State Consumer Disputes Redressal Commission
Srikrishna Bhat.K.K. vs Kolte Patil Developers Ltd. on 5 February, 2024
1 CC/145/2020
Date of Filing : 29.07.2020
Date of Disposal : 05.02.2024
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 05th DAY OF FEBRUARY 2024
PRESENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs M.DIVYASHREE : LADY MEMBER
CC-NO.145/2020
1. Srikrishna Bhat.K.K.
2. Utpala Musti
W/o Srikrishna Bhat.K.K.
Both are R/at
B-202, Whispering Meadows,
Dollars Colony,
RMV II Stage, Bengaluru-560094 . . ..Complainant/s
(By Party-In-Person)
VS
1.
1. Kolte Patil Developers Ltd.
2nd floor, City Point,
Dhole Patil Road,
Pune-411001.
Also Branch Office At: No.121,
10th Floor, The Estate,
Dickenson Road, Bengaluru-42.
2. The Managing Director
Kolte Patil Developers Ltd.,
2nd floor, City Point,
Dhole Patil Road,
Pune-411001, Maharashra
Alternatively: Bunglow No.53,
Lane no.2, North Main road,
2 CC/145/2020
Koregaon Park, Pune-411001,
Maharashtra. ... Opposite party/s
(By Adv.Sri.Vishwanath.G.L)
ORDER
BY Mr.K.B.SANGANNANAVAR : Pri.Dist & Session Judge (R) - JUDICIAL MEMBER.
1. This is the complaint filed before this Commission to direct OPs to pay compensation of Rs.4,00,925/- for the removal of old tiles and redoing of the tile works which is calculated at the cost of Rs.220/- per sq.ft for vitrified floor tiling, Rs.200/- per sq.ft for wall and other floor tiling and a removal charges for old tiles at Rs.25/- per sq.ft for the two layers of the floor tiles and wall tiles in bathrooms. To pay compensation of Rs.25,000/- for delayed physical possession. To pay compensation of Rs.2,28,000/- for removal and fixing new aluminium sliding doors for the total area 330 sq.ft at Rs.650/- per sq.ft. To pay compensation of Rs.2 lakhs for not providing some amenities and failing to maintain the existing amenities in a safe and working condition. To pay Rs.1 lakh for mental stress and agony, to pay Rs.80,000/- towards painting charges after removal and re-fixing of tiles and aluminium doors. To pay Rs.35,000/- towards electricity charges for the equipment, for the removal of tiles and moving charges for resulting debris. To pay compensation of Rs.20,000/- towards cost of litigation and to 3 CC/145/2020 provide the missing amenities within six months and fix and maintain the existing amenities in a safe and functioning manner.
2. Initially Complainants.1 & 2 herein filed complaint before the 3rd Addl., District Forum, Bengaluru Urban district U/s.12 of CPA 1986 against OP.1 & 2 with similar relief on 22.10.2016 which was contested by Ops and District Forum held an enquiry by receiving affidavit evidence of parties to the complaint along with documents 1 to 30 on behalf of Complainant and one document for OPs, thereby proceed to return the complaint to the Complainants to present before the proper and jurisdictional Forum followed by the ratio laid down by the Hon'ble National Commission in the case between Gurmukh Singh V/s Greater Mohali Area Development Authority and another reported in 2018 (2) CPR 111 (NC) that the total "total value of goods or services provided is to be taken into consideration for determining the pecuniary Jurisdiction of a consumer fora and not the partial amount deposited by an allottee. Since in the case on hand, the total value of goods exceeds Rs.20 lakhs, thereby, District Forum has no pecuniary jurisdiction to entertain the complaint and held even though the Complainants sought only for the relief of Rs.10,16,725/- Forum has no Pecuniary Jurisdiction to entertain the complaint.
