 dtd. 12.6.1991 of Akshardeep Apartment) 3/33, Basvali Society, Ghatlodia Road, Chandlodia, Ahmedabad - 382481. ...Opponents CC/165/2001
1. Consumer Protection Council Address as mentioned in complaint no. 164/2001
2. Akshardeep Apartment owners of Block B Address as mentioned in complaint no. 164/2001
1. Maulik Kantilal Brahmbhatt - amended on 5.4.2018 (Shri Kantilal N. Barot) Marftia‟s Dehla, Viramgam.
2. Dipak H. Shah- amended on 5.4.2018 (Bharatraj Polychem Pvt. Ltd.) 4, Achala Apartment, Nr. Venudhar Society, Gulbai Tekra, Ahmedabad.
3. Jayshreeben P. Shah 24/247, Parishram Apartment, B/h. thackersey Charitable Trust Hospital, Satellite, Ahmedabad-380015.
Vs
1. M/s. Akshar Associates, Address as mentioned in complaint no. 164/2001
2. Shekhar Shah Associates (Deleted as per para 3 of the order of the Hon‟ble National Commission dated 6.9.2017)
3. Mr. Jagdish Associates Address as mentioned in complaint no. 164/2001 M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 2 of 41
4. Pankaj G. Modi Address as mentioned in complaint no. 164/2001 ...Opponents CC/166/2001
1. Consumer Protection Council Address as mentioned in complaint no. 164/2001
2. Akshardeep Apartment owners of Block B Address as mentioned in complaint no. 164/2001
1.Dhirubhai R. Gadhia A-103, Silicon Valley, Shivranjani Char Rasta, Satellite Road, Ahmedabad-380015.
2. Vimlaben J. Patel 189, Kochrab Patel Vas. Nr. Parabdi, Ellisbridge, Ahmedabad-380006.
3.Kirtibhai D. Mehta 4, Rucha Apartment, Opp. Law Garden Police Chowky, Ellisbridge, Ahmedabad.
4. Asitbhai M. Bhagwati, C/o. Smirbhai A. Shah GovindBhavan, 7, Shantiniketan Society, Ellisbridge, Ahmedabad-380006. Complainants Vs
1. M/s. Akshar Associates, Address as mentioned in complaint no. 164/2001
2. Shekhar Shah Associates (Deleted as per para 3 of the order of the Hon‟ble National Commission dated 6.9.2017)
3. Mr. Jagdish Associates Address as mentioned in complaint no. 164/2001
4. Pankaj G. Modi Address as mentioned in complaint no. 164/2001 ...Opponents CC/167/2001
1. Consumer Protection Council Address as mentioned in complaint no. 164/2001
2. Akshardeep Apartment owners of Block B Address as mentioned in complaint no. 164/2001
1.Kantaben D. Patel Narendra D. Patel M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 3 of 41 J-12, Birju Apartment, Nr. Azad Society, Ambawadi, Ahmedabad-380015.
2. Mardevbhai D. Bakshi, 21, Shrihari Apartment, Nr. VAsantkunj Apartment, Paldi, Ahmedabad-380007.
3. Shilpaben M. Shah, 6, Radhanpur Society, BhairavnathRoiad, Maninagar, Ahmedabad-380022. ...Complainants Vs
1. M/s. Akshar Associates, Address as mentioned in complaint no. 164/2001
2. Shekhar Shah Associates (Deleted as per para 3 of the order of the Hon‟ble National Commission dated 6.9.2017)
3. Mr. Jagdish Associates Address as mentioned in complaint no. 164/2001
4. Pankaj G. Modi Address as mentioned in complaint no. 164/2001 ...Opponents CC/197/2001
1. Smt. Kusumben Dinkarrai Desai
2. Mr. Janak Dinkarrai Desai Power of attorney holder of Smt. Kusumben Dinkarrai Desai, Both residing at 3/32, Amrapalli Apartments, Sukhipura, Paldi, Ahmedabad- 380007. ...Complainants Vs
1. Mr. Raojibhai Haribhai Patel Address as mentioned in complaint no. 164/2001
2. Mr. Dhirubhai Haribhai Patel (Co-owner of Akshar Associates), Residing at, 30,Inqelab society, Gulbai Tekra, Ahmedabad- 380015.
3. Mr. Jagdish Associates Address as mentioned in complaint no. 164/2001
4. Shekhar Shah Associates (Deleted as per para 3 of the order of the Hon‟ble National Commission dated 6.9.2017)
5. Pankaj G. Modi Address as mentioned in complaint no. 164/2001 ...Opponents CC/198/2001 M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 4 of 41 Rameshbhai Prabhubhai Patel, 12, Shivalay Apartments, Besides Dharamyug Society, GulbaiTekra, Ahmedabad-380015. ...Complainant Vs
1. Mr. RaojibhaiHaribhai Patel Address as mentioned in complaint no. 164/2001
2. Mr. DhirubhaiHaribhai Patel Address as mentioned in complaint no. 197/2001
3. Mr. Jagdish Associates Address as mentioned in complaint no. 164/2001
4. Shekhar Shah Associates (Deleted as per para 3 of the order of the Hon‟ble National Commission dated 6.9.2017)
5. Pankaj G. Modi Address as mentioned in complaint no. 164/2001 ...Opponents Coram: Hon'ble Mr. Justice V. P. Patel, President APPERANCE (CC No. 164/2001 to 167/2001):
Complainant- Mr. Mukesh Parikh, representatives Opponent no. 1 - Mr. Milan K. Dudhiya, ld. advocate and Ld. Advocate Mr. Mehul S. Shah Opponent no. 2- deleted Opponent no. 3 and 4- Mr. V. M. Pancholi, ld. advocate (CC No. 197/2001 & 198/2001):
Complainant- Mr. S. P. Sen, ld. Advocate Opponent no. 1 and 2- Mr. Milan K. Dudhiya, ld. advocate and Ld. Advocate Mr. Mehul S. Shah Opponent no. 3 and 5- Mr. V. M. Pancholi, ld. advocate Opponent no. 4- deleted
1. In all above stated complaints, the complainants are sufferers of the incident taken place on 26.1.2001 due to earthquake with the result that apartments were collapsed with causalities and damage. The cause of action arises in all the complaints are the same. Opponents in all the complaints are common. Most of the evidence produced on record in all the complaints is almost similar. This Commission had disposed of all these complaints by common judgment dated 11.5.2012. Thereafter, the respondents had preferred the appeal before the Hon‟ble National Commission and Hon‟ble National Commission has also disposed of the appeals arising out of the said complaints by common judgment. With M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 5 of 41 the consent of the parties of the complainants these complaints are disposed by common judgment.
2. Complainants have filed the complaints in the year of 2001. Earlier the matter was partly allowed by this Commission vide order dated 11.5.2012. Opponents being aggrieved and dissatisfied with the judgment and order of this Commission preferred first appeals before the Hon‟ble National Commission as under:
Sr. Consumer FA No. filed by FA No. filed by FA No. filed by Complaint opponent Ravjibhai H. opponent Pankajbhai opponent Jagdish No. Patel G. Modi Associates 1. 164/2001 478/2012 632/2012 755/2013 2. 165/2001 479/2012 633/2012 756/2013 3. 166/2001 480/2012 634/2012 757/2013 4. 167/2001 481/2012 635/2012 758/2013 5. 197/2001 482/2012 636/2012 759/2013 6. 198/2001 483/2012 637/2012 760/2013 Hon‟ble National Commission by its common order dated 6.9.2017 passed in above mentioned appeals remanded back the matters to this State Commission for fresh hearing, para 3 and 7 are relevant which reads as under:
"3. We may note at this juncture itself that the Architect, namely Shekhar Associates, Opposite Party No. 2 in all the Complaints was directed to be deleted from the array of parties' name as the Complainants had failed to take appropriate steps to have him served with the notice in the Complaint.
7. Having heard Learned Counsel for the parties in the light of the afore- stated factual scenario, as also the fact that the State Commission has not recorded its satisfaction to the effect that the said Opposite Party had been served, either by actual service or by drawing presumption that the notices having been issued by Registered AD post at Appellant's last known address, we are of the opinion that the said Opposite Party had not been properly served with the notice in the Complaints. In that view of the matter the common order impugned in these Appeals deserves to be set aside in totality on the said short ground alone and as a necessary consequence the Appeals by the other two Opposite Parties shall have to be allowed because all the Complaints shall have to be re-adjudicated by the State Commission on merits. Resultantly, all the Appeals are allowed; the impugned order is set aside and the Complaints are restored to the Board of the State Commission for afresh adjudication on merits. Needless to add that we have not expressed any opinion on the merits of the grounds urged by all the Appellants in their respective Appeals."M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 6 of 41
3. The Complainants have filed the Consumer Complaint under Section 17 of the Consumer Protection Act, 1986 (for short „the Act‟) against the opponents. It is required to be placed herein under the main relief claimed by the claimants in all the respective complaints which are reads as under:
CC/164/2001 "(a) The opponentsmay kindly directed to pay jointly and severally to the aggrieved complaints names under the heading of the complainant no. 2 in amount respectively equal to the loss Rs. 18,19,255/- relating to building properly as computed in Schedule A of the complaint-petition.
b) Interest may kindly be granted at the rate of 15 percent on the amount awarded under above cause (a) from the opponents.
