State Consumer Disputes Redressal Commission
Subhash Rangnath Dabhade, vs Kishanchand Pannalal Bajaj on 30 August, 2011
1 F.A.No.: 1345 to 1348/2006
Date of filing:17.07.2006
Date of order:30.08.2011
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :1345 to 1349/2006
IN COMPLAINT CASE NO.:82,84,85,87 & 88 OF 2003.
DISTRICT CONSUMER FORUM : JALNA.
1. F.A. NO. 1345 OF 2003 IN C.C.NO.82/2003
Mr.Aziz Saheb S/o Suleman,
R/at Bajajnagar, Aurangabad Road,
Jalna.
2. F.A. NO. 1346 OF 2003 IN C.C.NO.84/2003
Bharat Bhivsan Patil,
R/at Bajaj Nagar, Aurangabad Road,
Jalna.
3. F.A. NO. 1347 OF 2003 IN C.C.NO.85/2003
Subhash Rangnath Dabhade,
R/at Bajaj Nagar, Aurangabad Road,
Jalna.
4. F.A. NO. 1348 OF 2003 IN C.C.NO.87/2003
Bapusha Yada Thombare,
R/o Bajajnagar, Aurangabad Road,
Jalna.
5. F.A. NO. 1349 OF 2003 IN C.C.NO.88/2003
Satish Bhausaheb Naik,
R/at Bajaj Nagar, Aurangabad Road,
Jalna. ...APPELLANTS
(Org.Complainants)
VERSUS
1. Kishanchand Pannalal Bajaj,
R/o Complainant-83, Town Centre,
CIDCO, Aurangabad and office at
Bajaj Builders Office, Bajaj Nagar,
Aurangabad Road, Jalna.
2 F.A.No.: 1345 to 1348/2006
2. Sau.Lata Omprakash Bajaj,
R/o Complainant-83, Town Centre,
CIDCO, Aurangabad and office at
Bajaj Builders Office, Bajaj Nagar,
Aurangabad Road, Jalna. ...RESPONDENTS
(Org.Opponents)
CORAM : Mr.D.N.Admane, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.S.N.Lavekar for appellants, Adv.Shri.Jayant Chitnis for respondents.
O R A L O R D E R Per Mr.K.B.Gawali, Hon`ble Member.
1. These five appeals have been filed by original complainants against the common judgment and order dated 23.06.2006 passed by the Dist.Forum, Jalna in complaint case numbers inter alia 82/03, 84/03, 85/03, 87/03 & 88/03. Respondent No.1 & 2 are the original opponent No.1 & 2.
2. Since the issue involved in all these appeals is similar, we have decided to dispose of all these appeals by way of a common judgment and order.
3. The brief facts of these appeals are as under.
That, the present respondent No.1 i.e. Kishanchand Pannalal Bajaj had launched a group housing scheme of about 140 to 145 different type of row houses in survey No.50/1 of village Jalna within the municipal limits of Jalna city fronting to Jalna-Aurangabad road. That, the respondent had given attractive advertisement alongwith photographs of the houses in the brochure prepared and published by him. That getting induced to the said false and attractive advertisement of the housing scheme the present appellants decided 3 F.A.No.: 1345 to 1348/2006 to purchase different types of houses from the said scheme. Accordingly these appellants entered into an agreement with respondent No.1 who had obtained general power of attorney of respondent No.2 for purchasing the houses. The details of the houses purchased by the appellants from respondents are given as under.
Sr.No. Name of Type of Total Date of Date of
appellant house consideration agreement sale
purchased of the house to sale deed.
