State Consumer Disputes Redressal Commission
M/S. Essan Enterprises vs Mr. A. R. Varadrajan on 8 September, 2017
1 (A/2014/295)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
FIRST APPEAL NO. A/14/295
[Arisen out of Order dated 13/03/2014 by Learned Addl. District Forum, Mumbai
Suburban District, Mumbai in consumer complaint No.73 of 2011]
Mr. Ajaybhai & Mr. Atulbhai
M/S Essar Enterprises,
A-201, Vinayak Ashish,
M. Malviya Marg, Mulund - West,
MUMBAI - 400 080. Appellant(s)
Versus
1. Mr. A. R. Varadrajan
2. Mrs. Savithri Varadrajan
B-601 & 602, Vinayak Ashish,
M. Malaviya Marg, Mulund - West,
MUMBAI - 400 080. Respondent(s)
BEFORE:
Justice A. P. Bhangale, President
D.R. Shirasao, Judicial Member
For the Advocate Shri. Pradeep Kadam
Appellant :
For the Advocate Shri. Bhaskar Yogi
Respondent :
ORDER
Per: Hon'ble Mr.D.R.Shirasao, Judicial Member
[1] Being aggrieved by the judgment and order passed by Additional District Consumer Disputes Redressal Forum, Mumbai Suburban District, Mumbai in consumer complaint no. CC/11/73 decided on 13/03/2014 directing the opponent to pay an amount of Rs.1,00,000/- by way of compensation for providing low quality of construction of flat no. 601 and 602 and further directed to pay an amount of Rs.45,000/- to the complainant for mental agony along with cost of the litigation, the 2 (A/2014/295) opponent has preferred this appeal. The brief facts of the case are as under, [2] Respondent/complainant filed complaint against the Appellant/opponent for reimbursement of an amount of Rs.9,46,250/- from the opponent along with cost and compensation. The complainants submitted that they had purchased flat bearing no. 601 and 602 situated on 6th floor of 'B' wing of the building 'Vinayak Ashish' Mulund (West), Mumbai from the opponents and obtained possession of the same on 02/09/2003 on making payment of full consideration amount. In that respect the opponent had executed possession letter in favour of the complainants. Complainants submitted that, however after taking possession of the flats soon thereafter there were leakages in those flats from all the sides, which also caused heavy damages to their furniture and fixtures. They immediately brought this fact to the notice of the opponents, who verbally assured that they will look into the matter. Irrespective of that the complainants had made written communication in that respect with the opponent on 08/05/2005, 08/12/2005, 28/06/2006, 30/09/2006 and 24/03/2007. The complainants submitted that, however opponent had not rectified the defects. Hence complainants got report about the same from professional architect by name M/S Silvel Impex Pvt. Ltd. who had given report on 21/12/2007. As the opponents had not rectified the defects, complainants filed this complaint against the opponents claiming damages of Rs.9,46,250/- as recommended by the Architect M/S Silvel Impex Pvt. Ltd. and also claimed cost and compensation from the opponents.
[3] The opponents contested the complaint by filing written statement on record. The opponent has submitted that the possession of the flats were given to the complainants in the year 2003. At that time complainants had verified both the flats and after satisfying about 3 (A/2014/295) conditions had taken the possession of those flats. At that time there were no defects or irregularities in those flats. They submitted that, it is contended by the complainants that thereafter there were problems of leakage in both the flats and they informed the same to the opponents by giving four letters to them. However, they specifically denied that the complainants had given such letters to them and submitted that the letters produced on record are fabricated documents. However, they submitted that after receipt of letter dated 18/04/2007, the opponents had appointed Architect for verifying the flats of the complainants; however the complainants have refused the Architect to take inspection of their flats. They submitted that the opponents had engaged Architect Mr.Dilip Jaywant and Mr.Vijay Ashish for that purpose. However, complainant refused to take inspection. Opponent submitted that complainants have carried out major structural changes in their flats after taking possession of the flats and amalgamated both the flats without obtaining any permission either from the opponents or from the Municipal Corporation. They submitted that at that time complainants have made structural changes and removed internal load bearing wall. They submitted that because of this unauthorized work carried out by the complainants, there were leakages in their flats. The opponent submitted that they had to verify the same by Architect. However to suppress this fact complainants refused to inspect their flats through Architect. They also submitted that in respect of leakage, there is no problem in any other flat of that building. Hence, they submitted that the opponents are not responsible for the leakages present in the flats of the complainants and it was because of their own mistake. Hence, complainants cannot claim damage, compensation in that respect from the opponents. They submitted that moreover, claim of the complainants is out of limitation, as they had already taken possession of the flats in the year 2003 and came to know about the leakages in the same year. However, the complainants have filed the complaint in the year 4 (A/2014/295) 2008. Hence, they submitted that the complaint filed by the complainants be dismissed.