4 CC/145/2020
3. The brief facts of the case of the Complainants would be apartment no.B-202, Whispering Meadows Apartments, RMV 2nd stage, Dollars colony, Bengaluru-94 was purchased by Complainants.1 & 2 from OPs on 02.11.2015 under registered sale deed, but the possession of the vacant schedule apartment was not handed over to them, but on 17.11.2015 physical possession of the apartment was given. However the e serious issues in the schedule apartment were not addressed properly by OPs even after repeated requests, reminders and issues are of such nature that schedule apartment needs a complete redoing of the tiling and aluminium sliding door works. The schedule apartment is being maintained by OPs was equally bad with the promised amenities either being completely absent or in non-working and/or unsafe condition. Certain email communications were held in the month of July, August, September, November 2015 and in the month of January, February, March, June, July and August 2016. Yet OPs failed to address the deficiencies found in their apartment in respect of redoing of tiling, aluminium door works and painting of schedule flat which amounts to unfair trade practices. Thus, Complainant.1 & 2 alleged against OP that the tiling works done by the developers on floors and other places is of very poor quality, not rectifiable and has started coming out or breaking already. Aluminium doors 5 CC/145/2020 have faulty wheels which need recurrent replacement and the design has serious flaws since no handles and large gaps between the doors could be seen which need rectification due to safety considerations. No working intercom - since intercom line had been installed till 8th October 2016 which is more than 10 months of possession. No club house with indoor games as agreed in the sale deed and sales agreement has been provided. Health club which is enlisted as an amenity in sale deed has most of the equipment old and out of order. Children's play area has not been maintained for a long time and it is hazardous. Alleging said deficiencies found in the apartment sought for against OPs to pay compensation as stated in the preamble.
4. OPs have contested the complaint before the District Forum and submitted their version, contending the apartment complex was constructed and was completed during 2004-05. They have obtained Occupancy Certificate from BDA on 16.07.2004 in respect of Block C & C1, and on 04.03.2005 in respect of Block B where the schedule apartment is situated. Till now none of the residents/purchasers of the apartment complex have raised any complaint regarding the standard/quality of the construction works. They have submitted on the basis of the Power of Attorney issued by the land owner (NTI society) dtd.21.10.1995 most of the 6 CC/145/2020 apartments in the residential complex were sold out, however few of the apartments fallen to the share of the land owner remained unsold and such apartments were also offered for sale pursuant to the land owner issuing/executing a fresh General power of attorney dtd.24.07.2014. The schedule apartment is one such apartment which had remained unsold, since the apartment was constructed and completed during the year 2004-05 itself and had remained unsold and unoccupied and in such circumstances, the OP decided to upgrade the schedule apartment before offering it for sale. Therefore, in place of the original ceramic flooring as laid in 2004-05, the OP laid fresh vitrified tiles flooring over the existing flooring so that the flooring would be contemporary, besides several other additions and modifications were made to the apartment to bring it in line with the time. It was only thereafter i.e. after all modifications and improvements were made that the schedule apartment was offered for sale. The Complainants after being satisfied with the quality of the construction works approached the OP for the purchase of the said apartment bearing no.B202 in Block B admeasuring 1886 sq.ft in the 2 nd floor and accordingly an agreement of sale dtd.22.06.2015 was entered into between the M/s.NTI Housing Co-operative Society ltd., as vendor and the OP as confirming party and the Complainants as 7 CC/145/2020 purchasers. Subsequently on 02.11.2015, the Complainants got the sale deed registered in their names by paying balance sale consideration. The possession of the said apartment was later handed over to the Complainants. While handing over possession, the Complainants have inspected the qualities of the construction works, the specifications as described in the sale deed and the amenities along with the engineer associated with the OP. The tiles used for the said apartment are of Nitco and Johnson Company which is a premium quality vitrified tile. The tiles are laid as per the industrial standard practice. Fresh vitrified tiles have been laid over the existing ceramic tile with the tile adhesive material with paper joint between the tiles. The older tiles were 300 mm x 300 mm whereas the new vitrified tiles are 600 mm x 600mm. The aluminium sliding doors and windows provided for the said apartment is of a premium quality with German style. The Complainants had requested the OP to carry out some minor works such as covering some holes/gaps around the switch boards, painting touch up at few places, painting the pipes in the utility, fixing the shaking tiles, filling gaps between the tiles with cement, removing the cement left out of the tiles, intercom/internet cable, fixing aluminium windows, problem in sliding doors, problem of wobbly toilet commode. The said requests 8 CC/145/2020 have been satisfactorily attended by the OP from time to time. In- spite of attending to the works, the Complainants not being satisfied with the works have deliberately and with a malafide intention filed the present complaint to harass the OP. In fact even before filing of the complaint the engineers of the OP were gracious enough in offering the Complainants to carry out any minor repairs. However, the motive and intention of the Complainants was to extract monies. They did not pay heed to the offer made by OP and files this complaint. There is no deficiency in service on their part. At the time when possession of the flat was handed over to the Complainants, they have executed a check list confirming that all items have been received in perfect and proper working conditions. Except in respect of floor tiles which there a mark is made, in respect of the other items they have confirmed them to be in working condition.