1. Azizsaheb B-3 5,20,000/- 29/04/02 23/08/02
S/o
Suleman
2. Bharat B-1 5,35,000/- 14/08/02 02/01/03
Patil
3. Subhash C-5 4,25,000/- 24/09/02 28/04/03
Rangnath
Dabhade
4. Bapusha C-1 3,75,000/- 06/08/01 20/08/01
Yada
Thombare
5. Satish B-4 4,91,000/- 13.06.2002 --
Bhusaheb
Naik
It is the case of appellants/original complainants, that after having taken the possession of the houses it was noticed by them that the quality of construction was very poor, no lintels were provided to doors and window, there were cracks developed on the wall, the material used for the construction such as cement, steel, doors, windows, tiles etc. were of sub-standard quality. That, the fixtures and fitting were also not as per specifications given in Part No.III of the sale of agreement. It was specifically alleged by the appellant Shri.Aziz Suleman that the respondent No.1 has deliberately not attached part No.III pertaining to specification of the construction while executing sale of agreement. In addition to the defects in the 4 F.A.No.: 1345 to 1348/2006 construction of row house these appellants have also noticed that there are no common amenities as were assured through brochure published by the respondents. There were no proper roads, drainage, no sufficient water supply, no garden for children, no street light, no arrangement for disposal of garbage etc. Therefore alleging to have played a fraud by the respondents these appellants approached individually to the Dist.Forum seeking directions to the respondents to pay compensation amount varying from Rs.1,00,000/- to 1,25,000/- and in addition Rs.25,000/- for mental agony.
4. Respondents appeared before the Forum and denied the complaints made by the complainants. It was submitted by the respondent that he has constructed the house as per the specifications given in the agreement and also provided all the common amenities. It was alleged by the respondents that complainants had purchased houses after verification of the quality of construction and also amenities provided in the respective houses. It is only after verifying the quality of the construction and other amenities they have paid the consideration and purchased the houses and after staying therein for about a period 13 months they have filed the false complaints only because to avoid the payment of money of Rs.10,000/- which was demanded towards charges of water supply and cleaning from each of the house holder vide letter dated 1.5.2001.
5. Dist.Forum on the application of the present appellant Shri.Abdul Aziz in complaint case No.82/03 appointed three Court Commissioners 1) Shri.Prakash Borse, Chief Officer, Municipal Council, Jalna, 2) Executive Engineer, P.W.D., & 3) Sudhakar Shankarrao Chapke, Executive Engineer, M.S.E.B. The Chief Officer, Municipal Council, Jalna inspected the said row house No.B-3 of Aziz Suleman on 30.4.2004, Executive Engineer, P.W.D.visited the project and the house of Shri Ajij Suleman on 6.5.2004 and 27.12.2004. The 5 F.A.No.: 1345 to 1348/2006 court Commissioners submitted their reports to the Dist.Forum which are on record.
6. Dist.Forum after hearing the parties and perusal of the record rejected all the complaints which were filed by present appellants. It was held by Dist.Forum that the complainants have been residing in the said houses from the year 2001 and that they have purchased the readymade houses after verifying the quality of the same. It was further held that there was no agreement regarding the specification pertaining to the quality of construction and amenities to be provided. Therefore complainants could not prove that the fraud was played on them by the respondent. Therefore their complaints were dismissed.
7. Aggrieved by the said judgment and order of the Dist.Forum the present appeals are filed in this Commission.
8. Notices were issued to the respondents as well as to the appellants. All these appeals were posted for final hearing on 10.08.2011. Adv.Shri.S.N.Lavekar appeared for appellants whereas Adv.Shri.Jayant Chitnis appeared for respondents. We heard both the advocates at length. The learned counsel for the appellants Shri.Lavekar submitted that the respondent has played a fraud by giving houses to these appellants which are constructed with sub- standard material. He further contended that from the reports submitted by Court Commissioners which were appointed by Dist.Forum the defects in the construction are very well proved. It is revealed that quality of construction is very poor. There are cracks in the walls of these houses and also there are leakages to the terrace, W.C. & bathroom. That, the colour given to the houses has also been washed, no gutters are provided to drain out the waste water and so on. Learned counsel further submitted that there is no proper roads and drainage system provided due to which drainage water is collected on the road and resident of the houses have to bear the bad smell of 6 F.A.No.: 1345 to 1348/2006 the same. Electric supply is also found defective. There is no earthing provided for the meter as well as to the cable which is life threatening risk to the appellants. He further contended that Dist. Forum itself has visited the site and observed all these defects. However in spite of reports of the Court Commissioner and it`s own observations the Forum overlooked the above said facts and wrongly passed impugned judgment and order. In support of his aforesaid contention learned counsel relied on following citations;
i) Vijaykant Motilal Kothari -Vs- Saffire Hotel Pvt.Ltd., reported in I(2011) CPJ 489, decided on 12.10.2010 by Maharashtra State Commission,Mumbai in which it is held that facilities not provided amount to deficiency in service.
