State Consumer Disputes Redressal Commission
Om Tara Maa Construction & Others vs Mrs. Aloka Roy on 25 April, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/448/2012 (Arisen out of judgement dt. 29.6.12 of DCDRF, South 24 Parganas in C.C.Case No. 131 of 2011) DATE OF FILING : 30.07.2012 DATE OF FINAL ORDER: 25.04.2013 APPELLANTS 1. Om Tara Maa Construction Of Block E-6, Tagore Park Main Road Police Station : Tiljala Kolkata-700 039. 2. Mr. Santanu Kanjilal S/o Mr. Gouranga Kanjilal One of the partners representing M/s. Om Tara Maa Construction Residing at 149/F, Picnic Garden Road P.S. Tiljala, Kolkata-700 039. 3. Mr. Sanjib Das S/o Late Sankar Chandra Das One of the partners representing M/s. Om Tara Maa Construction Residing at E-6, Tagore Park Main Road P.S. Tiljala, Kolkata-700 039. RESPONDENT Mrs. Aloka Roy Wife of Mr. Tapan Kr. Roy E-2, Tagore Park, Laskarhat P.O. Tiljala, P.S. Tiljala Kolkata-700 039. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Priyankar Deb Sarkar, Ld. Advocate FOR THE RESPONDENT : Mr. Sujit M.Maitra, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 29.6.12 passed by District Consumer Disputes Redressal Forum, South 24 Parganas, in C.C.Case No. 131 of 2011 wherein the Ld. District Forum allowed the petition of complaint in part on contest with cost of Rs. 2,000/- against the Ops thereby directing the Ops to pay a sum of Rs. 5,000/- towards damage for causing delay in respect of delivery of possession, a sum of Rs. 9,000/- towards house rent for the period from April to June and a sum of Rs. 1,00,000/- for compensation and a sum of Rs. 3,50,000/- towards cost and expenses for proposed construction and cost of Rs. 2,000/-, totaling Rs. 4,66,000/- within one month from the date, failing which the said amount shall carry interest 9% p.a. from the date of default till realization, along with a further direction upon the Ops to handover KMC tax clearance certificate and completion certificate and copy of plan and all other necessary papers for mutation within one month from the date of judgement.
The case of the complainant/Respondent before the Ld. District Forum, in brief, was that the Ops in violation of the terms and conditions of the agreement entered into by and between the parties in respect of delivery of possession of the owners allocation in favour of the complainant caused a delay of about 4 months and in the process, has failed to construct the project with standard and good quality of materials. The Ops were also guilty of not paying electric charges amounting to Rs. 1,120/- and have also failed to handover Clearance Certificate, Fit Certificate, Soil Test Report and other relevant and connected documents in respect of the project in question. According to the complainant, all these factors tantamounted to deficiency in service at the instance of the Ops and hence, the complaint case for proper redressal.
The Ops contested the case by filing written version thereby denying and disputing all the material averments mentioned in the petition of complaint contending inter alia that there was no deficiency in service at the instance of the Ops and that the delay in delivery of possession of the owners allocation was not intentional and as the situation was beyond the control of the Ops, the delay has been caused, for which the Ops were not responsible. The petition of complaint having been filed on all false and fictitious grounds the same was liable to be dismissed.
The Ld. District Forum while disposing of the petition of complaint has observed that there was no dispute about the delayed delivery of possession, for which the complainant was entitled to adequate compensation in terms of the money value. The plea taken by the Ops to the effect that the situation was beyond the control of the Ops was not acceptable and that the complainant was also entitled to get the necessary papers, such as, Clearance Certificate, Fit Certificate and other relevant documents for the purpose of mutating the property in her name.
So far as it relates to the construction with inferior quality of building materials, the Ld. District Forum was of the opinion that the same was not proved by the complainant by producing adequate and reasonable evidence. However, according to the Ld. District Forum, the complainant was entitled to compensation for proposed construction, which the Ops failed to construct, and accordingly, disposed of the petition of complaint in the manner mentioned above.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Case laws referred to by the Appellants :-
1.
