State Consumer Disputes Redressal Commission
Smt. Babita Sharma vs Dolphin Promoters & Builders on 25 February, 2015
Daily Order Chhattisgarh State Consumer Disputes Redressal Commission Raipur Final Order Complaint Case No. CC/12/16 1. Smt. Babita Sharma R/o B1/605,Dalphin ImFress Vidhan Sabha Road Mowa Raipur Chhattisgarh ...........Complainant(s) Versus 1. Dolphin Promoters & Builders R/o Devendra Nagar Raipur Chhattisgarh ............Opp.Party(s) BEFORE: HONABLE MR. JUSTICE R.S.Sharma PRESIDENT HONABLE MS. Heena Thakkar MEMBER HONABLE MR. Dharmendra Kumar Poddar MEMBER For the Complainant: Shri Nikhil Agrawal, Advocate For the Opp. Party: Shri Shishir Bhandarkar, Advocate ORDER CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANDRI, RAIPUR (C.G.) Complaint Case No.12/16 Instituted on : 26.10.2012 Smt. Babita Sharma, Age 39 years, W/o Shri Suresh Sharma, R/o : B1/605, Dolphin Impress, Vidhan Sabha Road, Mowa, Raipur (C.G.) ... Complainant. Vs. Dolphin Promoters & Builders, Office : Sai Nagar, Jail Road, Raipur Chhattisgarh. Shri Harmit Singh Hora, Age 39 years, S/o Shri Gurumukh Singh Hora, Resident of : Devendra Nagar, Raipur Chhattisgarh ... Opposite Party PRESENT: - HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES:
Shri Nikhil Agrawal, for the complainant.
Shri Shishir Bhandarkar, for the opposite party.
Order Dated : 25/02/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the O.P. with a request that builder / O.P. be instructed to immediately take following corrective actions and to pay compensation as mentioned below :-
Uninstall/Remove the Cell Tower from Roof of Flat No.B1/605. (This is a Mandatory Requirement and also the entire Rental received by the Builder on account of Mobile Tower (from BSNL or whichever agency the Tower belongs to) from the date of selling the Flat to the complainant be paid to her and also the rental due for the entire period for which the Tower remains installed over complainant's flat should be paid to the complainant. This is for the simple reason that radiations from Mobile Tower are harmful and hazardous to Human Life and complainant and her family, particularly her children (16 years and 12 years old respectively) are subjected to these harmful and hazardous radiations.
2. Pay a sum of Rs.7,00,000/- (Rupees Seven Lacs only) for repair as per the estimate.
3. Pay compensation of @ Rs.1,07,620/- (Rupees One Lac Seven Thousand Six Hundred and Twenty Only) from 01st March, 2011 upto 31 March, 2012 for not able to shift to my own flat.
4. Compensate the complainant for other damages @ Rs.3,10,000/- towards amount spend on repairs damage to the whitewash, walls, floor due to leakage.
5. Pay the complainant interest and other charges being paid by the complainant to SBI towards Home Loan for the period 23.02.2011 upto the date of settlement of case. Interest paid to SBI upto 18.10.2012 is Rs.2,31,025/-.
6. Pay the interest on amount spent from own/family funds for the period 24.02.2011 upto the date of settlement of case. Interest amount spent from Family Funds upto 25.10.2012 is Rs.49,300/-.
7. Compensation for mental torture, harassment and pain suffered due to risk of harmful and hazardous radiation from cell tower and water leakage from roof ceiling of Flat B1-605 at Dolphin Impress, Mowa, able to use only 1 BHK space while we have paid for 2BHK space @ Rs.7,50,000/- (Rupees Seven Lacs & Fifty Thousand only)/
8. Rs.42,250/- not appearing in the Sale Deed and entire Registration Fee including Stamp Paper cost Rs.93,000/- should be returned to the complainant along with interest.