5. Without prejudice, OP has submitted, it was always ready and willing to repair and replace the damaged parts which were all complied before the date of check list and handover subject to the above preliminary objections. The OP has attended to whatever work the Complainants wanted by fixing of the tiles, filling the gaps wherever required. However the Complainants are seeking for a complete re-do of the flooring is not because of any defect on 9 CC/145/2020 the part of the OP. The aluminium doors and windows provided are as per the normal industry specifications and standards. It is the responsibility of the Complainants to keep the channels free of dust and properly lubricated if they want absolutely free movement of the panels. The OP has in the past attended to the aluminium door and window work by re-fixing, installing sliding wheels wherever required. The multi-gym equipment is in working condition. The exercise cycles are in working condition. The tread- mill will be repaired after getting repair quotes and approval from the residents. The maintenance of the apartment complex including all AMC's etc., is being looked after and attended by an interim/adhoc committee of resident owners. Regarding gym equipments it was proposed, as the existing equipment is old and out-dated, it would be advisable to replace the entire equipment and bring in more modern gadgets. The interim committee has taken quotations from various equipment providers and they are in process of finalising the same. If the committee decides to buy new equipment then they said that money need not be spent in repairing the old equipment. There is no big rock as alleged by the Complainant. It is a concrete block which is kept to safeguard the children from the iron pedestal of the merry go round. The apartment complex is more than 14 years old. The Complainants 10 CC/145/2020 have purchased the apartment in 2015. They cannot expect contemporary and modern facilities and equipments in respect of a property that is so old. In fact a similar apartment would cost more than Rs.2 crores in the vicinity. They were aware of the facilities, construction, amenities etc., they cannot now be heard to say that there is deficiency in service. There is no cause of action for the present complaint and the cause of action as alleged in the complaint is false. The complaint is barred by limitation U/s.24A of the Act since construction was completed in 2004-05. The claim of the Complainants are highly exorbitant and without any prejudice.
6. In view of rival contentions of the respective parties, the Commission held an enquiry by receiving affidavit evidence of Complainant.2 and six witness along with documents at sl.no.1 to 20 and on the contrary affidavit evidence of Mr.B.C.Jagadeesha, power of attorney holder of OP along with document nos. 1 to 5 (a) to (l). After closure of enquiry, having heard the Complainant.2 in person and learned counsel for OPs, now the points that arise for consideration of this Commission would be:
1. Does complaint is barred U/s.24A of CPA 1986 ?
2. Do Complainant nos.1 & 2 have proved OPs have rendered deficiency in service as alleged in the complaint ?
11 CC/145/2020
3. For what reliefs Complainants are entitled to?
The Commission heard the Complainant no.2 who is party in person and learned counsel for OPs and proceed to record findings on the above points as below:
1. In the negative
2. Partly in the affirmative
3. As per final order for the following:
REASONS
7. On Point no.1: OPs have taken up a specific contention that complaint is barred by limitation U/s.24A of Act. Sec.24A of CPA 1986 provides for limitation period "the Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen". Sub Sec.24A(2) provides for "entertaining a consumer complaint even after two years if Complainant satisfies the Commission that they have sufficient cause for not filing within such period." Learned counsel for OPs would submit that the apartment project was completed during 2004-05 and now Complainants cannot raise consumer complaint alleging deficiency in service on the part of OP/developer and would submit, in all, there are 84 apartments constructed by following all norms prescribed by competent authority consisting of three blocks of apartment namely Block B, C, C1 each consisting 12 CC/145/2020 of Ground floor + 7 upper floors. Each block comprises 28 units, but facts remain found from enquiry and it is not in dispute, Complainant nos.1 & 2 have entered in to agreement of sale dtd.22.06.2015 and they have obtained sale deed dtd.02.11.2015.
