State Consumer Disputes Redressal Commission
Dhanappa Irappa Koshti, vs Emkay Developers on 20 March, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.986 of
2009 Date of Filing: 31/07/2009
In Complaint
No.176/2007 Date of order : 20/03/2010
District Forum: Satara.
Dhanappa Irappa Koshti,
R/o D-5 Government
Quarters,
515 Sadarbazar,
Near New R.T.O. Office,
Satara.
..Appellant/
Org. Complainant
V/s.
Emkay Developers
through partner
1)
Sohail Yakub Bagwan,
2)
Kutubuddin Rahiman
Shaikh,
3)
Mohammad Hanif
Tawakkal Palkar,
All R/o 402/2 Molacha Odha, Karanje,
Satara.
..Respondents/
Org. Opposite Parties
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Appellant in person.
None for the Respondent.
-: ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member.
Heard Appellant in person.(1)
None appeared for the Respondent though duly served. On last date Mr. Milind Oak, Advocate for the Respondent was present. Today he is absent. With his knowledge we kept this matter today for final hearing. We heard Appellant in person.(2)
The grievance of the Appellant is that despite of report of Court Commissioner, forum below dismissed the complaint. Commissioner was appointed in the course of trial by the forum below. Commissioner - Shri Vaibhav Shinde, gave report at Page No.153. On Page No.159, the Commissioner Shri Vaibhav Shinde (Architect) has clearly mentioned that on actual visit of the Row house some leakages (water) dampness in wall, broken door shutter at terrace level exist at site.
The Commissioner has in the summary dated 17.10.2008 clearly mentioned that the main deficiency in Row House No. B-12 is water leakage, pipe railing, fixing of doors, window sills, M.S. fabricated staircases instead of R.C.C and he has given photographs to point out the deficiencies on the part of the builder developer. When report of Commissioner was procured, the forum below should have acted upon the said Commissioners report and should have allowed the complaint partly and should have directed the Opposite Party/Respondent to make good the defects. But, instead of doing so, the Forum below simply dismissed the complaint observing in Para-10 that as per report at Exhibit-65 the Commissioner reported that there were no defects noticed as complained of by the Complainant. This observation of Ld. District Forum is totally wrong and misleading.
(3)We have perused the report of Court commissioner. Court Commissioner in his report and in his photographs categorically pointed out the defects in the row house constructed by the Respondent. Those defects are required to be removed by the Respondent and to that extent the forum below ought to have allowed the complaint, but, it erroneously held that report of the Court Commissioner was not showing any defects in the construction of the row house which is contrary to the factual position. The Forum below ought to have read the Court Commissioners report entirely along with the photographs and when the said report is read along with photographs, we are finding that there were deficiencies left out by the builder developer in the row house constructed for the Complainant. It is common knowledge that the builder is taking possession letter already pre-printed from every purchaser to whom possession is given. So, whatever is mentioned in the possession letter is not to be treated as gospel truth. Thus, we are inclined to allow this appeal partly to direct Respondent Builder to make good the deficiencies as pointed out by the Court Commissioner - Shri Vaibhav Shinde, in his Report. To this extent appeal will have to be partly allowed. Hence, we pass the following order:
O R D E R
(i) Appeal is partly allowed.
(ii) Judgement passed by the District Forum - Satara in Consumer Complaint No.176/2007 is quashed and set aside.
(iii) Complaint is partly allowed.
(iv) The Opposite Party is directed to make good the deficiencies in terms of Report of Commissioner - Shri Vaibhav Shinde, which is already placed on record in the forum below.
(v) Respondent is directed to pay to the Appellant costs of Rs.5,000/- and bear his own costs.
(vi) Inform the parties accordingly.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member ep