c) Compensation/damages be awarded to each of complainant no.2 of Rs. 20,000/-
d) Cost of this complaint Rs. 10,000/-
CC/165/2001 "(a) The opponents may kindly directed to pay jointly and severally to the aggrieved complaints names under the heading of the complainant no. 2 in amount respectively equal to the loss Rs. 12,97,699/- relating to building properly as computed in Schedule A of the complaint-petition.
b) Interest may kindly be granted at the rate of 15 percent on the amount awarded under above cause (a) from the opponents.
c) Compensation/damages be awarded to each of complainant no.2 of Rs. 20,000/-
and compensation of Rs. 1,50,000/- each to Kantilal N. Barot, Dipak H. Shah and Jayshreeben P. Shah be awarded for mental pain, shock suffering suffered by them. (amended prayer clause C as per the order dated 14/8/2001)
d) Cost of this complaint Rs. 10,000/-
CC/166/2001 "(a) The opponents may kindly directed to pay jointly and severally to the aggrieved complaints names under the heading of the complainant no. 2 in amount respectively equal to the loss Rs. 16,90,784/- relating to building properly as computed in Schedule A of the complaint-petition.
b) Interest may kindly be granted at the rate of 15 percent on the amount awarded under above cause (a) from the opponents.
c) Compensation/damages be awarded to each of complainant no.2 of Rs. 20,000/- and compensation of Rs. 95,193/- be awarded to Dhirubhai R. Gadiya , Rs. 95,193 to Vimlaben J. Patel, Rs. 14,415/- to Kiritbhai D. Mehta and Rs. 14,415/- to Ashit M. Bhagwati be awarded for mental pain, shock suffering suffered by them. (amended prayer clause C as per the order dated 14/8/2001)
d) Cost of this complaint Rs. 10,000/-
CC/167/2001 "(a) The opponents may kindly directed to pay jointly and severally to the aggrieved complaints names under the heading of the complainant no. 2 in amount respectively equal to the loss Rs. 12,27,699/- relating to building properly as computed in Schedule A of the complaint-petition..
b) Interest may kindly be granted at the rate of 15 percent on the amount awarded under above cause (a) from the opponents and compensation of Rs. 1,50,000/- be awarded to Kantaben D. Patel&Narendra D. Patel, Mardevbhai D. Bakshi and M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 7 of 41 Shilpaben M. Shah,for mental pain, shock suffering suffered by them. (amended prayer clause C as per the order dated 14/8/2001)
c) Compensation/damages be awarded to each of complainant no.2 of Rs. 20,000/-
d) Cost of this complaint Rs. 10,000/-
CC/197/2001
(a) The opposite parties (jointly and severally) be directed to remove deficiencies by providing defect free alternative residential accommodations of the same description, same measurement and in same area without charges and without demanding further amount from the complainant.
Or In alternatively, the opposite parties(jointly and severally) be directed to refund the complainant the price of flat Rs. 9,65,000/- (9,00,000 + Rs.40,000 + Rs. 25,000) which complainants have paid to the opposite parties. Opposite parties (jointly and severally) be also directed to pay interest @ 18 % p.a. on Rs. 9,65,000/- from 2.12.1993 till the date of payment.
(b) The opposite parties (jointly and severally) be directed to pay compensation of Rs. 5,00,000/- towards loss suffered by the complaints as due to collapse of the building the complainants lost their household articles, precious articles, domestic appliances, electronic appliances, movable furniture, expenses incurred for interior decoration of the said collapsed flat, fixed furniture, etc.
(c) The complainants and their family members be awarded compensation of Rs. 2,35,000/- for the mental tension, inconveniences, hardship, agony they have suffered due to collapse of building/flat constructed by opposite parties.
(d) The complainants be awarded cost of Rs. 50,000 for this complaint.
CC/198/2001
(a) The opposite parties (jointly and severally) be directed to remove deficiencies by providing defect free alternative residential accommodations of the same description, same measurement and in same area without charges and without demanding further amount from the complainant.
Or In alternatively, the opposite parties(jointly and severally) be directed to refund the complainant the price of flat Rs. 13,40,000/- (Rs. 4,24,000 + Rs. 8,95,000 + Rs.1,000 + Rs. 20,000) which complainants have paid to the opposite parties. Opposite parties (jointly and severally) be also directed to pay interest @ 18 % p.a. on Rs. 13,40,000/- from 30.6.1995 till the date of payment.
(b) The opposite parties (jointly and severally) be directed to pay compensation of Rs. 5,00,000/- towards loss suffered by the complaints as due to collapse of the building the complainants lost their household articles, precious articles, domestic appliances, electronic appliances, movable furniture, expenses incurred for interior decoration of the said collapsed flat, fixed furniture, etc. which were in complainant's flat B-8 and was destroyed.
(c) The complainants and their family members be awarded compensation of Rs. 1,00,000/- for the mental tension, inconveniences, hardship, agony they have suffered due to collapse of building/flat constructed by opposite parties.
(d) The complainants be awarded cost of Rs. 20,000 for this complaint.
4. Heard ld. Representative Mr. Mukesh Parikh, for complainant in case No. CC/164/2001 to CC/167/2001; ld. Advocate Mr. S. P. Sen for the complainant in CC/197/2001 and CC/198/2001; ld. Advocate Mr. Milan K. Dudhiya and ld. Advocate Mr. Mehul S. Shah, for opponent-
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 8 of 41owner and Mr. Varshal M. Pancholi, ld. Advocate for the opponent- structural engineer, architect and supervising engineer.
Facts of the complaint:
5. The complainants are the flat owner of the flats of Akshardeep Apartment for the flat number as mentioned below.
Sr. Name Appt. Date of Amount
No. possession Claimed
CC/164/2001
1 Binaben S. Parikh B-12/A 27.10.1994 5,76,170
2 Ritaben D. Batavia B-14 12.3.1994 5,76,170
3 Kishorbhai R. B-16 15.10.1993 6,66,915
Ganatara
Total 18,19,255
CC/165/2001
4 Maulik Kantilal B-9 6.5.1994 3,82,307
Brahmbhatt
5 Dipak H. Shah B-10 6.5.1994 4,52,307
6 Jayshreeben P. Shah B-12 1.4.1995 4,63,085
Total 12,97,699
CC/166/2001
7 Dhirubhai R. Gadiya B-1 3.9.1994 3,82,307
8 Vimlaben J. Patel B-2 27.9.1993 3,82,307
9 Kiritbhai D. Mehta B-3 16.5.1994 4,63,085
10 Ashit M. Bhagwati B-4 15.10.1994 4,63,085
Total 16,90,784
CC/167/2001
11 Kantaben D. Patel B-5 12.5.1994 3,82,307
Narendra D. Patel
12 Mardevbhai D. Bakshi B-6 9.9.1994 3,82,307
13 Shilpaben M. Shah B-7 19.3.1994 4,63,085
Total 12,27,699
CC/197/2001
14 Kusumben Dinkarrai A-4 4.7.1995 9,65,000
Desai
CC/198/2001
15 Rameshbhai B-8 30.6.1995 13,40,000
Prabhubhai Patil
Total 83,40,437
5.1 It is stated in the complaint that the opponent no. 1 is owners, opponent no. 2 is a architect (now deleted), opponent no. 3 is structural engineer and opponent no. 4 is a supervising license engineer for the case of CC/164/2001 to CC/167/2001 and (Opponent no. 4 is the architect (now deleted) for the case of CC/197/2001 and CC/198/2001). It is stated that they are personally involved and fully M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 9 of 41 responsible in the construction of Akshardeep Apartment. The unfair trade practice adopted by the opponents and complainants has suffered a loss and damages. That the services rendered by the opponents are defective service. The scheme of the subject building complex was floated by the opponents in 1991. The broacher/pamphlets giving highlight of the scheme were issued at the time of booking-inquiries. That almost other things, the soundness and safety of the subject complex were expressly as well as impliedly assured. The aggrieved complainants have booked respective units in the subject building on assurance given by the opponents. The possession of the respective units were given to the aggrieved complainants at completion of the construction in or around in 1993-94. The full payment/consideration of the contractual price was paid by the aggrieved complainants.
5.2 It is the case of the complainant that during the earthquake on 26.1.2001 the subject building was collapsed leading to total destruction of the construction units and consequently the complainants have suffered heavy losses. The computation of monetary losses suffered by the respective complainants is described in the statement at page 17. The cumulative losses occurred is within monetary jurisdiction of this Commission. That one of the complainant had filed criminal complaint No. I-66/2001 on 2.2.2001 at Ellis-bridge Police Station against the opponents.
5.3 That the State Government vide resolution NO. PNV162001-1502)I_ s-3 dated 27.2.2001 granted the monetary help on the basis of construction of 50 sq. mts. and construction cost of Rs. 3500/- per sq. mts. The said monetary help is limited to Rs. 1,75,000/-. Complainants have so far received Rs. 70,000/- as monetary help. The complainants have not included such help received in relief claimed for compensation.
5.4 That the complainants have shocked and dismayed on account of losses caused, they have loss of lives of their family members and tormentation of mind for long time. For the defective designing of and/or misconduct or negligence in use of substandard materials, etc. in construction of the subject building complex, complainant have to suffer losses.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 10 of 415.5 That it was through commission and omission amounting to misconduct or negligence on the part of opponents in designing as also in execution of and inuse of substandard building material in construction of the subject building complex giving stand the impact/shock of earthquake, consequently it was collapsed and caused massive loss to the complainant in life and property. It is also stated that the number of buildings withstanding the shock of that earthquake is quite high compared to those like subject building complex unable to do so. Form such comparison it becomes obvious that only those building, like the case of subject building have collapsed which because of the misconduct or negligence of those concerned in constructing, designing and execution of the construction work. That the complainants are consumer as per the Provision of Consumer Protection Act and the services rendered by the opponents is defective service and adopted unfair trade practice by the opponents. That the complainants have prayed for compensation as mentioned earlier.