Further they have obtained physical possession of the schedule apartment on 17.11.2015 and they have raised consumer complaint before the District Forum, Bengaluru on 22.10.2016 has to be held their complaint was well within time stipulated U/s.24A(1) of CPA 1986. As such finding on point no.1 would be goes without saying in the negative. In other words, complaint filed by Complainant nos.1 & 2 as on 22.10.2016 before the District Forum is held filed well within time limitation and even their complaint presented before this Commission on 29.07.2020 pursuant to the order dtd.28.12.2018 for the reasons recorded on 13.08.2020 by this Commission has to be held Complainant nos.1 & 2 have satisfied the commission to entertain their complaint as provided under sub.sec.(2) of 24A of CPA 1986.
8. On Point nos.2 & 3: It is not in dispute that the schedule apartment purchased by Complainant nos.1 & 2 is one among 84 unites/apartments built by OPs/developers under the name and style of Whispering Meadows consisting of 3 blocks namely Block B, C and C1 each consisting of Ground + 7 upper floors, each 13 CC/145/2020 block comprises 28 units and in all there are 84 units/apartments. According to OP this project was completed during 2004-05 to which occupancy certificate issued by BDA on 16.07.2004 in respect of Block C and C1 and on 04.03.2005 in respect of Block B where the schedule apartment is situated. It is not in dispute that, schedule apartment agreed to be sold by OPs in favour of Complainant nos.1 & 2 under agreement of sale dtd.22.06.2015 which was almost 10 years after completion of the project Whispering Meadows. It has come in the enquiry that on the basis of power of attorney executed by land owner/NTI society dtd.21.10.1995, most of the apartments in the residential complex were sold except few of the apartments fallen to the share of the land owner remained unsold and these apartments were also offered for sale by executing a fresh GPA dtd.24.07.2014 by the land owner in favour of OP and the schedule apartment is one such apartment which remained unsold agreed to be sold in favour of Complainant nos.1 & 2 for a total consideration of Rs.1,19,01,287/- inclusive of one surface car park. It was agreed balance sale consideration of Rs.94,01,287/- will be paid at the time of registration of sale deed and delivery of vacant possession, wherein also provided purchasers shall pay sum of Rs.67,932/- towards maintenance charges. The schedule property agreed to be 14 CC/145/2020 purchased is described as schedule B apartment no.202 in Block B admeasuring 1887 sft in 2nd floor of the residential apartment complex known as 'Whispering Meadows' together with undivided right and interest in land admeasuring 745.65 sft in sy.nos.13/1, 13/2 (part) situated at Nagashettihalli village, Kasaba hobli, Bengaluru north taluk. In so far as description of schedule B and price agreed to be sold and agreed to be purchased and the terms of the agreement are not in dispute. In other words, parties are bound by terms & conditions of the sale agreement, wherein specified as to the specification of amenities to be provided which are to be provided by Ops, since they agreed for such specification and amenities. It is also not in dispute that, pursuant to this agreement of sale, OP had executed absolute sale deed dtd.02.11.2015 in favour of Complainant nos.1 & 2, wherein also the specification of the apartment and amenities are separately defined under specification nos.1 to 16 and amenities nos.1 to 11 and when such specifications and amenities are agreed to be provided with the apartment purchased by Complainant nos.1 & 2, OPs are bound to provide such specifications and amenities. After obtaining absolute sale deed dtd.02.11.2015, Complainant nos.1 & 2 have stated possession of the vacant schedule property was not handed over to them. On 17.11.2015 physical possession of the 15 CC/145/2020 schedule apartment was given in their favour. According to the Complainants even on 17.11.2015 there were problems with tiles in the schedule apartment where at least one tile joint was faulty with the tile having detached from the floor and moving, problems with aluminium sliding doors, other problems and pending works that were noted on the backside of the possession check list and in this regard Complainants placed email communication dtd.09.07.2015 about required modification i.e. after obtaining agreement of sale and this communication was sent to Mr.Nasir Ahmad, OP's employee. E-mail communication dtd.20.07.2015 regarding the estimate of charges for the modification sent to Complainants. E-mail communication dtd.21.07.2015 regarding payment and acknowledgement of payment from 1st Complainant and Mr.Nasir Ahmed, OP's employee respectively for the modification. On 24.08.2015 Mr.Nasir Ahmed sent an