2. Brief facts of the complaint are that : the complainant came to know about Dolphin Impress Flats located at Mowa, Raipur in January 2011. The complainant met with Mr. Harmit Singh Hora, Partner of M/s Dolphin Promoters & Builders in January, 2011 to enquire about the availability of 2BHK Flat. He informed the complainant that he has one flat for sale in Dolphin Impress and showed the complainant Flat B1/605 from inside through his representative Mr. Santosh in January, 2011. The complainant checked the flat from inside and found that there was work to be done in the two bathrooms and also Whitewash was to be done in the entire Flat. Also kitchen tiles were broken and needs replacement. The complainant decided to re-do the interiors herself and approached SBI for Home Loan and made advance payment of Rs.90,000/- to Dolphin Promoters and Builders through Cheque payment. After owning the flat, the complainant started the interior work at Flat B1/605 i.e. Whitewash, Paint, Tile replacement, new doors, etc. which cost the complainant a total of Rs.2,40,000/- . While the interior work at the flat was underway, there was slight rain in March, 2011 and the complainant found that there was water leakage from roof Fan Junction Box of one of the rooms of her flat. The complainant approached Mr. Harmit Singh Hora and requested him to get the roof repaired. He assured the complainant of the repair and informed her that he will be sending someone to repair the roof. When his person came for repair, the complainant accompanied him to the roof and she found that there is a huge Cell/Mobile Tower/installed exactly over flat of the complainant, there is also a large size Kiosk mounted on complainant's flat and there is also a large size rusted Generator Set installed on complainant's flat. The complainant was in a shock to see the Cell / Mobile Tower installed over her flat as this was something which the builder or his representative never informed the complainant prior to selling the flat to her. The complainant have two children (16 years & 12 years respectively) and she was really concerned to see the Cell Tower over her flat because there are studies that prove that radiation from the Cell Tower are harmful and hazardous to human life. If the fact that a cell phone tower is installed at B1-605 roof was informed by the builder prior to selling the flat to the complainant, she would have never purchased this flat from the builder. The complainant understand there has been at least two incidents of fire at the mobile tower and associated equipments so far and this can be seen from the photographs submitted with the complaint which shows the Generator Set installed next to the Kiosk is heavily rusted after fire. The repair work carried by Mr. Harmit Hora's person was not sufficient to stop water leakage from the roof and when it once again rained after couple of weeks in end March, 2011, the rain exposed all the roof damage and it was not just leakage rather it was water pouring through the ceiling of one of the rooms (room adjacent to the kitchen over which the large size Kiosk is mounted/installed) which damaged complainant's ceiling Fan and also damaged the roof pain and wall paint. When the complainant tried to arrest the water leakage herself by spreading a 3-4 inch thick layer of PCC over the roof area of flat with the help of skilled mason & labour. However, even the 3-4 inch thick PCC could not stop water leakage because the roof slab is not suitable to withstand the load of cell tower, kiosk & DG set as mentioned by M/s Laxmi Civil Engineering Services Private Limited in their report / estimate dated July 23, 2012. The complainant could not shift to the flat in question because harmful radiation is coming from Cell Tower, which is hazardous for the complainant and her family and water is pouring from roof ceiling.
The complainant approached the builder with request to remove /fix the problem of roof leakage many times and where there was no response from the builder, she sent a request in request in writing through speed post on 26.07.2011 mentioning that in case the builder do not remove / fix the problems, the complainant move to Consumer Forum for relief. The complainant went to meet the builder at his office at Hotel Celebration with her husband after 3 to 4 days of sending the letter by speed post to know his response and whether he was prepared to rectify the problems mentioned by her in her letter. Contrary to her expectation, he threatened the complainant not to dare complain against him at any Forum. Honestly, the complainant too was scared and did not proceed with her complaint to Consumer Forum through her complaint was ready since August, 2011. Despite owing B1-605 Flat at Dolphin Impress since 24.02.2011, for which the complainant has been paying an EMI of Rs.12,937/- per month to SBI towards home loan, the complainant had to stay in rented accommodation at B-403, Shilp Enclave, Shankar Nagar, Raipur from 01.03.2011 upto 31.03.2012, house rent @ Rs.6,000/- per month i.e. Rs.78,000/- from 01.03.2011 upto 31.03.2012, the complainant had to pay Rs.10,400/- (Rs.800/- per month) as Society Maintenance Charges as Shilp Enclave Housing Society from 01.03.2011 upto 31.03.2012, Electricity Bill of Rs.6,650/- for the period March, 2011 upto March, 2012 for rented accommodation at B-403, Shilp Enclave, Shankar Nagar, Raipur and Electricity Bill of Rs.2,820/- for the period March, 2011 to March, 12 for Flat at B-1/605, Dolphin Impress. These expenses are too much for the complainanant she had to shift to B-1/605 with effect from 01.04.2012. The complainant spend another Rs.70,000/- to control roof leakage in March, 2012 by covering the roof boundary walls and roof by fiber sheets & cement sheets but unfortunately even this did not work and she could not prevent ceiling leakage. The complainant has been able to use only 1BHK (Bed Hall Kitchen) Space since moving into her Flat B1/605 at Dolphin Impress from 01.04.2012 against the 2 BHK space purchased by the complainant from builder. The O.P. did not remove the defects & problems of the flat in question, hence this consumer complaint. The complainant prayed that the reliefs as mentioned in the relief clause as mentioned above be granted in her favour.