Defense:
6. The notices were duly served to the opponents. Opponent no. 1 has appeared through advocate and filed his written statement which is produced on record. On perusing the same it is stated that the consumer protection council has no legal right to institute these proceedings against the opponent; that matter there is no privity of contract with the other opponents with the complainant therefore, complaint is not tenable in eye of law. That the complaints are liable to be rejected as the necessary and proper party namely the Akshar Deep Association is not made a party to the proceedings.
6.1 That the allegations made in the complaint are totally false and baseless. The cause for filing the complaint has not been arose. The complaint is vexations, malafide, false and frivolous. The complaints are misconceived. There is no unfair trade practice adopted by the opponents and no deficiency in service on the part of opponents. No loss and/or damage are caused to the complainants. That the scheme of the building was floated in 1991 it was imperative that assurance is always M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 11 of 41 subject to factor like natural calamity or complainants own actions or omission, upon which any of the defendants has no control whatsoever.
6.2 That the block B consisted of 15 flats, and due to severe earth- quake effect, 8 flats were seriously damaged, the remaining 8 apartments were pulled down by the local authority only by way of caution though they have denied cumulative loss as alleged. That the Akshardeep Apartment scheme was for, in all 40 flats, in 3 Blocks namely A, B & C. That the property of each block is owned by three different non-trading corporations duly registered under the provisions of The Bombay Non Trading Corporation Act, Shyam Association, Akshardeep Association and Geet Association, respectively owned Block A-B & C. That all these blocks were constructed at the same time by the same agencies and the materials purchased form the same suppliers. That the plans and design were also prepared by the same Architect and Structural Engineer. The local authority and its officers, Engineers and inspector have examined them.
6.3 The complainants have taken possession of their property after fully verifying the quality of the construction. That all the occupants were had been using their allotted properties without any complaint for more then 8-9 years till the disaster took place. The possession agreement executed and the use and occupation of their flats without any complaint for such a long time are enough evidence of complainants own satisfactions, as regards to the quality of the construction of the building complex. That there had never been any doubt or complaint of any kind by any of the flat owners as regards deficiency in service. That the opponents have not committed any offence as mentioned in the complaint allegations as regards to the construction not having upon made according to standard plans, materials used in construction was that of alleged inferior quality and not in proper proportion are totally baseless and false.
6.4 That the opponents have received installments under the scheme further for the damages suffered due to natural calamity. The complainants are therefore estopped from raising claim of money as against the defendants, making false allegations of inferior construction M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 12 of 41 and/or quality and quantity of the material used. The criminal complaint is made after-thought baseless action and without truth and substance in the argument. The alleged defective designing and/or misconduct or alleged negligence in use of alleged sub-standard building materials, etc. in construction of the subject building are denied. That the construction made and materials used were as per the buildings regulations that no complaint were made in 8 to 9 years about the building, etc. The opponents have denied the responsibility and liability jointly and severely for any compensation. They denied the alleged mental agony or mental tormentation loss suffered by complainants, commission and omissions of misconduct or negligence on the part of Opponents in designing and also in execution of and in use of alleged substandard building materials in construction work. That the complainants have to produce documentary evidence in direct proof as regards to the causes of disaster. The entire case is based on such presumption and baseless assumptions; based on which no liability, can be inflicted upon the Opponents; under any provision of law.
6.5 That the complainants are not the Consumer within the definition of Consumer under the relevant act and this Hon‟ble Commission has no jurisdiction to try and decide this case. That no cause of action has arisen on 26.1.2001 to file this complaint against the defendants as contended. It is further stated that there is no liability of opponent that the damage caused to the building due to earthquake and not because of any alleged improper design or inferior quality of material. That the complaints are liable to be rejected and he has requested to dismiss the complaint.
Defense of the opponent no. 4:
7. Opponent has appeared through ld. Advocate and filed his reply wherein, it is stated that the complainants are not consumers of opponent. Complainants have neither hired the service of opponent for any purpose nor paid any consideration to opponent. The complainants are residents of scheme known as Akshar Deep Apartments, Block-B. The said block is having 16 flats. All the members of the said apartment M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 13 of 41 have not filed the complaint before the Hon‟ble State Commission and only few of the members have filed the complaint before the Hon‟ble State Commission. Complainants have not obtained permission u/s.12(1)(c) of the Consumer Protection Act before filing the complaint.
7.1 That opponent no.1 has floated the scheme in the year 1991. Complainants have obtained the possession of their respective flats on or around 1993-1994. Complainants have used the flat till 2001 without a single complaint against the opponents. Present complaint was filed on 26/06/2001 much later than 2 years from the date of possession by the respective complainants. Complainants have not preferred any application for condonation of delay in filing the complaint.
7.2 The Hon‟ble Commission is not having pecuniary jurisdiction to decide the complaint looking to the prayers of the complainant in the complaint. It is denied that opponent is liable for any construction activity. Opponent has limited role being associated with Shekhar Shah Associates for only one month. Opponent has initially signed certain plan as per the instructions and guidance of Shekhar Shah Associates. The said plans were not approved by the Ahmedabad Municipal Corporation. Opponent no.1 has submitted the revised plan with the Ahmedabad Municipal Corporation for approval, however at that time opponent has neither signed revised plan nor submitted the plan as opponent was not associated for the work of Shekhar Shah Associates. It is the duty of the complainant to join Ahmedabad Municipal Corporation as opponent in the present complaint being necessary and proper party. Opponent was never involved in preparing plan or any construction activity as he was not associated with Shekhar Shah Associates. That no complaint is maintainable against the opponent under Consumer Protection Act or any other law as Opponent had not adopted any unfair trade practice or deficiency of service.
7.3 The pamphlet/brochure giving highlights of the scheme were issued by the opponent no.1. Opponent has nothing to do with the veracity of the brochure/pamphlet. Name of the Opponent was not mentioned in the said brochure. The construction work was not done by opponent.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 14 of 41The complainant has not suffered any loss due to act of opponent. The complainants are not able to establish so called loss as alleged.
7.4 That the F.I.R. was filed against the other opponents however, no F.I.R. was filed against the opponent as opponent was no were connected either with the construction or with the design of the subject building. That the allegations regarding defective designing of and/or misconduct of negligence in use of substandard building materials, etc. in construction of the subject building, have nothing to do with opponent. It is further stated that the said unfortunate incident took place due to act of god i.e. earthquake and not due to any other reason. It is also stated that complainants are not having any proof for the cause of disaster. However, it is denied that the said unfortunate incident took place due to commissions or omissions on the part of any of the opponents. It is denied that the subject building collapsed due to misconduct or negligence on the part of any of the opponents. That the complaints are liable to be rejected and he has requested to dismiss the complaint.
Defense of the opponent no. 3:
8. Opponent has appeared through ld. Advocate and filed his reply. On perusing the reply it appears that most of the contentions raised by the opponent no. 4 are adopted by the opponent no. 3. Therefore, they are not repeated.
It is stated that the F.I.R. was filed against the opponent no.3 however opponent no.3 had preferred discharge application before the Hon‟ble City Sessions Court, Ahmedabad same was allowed and the opponent was discharged from Sessions Case No.89/2006 by its order dtd.27/03/2006. State Government has preferred Criminal Revision Application No.427/2006 before the Hon‟ble Gujarat High Court. The Hon‟ble Gujarat High Court has dismissed the said revision petition on 20/01/2010.
The complainants have wrongly calculated the amount which has been prayed in the complaint before the Hon‟ble State Commission. Complainants have prayed for the amount which complainants have paid to opponent no.1 for purchase of the respective flats however the M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 15 of 41 said amount is inclusive of the cost of land. Complainants have also calculated the maintenance deposit and not deducted the amount of Government help in their prayer. That the complaints are liable to be rejected and he has requested to dismiss the complaint.
Rejoinder:
9. The complainant No. 3 Kishorbhai Ganatara has filed rejoinder affidavit against the reply submitted by the opponents wherein, he has denied the stand taken by the opponents and he has reiterated the facts stated in the complaint.
Argument of the complainant:
10. Ld. Representative of the complainant has filed written arguments at page 906-951. He has also argued orally. On perusing the written argument it is stated the complainants have filed the complaint against the opponents for deficiency in service and negligence on the part of the opponents. The complainants have produced affidavit and documentary evidence in support of their claim. Complainant no. 2 has submitted rejoinder against the reply given by the opponents. Other complainants have adopted the rejoinder submitted by complainant no. 2. They have mentioned purchased price at page 17. That the opponents have filed reply vague, stated wrong facts to misguide this Commission. That the facts stated in the reply are wrong, not trustworthy and not reliable and also they have not produced supported evidence. It is also submitted that the age of construction of RCC frame structure is minimum 70-100 years. That the cause of action was arisen on 26.1.2001 when earthquake was occurred.