email to Complainant no.1 regarding progress of refurbishment, problems with aluminium doors and other things in the schedule apartment. On 08.09.2015 Complainant had sent an e-mail to Mr.Nasir regarding problems with aluminium doors and other things in the schedule apartment and yet another email dtd.16.09.2015 sent to said employee. Thus these e-mail communications were held after obtaining agreement of sale and before execution of sale deed 16 CC/145/2020 dtd.02.11.2015. After execution of sale deed dtd.02.11.2015, Complainant no.1 had sent e-mail communication to said employee that payment of deposits and charges will be made before possession contingent on completion of works in the schedule apartment and further on 12 & 13-11-2015 employee of OP communicated to Complainant.1 about payment of deposits and charges. Only after this communications, on 17.11.2015 Complainants have obtained physical possession of the schedule apartment and on the date raised objections that there were problems with tiles, tile joint was faulty with the tile having detached from the floor and moving, problems with aluminium sliding doors, other problems and pending works that were noted on the backside of the possession checklist. Thus from these documentary evidence placed on record during the course of enquiry it could be said as on 17.11.2015 such problems were found being notified to OP and have obtained physical possession of the schedule apartment and these problems were noted on the back side of the possession check list would play a vital importance to decide on this consumer complaint keeping in mind the object of the consumer laws and in consideration of the old project which according to parties built during 2004 and 2005.
17 CC/145/2020
9. Complainant no.2 in her affidavit evidence has reiterated the contents of complaint, documents placed along with e-mail communications and video graph to show as to how tile joint was faulty with the tile having detached from the floor is moving and have showed problems with aluminium sliding doors. Besides her affidavit evidence coupled with CD, affidavit evidence of Mrs.B.S.Kavitha, Mr.M.K.Raghavan, Mrs.Vaidehi Shriram Kotbagi, Mrs.Anagha Vinod, Mr.Vijay Raghavan, Mr.Sureshkumar respectively. It is found from their affidavit evidence are residing in flat no.B103, C1-403, C1-201, B403, C1-103, B504 of Whispering Meadows. If we conjointly read their affidavit evidence sum and substance would be as temporary gym in one of the apartments has been provided by OPs where most of the equipment is old and out of order. The equipment like multi gym, 2 exercise cycles and 2 treadmills, among which the treadmills are out of order from a very long time, exercise cycle is barely working without any of the measuring displays of any use and the multi-gym has some exercising functionality broken. This gym in its present condition is a health and safety risk. No club house with indoor games as agreed in the sale deed and sale agreement has been provided. Whispering Meadows Primary Committee or WMPC (interim committee) was formed to push and ensure that the OPs carry out 18 CC/145/2020 their responsibilities; clear the legal issues related to the apartment complex and honour their promises. This committee was formed on 08.11.2016 was dissolved on 08.03.2020. Subsequently, elections were conducted on 22.03.2020 through online ballot and a Body of 9 Members was elected which is hereinafter referred to as the BOM (Board of Managers). The purpose of this BOM is to communicate with the OPs, coordinate in getting all the prerequisites from the OPs and coordinate in the registration of apartment owners association which will subsequently after the registration of the association take over the maintenance of the apartment complex. It is also come in their affidavit evidence that till the apartment owners association is formed and it takes charge of the maintenance of the apartment complex in all respects, it is the OP's obligation and responsibility to maintain the apartment complex and provide the amenities promised by them, but facts remain Whispering Meadows project was completed during 2004-05 itself and these apartment owners are neither parties to this complaint nor Complainants sought permission of the Commission to sue OPs to sue in their representative capacity, as such, in our view considering the date of completion of the project and the date of agreement of sale, date of sale deed and date of physical possession of the schedule 19 CC/145/2020 apartment in favour of the complainants, it would be just and proper to leave such grievances to be get redressed by all the occupants of the apartment complex and we have only to examine in respect of problems with tiles, aluminium sliding doors that were noted on the back side of the possession checklist.