[4] Considering rival contentions of the parties, evidence adduced by them on record and the documents filed by both the parties, the learned District Forum had come to conclusion that the opponents by providing low quality of construction of flats had given deficiency of service to the complainants. The Learned Forum had also come to the conclusion that claim of damages made by the complainant in that respect is within limitation and therefore directed the opponents to give compensation of Rs.1,00,000/- to the complainants for giving low quality of construction of flats and to give compensation of Rs.45,000/- for mental agony along with cost of litigation. Being aggrieved by the same, the opponents have preferred this appeal.
[5] Heard Learned Advocate appearing for the Appellant/opponent. He submitted that the complainants had taken possession of both the flats from the opponents in the year 2003. At that time they had verified situation of both the flats and thereafter, taken possession of the flats. He claimed that the contention of the complainants cannot be accepted that soon after taking possession of the flats there was problem of leakage in both the flats. He submitted that there was no such problem in any of the flat of that building. He submitted that after taking possession of both the flats, complainants amalgamated both the flats. For that purpose, they had made many structural changes in both the flats and because of which there was leakage problem in their flats. He submitted that, although this problem had started in the flats of the complainants since the year 2003, they had not informed about the same to the opponents till the year 2007. He submitted that the letters in that respect produced on record by the complainants are fabricated and computer generated documents. He submitted that in the year 2007, the opponent had showed their willingness 5 (A/2014/295) to repair flats of complainants by appointing architect. However, complainants refused the Architect to inspect their flats and verify the situation. He submitted that Architect must have seen the structural changes made by the complainants in their flats and hence complainants refused to take inspection of their flats. He submitted that subsequently complainants got their flats verified through another Architect. The reports of both the Architects are contradicting each other. The learned Advocate appearing for the opponents has mainly contested on the point that the claim of the complainants is not within limitation. He submitted that the learned District Forum had not considered the same and had wrongly allowed the claim of the complainants. Hence, he submitted that the appeal filed by the opponents be allowed and the complaint filed by the complainant be dismissed.
[6] For that purpose learned Advocate had relied upon following Rulings.
[i] Order passed by Hon'ble National Commission in Rev. Pet. No. 4255 of 2010 on 22/04/2013 in the matter of "Surya Estates and Anr. V/S Venkateshwara Sarma and Ors." In this case possession of the flats was delivered to the Respondent in the year 2003. The complaint in respect of irregularities in the work was filed in the year 2006. Hon'ble National Commission considered that as the cause of action started from the date of possession, the complaint was not filed within the period of limitation.
[ii] Order passed by Hon'ble National Commission in Rev. Pet. No. 761 of 2011 on 15/05/2013 in the matter of "Iqbal Singh V/S Haryana Urban Development Authority and Anr." In this case complainant was allotted plot on 07/01/2003 and possession of the same was given to him on 28/04/2003. However, complainant had filed complaint in respect of removal of sewerage line and manhole 6 (A/2014/295) on 06/07/2005 beyond the period of limitation. Hence, Hon'ble Commission considered that the same is not within limitation.
[iii] Order passed by Hon'ble National Commission in Rev. Pet. No. 2747 of 2011 on 27/01/2014 in the matter of "Dattu Krishna Kadam V/S Same Deutz-Fahr India Pvt. Ltd." In this case complainants had purchased tractors during the period ranging from 11/01/2000 o 27/02/2001. However, they were having certain defects. However, consumer complaint in respect of the same was filed in the year 2004. Hence, Hon'ble Commission considered that the same is not within the limitation.
[iv] Order passed by Hon'ble Supreme Court in Civil Appeal. No. 4962 of 2002 on 10/07/2009 in the matter of "Kandimalla Raghavaiah and Co. V/S National Insurance Co. and Anr" In this case fire had taken place in the night between 22nd/23rd March, 1988. The complaint was filed in respect of the same in the year 1997. Claim form was submitted with the insurance company in the year 1992. Hon'ble Supreme Court considered that the complaint is not within limitation and there cannot be continuous cause of action till repudiation of the claim.
[7] Heard learned Advocate appearing for the Respondent/Complainant. He submitted that the complainants had taken possession of both the flats in the year 2003 from the opponents. He submitted that, all the alterations are made in the flats prior to taking possession of the flats as per the directions of the opponents. Hence, he submitted that contention of the opponent cannot be accepted that after taking possession of flats complainants had made structural alterations in the flats and because of which there is problem of leakages in the flats of the complainant. He submitted that after taking possession of flats it was revealed that the 7 (A/2014/295) quality of construction was very low and hence soon after taking possession of the flats, there was leakage in both the flats. In that respect oral as well as written letters were given to the opponent. However, they failed to make repairs in the flats of the complainants. He submitted that the last letter given to the opponent was in the year 2007. Thereafter they have appointed Architect for the inspection of the flats of the complainants. He submitted that however complainants had already inspected their flats through Architect and had obtained report from them. Hence, there was no need of inspection by the Architect of the opponent. He submitted that during the pendency of the case another Architect was appointed by name H. Mehta & Associates as Court Commissioner and he had verified the situation of the flats of the complainants. He submitted that considering the report of Court Commissioner, the learned District Forum had rightly granted compensation to the complainants. He submitted that the complaint filed by the complainants is well within limitation and the rulings filed by the learned Advocate for the appellant will not be applicable to the facts of the case. Hence, he submitted that the appeal be dismissed and the order passed by the District Forum be confirmed.