AIR 2007 Supreme Court 2198
2. AIR 2007 Supreme Court 2204
3. III (2011) CPJ 194 (NC)
4. I (2012) CPJ 227
5. III (1996) CPJ 151 (NC) DECISION WITH REASONS At the time of hearing it has been submitted by the Ld. Advocate for the complainant/Respondent that the Ld. District Forum has passed a very well-reasoned and well-written judgement, which is very much sustainable under the law and as such, there is no scope on the part of the Appellant to criticize the same and on this ground alone the impugned judgement is entitled to be confirmed. While supporting the impugned judgement the Ld. Advocate for the Respondent has submitted before us that when admittedly there was a delay in delivery of possession of the owners allocation, the Ld. District Forum was quite justified in granting some compensation in favour of the complainant in this regard. Ld. Advocate for the Respondent has also submitted before us that admittedly the Appellants/Construction Company have constructed the project with inferior and sub-standard quality of building materials, for which the Ld. District Forum was justified in granting some amount of compensation in favour of the complainant and that the Ops having utterly failed to construct the proposed construction the granting of compensation on this point in favour of the complainant by the Ld. District Forum was also quite justified. While concluding his submissions the Ld. Advocate for the Respondent has submitted before us that there is no point in criticizing the impugned judgement and the Ld. District Forum having meticulously considered the pros and cons of the cases of respective parties has arrived at a just and proper decision, which should be confirmed.
We have duly considered the submissions so put forward on behalf of the Respondent/Complainant and have also gone through the materials on record including the impugned judgement and the decisions cited on behalf of the Appellants and find that in this case the complainant has put forward a case to the effect that there was delayed delivery of possession in respect of the owners allocation of the project by the Ops and that the Ops having effected the construction with inferior and sub-standard quality of building materials and utterly failed to construct the proposed construction as per terms and conditions of the agreement entered into by and between the parties and having also failed to handover the Completion Certificate and other related and connected documents so as to enable the complainant to mutate her name with the Kolkata Municipal Corporation, the complainant was very much aggrieved and was compelled to institute the Consumer Complaint for proper redressal. The Appellants/Ops, on the other hand, have tried to put up a case to the effect that so far as it relates to delayed delivery of possession as things were beyond the control of the Ops, there was some delay in delivering possession and that there was no deficiency in service at the instance of the Ops, as claimed by the complainant and the petition of complaint having been filed on all false and fictitious grounds the same was liable to be dismissed.
We have carefully gone through the impugned judgement and find that the Ld. District Forum has rightly held that due to delay in delivery of possession thereby violating the terms of the agreement, the complainant was entitled to compensation and that for non-supply of related and connected documents in respect of the project in question there was deficiency in service at the instance of the Ops, for which the complainant was also entitled to some compensation. But so far as it relates to awarding of compensation in favour of the complainant in respect of the proposed construction, we are of the considered opinion that since there is no adequate and sufficient material on record in this regard in respect of the complainants case and regard being had to the fact that the complainant has not been able to produce cogent and reliable evidence in support of her case of failure on the part of the Ops to effect proposed construction, we think it was not just and proper on the part of the Ld. District Forum to award a sum of Rs. 3,50,000/- in favour of the complainant.
So far as it relates to other portion of the judgement, we think the Ld. District Forum was justified in passing the impugned order and having considered the present Appeal in the light of above discussions we are of the considered opinion that the impugned judgement should be modified. In the result, the Appeal succeeds in part.
Hence, it is ORDERED that the Appeal stands allowed on contest in part but without any order as to costs. The impugned judgement stands modified to the extent that awarding of compensation of Rs. 3,50,000/- be set aside thereby keeping the other directions given in the impugned judgement intact. The impugned judgement stands modified accordingly.
MEMBER MEMBER PRESIDENT