10.1 That the complainants have produced documentary evidence and also affidavit of witness chartered engineer Shri M. M. Shah which support the version of the complainants. The complainants has agitated that the opponents have plan, design and prepared by the same architect and structural engineer. That the criminal complaint was filed by one of the complainant Narendrabhai Dhanjibhai Patel on 2.2.2001 at Ellis- bridge Police Station vide registration No. I-066/2001. That the price of each flat in dispute was Rs. 20,00,000/- at the time of incident.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 16 of 4110.2 That the opponents have used substandard material; they have not acted as per the approved plan; they have used material so that the construction can be collapsed any time. Thus, the opponents have shown their negligence in the construction work. They have not considered damage likely to be caused to purchaser but they have only considered the profit in the business. The complainants have produced reports of forensic science and National Council for cement and building materials which support the case of the complainants. Ld. Representative has relied upon certain judgments which will be discussed hereinafter.
Arguments of the opponents:
11. Ld. Advocate for the opponent no. 1 has submitted written submission at page No. 952-965. He has also argued orally. On perusing the written submission it is submitted that the construction was made in 1993-94 and the complainants were residing in the building without raising any dispute regarding deficiency in constructions. The complainants have obtained possession of the respective flats on or around 1993-94. The present complaints were filed on 26.6.2001 which is clearly after the period of two years from the date of possession of their respective flats. Therefore, the complaints are time bared which is required to be dismissed on the ground of delay.
11.1 It is further argued that looking to the prayers in the complaints and complainants have filed joint complaint which is not tenable in eye of law as the complainants have not obtained permission under Section 12 (1) (c) of the C. P. Act, 1986. There are disputed questions of facts involved in the matter which require full fledge trial, therefore, Civil Suit is required to be file, and the complaints in present form are not tenable.
11.2 Ld. Advocate for the opponent no. 1 has argued about what is earthquake, what is meant by seismic waves, what is epicenter, what causes the earthquake, how does earthquake cause damage, etc. and concluded that the complainants have not established any negligence on the part of opponent no. 1, allegations regarding use of poor and substandard material in construction, liability of the opponents to pay any compensation. It is further submitted that the "act of god" or vis majure cannot imposed liability on the opponents. It is further argued M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 17 of 41 that the complainants have not proved their cases; he requested to dismiss the complaints. He has relied upon certain judgments which will be discussed hereinafter.
Arguments of the opponent no. 3 and 4.
12. Ld. Advocate for the opponent no. 3 structural engineer has submitted written synopsis at page 966-972. Opponent no. 4 has filed written synopsis at page 973-978 and also argued orally. He has adopted most of the arguments advanced by the ld. Advocate for the opponent no.
1. It is submitted that the complainants have neither hired the service of the opponent no. 3 and 4 nor paid consideration to the opponent no. 3 and 4. That the complainants have filed jointly without permission of the Consumer Commission under Section 12 (1) (c) of the C. P. Act, 1986. It is also argued that the opponents were discharged from the criminal liability by the Sessions Court and order passed by the Session Court was also upheld by the Hon‟ble High Court therefore, the opponents have not liable to pay any compensation to the complainants. It is also submitted that affidavit of Mr. M. M. Shah an expert witness has not answered of the interrogatories made by the opponents, therefore, contents of affidavit by Mr. M. M. Shah cannot be considered. He has relied upon certain judgments which will be discussed hereinafter.
Merits of the case:
13. Before discussing on merits it will be beneficial to refer here the evidence produced on record by the parties. The complainants have produced following evidence.
Sr. Particulars Page CC/164/2001 to CC/167/2001 (This Commission has narrated the documentary evidence produced in case of CC/164/2001 to CC/167/2001. Thereafter, if similar documents are produced in another case the same is not repeated.)
1. Pamphlet/broacher of Akshardeep Apartment 18-19
2. The photograph of Akshardeep Apartment Block B 20 collapsed in earthquake on 26.1.2001 3 A copy of FIR no. 66/2001 on 2.2.2001 of Police Station, 21-24 Ellis-bridge Ahmedabad
4. A copy of news paper addition of Gujarat Samachar 25 dated 14.2.2001
5. A copy of the aggrieved complainants no. 2 applications 26-31 to the Collector, Ahmedabad for monetary help
6. A copy of the State Government resolution No. PNV- 32-36 M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 18 of 41 162001-1502(i) S-3 dated 27.2.2001 granting monetary help in packages 4-K (i.e. construction cost was adopted at Rs. 3,500/- per sq. mtr.) 7 A copy of letter dated 21.5.2001 to police authorities of 37-41 the State by regd. A. D. 8 Certified copy of Panchnama drawn by Ellis-bridge police 232- dated 3.2.01 234 9 Certified copy of Panchnama drawn by Ellisbridge police 235- dated 6.2.01 237 10 Certified copy of status showing diagram drawn by 238- forensic science office 243 11 Certified copy of correspondence as traded by police to 244- National Council for cement and building materials 245 12 Certified copy of letters addressed to FSL and the other 246- agencies authorities by police collectively 261 13 Certified copy of report of National Council for Cement 262- and building Hyderabad materials colly. 278 14 Copy of affidavit of Kishorbhai in lieu with oral evidence 223- by complainant no. 2/3 Kishorbhai R. Ganatra 228 15 Copy of affidavit of Binaben complainant no. 2/1 to 229 adopt the affidavit of Kishorbhai R. Ganatra 16 Copy of affidavit of Ritaben complainant no. 2/2 to adopt 230 the affidavit of Kishorbhai R. Ganatra 17 Pursis filed by Binaben complainant no. 2/1 to adopt the documentary evidence filed by complainant no. 2/3 279 Kishorbhai R. Ganatra 18 Pursis filed by Binaben complainant no. 2/1 to adopt the documentary evidence filed by complainant no. 2/3 289 Kishorbhai R. Ganatra 19 Copy of report of case study of Akshardeep Apartment by 292- Mr. V. R. Shah and Co. 294 20 Copy of affidavit by witness Mr. M. M. Shah 528- 593 21 Copy of interrogatories (1 to 104) submitted by opponent 310- for the affidavit of Mr. M. M. Shah 316 22 Copy of reply given by the witness Mr. M. M. Shah on 102- affidavit 112 23 Copy of additional affidavit filed by Mr. Kishor Ganatra 340-
(additional affidavit for the reply of question raised by 344 the opponent) 24 Copy of written submission filed by the complainant 482- 505 CC/197/2001 & CC/198/2001 25 Copy of broacher of Akshardeep Apartment 34-35 26 Copy of receipts dated 2.12.1993, 19.4.1994, 21.4.1994, 36-43 31.5.1994, 1.8.1994, 4.4.1994 and 24.4.1994 27 Share certificate No. 11 of the complainant 44 28 Photograph of the building collapsed 45-47
14. The respondent no. 1 has produced following evidence.
Sr. Particulars Page
1 Copy of affidavit filed by Rajivbhai 594-603
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 19 of 41
2 Copy of rejoinder filed by the complainant no. 2/3 547-551
Kishorbhai Ganatra
3 Copy of allotment letter issued to the complainant no. 2/3 552
Kishorbhai Ganatra
4 Copy of receipt of Rs. 51,000/-dated 20.1.93 by 553
Akshardeep Associates to the complainant no. 2/3 Kishorbhai Ganatra 5 Copy of receipt of Rs. 51,000/- dated 20.1.93 by 554 Akshardeep Associates to the complainant no. 2/3 Kishorbhai Ganatra 6 Copy of receipt of Rs. 50,000/- dated 26.8.93 by 555 Akshardeep Associates to the complainant no. 2/3 Kishorbhai Ganatra 7 Copy of receipt of Rs. 1,00,000/- dated 20.3.93 by 556 Akshardeep Associates to the complainant no. 2/3 Kishorbhai Ganatra 8 Copy of receipt of Rs. 75,000/- dated 15.10.93 by 557 Akshardeep Associates to the complainant no. 2/3 Kishorbhai Ganatra 9 Number of copy of argument of opponent no. 1 667-696 10 Copy of affidavit on behalf opponent no. 4 697-706 11 Copy of statement of account 14.1 The opponent no. 3 Jagdishbhai Patel has filed following documents at page 798 which are as under:
Sr. Particulars Page 1 Bylaws of AMC 799 2 Site map 800 3 National Building Code (NBC) Material for soil bearing 802 capacity 4 Soil testing report of adjoining building 803 5 Literature of IS code 1983-84 for increase of soil bearing 811 capacity 6 Soil testing report by KCT Consultancy services for Vedant 813 Building 7 IS Code provision for steel 833 8 Calculation as per IS code provision 834
The opponent no. 3 has filed an affidavit of Mr. Gaurang B. Dave, as witness at page 789-797. Interrogatories at page 871-876. Reply of 94 questions of the interrogatories at page 877-887.
14.2 The opponent no. 5 Pankaj Modi have also filed an affidavit of Mr. Utsav D. Patel as witness at page 838-854. Interrogatories at page 889-
891. Reply of 37 questions of the interrogatories at page 893-897.
Sr. Particulars Page 1 Copy of Deposition of Gauridutt D. Sharma before 855-860 Metropolitan Magistrate Court No. 5 in case of M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 20 of 41 1535/2016 2 IS 1199-1959 861 3 IS 456-1978 862-865 4 IS 516-1959 866 5 IS 456-1978 867-870 Permission under Section 12 (1) (c) of the Consumer Protection Act:
15. The complaints are filed by the Consumer Protection Council which is voluntarily consumer association registered under the Society Registration Act, with the consumers who have purchased the apartments from the opponent. In this group of complaints, 3 to 4 consumers have joined and filed different complaints. 15.1 The opponents have made grievances that the complainants have not obtained permission under Section 12 (1) (c) of the C. P. Act, 1986 before filing of the complaint. Therefore, present complaints are required to be dismissed only on this ground. They have relied upon the following judgments.