10. It is to be noted herein this checklist is marked as Ex-R4/C-20, wherein could see signature of the Engineer (Handing over the flat) and signature of the Client namely Complainant no.1 and could see descriptions given as sl. nos.1 to 9 and in the signature column Complainant no.1 has subscribed his signature and also reports receipt of keys and in the reverse page made mention in respect of sl. no.(1) one of tile joints should be fixed (2) main door polish needs to be done (3) dummy plate on electrical box on kitchen loft (4) gaps between switch boards and modular box need to be patched at many place (5) aluminium doors need to be fixed for ease of movement (6) painting touch up and cleaning of toilets and floor and aluminium doors. In order to find support about these deficiencies Complainants have placed video graph along with certification U/s.65B of Evidence Act which in fact is not disputed by Ops by placing yet another video-graph to rebut the same has to be consider by the commission. In so far as mentioning of lapses as shown in the reverse page of checklist 20 CC/145/2020 marked as Ex-C20/R4, the grievances of Complainants, could be seen from the check list reverse page would be minimal. But as Complainants were put in possession of the flat and after they occupied went on communicating through emails raising deficiencies. In email dtd.25.01.2016 Complainant had listed grievances no(1) covering some holes/gaps around the switch- boards (slight size mismatch) (2) painting touch up at few places (3) painting the pipes in the utility (4) many of the tiles are shaking, they came once and experimented on 3 tiles, one of them got fixed, the other two are still shaking, there are many others which are not even tried (5) removing the cement left out on many tiles (6) intercom/internet cable for hall and master bedroom (7) fixing aluminium windows. In email dtd.24.08.2015 informed OPs that the 16 amp switch socket was not yet installed, some of the sliding French doors get stuck and need a lot of force to operate, the main door is pressing the floor heavily, and it is difficult to operate and also may scratch the floor. On 16.09.2015 informed OPs that new list of things they noticed that (1) the door stopper of the front door is not working, it is sliding when the door is pushed (2) the French door in the main hall is difficult to use, it is difficult to align it properly in order to latch the bolts, the latch in the middle pushes the inner layer strongly while operating (3) at few 21 CC/145/2020 places the vertical tiles close to the floor has gaps which need to be cemented. Video-graph is produced to show crack in the tiles in bathrooms and to show Wobbly toilet commode has been fixed again, grouting was done on the flooring and they have shown some of the samples of faulty tile work in all the rooms including kitchen through video-graphs with certification and video-graphs showing floor tiles in many places have come out which needs to be attended and in such circumstances Complainants were put in possession of the schedule apartment under Ex-R4/C20 checklist dtd.17.11.2015, pursuant to execution of sale deed dtd.02.11.2015. And in such circumstances, OP being vendor and developer is bound by terms of the agreement of sale deed dtd.02.11.2015 and when failed to redress the grievances of Complainants and failed to exercise certain obligations being service providers has to be held rendered deficiency of services.
11. Learned counsel for OP would submit that they have attended to whatever work the Complainants wanted by fixing of the tiles, filling the gaps wherever required and submits the aluminium doors and windows provided are as per the normal industry specifications and standards. Further submits the aluminium sliding doors and windows provided for the said apartment is of a German style. As per the industrial standard practice aluminium 22 CC/145/2020 doors are not provided with handle as it prevents sliding movement and the sliding movement is to be done using coupling locks. The mesh door shutter is installed only for 50% of opening and one side of the mesh shutter will be exposed in close position as per the industrial standards. The free movement of the panels is dependent on the tracks/channels being free of dust and dust particulars. If there is dust or dust particulars in the channel the free movement of the panels may be hampered. Learned counsel for OP further argued, without prejudice, OPs are always ready and willing to repair and replace the damaged parts which were all complied before the date of check list and handover, however, Complainants did not give their consent to repair and replace the damaged parts but sought for redoing of entire flooring. In view of rival contentions of the parties to the complaint considering the facts as found from the date of sale deed and as shown in emails after complainants occupied the apartment in question in our view some relief sought in complaint alone could be considered and not as sought to re-do the entire flooring works, since, Whispering Meadows apartment complex is consisting of Ground + 7 upper floors, in all 84 units, were built during 2004-05 and the Complainants herein bought the apartment in question only after visiting the said apartment entered in to agreement of sale with 23 CC/145/2020 OPs on 22.06.2015 and thereafter sent emails to OPs and obtained sale deed on 02.11.2015. Subsequently were been put in possession under the said sale deed through check list dtd.17.11.2015. Enquiry reveals they are in occupation of the said apartment could be said except as shown in the reverse page of the check list lapses were in proper working conditions and in our view some deficiencies as noted down in the reverse page of check list which alone could be enforced and not to re-do the entire flooring works as sought in the Complaint in considering the time line of completion of project, date of agreement, date of purchase of apartment property by Complainants and date of occupation.