3. The O.P. filed written statement and pleaded that the kitchen tiles were not broken and not needed replacement and entire flat not needed to be whitewashed. The complainant had inspected the flat from inside as well as outside and had also gone to the roof to check the flat from the top and after satisfying herself the complainant had agreed to purchase the flat on "as is where is basis". It is also submitted that at the time of inspection the representative of the O.P. had shown her entire building from top to bottom to let her have exact idea about the flat which she wanted to purchase. There was no concealment of any material fact about the installation of mobile tower, which was visible even from a distance. The complainant had not to repair bathrooms and kitchen tiles. The fact is that the complainant wanted to have ultra modern bathrooms and modular kitchen and had therefore done some interior work including whitewash to make it look like a modern flat on her choice. The complainant has not spent Rs.2,40,000/- over interior work. In March, 2011 there was no episode of leakage of water from the roof fan junction box one of the rooms. The complainant for the first time in March, 2011 did not came to know about the installation of mobile tower and generator set on the roof of the question flat. The installation of mobile tower and generator set was known to the complainant right from the beginning when she had come to inspect the flat. The complainant therefore had no occasion and reason to be shocked. The mounting of mobile tower and generator set over the roof of the building was known to the complainant and in spite of that the complainant had ventured into the purchase of the said flat. The complainant therefore, cannot blame on the O.P. for the act which she voluntarily and knowingly committed herself. So far as studies about the radiation from mobile tower and its hazards to human life is concerned, it is known to all. There is no threat of radiation from the mobile tower mounted on the building as the concerned mobile company has taken utmost care and caution to ensure that there is no hazard to the human life. The apprehension to the complainant to that effect is therefore is false and basis. The allegation about any fire incident in the mobile tower and its associated equipments or the generator set is also false, baseless and imaginary. The plaster of the ceiling of one of the room had peeled off while the interior work was being done by the complainant; and because of negligent workmanship the roof had some seepage, which was promptly rectified by this O.P. The mobile tower and the generator set installed over the roof, has not damaged the ceiling of complainant's flat. The complainant was not required to get the roof repaired, to stop the leakage of water. It is not correct that is spite of repairing being done, the leakage of water from the roof slab could not be stopped. It is not correct that roof was not suitable to withstand the load of mobile tower, kiosk and DG set. The report of M/s Laxmi Civil Engineering in this regard is totally false, fabricated and without any foundation. The fact is that not only the flat in question but the entire building was constructed by the O.P. as per the scheduled norms and specifications. Question of any structural or construction defect in the flat, therefore, did not arise. It is not true that the complainant could not move into the flat because of any radiation hazard from the mobile tower and leakage from the ceiling. The fact on the other hand is that the complainant had purchased the subject flat for investment purpose and had done some interior to attract some prospective purchasers to set it on higher price. The complaint as such is therefore not maintainable on this ground alone. It is not true that the O.P. did not yield to the complainant's request to rectify the alleged problem. The fact is that the O.P. very promptly and sincerely addressed the grievance of the complainant upto her satisfaction in spite of the fact that the problem of seepage from one portion of the roof had occurred solely because of negligent workmanship of the complainant's workers while doing some interior work. Question of the threatening to the complainant, by the O.P. does not arise. It is not true that the complainant was sacred of the O.P. and did not file the complaint before the Consumer Fora on some prior date. The fact on the other hand is that there was no occasion for the complainant to raise any dispute against the O.P. as the event of seepage from the roof had occurred because of her own negligent act. In