Sr. Particulars 1 2016 (IV) CLT 133 Parikshit Parashar vs. M/s. Universal Build Well Pvt. Ltd and Ors.
2 RP No. 10/2021 by SCDRC, Gujarat dated 27.9.21 3 CC No. 38/2010 JagrutNagrik vs. krushna J. Shah dated 24.8.17 Hon‟ble CDRC, Gujarat 4 III (2012) CPJ 17 (SC) 5 Appeal No. 546/2012 to Appeal No. 566/2012, by Gujarat State Commission dated 4.4.2014 6 (IV) 2011 CPJ 243 (NC) 7 IV (2012) CPJ 435 (NC) 8 I (2017) CPJ 1 (NC): Amrish Kumar Shukla and 21 ors. vs. Ferrous Infrastructure Pvt. Ltd. dated 7.10.2016
16. We have gone through the judgment cited by the opponents. The above judgments are not applicable to the present case because Hon‟ble Supreme Court has held in CIVIL APPEAL NO.1779 of 2021 in case of Brigade Enterprises Limited Vs Anil Kumar Virmani & Ors. one or more consumers can jointly filed a complaint having same interest.M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 21 of 41
16.1 Hon‟ble Supreme Court has held as under:
14. Section 35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested. It is needless to point out that the sine qua non for invoking Section 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Interestingly, Section 35(1)(c) uses the disjunction "or" in between two sets of words, namely,(i) "on behalf of"; and (ii) "for the benefit of". Clause (c) of Sub Section (1) of Section 35 reads as under:
"one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested."
15. Therefore, a complaint filed under Section 35(1)(c) could either be "on behalf of" or "for the benefit of" all consumers having the same interest.
19. The Explanation under Order I Rule 8 is of significance. It distinguishes persons having the same interest in one suit from persons having the same cause of action. To establish sameness of interest, it is not necessary to establish sameness of the cause of action.
20. The Explanation under Order I Rule 8, is a necessary concomitant of the provisions of the Rules 1 and 3 of Order I. Order I Rule 1, CPC, allows many persons to join in one suit as plaintiffs. Order I, Rule 3 allows many persons to be joined in one suit as defendants. But to fall under Order I Rule 1 or Order I Rule 3, the right to relief should arise out of or be in respect of the same act or transaction allegedly existing in such persons, jointly, severally or in the alternative. To some extent, Rules 1 and 3 of Order I are founded upon the sameness of the cause of action. This is why the Explanation under Order I Rule 8 distinguishes sameness of interest from the sameness of the cause of action.
30. That takes us to the next question as to the fate of the complaint filed by the respondents. It is sought to be contended that once the application under Section 35(1)(c) is held liable to be rejected, the complaint should also go, as more than one consumer cannot institute a complaint unless they come within the definition of the word "complainant" and also satisfy the requirements of Section 38(11) read with Order I Rule 8 CPC.
34. A careful reading of the above provisions would show that there is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter. There may be cases where only "a few consumers" and not "numerous consumers" have the same interest.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 22 of 41There is nothing in the Act to prohibit these few consumers from joining together and filing a joint complaint. A joint complaint stands in contrast to a complaint filed in a representative capacity. For attracting the provisions of Section 35(1)(c), the complaint filed by one or more consumers should be on behalf of or for the benefit of numerous consumers having same interest. It does not mean that where there are only very few consumers having the same interest, they cannot even join together and file a single complaint, but should take recourse only to independent and separate complaints.
38. Therefore, the proper way of interpreting Section 35(1) read with section 2(5), would be to say that a complaint may be filed: (i) by a single consumer; (ii) by a recognised consumer Association;(iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers; and (v) the Central Government, Central Authority or State Authority.
39. It must be remembered that the provisions of the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force, by virtue of Section 100. Even Section 38 which prescribes the procedure to be followed by the Commission for enquiring into the complaint, does not expressly exclude the application of the provisions of CPC. Though Subsections (9), (11) and (12) of Section 38 make specific reference only to a few provisions of the Code of Civil Procedure, the principle behind Order I Rule 1 enabling more than one person to join in a suit as plaintiff is not expressly excluded.
40. Therefore, we are of the considered view that while the National Commission was wrong in this case, in the peculiar facts and circumstances in permitting an application under Section 35(1)(c) read with Order I Rule 8 CPC, it does not mean that the complaint filed by the respondents itself is liable to be thrown out. The complaint filed by the respondents may have to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers. The purchasers of other flats, such as the intervenors herein may join as parties to the consumer complaint, if they so desire. As a matter of fact, it is stated by the intervenors that pursuant to the impugned order, advertisements were issued and the intervenors have already filed impleadment application before the National Commission. They are entitled to be impleaded.
Here in this case, 3 or 4 consumers have jointly filed the complaint having the same interest and sameness of cause of action therefore, in view of the ratio laid down by the Hon‟ble Supreme Court in above judgment the complaints is maintainable.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 23 of 4116.2 It is beneficial to refer here the definition of complainant under Section 2 (b) and Section 12 (1) of the C. P. Act, 1986 which reads as under:
Section 2 (b) "complainant" means--
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government, who or which makes a complaint;
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of dealth of a consumer, his legal heir or representative;
12. Manner in which complaint shall be made.--
(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by--
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.
16.3 Ld. Advocate for the opponent have argued that complainants have not obtained the permission of the Commission under Section 12 (1) (c) of the C. P. Act, 1986. On co-joint reading of the Section 12 (1) and definition of the Consumer Section 2 (b), the Commission is of the opinion that in this case the Section 12 (1) (c) is not applicable but Section 2 (b) is applicable as herein this case the recognized consumer association has filed these complaints. Thus, the arguments advanced by the ld. Advocate for the opponents are not tenable in eye of law.
Pecuniary Jurisdiction:
17. It is submitted by the ld. representative/ld. Advocate for the complainants that the present complaints have been filed under the Consumer Protection Act. Complainants are the consumers as defined under the C. P. Act. That the deficiency in service/unfair trade practice on the part of opponents is alleged. That the complainants have filed the claim not exceeding Rs. 20 lakhs therefore, this Commission has pecuniary jurisdiction to entertain the present complaints.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 24 of 4117.1 Ld. advocates for the opponents have made grievances that there were 16 members of the flat and all have filed different complaint in group. If all complainants of the complaint No. 164/2001 to 167/2001 have jointly filed the complaints the amount of compensation would be more than Rs. 20 lakhs. In that case, the complainants have to file the complaints before the Hon‟ble National Commission. The some of the complainants have made joint hand and filed joint complaints considering the pecuniary jurisdiction of the State Commission. If complainants have filed different complaint for their own damage in that case, the complainants have to file their complaint before the District Commission. It is stated that complainants have chosen the State Commission by dividing the complainants in different group. It is obligatory on the part of complainants either to file the individual complaint before the District Commission or to file a joint complaint before the Hon‟ble National Commission. Thus, complainants have chosen the jurisdiction of the State Commission intentionally.
17.2 The above objection as regards to the pecuniary jurisdiction cannot be considered in view of the ratio laid down by the Hon‟ble Supreme Court in case of Brigade Enterprises Ltd. (supra) wherein, it is held that joint complaint can be filed if the complainants have similar interest and sameness of cause of action. The Hon‟ble Supreme Court has also referred the order I Rule 1 of the Civil Procedure Code, wherein it is provided that any right to relief in respect of, or arising out of the same act or transaction or series of acts or transactions is alleged to exist in such person can file one suit. Considering the amount of claim in each complaint this Commission has jurisdiction to entertain the complaints. Hence, the objections raised by the ld. Advocate for the opponents are not sustainable.
Limitation:
18. Complainants have stated in para 3.05 (A) of the complaint that during the recent earthquake of 26.1.2001, the subject building block B was collapsed leading to total destruction of the constructions units and therefore, complainants have suffered the losses. It is further stated in para 3.07 of the complaint that the FIR was lodged in the Ellis-bridge M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 25 of 41 Police Station on 2.2.2001. That the said incident was taken place due to defective designing of and/or misconduct or negligence in execution of constructions work and use of substandard building materials, etc. in construction of the subject building. It is submitted by the ld. representative/ld. advocate for the complainant that the complaint filed within the period of limitation.
18.1 Ld. advocate for the opponents have argued that as stated in the complaint the building was constructed during the year 1993-94 and complainants were residing in the building without raising any dispute regarding deficiency in service. It is further argued that the complainants have obtained possession of their respective flats in the year 1993-94. The present complaints were filed on 26.6.2001, after the period of 2 years from the date of possession of the respective buildings. Therefore, the complaints are not filed within the period of limitation. They have not preferred any application for condonation of delay in filing the complaint therefore, complaints are required to be dismissed on the ground of delay in filing the complaint. They have relied upon the judgment reported in II (2009) CPJ 29 (SC).
18.2 It is beneficial to refer Section 22 and 23 of the Limitation Act, 1963 which reads as under:
"22. Continuing breaches and torts.--In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.
23. Suits for compensation for acts not actionable without special damage.--In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.