ii) Rajasthan Housing Board & Ors.-Vs- Rajni Devi' reported in IV(2010) CPJ 226(NC), it is held by Hon`ble National Commission that handing over of incomplete house without providing minimum conveniences amounts to deficiency in service.
iii) Ayodhya Apartment Owners Welfare Association -
Vs- Aishwaraya Constructions reported in III(2007) CPJ 139, it is held by A.P.State Commission that the defects in the construction inspected and reported by Court Commissioner i.e. Civil Engineer appointed by the Forum deficiency revealed and hence construction company is liable for payment of compensation.
iv) Lakshmi Associates -VS- Y.C.Rao, reported in I(2004) CPJ 88, it is held by A.P.State Commission that none delivery of flat within stipulated time having defective construction- lack of basic amenities as per Commissioner`s report. Opposite 7 F.A.No.: 1345 to 1348/2006 party to remove deficiency and or in alternative to pay compensation.
v) Atul Vihar Kalyan Samiti -Vs- Dubey Construction Co.& ors., I(2004) CPJ 107(NC), it is held by Hon`ble National Commission that as per spot inspection conducted by expert observed the deficiency in service as per agreement,brochure and therefore relief was granted.
vi) Shriji Infrastructure India Pvt.Ltd. -Vs- Vimal Kumar Shukla, I(2011) CPJ 328, it is held by Chhattisgarh State Commission that, low quality material used-facilities promised not provided- defects supported by technical report from expert- deficiency in service proved-hence builder was held liable.
9. On the other hand, learned counsel Shri.Chitnis submitted that these appellants have purchased houses which were almost ready. While purchasing the house they have verified the quality of construction, amenities provided therein and only after verification they had paid total consideration of the houses and got the sale deed executed. But just to avoid charges towards common amenities like water, drainage, electricity charges etc. which was demanded by the respondent complainants have filed false complaints under reference. He therefore contended that there was no any unfair trade practice played by the respondent as well as there is no deficiency in service on their part. Therefore he fully supported the judgment and order passed by Dist.Forum.
10. We have keenly gone through the papers before us as well as oral submissions put forth by learned counsels on both parties. From the perusal of the complaints it is observed that there are two types of complaints one is pertaining to individual row house purchased by 8 F.A.No.: 1345 to 1348/2006 appellants and other complaint is regarding common amenities like roads, drainage, street light etc. Now the question is whether complaints pertaining to the common amenities can be made by individual house holders. As per Sec.12(1)( c) of the Consumer Protection Act "one or more consumers whether there are numerous consumers having the same interest, with the permission of Dist.Forum, on behalf of, or for the benefit of, all consumers so interest; can file the complaint". In the instant case the appellants had filed individual complaints in individual capacity not as the representative of other house holders which are residing in the said colony. Therefore they are not entitled for the common relief. This aspect has not been considered by the Dist.Forum.
11. Now as regards complaints regarding individual row houses whether Dist.Forum was right in rejecting the claims of the present appellants i.e. original complainants. It is contended by the respondent in para 9 of the "agreement to sale" that whatever is mentioned in the agreement the specifications of row houses is only binding on him and that the same mentioned in the brochure and in advertisement are not binding on the respondents. However there is no mention about the type or quality of material to be used in the construction. That all the houses are constructed as per building permission obtained from Municipal Council. Therefore in the absence of any agreement regarding material to be used for the construction and quality of construction Dist.Forum did not consider the complaints and rejected the same vide it`s impugned judgments and orders.