fact the complainant herself is guilty of suppression of material fact as she has not mentioned about the dismissal of her previous consumer complaint by the District Forum, Raipur vide order dated 19.10.2012. The present complaint, for the same cause of action therefore, is not maintainable. It is not true that there is any structural defect in the questioned flat which would incur expenses of Rs.7,00,000/- for its repairing. The photographs submitted by the complainant are not of the same flat No.B-1-605. The said photographs are in fact false and fabricated and do not show the real picture of the questioned flat. Minor seepage from the roof was not because of installation of mobile tower or generator set. It was infact the result of negligent and unskillful workmanship of complainant's artisans engaged in the interior work. The O.P. has not cheated the complainant on any account while executing the sale deed. The sale-purchase transaction of the subject flat was in fact s per the wish and will of the complainant who was quite eager to have the ownership of that flat for monetary gain. Even otherwise no grievance about the execution and registration of the sale deed can be made by the complainant before this Commission as the same is out of the purview of consumer dispute. It is thus the present complaint is not maintainable before this Commission. The complainant is not entitled to get any relief to the extent of removal of mobile tower and generator set, against this O.P. as the installation of mobile tower and generator set, was within the knowledge of the complainant prior to entering into any sale-purchase transaction of the flat with the O.P. In this regard it is worth mentioning that as per the sale deed dated 24.02.2011 the roof of the flat and the building for that matter was not sold to the complainant and the same remained under the ownership of the O.P. for being used as per his requirement. This fact was within the knowledge of the complainant. She therefore, cannot make any grievance about the use of roof top by the O.P. So far as payment of any amount for repairing is concerned, it is not true that any amount as estimated would be required for repairing of the roof as it has already been cured/rectified to the satisfaction of the complainant. Other amounts towards consequential relief is also not payable as the complainant herself was instrumental in bringing the matter of grievance by making some alterations inside the flat in spite of the fact that she was prohibited to make any internal changes in the flat under the terms of the sale deed. The complainant has in fact deliberately dragged the O.P. into the present unnecessary litigation with the intention to get some wrongful gain under the pretext of deficiency in service which the O.P. has not committed. It is therefore, that the complaint be dismissed.
4. The complainant filed documents. Documents are Sale Deed dated 24.02.2011 of the Flat, Money Receipt dated 15.03.2011, Money Receipt dated 11.04.2011, letter dated 25.07.2011 to Mr. Harmit Singh Hora sent by Speed Post, Speed Post receipt dated 26.07.2011, Money receipt dated 27.03.2012, Repair Cost Estimate dated 23.07.2012 by M/s Laxmi Civil Engineering Services Pvt. Ltd, EMI transaction statement of SBI dated 18.10.2012, Newspaper cutting (Dainik Bhaskar) dated 30.07.2012, Receipt of maintenance charges dated 04.08.2012 issued by Shilp Enclave Housing Society, Shankar Nagar, Raipur, Receipt of Maintenance Charges dated 06.08.2012 issued by Dolphin Impress Residents Welfare Society, Mowa, photographs of Leakage and Seepage taken on 06.08.2012, invoice of photo prints dated 20.10.2012, Rent Agreement of Flat B-403, Shilp Enclave, Shankar Nagar, Raipur dated 15.03.2012, Electricity Bill payment details of Flat B-403, Shilp Enclave, Shankar Nagar, Raipur, Electricity bill payment details of Flat B1605 Dolphin Impress, Mowa, Raipur, certified copy of the order of the District Forum dated 19.10.2012, complaint and affidavit filed before the District Forum, Hindustan Times Articles : "New mobile towers have to be 36m from residences in city", presentation by Prof. Girish Kumar, IIT Mumbai on radiation hazards, document "Housing and Consumer" by Ravindra Bana, EMI transaction statement of SBI for period 01.10.2012 to 02.12.2012, bank transaction dated 24.02.2011 towards proof of cash payments made to M/s Dolphin Promoters and Builders for purchase of stamp papers etc., photographs , video clip in Pen Drive. Annexure I is copy of B.Sc degree from M.D. University, Annexure II is Sale deed dated 24.02.2011, Annexure III-A is letter from Nagar