19. The complainants have specifically stated that the incident was took place on 26.1.2001 and as a result they have suffered a loss. It is further alleged by the complainants that they have suffered loss due to defective designing of and/or misconduct or negligence in execution of construction work and use of substandard building material, etc. It is M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 26 of 41 also pleaded by the complainants that due to commission and omission amounting to misconduct and negligence on the part of opponents in designing and execution of and use of substandard building materials in construction are the reasons for the cause of action. The action and omission as regards to the deficiency of service or action or any act on the part of defendants can be said to be a tort. Tort means- "a wrongful act or an infringement of a right (other than under contract) leading to legal liability. Public nuisance is a crime as well as a tort."
Section 22 of the Limitation Act prescribed a fresh limitation period for continuing tort. In this case the tort is known to a consumer on 26.1.2001. Therefore, it can be said to be continuing tort which leads the continuous of cause of action.
20. It is beneficial to refer here under the Section 55 of the Transfer of Property Act, 1882. The relevant portion of the said section is as under:
Section 55: Rights and liabilities of buyer and seller. In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:--
(1) The seller is bound--
(a) to disclose to the buyer any material defect in the property or in the seller's title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
20.1 This Commission has considered the judgment reported in 2022 LiveLaw (SC) 399 delivered in case of Hyundai Motor India Ltd. Vs. Shailendra Bhatnagar, wherein, Hon‟ble Supreme Court has held in para 7 that if there is statutory mandate and that mandate operates in respect of goods, whose defect is subject of proceedings in a consumer complaint under the C. P. Act, that the carry implied conditions of its fitness of the property. The said conditions are required to be fulfilled. In that case the interpretation was under Section 2 (7) read with Section 16 of the Sales and Goods Act, 1930 which carried implied conditions as to fitness of goods. In that case safety features of the vehicle fell short of the quality of fitness as was represented by the manufacturer by implication. Considering Section 16 it was held that defect in that case ought to be treated to have had surfaced on the date of accident itself. It was held that in such a situation, the limitation will run from the day the defect M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 27 of 41 surfaces in a case. There is no way by which the nature of defect complained against could be identified in normal circumstances at an earlier date, before the collision took place.
20.2 Here in this case, the property purchase by the complainant is immovable property, therefore, Section 55 (1) (a) of Transfer of Property Act is applicable. As per this provision the seller of immovable property is bound to disclose to the buyer any material defect in the property of which seller is, and the buyer is not, aware and which the buyer could not with ordinary care discover.
20.3 In this case, it is pleaded that the designing and execution of construction was not upto the standard and they have used substandard material in construction which leads the defective construction. This cannot be seen or aware by the buyer in ordinary care. As and when the earthquake occurred and construction collapsed the defect is surfaced.
21. It is provided in Section 23 of the Limitation Act in the case of suit for compensation for an act which does not give raise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. Here in this case, the specific injury actual resulted on 26.1.2001. The complaints were filed in June, 2001 within 2 years from the date of cause of action therefore, this Commission is of the view that the complaints were filed within the period of limitation.
Deficiency of service:
Certified copy of the police papers:
22. It is argued by the ld. Advocates for the opponents that herein these cases, the complainants have produced the copy of the police papers collected during the investigation of the crime registration No. I-066/2001 at the Ellis-bridge Police Station. That cannot be considered as evidence under Section 162 of Cr. Pc. He has relied upon the following judgments.
i) Judgment delivered by this Commission in A/2012/546 (para 13)
ii) IV (2011) CPJ 243 (NC) in case of New India Assurance Co. Ltd. Vs. Venkatesh Babu, wherein, it is held in para 6 as under:
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 28 of 41"It is now well settled that FIR is not a substantive piece of evidence. Section 162 Cr.PC lays down that the statements recorded by the police shall not be signed by the persons giving the statements. It is also well settled that the statements recorded under section 162 Cr.PC cannot be used for any purpose except as provided under section 162 Cr.PC. Such statements can be used for the limited purpose of impeaching credibility of the witness in accordance with section 145 of the Evidence Act."
22.1 The above judgments are not applicable in view of the ratio laid down by the Hon‟ble Supreme Court in the case of Khatri vs. State of Bihar reported in AIR 1981 SC 1068 wherein, it is held as under:
"It is apparent from this Section that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with. Then we come straight to Section 162 which occurs in chapter XII dealing with the powers of the Police to investigate into offences. That Section, so far as material, reads as under:
"162 (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of claues(1) of section 32 of the Indian Evidence Act, 1872, or to affect the provisions of section 27 of that Act.
It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police diary or otherwise, but by the express terms of the Section this bar is applicable only where such statement is sought, to be used 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made'. If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted."
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 29 of 4122.2 Herein these cases, the complainants have produced certified copy of the police papers collected during the investigation of crime register No. I-066/2001 at the Ellis-bridge Police Station. These cases are neither any inquiry nor trial in respect of any offence under investigation at the time when such statement was made. The definition of trial and inquiry is given in the Cr. Pc. This is a independent complaint filed by the complainants cannot be treated as a trial or inquiry under the Cr. Pc. Therefore, the papers (certified copies) collected during the investigation can be read in evidence in view of Section 76 read with Section 79 of the Evidence Act.
Section 79 of the Indian Evidence Act, 1872
79. Presumption as to genuineness of certified copies.-- The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.
22.3 One of the complainants has filed criminal complaint against the opponent builder, architect, structural engineer and supervising license engineer before the Ellis-bridge Police Station. The complainants have produced copy of letter address to the Director General of Police, Commissioner of Police, Ahmedabad, Police Inspector, Ellis-bridge Police Station for getting documents as regards to the investigation made by the police in respect of the complaint filed by them at annexure -VII. The certified copy of the police papers are produced in this case, in view of the ratio laid down by the Hon‟ble Supreme Court in case of Khatri vs. State of Bihar (supra) and Section 79 of the Evidence Act these papers can be read in evidence.
23. It is stated in the complaint that the scheme of the subject building complex was floated by the responsible opponents in the year 1991. The pamphlet/broacher giving highlights of the scheme issued at the time of booking. Amongst other things, the soundness and safety of the subject complex were expressly as well as impliedly assured as also is otherwise M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 30 of 41 the requirement of law. The broacher is produced at annexure I. The relevant portion of the said broacher as under:
Special Features:
Ideal situation of site for a homely-home.
A functional compact & modern planning to serve the family
requirements.
Sufficient covered paved parking.
Lift facility
Sufficient open play area.
Specifications:
R. C. C. framed structure with brick masonry walls.
Smooth cement plaster with white wash internally and sand faced
plaster with colored cement paint externally. Polish kota stone flooring with marble platform and 2'.00" white glazed tiles dado above platform in kitchen & marble flooring in drawing & dinning.
Right of any changes in dimensions, design & specifications is reserved with the project consultants which shall be binding to all.
24. One of the complainants has filed criminal complaint against the opponent builder, architect, structural engineer and supervising license engineer before the Ellis-bridge Police Station. The certified copy of criminal complaint is produced at annexure-III. On perusing the said it is stated that due to that the accused has constructed the defective building, the building was collapsed. 11 persons were died and 7 person have been seriously injured. It is further alleged that the builders, architect, structural engineer have not done constructions as per the sanction plan; they have used material not proper and in sufficient quantity. They have used goods and material in substandard quality and in such a way that building can be broken down at any stage and therefore, the incident was taken place. The certified copy of FIR is placed on record. The FIR is filed by one of the complainants; he has filed complaint on affidavit and also filed an affidavit stating the facts of substandard quality of construction. Therefore, it can be taken into consideration.
24.1 The complainants have produced a copy of newspaper addition of Gujarat Samachar dated 14.2.2001 in which the announcement was made about the package declares by the Government annexure-IV. The said document is not challenged by the other side.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 31 of 4124.2 The complainants have produced copy of application for getting relief/monetary help from the Government under notification at annexure- V. The complainants have produced the Government Resolution dated 27.2.2001 granting monetary help to the affected persons at annexure-VI. The resolution is not challenged by the other side. The contents of the resolution supported the case of the complainants.
24.3 The complainant Kishorbhai Ganatara has filed an affidavit in support of complaint at page 223-228. The other complainant Binaben S. Parikh and Ritaben B. Bataviya have adopted the facts of the said affidavit. The opponent has produced interrogatories containing 37 questions against the affidavit filed by the complainant Kishorbhai Ganatara. The complainant Kishorbhai Ganatara has filed reply of the 37 questions of the interrogatories at page 340-344. On perusing the said answers nothing adverse noted against the case of the complainants.
24.4 The complainants have produced the certified copy of Panchnama of scene of offence at page 232-234 at annexure-AA, prepared by the Police Inspector, Ellis-bridge police station for crime registered I-066/2001 under Section 304, 120 (b) (1) of IPC and Section 3 (2) (C) and (D), 7 (1) (i) and (ii) (2) of the Gujarat Ownership Flats Act, 1973. On perusing the same the collapsed construction is narrated. It is also assessed that damage of Rupees one crore is happened.
24.5 The complainants have produced the certified copy of seizure Panchnama at page 235-237 at annexure-BB, prepared by the Police Inspector, Ellis-bridge police station for crime registered I-066/2001 under Section 304, 120 (b) (1) of IPC and Section 3 (2) (C) and (D), 7 (1) (i) and (ii) (2) of the Gujarat Ownership Flats Act, 1973. On perusing the same the police have collected five samples of material and objects used in the constructions for sending to Forensic Science Laboratory for examination.
