Consumer Complaint No.144 of 2013
Date of institution: 11.04.2013
Date of Decision: 20.01.2014
Mrs. Gurvinder Kaur w/o Davinder Singh, r/o Flat No.3/B, Comfort Green Homes, Village Khanpur, District Mohali, Punjab.
……..Complainant
Versus
1. Surya City Builders & Developers Private Limited, # 303, Shivalik Enclave, Landran Road, Kharar, District Mohali, Punjab, through its Managing Director.
2. Singla Builders & Promoters Limited, Corp. Office – Desumajra, Chandigarh-Kharar Road, Tehsil Kharar, District Mohali through its Managing Director.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Dr. S.S. Dhaliwal, Member
Mrs. H.K. Ghuman, Member.
Present: Shri J.S. Bains, counsel for the complainant.
Shri Neeraj Sharma, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant’s case is that she purchased from the opposite parties (for short ‘the OPs’) flat No.3/B, Comfort Green Homes, Village Khanpur, Kharar comprising 930 sq. ft. area consisting of 2 bedrooms, 2 toilets, D/D, kitchen, open car parking for a sum of Rs.11,50,000/- . The sale deed Ex.C-1 was executed on 17.11.2011. The complainant made all the required payments to the OPs as per schedule and took the possession of the flat on 17.11.2011. At that time the complainant was assured by the OPs that the following basic amenities would be provided as per brochure (Ex.C-3):
(a) Spacious car parking space.
(b) M.C. water supply.
(c) Privacy.
(d) Security
(e) RCC roofing.
(f) Hot and cold water provision.
(g) Modern kitchen.
Believing the version and documents shown by the OPs, the complainant purchased the said flat. The OPs have not provided the aforesaid basic amenities and many more as promised. The project is also not complete and upto standard. The complainant is facing following problems after taking over possession of the flat:
1. Sewerage flush system is not working upto mark.
2. The toilet jet is not on its proper place and the kitchen taps are not judiciously laid on its proper place.
3. Electricity meters and its wires are not properly covered up.
4. No proper space for car parking and no parking number is mentioned.
5. Lack of security.
6. Rainy water accumulated into corridors, roof of all the flats, on the entrance of the apartment.
7. Water tanks are not properly covered up and there is no direct supply of fresh water/M.C. even for drinking purpose stored water is being used.
8. Poor wooden flooring and workmanship of tiles.
9. There is no chimney provision and the holes for exhaust fan are smaller.
10. The mummties are not covered up by glass due to which rainy water enters into the flat.
11. Construction work on the roof of flats is not completed.
12. RCC roofing work is not upto mark as cement plaster is falling down and there is continuous smelling.
Thus the complainant has been delivered defective possession of the flat as the aforesaid and further basic amenities have not been provided. There is a lot of difference between the sample flat shown to the complainant at the time of purchase and the flat now handed over to the complainant. The OPs are not bothering to the written request of the complainant. Legal notice sent to the OPs on 12.12.2012 Ex.C-5 has not been replied.
With these allegations, the complainant has sought directions to the OPs to pay her Rs.4.00 lacs for not providing the basic amenities and Rs.11,000/- as litigation cost.
2. In the joint written statement, the OPs have pleaded in the preliminary objections that the complaint has been filed on false and misconceived facts. The complaint is an abuse of process of law. The dispute between the parties is purely of civil nature and the same can only be decided by a civil court. The complaint is barred by principle of estoppel, waiver and acquiescence. On merits, it is pleaded that no agreement to sell was ever entered into between OP No.2. The complainant made delayed payments and short on numerous occasions. OP No.1 has adhered to all the specifications as assured. However, the brochure annexed with the complaint was conceptual and indicative one and this fact was made understand to the complainant. The complainant took the possession after satisfying on each and every count and then only paid the balance amount. The sewerage system is very much in order. All the plumbing work has been done in a proper and satisfactory manner. Internal electricity fitting is to be provided by the OPs. Electricity meters have been installed by the Punjab State Electricity Board and the OPs have no control over the manner it has been done away. There exists the provision of car parking for each house. The residents including the complainant have been requested to constitute a society in order to carry out general maintenance work. The OPs are ready to provide for the security and privacy of the houses on payment of the maintenance charges by the residents. There is no water accumulation and the water tanks on the terrace are in excellent condition. Clean water is being supplied which is being used by the inhabitants. No wooden flooring was ever assured and provided. The tiles provided are of good quality in commensurate with the cost of the house and have been fitted under the expert supervision. The entire structure and other provisions are as per the layout plan of the house. The entire construction has been carried out under the expert supervision of the professional contractors and architectures and good quality of material has been used. Denying any deficiency of service on their part, the OPs have sought dismissal of the complaint.