Palika Nigam, Raipur, Annexure III-B is letter from Nagar and Gram Nivest, District Office, Raipur dated 03.12.2004, Annexure III-C is drawing layout of Dolphin Impress Apartment, Annexure IV are photographs taken from outside the Entrance Gate and other photographs, Annexure V-A Page, 1, 168, 169 of order dated 27.11.2012 in the High Court of Judicate for Rajasthan at Jaipur Bench Jaipur, Annexure V-B are page172 of 177 of order dated 27.11.2012 in the high Court of Judicature for Rajasthan at Jaipur bench Jaipur, Annexure V-C are page 184 to 193 of order dated 27.11.2012 in the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur, Annexure V-D is Calculation, Annexure V-E are page 39, 40 of order dated 27.11.2012 in the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur, Annexure VI is Supreme Court of India judgment dated 10.05.2012, Annexure VII is order by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi Original Petition No.212 of 1992 dated 11th January, 1995, Annexure VIII is photograph of Bathrooms and kitchen, Annexure IX is drawing indicating dimensions of flat, Annexure X is document pertaining to Generator Set, Annexure XI is installation procedure for generator set, Annexure XII is photographs of Roof Top of Flat B1-605, Annexure XIII-A is letter dated 25.07.2011 to builder, Annexure XIII-B is speed post receipt of letter sent to Builder on 26.07.2011, Annexure XIV-A is affidavit by Shri Naresh Jindal dated 09.02.2013, Annexure XIV-B is affidavit by Shri D. K. Saxena, dated 09.02.2013, Annexure XIV-C are photographs of Mobile Tower, water Leakage from Roof, Generator set etc., Annexure XVA is page 43 of 62 of presentation of Prof. Girish Kumar, Annexure XVB is page 56 of 62 of presentation of Prof. Girish Kumar, Annexure XVI-A is agreement between Dolphin Promoter's and Builders and BSNL dated 01.07.2007, Annexure XVI-B letter of Nagar Palika Nigam Zone 02 Raipur dated 25.09.2007, Annexure XVII is objection by residents of Dolphin Impress Apartment, Annexure XVII is receipt of notice, Annexure XIX are page 18 & 19 of document housing and consumer, Annexure XX is affidavit, Annexure A Compensation calculations, Annexure B is Compensation Calculation.
5. Shri Nikhil Agrawal, learned counsel appearing for the complainant has filed written arguments and has argued that the Mobile Tower was erected / installed by the O.P. in the roof of the flat of the complainant and the same was not intimated to the complainant. The complainant only inspected the flat in question from inside and some defects were found and she was ready to cure the above defects on her own expenses and she incurred a sum of Rs.2,40,000/- for this purpose. The O.P. did not provide quality repairing services and did not remove the defects in the flat in the question. The Mobile Tower is injurious to health and hazardous for the complainant and her family members. He further argued that the complainant is a "consumer" and the O.P. has sold defective flat to the complainant without removing the defects, therefore, the complainant is entitled to get a sum of Rs.7,00,000/- which has been incurred by her for repairing of the roof of the flat in question and also compensation of Rs.1,07,620/- because she was forced by the O.P. to live in rented house and Rs.7,50,000/- towards compensation for mental torture, harassment and pain suffered due to risk of harmful and hazardous raditions from cell tower and water leakage from roof ceiling of flat B1-605 at Dolphin Impress, Mowa. The O.P. be also directed to remove the mobile tower from the roof of the flat in question. The complainant is also entitled to get other compensation as mentioned in the relief clause of the complaint.
6. Shri Shishir Bhandarkar, learned counsel appearing for the O.P. has argue that the roof of the flat in question was not sold by the O.P. to the complainant and after physical inspection and her satisfaction, the complainant purchased the flat in question. She was very well acquainted with the fact that the mobile tower was erected / installed in the roof of the flat in question and after knowing that the mobile tower was erected / installed in the roof of the flat in question, the complainant purchased the flat in question form the O.P. and there is defect no in the construction work and quality of the construction is good and after her full satisfaction, she purchased the flat in question. Therefore, the complaint is baseless and without merits and is liable to be dismissed. He further argued that the complainant is not "consumer", hence the complaint be dismissed. The above argument is not acceptable.