24.6 The complainants have produced the certified copy of sketch and map of the site damage at page 238-239 at annexure-CC, prepared by the Asst. Director of Forensic Science Laboratory, Ahmedabad wherein, Asst.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 32 of 41Director has identified 10 features and finally opined that building was collapsed due to heavy weight, defective joints and use of very less still as a result of coloum of ground floor failed.
24.7 The complainants have produced the certified copy of the sketch of the foundation and collected the material which are produced at page 240-241 is part of annexure-CC, prepared by the Asst. Director of Forensic Science Laboratory, Ahmedabad wherein, they have identified five specifications and opined that moisture soil was found in foundation which was taken as sample.
24.8 The complainants have produced the certified copy of the Panchanama prepared at the site for ground level inspection in presence of police at page 242-243 is part of annexure-CC, prepared by the Asst. Director of Forensic Science Laboratory, Ahmedabad wherein, it is stated that the quality of the material having low strength.
25. The complainants have produced the certified copy of the forwarding letter of the Police Inspector to the FSL for sending sample at page 244- 245 at annexure-DD. The complainants have produced the documentary evidence as regards to the reports submitted by National Council, Hyderabad for Cement and Building Materials, received by the Police Inspector in the crime registered No. I-066/2011 registered at Ellis-bridge police station at page 261-278, wherein, following documents are included.
i) A letter written by the Police Commissioner to the Police Inspector for sending sample at page 261.
ii) The certified copy of letter dated 31.5.2021 of General Manager, National Council, Hyderabad for Cement and Building Material issued to the Commissioner of Police, Ahmedabad at page 262.
iii) The soil testing result at page 263-264.
iv) Forwarding letter No. CDC/SP-10947 dated 2.8.2001 of the National Council for Cement and Building Material, Hyderabad address to the Police Inspector, Ellis-bridge police station at page 268 whereby the opinion in questions were submitted by the National Council for Cement and Building Material, Hyderabad at page 269-278. On perusing the said opinion following comments are relevant.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 33 of 4125.1 At page 269-270 report of C-1 sample of coloumn A4) 0.59%. It does not satisfy the minimum requirement of reinforcement. i.e. 0.8% to 6% as per IS;456-1978 A9) Little Variation is there. Spacing and diameter are shown in sketch enclosed.
A12) Cover details are provided in the sketch enclosed. The 25mmand 30mm covers on two faces are not satisfying the minimum requirement as per IS: 456-1978 A14) The average equivalent cube strength of concrete is 12.23N/mm2 A17) Yes, Uniform. But not maintained properly due to poor workmanship.
A18) a) Grade of concrete is not satisfying the minimum requirement of IS: 456-1978
b) reinforcement % is not satisfying the minimum requirement of IS: 456- 1978
c) End hooks and cover not maintained.
25.2 At page 271-272 report of B-1 sample of beem A2) 2 bars of 10mm diameter on bottom side and 2 bar of 10mm diameter on top side. The code (IS:456-1978) does not specify the minimum diameter of bar.
A4) Cannot be calculated, because bottom cover is stripped out and top cover is uneven and could not be measured.
A6) The type of steel of strrup is mild steel.
A13) Honey combing was observed in the cores. Only two corcscould be extracted.
25.3 At page 273-274 report of S-1 sample of slab A10) Main and distribution rods are tied together by binding wires.
A18) Quality of concrete is satisfactory, but the spacing of distribution reinforcement was not maintained properly.
A19) The codes for earthquake resistant structures do not have any special requirement for slabs.
25.4 At page 276 report of R-1 sample of Cluster of rods A1) Five varieties,16mm (* Actual 15.77mm, length 61.4cm), 12mm (* Actual 11.99mm, length 135.8cm), 10mm(* Actual 5.96mm, length 124.5cm), 8mm (* Actual 8.23mm, length 106.2cm). The 16mm, 12mm, M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 34 of 41 10mm and 8mm bars are high-strenght deformed bars. 6,, diameter bar is of mind steel.
A2) The % elongation in mild steel bar is 16.67%. The ultimate tensile strength of 6mm diameter bar is 50.0kg/mm2. The tensile strength satisfies the requirement but the % elongation does not satisfy the requirement.
25.5 At page 277 site observation (2) Water tank (12000 liters) was supported on staircase column.
(3) Two floors were collapsed to ground level.
(4) Blocks A & B collapsed.
(9) Failure of columns of water tank led to sway failure of the building.
26. The complainants have produced the report on case study of Akshardeep Apartment issued by the V. R. Shah and Co. at page 292-294 wherein, he has opined as under:
1. Soil capacity should have been checked up before taking up the actual design. Design cannot be based on unrealistic assumptions.
2. Column appear to be very weak against the actual loading.
3. If tie beams or plinth beams are not provided, column slenderness must be checked which is major factor in designing the column capacity.
4. Column concrete of M 10 capacities as observed and the miss alignment of column bars cannot have any reliability for the stability of the structure.
5. If balconies covered, then leaving aside the A M C requirements, the structural brackets must have been designed for the additional loads and moments.
6. When 4" cover is provided in a 9" wide column, the effective structural column capacity reduces to 5" width instead of 9" apparent width of column.
We feel that all above factors along with the other unknown parameters which have missed the eye of investigators, contributed to the unfortunate incident.
26.1 For this report (expert opinion) Mr. Madhusudan M. Shah has filed an affidavit dated 6.4.2010 at page 588-593 wherein, he has narrated the description written in the report and he has supported the contents of the report. He has clearly opined that the building was collapsed due to negligence and deficiency of service of the opponents.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 35 of 4126.2 The opponent no.1 Ravjibhai Patel has filed interrogatory containing 104 questions at page 310-316 against the affidavit filed by Mr. M. M. Shah. Mr. M. M. Shah, witness of the complainant, has replied on 8.2.2011 to the 104 questions of the interrogatories given by the opponent no. 1.
26.3 The opponent no. 3 and 4 have filed an application dated 1.10.2018 for cross examination of M. M. Shah at page 723-724. This Commission has passed an order to file interrogatories. The opponents have filed interrogatory of 48 questions on 21.12.2020 to Shri M. M. Shah witness of the complainant. The ld. Advocate for the complainant has filed a pursis that chartered engineer Shri M. M. Shah having age 81 years, he is suffering from CVA-brain stroke, his health is not good and he has lost his memory. Therefore, he is unable to give answer of the questions of the interrogatory. The complainant has also produced a certificate issued by the Dr. Kunal Zaveri about the CVA-brain stroke and having loss of memory of Mr. M. M. Shah.
26.4 From the above facts, it reveals that the affidavit was filed by Mr. M. M. Shah on 6.4.2010, the interrogatories was filed on 21.10.2020. The interrogatories or the request for cross-examination was filed after more than 10 years. The Mr. M. M. Shah was available for cross-examination if he was called for at the relevant time. Now, he is not having memory therefore, he is not able to answer the questions of interrogatories. He is not at fault for loss of his memory. Considering the facts and circumstances of the case I considered that the contents of the affidavit of Mr. M. M. Shah can be read in evidence.
27. The opponent no. 3 Jagdish Associates has filed following documentary evidence with his reply.
1) The order dated 27.3.2006 passed by the City Civil Court below an application under Section 227 of Cr. Pc. for discharging him in sessions case No. 89/2006. By this order the present opponent Jagdishbhai Kadvabhai Patel was discharged from the criminal proceedings.
2) The order dated 20.1.2010 passed by the Hon‟ble Gujarat High Court in Criminal Revision Application No. 227/2006 whereby, the order M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 36 of 41 discharging the accused passed by the Ld. Session Judge was confirmed.
27.1 The above two orders are issued by the Criminal Courts. The judgment of the criminal court is not binding to the Civil Court because standard of proof required to be applied by the criminal Court is beyond reasonable doubt (strict proof) whereas standard of proof required to be applied by the Civil Court is preponderance of probability.
27.2 The opponent no. 3 has also produced a statement of copy of claim amount. This will be considered while deciding the quantum of compensation.
27.3 The order and judgment dated 6.9.17 passed by the Hon‟ble National Commission remanded back the matter to this State Commission for fresh hearing. This Commission has considered the said judgment and given opportunity to lead evidence to opponent no. 3 and
4.
28. The opponent no. 3 has filed an affidavit of Mr. Gaurang B. Dave, as witness at page 789-797. This person is civil engineer having an experience in the field of constructions. It is stated in his affidavit that he has gone through the affidavit of Mr. M. M. Shah a witness of complainant. It is stated that as per the record of constructions of Akshardeep Apartments block-A and B was done in 1993-94. At the time AMC bylaws was on force in 1979 edition as per revised municipal bylaws ground floor + three floor will be considered as low-rise at that time. He has further made comment on the report of National Laboratory and highlighted positive things.
28.1 The complainants have requested to file interrogatory to examine/against the affidavit filed by the witness Mr. Gaurang B. Dave, the request was granted and complainant has filed interrogatory containing 94 questions at page 871-876. The witness of opponent no. 3 Mr. Gaurang B. Dave has filed reply to the 94 questions of the interrogatories submitted by the complainant at page 877-887.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 37 of 4129. The opponent no. 5 Pankaj Modi has also filed an affidavit of Mr. Utsav D. Patel as witness at page 838-854. He has produced some documentary evidence in support of affidavit.