[8] Perused record of the case and the documents filed on record. On perusal of the same it has became clear that the complainants had purchased flat no. 601 and 602 from 'B' wing situated in 'Vinayak Ashish' building from the opponents. The complainants had taken possession of those flats on 02/09/2003. It is the contention of the appellant/opponent that after taking possession of the flats, complainants have made material alterations in those flats and had made structural changes and because of which there was leakage in both the flats. During the pendency of the case both the flats were inspected by the Architect H. Mehta & Associates, who was appointed as a Court Commissioner. As per his report, it is not appearing that after taking possession of the flats, complainants had made 8 (A/2014/295) structural changes in those flats and because of which there was leakage problem in those flats. Under such circumstances, the contention of the appellant/opponent cannot be accepted that because of structural changes made by the complainants in their flats there was leakage problem. On the contrary it appears that after taking possession of the flats complainants came to know about low quality of the work of construction made by the opponents and leakage problem started in their flats. Complainants had informed about the same to the opponents orally as well as in writing. However, opponent had not taken cognizance of the same. Advocate appearing for the appellant/opponent has mainly taken objection on the ground that the complaint filed by the complainant is not within limitation, as they had taken possession in the year 2003 and since then there was leakage in the flats and the complaint is filed in the year 2008 in respect of the same. For that purpose he relied upon above said rulings. However, on perusal of record, it has become clear that the complainants had repeatedly made requests to the opponents about the leakage problem in their flats. In that respect they had given letters in writing to the opponents on 08/05/2005, 08/12/2005, 28/06/2006, 30/09/2006 and 24/07/2007. The last communication was made in the year 2007. It is the case of the opponent that thereafter they had appointed Architect to inspect flats of the complainant. However, complainants had refused them to take inspection of the flat. Hence, it has become clear that in the year 2007, complainants had made claim about their leakage problem with the opponents and the opponents had taken cognizance of the same. However, as the leakage problem was not solved by the opponents, complainant filed this complaint in the year 2008. Under such circumstances, we are of the opinion that there was continuous cause of action. Lastly cause of action had taken place in the year 2007 and since then complaint filed by the complainant is within limitation. Hence rulings on which learned Advocate appearing for the appellant has relied upon are not on the facts of this case. Hence, they 9 (A/2014/295) are not helpful to the appellant. Under such circumstances, it has become clear that the claim of the complainant was very well within limitation.
[9] On perusal of record, it appears that initially the complainant got inspected his flats through Shri. Shrikant Hadke and prior to that from M/s.Silvel Impex Pvt. Ltd. M/s.Silvel Impex had noticed the deficiencies in work and had given cost of repairing of the same in his report. The report of Shri Hadke was also showing the nature of irregularities and he had given estimate in respect of the repairs of the same. However, it appears that during pendency of the case, Court Commissioner was appointed namely H. Mehta and Associates as per consent of both the parties. He has given specific opinion about the cracks present in the ceiling and also given estimate of an amount of Rs.64,000/- for repairs of the same. In this case, it appears that when complainants had taken possession of their flats at that time there was no construction of seventh floor and hence there was leakage problem from the ceiling in the flats of the complainants. However, after construction of seventh floor, leakage problem was stopped. However, till then complainants had to suffer for the leakage problem and hence for that purpose they are entitled to get damages from the opponent. On perusal of the order passed by the learned District Forum, it appears that cost of the repairs suggested by the Court Commissioner is of Rs.64,000/- including other minor repairs. The learned District Forum had directed opponents to pay damages about the same of Rs.1,00,000/- and further directed to give an amount of Rs.45,000/- towards mental agony caused to the complainants. We are of the opinion that amount of compensation given by learned District Forum to the complainants appears to be reasonable. Under such circumstances, we are of the opinion that the learned District Forum has rightly considered that the opponent had given deficiency in service to the complainants and thereby awarded cost and compensation to the complainants. As the amount of compensation granted is reasonable, we are of the opinion that 10 (A/2014/295) the appeal filed by the appellant/opponent be dismissed by confirming order passed by the learned District Forum. Hence, we proceed to pass the following order.
** O R D E R **
1. Appeal stands dismissed. Appellant/opponent to give cost of Rs.10,000/- (Rs.Ten Thousand only) to the Respondents/ complainants.
2. Order passed by the learned District Forum in CC/11/73 decided on 13/03/2014 is hereby confirmed.
3. Certified copy of order be supplied to both the parties free of cost.
Pronounced on 8th Sept. 2017 [JUSTICE A.P.BHANGALE] PRESIDENT [D.R.SHIRASAO] JUDICIAL MEMBER kk