7. We have heard learned counsels for both the parties and have perused the documents filed by both the parties.
8. In M/s Narne Construction Pvt. Ltd. Etc. Etc. vs Union of India & Ors. Etc., 2012 (3) CPR 1 (SC), Hon'ble Supreme Court has observed thus :-
"7. In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant - company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/amenities, lay-out approvals etc. was a 'service' within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant - company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted 'service' within the meaning of the Act. It was not a case where the appellant - company was selling the given property with all advantages and/or disadvantages on "as is where is" basis, as was the position in U.T. Chandigarh Administration and anr. vs. Amarrjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant - company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant - company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents.
8. This Court in Bangalore Development Authority v. Syndicate Bank (2007) 6 SCC 711, dealt with the nature of the relief that can be claimed by consumers in the event of refusal or delay in the transfer of the title of the property in favour of the allottees/purchasers and observed :
"Where full payment is made and possession is delivered, but title deed is not executed without any justifiable cause, the allottee may be awarded compensation, for harassment and mental agony, in addition to appropriate direction for execution and delivery of title deed."
9. In Sanjay Nagar Residents' Welfare Association vs. The Vice-Chairman, G.D.A, II (1995) CPJ 58 (NC), Hon'ble National Commission has observed thus :
"12. From the above facts it appears that :
The OP GDA had delayed the handing-over of the flats. It appears they had been constructed by September, 1990 but the allotment was commenced only after the GDA had determined the additional cost of the flats due to escalation. The grant of possession of flats was made dependent upon the payment by the allottees of the additional amount. The Consumer Forums cannot go into the question of costs of flats as costs are in the nature of pricing, in the nature of consideration and not service to be rendered. As, however, the allottees were in dire need of getting possession, the same was withheld with a view to force them into payment of the additional amount on account of escalation. This, in the opinion of the Commission, amounted to Unfair Trade Practice on the part of OP, GDA.
It is established beyond doubt that the essential infrastructure works such as water supply lines, electricity lines sewage, approach roads etc. in the housing complex had not been provided when the possession of the flats was commenced to be given from October, 1991. Obviously, in the absence of essential infrastructure facilities, the allottees could not beneficially enjoy them by merely taking possession of the flats. The OP GDA was, therefore, guilty of grave deficiency in service in the matter of housing construction.
It is also established beyond doubt that the houses as constructed suffered from serious defects. Sub-standard materials and fixtures and fittings were used; there are also constructional defects leading to percolation/seepage of water from upper floors to lower floors etc. Therese are also serious deficiencies in housing construction on the part of OP, GDA.
It is self-evident that these deficiencies are of very serious nature They have been further compounded the fact that there has been an increase in price (consideration) claimed by the GDA though we have, for obvious reasons, avoided examining as to whether such increases were justified per se."
10. From bare perusal of above cited judgments, it appears that builder/developer have provided services to the purchaser therefore, the purchaser is "consumer" and dispute between the builder/developer and purchaser is "consumer dispute" and therefore the Consumer Foras have jurisdiction to decide the matter and dispute between the parties and if any deficiency in service is found to be committed on the part of the builder/developer then the complainant can be compensated by way of compensation for such deficiency in service. Therefore, the present dispute between the parties comes within purview of "consumer dispute" and the complaint is "consumer".
11. In the instant case the complainant filed document i.e. copy of Sale Deed executed in favour of the complainant. In the said Sale Deed it is mentioned that roof of the flat in question is not being sold by the O.P. From the perusal of the Sale Deed, it appears that the roof of the flat in question was not being sold by the O.P. to the complainant and was under ownership is still remain with the O.P.
12. Now we shall examine whether the complainant has purchased the flat in question in spite of knowing this fact that the Mobile Tower was erected/installed in the roof of the flat in question ?
13. It is not disputed that the roof of the flat in question was not sold by the O.P. to the complainant and the O.P. is owner of the roof of the flat in question, but he has no vested right to do any work over the roof of flat in question, which is hazardous and dangerous to the life of the complainant & her family members.
14. It is matter of common knowledge that Mobile Towers are source of harmful and hazardous radiations and becoming a concern for the health and safety of all the residents of the locality; and there is imminent danger by emission of harmful radiations; they may cause injury to health and life of people.
15. The complainant filed some documents which is literature regarding radiations and related to its effect. Looking to the literature, it appears that radiation pattern of Cell Tower Antena and emission causes significant health hazards (biological effects) on human, animals, birds, plants and environment.