29.1 The complainants have requested to file interrogatory to examine/against the affidavit filed by the witness Mr. Utsav D. Patel, the request was granted and complainant has filed interrogatory containing 37 questions at page 889-891. The witness of opponent no. 5 Mr. Utsav D. Patel has filed reply to the 37 questions of the interrogatories submitted by the complainant at page 893-897.
29.2 The opinion of the witnesses Mr. G. B. Dave and Mr. Utsav D. Patel, cannot be placed on higher pedestal then that of who have made construction. Here in this case neither opponent no. 3 nor opponent no. 4 has filed an affidavit in evidence to examine themselves. They have not entered into cross-examination to be put forward by the complainants.
30. Ld. Advocate for the complainant has produced written arguments at page 906-951. Ld. Advocate for the opponent no.1 has filed written argument at page 952-965. Ld. Advocate for the opponent no.3 has filed written argument at page 966-972. Ld. Advocate for the opponent no.4 has filed written argument at page 973-978.
31. Considering the documentary as well as oral evidence in affidavit discussed hereinabove this Commission is of the view that the disputed building was collapsed due to use of non-standard material, defective designing, not carried out execution of the construction according to rules and regulations framed for the constructions by the opponents. Therefore, the opponents are jointly and severally liable for the compensation.
Quantum of compensation:
32. The complainants have stated in the complaint that they have purchased the building/flats for rupees shown in Para 5 of the judgment. They have not lead any evidence as to what compensation is required to be awarded. The complainants have produced only receipts the amount paid for the purchase price. The purchase price of the flat included the M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 38 of 41 price of land, such price of land cannot be taken into consideration while deciding compensation.
32.1 Opponent no. 3 Jagdish Associates has produced a copy of chart of claim amount as annexure R1 with his affidavit in reply. Opponent no. 4 Pankaj Modi has produced a copy of chart of claim amount as annexure R1 with his affidavit in reply. On perusing the same both the statements are same. The opponent no. 3 Jagdish Associates and 4 Pankaj Modi, have filed affidavit and documentary evidence in all cases. This Commission has not narrated because of repeatation. The contents of the said chart are as under:
Case Owners Flat Build up Build up Purchase Land Govt. relief Net Claim No. Name No. area area Cost- Rs. Cost- Rs. amount - amount -
(sq. yds) (sq. mts) ( Land + Rs. Rs.
Building) (50.00 sq. {(f) -(g) +
mts. X Rs. (h)}
3500)
(a) (b) (c) (d) (e) (f) (g) (h) (i)
164 Binaben S. B- 140+60=200 167.28 4,75,000 1,17,000 1,75,000 1,83,000
Parikh 12/A
Ritaben D. B-14 140+60=200 167.28 5,25,000 1,17,000 1,75,000 2,33,000
Batavia
Kishorbhai B-16 165+60=225 188.20 4,75,000 1,17,000 1,75,000 1,83,000
R. Ganatara
165 Maulik B-9 140 117.10 3,75,000 1,17,000 1,75,000 83,000
Kantilal
Brahmbhatt
Dipak H. B-10 140 117.10 4,15,000 1,17,000 1,75,000 1,23,000
Shah
Jayshreeben B-12 165 138.00 4,25,000 1,17,000 1,75,000 1,33,000
P. Shah
166 Dhirubhai B-1 140 117.10 3,94,000 1,17,000 1,75,000 1,02,000
R. Gadiya
Vimlaben J. B-2 140 117.10 4,50,000 1,17,000 1,75,000 1,58,000
Patel
Kiritbhai D. B-3 165 138.00 4,25,000 1,17,000 1,75,000 1,33,000
Mehta
Ashit M. B-4 165 138.00 4,25,000 1,17,000 1,75,000 1,33,000
Bhagwati
167 Kantaben D. B-5 140 117.10 3,75,000 1,17,000 1,75,000 83,000
Patel
Narendra D.
Patel
Mardevbhai B-6 140 117.10 3,75,000 1,17,000 1,75,000 83,000
D. Bakshi
Shilpaben B-7 165 138.00 4,25,000 1,17,000 1,75,000 1,33,000
M. Shah
197 Kusumben A-4 300 250.92 9,00,000 2,35,000 1,75,000 4,90,000
Dinkarrai
Desai
198 Rameshbhai B-8 165 138.00 4,25,000 1,17,000 1,75,000 1,33,000
Prabhubhai
Patil
Total 15 15 2590 2166.28 68,84,400 18,73,000 26,25,000 23,86,000
32.2 As far as the quantum is concerned the complainants have not produced authenticated documentary evidence. The opponents have produced chart for amount of compensation wherein they have deducted the amount of Rs. 1,75,000/- on account of government relief for each complainant. There is no documentary evidence produced on behalf of M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 39 of 41 the opponents that each complainants have been paid Rs. 1,75,000/-.
The complainants have produced a schedule A at page 17 in CC/164/2001 to CC/167/2001 wherein, they have mentioned that they have received Rs. 70,000/- from the Government. In absence of any specific evidence of deduction as regards to the government relief received by the complainants, this Commission has considered Rs. 70,000/-, the amount of government relief received by the complainants. Therefore, such amount is required to be deducted for the purchase price.
33.3 In view of the documentary evidence on record and discussion as regards to the quantum of compensation to the complainant is concerned, this Commission is of the view that complainants are entitled to get compensation from the opponents as under:
Case Owners Name Flat No. Purchase Land Cost- Govt. relief Net Claim No. Cost- Rs. Rs. amount - amount - Rs.
( Land + Rs. {(f) -(g)- (h)}
Building) As per
complaint
(a) (b) (c) (f) (g) (h) (i)
164 Binaben S. Parikh B-12/A 4,75,000 1,17,000 70,000 2,88,000
Ritaben D. Batavia B-14 5,25,000 1,17,000 70,000 3,38,000
Kishorbhai R. Ganatara B-16 4,75,000 1,17,000 70,000 2,88,000
165 Maulik Kantilal Brahmbhatt B-9 3,75,000 1,17,000 70,000 1,88,000
Dipak H. Shah B-10 4,15,000 1,17,000 70,000 2,28,000
Jayshreeben P. Shah B-12 4,25,000 1,17,000 70,000 2,38,000
166 Dhirubhai R. Gadiya B-1 3,94,000 1,17,000 70,000 2,07,000
Vimlaben J. Patel B-2 4,50,000 1,17,000 70,000 2,63,000
Kiritbhai D. Mehta B-3 4,25,000 1,17,000 70,000 2,38,000
Ashit M. Bhagwati B-4 4,25,000 1,17,000 70,000 2,38,000
167 Kantaben D. Patel B-5 3,75,000 1,17,000 70,000 1,88,000
Narendra D. Patel
Mardevbhai D. Bakshi B-6 3,75,000 1,17,000 70,000 1,88,000
Shilpaben M. Shah B-7 4,25,000 1,17,000 70,000 2,38,000
197 Kusumben Dinkarrai Desai A-4 9,00,000 2,35,000 70,000 5,95,000
198 Rameshbhai Prabhubhai B-8 4,25,000 1,17,000 70,000 2,38,000
Patil
Total 15 15 68,84,400 18,73,000 10,50,000 39,61,000
34. This Commission has considered the averments made in complaints, contentions raised in the written statements of the respective opponents, documentary evidence on record, ratio laid down by the Hon‟ble Supreme Court in above referred cases, and facts and circumstances of the cases.
This Commission is of the view that claimants have established negligence and inaction on part of the opponents in carried out of construction. The complainants have established the facts as regards to the deficiency in service rendered by the opponents. Therefore, complainants are entitled for an amount of compensation as stated above. Hence, in the interest of justice following order is passed.
M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 40 of 41ORDER A) The complaint No. CC/164/2001 to CC/167/2001 and CC/197/2001 and CC/198/2001 are hereby partly allowed. B) The complainants are entitled for compensation of amount mentioned hereunder with 9% interest per annum.
Net Claim
Case Flat
Owners Name amount
No. No.
Rs
Binaben S. Parikh B-12/A 2,88,000
164
Ritaben D. Batavia B-14 3,38,000
Kishorbhai R. Ganatara B-16 2,88,000
Maulik Kantilal Brahmbhatt B-9 1,88,000
165
Dipak H. Shah B-10 2,28,000
Jayshreeben P. Shah B-12 2,38,000
Dhirubhai R. Gadiya B-1 2,07,000
Vimlaben J. Patel B-2 2,63,000
166
Kiritbhai D. Mehta B-3 2,38,000
Ashit M. Bhagwati B-4 2,38,000
Kantaben D. Patel Narendra D. Patel B-5 1,88,000
167 Mardevbhai D. Bakshi B-6 1,88,000
Shilpaben M. Shah B-7 2,38,000
197 Kusumben Dinkarrai Desai A-4 5,95,000
198 Rameshbhai Prabhubhai Patil B-8 2,38,000
Total 15 15 39,61,000
C) The opponents are directed to pay the amount of Rs. 10,000/-
(Rupees Ten Thousand Only) towards mental harassment and Rs. 5.000/- (Rupees Five Thousand Only) as cost of litigation to each complainant.
D) The opponents are directed to pay the above compensation jointly and severally to the each complainant within two months from the date of this order.
E) Copy of the judgments and order be provided to the parties free of costs.
F) The copy of the judgment be placed on the record of other cases of this group.
Pronounced in the open court today on 30th May, 2022.
[Justice Mr. V. P. Patel] President M. B. Desai CC-01-164 to CC-01-167 with CC-01-197 & CC-01-198 Page 41 of 41