3. Evidence of the complainant consists of her affidavits Ex.CW1/1 & Ex.CW-1/2 and documents Ex C-1 to Ex C-15.
4. Evidence of the OPs consists of joint affidavit of Sudarshan Verma and Amandeep Singla Ex.OP-1/1 and affidavit of Vipul Sud, Director of VSDA Builders Ex.OP-1/2 and documents Exs.OP-1 to OP-18.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. Undisputedly the complainant is in possession of the flat and has alleged in the present complaint certain defects in the construction as well as lack/improper basic amenities some of which have been mentioned in the brochure and have not been provided at the time of delivery of the possession. Some of the basic amenities though provided are ineffective and insufficient for proper and healthy living environment in the housing complex developed and constructed by the OPs. Therefore, alleging the deficiency in service on account of defects in the construction and lack of proper basic amenities, the complainant has sought compensation and cost of litigation.
7. In order to support the allegation the complainant has brought our attention to brochure Ex.C-3 wherein it has been promised that the fit for consumption water supply from the municipal council sources will be provided to the complainant and the same has not been done. The OPs in order to controvert the said allegation took a categoric stand that the brochure is only indicative and is not mandatory and binding. However, still as per the Local Commissioner report dated 12.08.2013 Para 4 (i) the municipal water supply is in existence and further the OPs have provided alternate source of supply of water by installing submersible pump as is evident from para No.5 of the affidavit of Director of the OPs Ex.OP-1/2. As per the report of the Local Commissioner though there is a water pipe of M.C. water supply, however, near the water pipe there is adjacent pond to the water tank out of which there is some leakage which pollutes the water being supplied through the M.C. water pipe and this water is not fit for drinking. There is no rebuttal evidence from the OPs in this regard. Thus, the allegation of the complainant for fit for consumption water supply is well founded.
8. Regarding sufficient car parking for each flat, the complainant has brought our attention to the brochure Ex.C-3 wherein it has been promised that each flat owner will be provided sufficient car parking space whereas the same has not been done. In this regard the OPs have relied upon the terms of the brochure which is conceptual and indicative and, therefore, not binding upon the OPs. However, the Local Commissioner report has indicated that no particular area has been allotted in the car parking space for particular flat owner rather it is a common pool facility provided for all the flat owners. There are no specific findings in the Local Commissioner report regarding the number of cars to be parked in the car parking space facility provided in the project in question. Therefore, on the basis of local commissioner report there cannot be any clear cut picture about the sufficiency or insufficiency of the parking space provided. There is no rebuttal evidence from the OPs in this regard. Therefore, the allegation of insufficient car parking space, on the face of it, is proved in favour of the complainant.
9. As per the complainant there is no outer wall in the building complex which causes encroachment to their privacy and threat to their life and liberty. This fact is duly acknowledged by the Local Commissioner Report. However, the OPs took a different stand that the maintenance of the complex is the responsibility of the residents. Therefore, the residents have to pool their resources for construction of outer boundary wall and maintenance of the complex at their own level. The contention of the OPs in this regard is not appealing to logic as it is the duty of the OPs to provide a fit, healthy and safe living environment with all facilities and amenities in place for the safety and security of the residents of the complex. Therefore, the allegation of the complainant in this regard is well founded.
10. The height of the boundary wall at the roof top of the building situated in the right side of the two buildings having common entrance is around 2 feet which is too small and short for even a small child to stand safely on the roof. Such a small height on the roof top causes threat to the residents using the roof top. In this regard, the local commissioner report is duly supporting the allegations of the complainant and no rebuttal evidence has come. Hence, this point again is proved in favour of the complainant.