16. The complainant filed letter bearing endorsement No.2612 dated 27.11.2014 in which the O.P. has been directed by the Municipal Corporation, Raipur to remove the Mobile Tower from the roof of Flat No.B-1/605. Looking to the facts and circumstances of the case, it appears that Mobile Tower should be erected/installed in the roof of the residential house and emission of the Mobile Tower is injurious to health and dangerous for life of the residents. It is no doubt that due to radiations coming from Mobile Tower, the residents of such houses suffered grievous diseases like Cancer etc. Therefore, it is just and proper to direct the O.P. to remove the Mobile Tower, erected / installed in the roof of the flat of the complainant i.e. B-1/605.
17. In the instant case, Shri Vinod Dewangan, Executive Engineer, Zone No.02, Municipal Corporation, Raipur (C.G.) was appointed as Commissioner for giving Inspection Report. Shri Vinod Dewangan, visited the Flat No.B1-605, Dolphin Impress, Vidhan Sabha Road, Mowa, Raipur. He issued notice to both the parties to remain present on 05.08.2013 at 10 A.M. but nobody appeared on behalf of the O.P. at the time of inspection conducted by Shri Vinod Dewangan in spite of receiving notice. It appears that notice was duly served on the O.P. in respect of conducting inspection by the Commissioner, but no one was present on the fixed date and the Commissioner gave his report dated 12.08.2013. In his report, it is mentioned that :-
''छ.ग. राज्य उपभोक्ता विवाद प्रतितोषण आयोग द्वारा दिए गए आदेश अनुसार परिवाद क्रमांक-16/12 श्रीमति बबीता शर्मा विरूद्ध डाल्फिन प्रमोटर्स एण्ड बिल्डर्स, मोवा में स्थल निरीक्षण कर आयोग के समक्ष निरीक्षण रिपोर्ट प्रस्तुत करना था।
निर्देशानुसार मेरे द्वारा उभय पक्षों को (1) डाल्फिन प्रमोटर्स एण्ड बिल्डर्स विधानसभा रोड, मोवा रायपुर एवं (2) श्रीमति बबीता शर्मा पति श्री सुरेश शर्मा फ्लैट नं. बी1-605 डाल्फिन इम्प्रेस विधान सभा रोड, मोवा रायपुर को पत्र क्रमांक-51 दिनांक-03.08.2013 द्वारा दिनांक-05.08.2013 को प्रातः 10.00 बजे प्रश्नाधीन स्थल पर उपस्थित रहकर संयुक्त निरीक्षण किए जाने बाबत् सूचना दी गई जिसकी फोटो प्रति संलग्न है।
सूचना अनुसार मेरे द्वारा प्रश्नाधीन स्थल बलौदा बाजार मुख्य मार्ग में मोवा क्षेत्र में निर्मित डाल्फिन प्रमोटर्स एण्ड बिल्डर्स के छः मंजिल भवन के छइवें माले पर स्थित फ्लैट क्र. बी1-605 का प्रातः 10.00 बजे से 11.45 बजे तक उपस्थित रह कर निरीक्षण किया इस दौरान मात्र पक्ष क्रमांक-02 से श्रीमति बबीता शर्मा एवं उनका परिवार उपस्थित रहा एवं पक्ष क्रमांक-01 से कोई भी उपस्थित नहीं हुआ।
फ्लैट के निरीक्षएण में देखा गया कि मुख्य द्धार से सामने एक हाल पश्चात् एक किचन एवं बाई ओर एक मास्टल बेडरूम एवं एक अन्य बेडरूम अटैच टायलेट के साथ निर्मित है हाल के बाहरी दिवाल में गीलापन देखा गया इसी प्रकार किचन एवं दोनों बेडरूम के बाहरी दिवालों में गीलापन देखा गया। मास्टल बेडरूम में सिलिंग में पंखा लगाने हेतु हुक की जगह के चारों तरफ प्लास्टर में पानी के रिसवा के कारण हल्का पपड़ी निकलने एवं गीलापन देखा गया जिससे प्रतीत होता है कि बारिश होने पर यहां से पानी का रिसाव होता है।
फ्लैट के छत पर भी निरीक्षण किया जिसमें एक मोबाईल टावर लगभग 20 फीट ऊंचा भी लगा होना पाया गया। साथ ही दो जनरेटर का भी लगा होना पाया गया। जिसमें एक छोटा जनरेटर जली हुई अवस्था में खराब एवं बंद देखा गया। जो कि छत से लगतर बेस कांक्रीट लगभग 3 इंच मोटाई के साथ रखा गया है तथा दूसरा बड़ा जनरेटर जिसमें विद्युत तार के जुड्ाव थे। बंद हालत में पाये गये। उक्त जनरेटर 4 छोटे एवं लगभग 11/2 फीट ऊंचे कालम पर दो लोहे के एंगल लगाकर रखा गया है। छत के टैरेस मं सीमेंट फ्लोरिंग करना पाया गया एवं पैरापैट वाल के ऊपर प्लास्टिक शीट वर्षाऋतु से बचाव हेतु रखा होना पाया गया।
उपरोक्तानुसार आयोग के समक्ष निरीक्षण रिपोर्ट अवलोकनार्थ प्रस्तुत है। ''
18. From bare perusal of the report of Shri Vinod Dewangan, Commissioner, it appears that there was seepage in the wall of kitchen and bed room of the flat in question. There is peeling in Master Bed Room near Ceiling Fan.