12. The OPs have placed bills/Ex-R5(a) to (l) of which are in respect of flat no.B202 is for Rs.30,674/- is a payments advised towards flooring and dadoing for flat no.B202 and they have mentioned as flooring, dadoing and skirting. It is not that this apartment alone was got repaired, but was repaired in respect of flat bearing nos.B101, C103, C403, C402, C502, C602, B102, C303, B201, B204, C1-503, B103. As already stated Complainants have occupied the apartment on 17.11.2015, raised consumer complaint initially before 3rd addl., District Forum, Bengaluru during 2016 and raised this complaint before this Commission on 29.07.2020. It is not that Complainants, all the while during these 24 CC/145/2020 years are residing in yet another apartment either on rent or lease leaving the flat vacant, but are residing since the date of their occupation as stated above. In such circumstances, seeking for complete redoing of the flooring works not only advisable but could not be considered by the commission. As already opined in considering the lapses as shown during affidavit evidence, video- graphs and DVD at the most it would be appropriate to award some amount of compensation to get repair aluminium sliding doors, flooring tiles and wall tiles in bathrooms and whatever the lapses if any found inside their flat to their wisdom. In other words, it may not be practicable at this stage to direct OPs to re- do the entire flooring works of the apartment as sought and if would to direct dispute between parties would be said ever ending dispute.
13. It has come in the enquiry through documentary evidence, there was some amount of delay in handover the apartment unit in favour of the Complainants, for which, we are of the view award of Rs.25,000/- as compensation would be held just and proper considering the vicinity. Further in consideration of the tiles as found from video-graphs, photographs and affidavit evidences submitted by the parties to the complaint, awarding an amount of Rs.75,000/- which would be held just compensation to 25 CC/145/2020 get in order of tiles or to repair the works which are absolutely necessary namely to repair as to floor tile, bathroom tiles and aluminium sliding doors to their taste.
14. As already stated above in so far as the reliefs sought in so far as common grievances of the owners of apartment of Whispering Meadows consisting of 84 units of whom Complainants are one among them cannot be addressed in this complaint for simple reason complaint is not filed with leave of the commission in a representative capacity. In other words those grievances are to be addressed not in this complaint, since enquiry reveals ad-hoc committee, consisting of apartment owners and they have constituted a committee which is in existence, as such they have to address all such grievances. No doubt the price of apartment in question is escalated day by day in consideration of the date of complete of the project, date of purchase of the apartment and date of sale deed, but facts remain OP/developer is bound to adhere to the terms of the agreement and sale deed, is also bound to go by such terms and conditions, failing which his actions and omissions amounts to deficiency in services. Accordingly, commission held Ops are liable to pay damages to the Complainants for the deficiencies. Hence proceed to direct Ops to pay compensation amount of Rs.125,000/- to get themselves to get it in order as to 26 CC/145/2020 the deficiencies shown and are held entitled for compensation amount of Rs.50,000/- for the mental agony and hardship which they have suffered all these years and are also held entitled Rs.25,000/- towards cost of litigation. In reaching to such conclusion, findings on points nos.2 & 3 would be record without saying partly in favour of the Complainants and in the result proceed to allow the complaint in part and directed OPs.1 & 2 to pay Rs.2,00,000/- along with interest at 6% p.a. on Rs.1,25,000/- from the date of complaint till the date of realisation within 45 days from the date of receipt of this order, failing which, amount of Rs.1,25,000/- shall carry interest at 9% p.a. from the date of complaint till realisation.
15. Supply free copy of this order to both the parties.
Lady Member Judicial Member
*NS*