12. It is further revealed from para 9 of the agreement to sale that as per the specification of the construction, feature, fittings, amenities etc. as given in annexure @ part III are to be provided by the respondent. Although schedule No.III is not found as part of this document of agreement to sale in respect of all the complaints except 9 F.A.No.: 1345 to 1348/2006 complaint No.87/03. It is specifically alleged by the appellant Shri.Ajij Suleman that respondent has deliberately not provided part No.3 at the time of registration of agreement to sale. This part No.3 is however available to the agreement to sale executed in respect of Bapusha Yada Thombare in C.C.No.87/03. Now if we compare the report of Court Commissioners to those specifications as specified in part No.3 attached to agreement to sale. It is observed that there is only a short fall of one wash basin. However the matter pertaining to quality of construction, workmenship of the construction etc. though not specified in the agreement (in fact not practicle to specify), have to be considered in relation to the complaint.
13. As per Court Commissioner`s report specially report of Executive Engineer, P.W.D and Executive Engineer, M.S.E.B. there are certain deficiencies in relation to the quality of construction of row house as purchased by the appellants. From the report of Executive Engineer, P.W.D. and following major defects are observed in respect of row house No.B-3 belonging to Shri.Ajij Suleman.
i) W.C. bathroom on the first floor has leakage.
ii) There are cracks to the wall,
iii) Terrace has also a leakage,
iv) No gutter in front of row houses,
v) Workmenship of door is not proper,
vi) Chhajja of window on the rear side of the row house
is of less width as it require 45 c.m. instead of 23 c.m. Therefore rain water enters inside of the house. There are no chhajjas for W.C. & bathroom.
Whereas report of Executive Engineer, M.S.E.B. pointed out the defects in electric wiring stating therein that there is no earthing to electric fitting as well as to the button board.
10 F.A.No.: 1345 to 1348/200614. Out of above said defects except defects of leakage all other defects could be taken as applicable in respect of other 4 appellants. These are material defects and needs to be rectified by the present respondent who are builder and developers. Dist.Forum however completely ignored this fact on record and wrongly passed the impugned judgment and order and rejected the complaints.
15. Respondent in his written version as well as in his additional affidavits has mentioned that appellants have purchased the ready house after verifying their construction quality and other aspects. That after occupying the houses after about a period of 13 months they have filed these false complaints. It is further observed from above given statement that houses purchased were not completed on the date of agreement to sale and secondly except appellant Shri.Babusha Yada Thombare the other appellants have been put in possession in their respective row house on or about date of registration of sale deed i.e. from Aug.2002 to April 2003 i.e. only after period of 3 months to 10 months. In fact the completion certificate is obtained from Municipal Council on 20.12.2003. Therefore it cannot be said that appellants have purchased ready house after verifying the quality of construction etc.
16. In view of the aforesaid facts and observations deficiency in service on the part of respondent is sufficiently proved. The Dist.Forum however failed to appreciate the evidence on record and erred in passing the impugned judgment and order which requires to be quashed.
17. In the above said citations specially at serial No. 3 to 6 the ratio given in the said citation is found applicable in the present case also. Hence the appellants are entitled for relief either in terms rectification of all defects at the cost of the respondent or in terms of compensation. Since now considerable time period is lapsed from the 11 F.A.No.: 1345 to 1348/2006 date of taking of the possession of the said row houses, it would not be desirable to ask rectification of these defects. Therefore it is desirable to award certain compensation for defects as mentioned above in the individual house of appellant. Although it is difficult to assess the value of all the rectification of these defects, considering the extent of these defects we are of the view to grant compensation in lum-sum of Rs.20,000/- to each of the appellants. In the result, we pass the following order.
O R D E R
1. All the appeals are partly allowed.
2. The impugned judgment and order of the Dist.Forum is hereby quashed and set aside.
3. Respondents are directed to pay compensation of Rs.20,000/- to each of the appellants within a period of 30 days. Failing which, it will carry interest @ 6% p.a. till the realisation of the amount.
4. In addition we further direct the respondent No.1 to pay each of the appellant Rs.3000/- towards mental agony and Rs.2000/- towards cost to the complaint.
5. 'Record and proceedings' be sent back to the Dist.Forum.
6. Copies of the judgment be issued to both the parties.
K.B.Gawali, Mrs.Uma S.Bora Mr.D.N.Admane Member Member Presiding Judicial Member Mane