19. The complainant also filed affidavit of herself, her neighbours Mr. Naresh Jindal and Shri D.K. Saxena. Questionnaire was also sent by the O.P. to Mr. Naresh Jindal and he gave his answer to the effect that he is owner of Flat No.B1-604, Dolphin Impress, Vidhan Sabha Road, Mowa, Raipur and is residing there. He is also having complaint regarding seepage and he further stated that roof of kitchen of Flat B1-605 is badly damaged.
20. The complainant filed affidavit of Mr. D.K. Saxena, in which he deposed that there is water leakage from roof of Flat B1-605. The owner of the flat B1-605 tried to stop water leakage by spreading a 3-4 inch thick PCC layer with the help of mason and labourers over the roof area of Flat B1-605 in May, 2011. The complainant also filed her own affidavit. On the basis of affidavit of the complainant, Mr. Naresh Jindal and Mr. D.K. Saxena and Commissioner's Report dated 12.08.2013,, it appears that the defect is still remain in the flat in question and O.P. did not remove the above defects. The complainant repeatedly contacted with the O.P. for removal of the defective, but the O.P. did not give any response to it, therefore, the complainant is entitled to rectify the above defect from the O.P. and non removal of above defects by the O.P. comes within purview of deficiency in service.
21. The complainant asked for the amount of Rs.7,00,000/- as per estimate but the complainant could not prove and establish the relief sought by her in prayer clause 2 to 6. She is not entitled to get any compensation under the above heads from the O.P. The O.P. erected / installed Mobile Tower in the roof of the flat in question of the complainant and some defects were also found in the repairing work on the report of Commissioner, therefore, it appears that the complainant suffered mental agony due to defects in the flat in question and sub standard quality of repairing work, therefore, the complainant is entitled for getting compensation from the O.P. towards mental agony. Looking to the facts and circumstances of the case, we find that the complainant is entitled to get a sum of Rs.2,00,000/- as compensation for mental agony from the O.P.
22. Therefore, we allow the complaint of the complainant in part and it is directed to the O.P. :-
(a) To remove the Mobile Tower from the roof of the flat of the complainant i.e. B1/605, Dolphin Impress, Vidhan Sabha Road, Mowa, Raipur (C.G.) within one month from the date of this order,
(b) To remove the defects, which were mentioned in last para of page one of the Report of Commissioner Shri Vinod Kumar Dewangan, dated 12.08.2013 within one month from the date of this order,
(c) To pay the complainant within a period of two months from the date of this order, a sum of Rs.2,00,000/- towards compensation for mental agony along within interest @ 9% p.a. from the date of filing of the complaint i.e. 09.11.2012 till realisation.
(d) No order as to the cost of this complaint. (Justice R.S. Sharma) (Ms. Heena Thakkar) President Member /02/2015 /02/2015 [HONABLE MR. JUSTICE R.S.Sharma] PRESIDENT [HONABLE MS. Heena Thakkar] MEMBER [HONABLE MR. Dharmendra Kumar Poddar] MEMBER