11. The electric wires coming out from the electric meter are not covered properly leaving loose electric wires posing constant threat of electrocution to the residents of the complex. The Local Commissioner Report in this regard is duly supported alongwith photographs Annexure LC-5 and Ex.C-4/6 to C-4/8.
12. As per the complainant the sample flat shown and possession of the actual flat handed over to the complainant, there are glaring differences in the both. Photograph Ex.C-4 and C-4/1 shows placement of tiles on the outer wall, tiles in the toilet, provision of window for the cooler, POP etc. whereas all these features are missing in the actual flat when found on possession of the flat. The said allegation of the complainant is proved from the report of the Local Commissioner as well as copy of the CD produced by the complainant Ex.C-8 and no rebuttal evidence has come from the OPs. So much so that the OPs have failed to remove these defects when pointed out by the complainant alongwith other residents have given the application and even the matter was reported in the media as is evident from Exs.C-11 to C-15. Thus on this account also the allegation of the complainant is proved and the OPs are found deficient in rendering proper and effective services to the complainant.
13. As per the complainant mummeties i.e. the covered space over the stair case at the roof top has not been provided with window panes causing accumulation of rain water from the stairs to the corridors causing inconvenience to the residents as is evident from Ex.C-4/14. Again in this regard the Local Commissioner Report is fully supporting the allegation of the complainant in this regard.
14. The taps in the kitchen are not properly fitted as is evident from Ex.C-4/4 and so much so granite fixed on the shelf of the kitchen has been chipped out as is evident from Ex.C-4/5. There is a faulty placement of jet in the toilet causing inconvenience to the users and the said defect though brought in the knowledge of the OPs has not been rectified. Thus this is an architectural defect not looked into by the OPs as is evident from Ex.C-4/2. By and large in case of all the defects being civil in nature, architectural in nature or lack of proper and sufficient basic amenities, the OPs have only one stand which they took under the shelter of the brochure being indicative and conceptual and not binding. The said stand of the OPs does not appeal to logic as definitely the complainant has been successful on all accounts in the preceeding paras. The defects and deficiency duly supported by her own evidence as well as on the strength of local commissioner report is ill founded.
15. Thus the OPs/developers have failed to produce any evidence as to the completion of the development work of the project as per the facilities and the standard promised in the brochure. In fact the person who purchases a dwelling unit from the developer is a ‘consumer’ within the meaning of the provisions of Consumer Protection Act and the sale transaction as regard to the flat in question is not a sale simplictor rather it is a sale transaction coupled with obligation of the developer for development and providing infrastructure which intrinsically constitute element of service in the discharge of developer’s obligations. Therefore, in the present case the developers have failed to discharge their obligations as promised in the brochure and the act of the OPs, therefore, amounts to deficiency in service for which we are of the opinion that the complaint deserves to be allowed and the complainant deserves to be compensated for the acts of omission on the part of the OPs. While determining the compensation, the Hon’ble Supreme Court of India in Charan Singh vs. Healing Touch Hospital and others, 2009 SAR (Civil) 935 held that the compensation to be awarded is to be fair and reasonable and also an attempt be made to serve ends of justice. On the one hand it should serve the purpose of recompensing the individual and on the other hand it should aim to bring about a qualitative change in the attitude of service provider.
16. In the present case the OPs have not brought on record any rebuttal evidence qua the deficiencies pointed out and duly proved by the complainant. It will definitely put huge financial burden on the complainant to get those pointed out defects removed and repaired.
17. In view of the above discussions, the complaint is hereby allowed. Therefore, we hereby direct the OPs to pay a lump sum compensation of Rs.2,25,000/- (Rs.Two lacs twenty five thousand only) to the complainant for not removing the defects and lack of complete development work, mental tension, harassment alongwith costs of litigation. Compliance of this order be made by the OPs within a period of one month from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of costs and thereafter the file be consigned to the record room.
Pronounced.
January 20, 2014.
(Mrs. Madhu P. Singh)
President
(Dr.S.S.Dhaliwal)
Member
(Mrs. H.K.Ghuman)
Member
