KETANBHAI CHIMANLAL GAJJAR vs SHYAMAL ASSOCIATION

-THIS appeal under Section 15 of the Consumer Protection Act, 1986 is directed against order dated 28. 3. 2005 rendered in Complaint No. 952 of 2001 by the learned Consumer Disputes Redressal Forum, Ahmedabad City, partly allowing the complaint directing opponent Nos. 1 and 2 to jointly and severally pay Rs. 1,38,800 to Shyamal Association towards repairing cost and Rs. 23,650 towards drainage expenses with 9% interest from 29. 8. 2001. Opponent Nos. 1 and 2 have been further directed to obtain Building Use Permission and water connection from the Ahmedabad Municipal Corporation at their own cost and make the same available to the complainants and also directing opponent Nos. 1 and 2 to pay Rs. 1,000 by way of cost of the complaint.

FACTS giving rise to the present appeal shortly stated are that opponent Nos. 2 and 3 floated a scheme in the name of Shyamlal Association in Final Plot No. 418 of TPS No. 25. Opponent No. 1 carried out construction and handed over possession of the flats to the members of the complainant Association. In the brochure, while floating the scheme, it was stated that there will be drainage, 24 hour water facility, Building Use Permission and all other facilities would be provided to the members; still, however, the members were given possession without obtaining Building Use Permission from the local authority. Water connection was also not made available to the members by the opponents and there was no drainage facility provided by the opponent; that the opponents have assumed management from 6. 2. 2000. Thereafter, Rs. 23,650 were paid and drainage connection was obtained on 13. 7. 2000; that water facility was made from tanker as the bore well had failed; that in the earthquake, the flats were badly damaged and required extensive repairs. The attention of the opponents was drawn to this but of no consequence; that Rs. 1,37,800 were required to be spent for carrying out necessary repairs including some RCC work; that a notie was served to the opponents calling upon the opponents to pay Rs. 3,67,420 spent by the Association and the opponents did not pay any heed and complaint under the provisions of Consumer Protection Act came to be filed. The learned City Forum issued summons to the opponents. Summons of opponent No. 1 returned with the endorsement ''refused'' and opponent No. 1 was treated as served; opponent No. 2 did not appear in the Forum despite service of notice. Opponent No. 3 was also not served with the summons as it is suggested from the record and later on deleted from array of parties. The learned City Forum considering the averments in the complaint partly allowed the complaint and passed order as aforesaid. It is this order which is assailed in this appeal by the appellants.

The complainants alleged that members of the complainant Association had paid the entire amount and obtained possession of the respective flats; that the opponent did not act in accordance with the assurance given in the brochure as well as the contract for the construction; that BU permission was also not obtained by the opponent nor water/drainage facility provided. In the earthquake also the flats were badly damaged and heavy damage was caused to the staircase, walls, pillars, etc. and that the complainant Association was required to spent Rs. 1,38,800. Admittedly, the opponents had neither appeared before the learned Forum nor have they filed any reply resisting the say of the complainants. It is not suggested from the impugned order that any evidence in support of the contention that the flats were damaged and that the complainant Association was required to spend Rs. 1,38,800 for carrying out the repairs in the flats caused on account of the earthquake. Except the bare words of the complainant there is absolutely nothing to substantiate the damage to the flats as well as the repairs carried out and also for spending of Rs. 23,650 for obtaining drainage connection which is stated to have been assured by the opponents. Thus, it is the bare words of the complainant which weighed with the learned City Forum in passing the order aforesaid.

IT need hardly be stated that the complaints under the provisions of the Consumer Protection Act are to be decided on the basis of the affidavit. When the complainant Association says that it spent Rs. 1,38,800 for carrying out the repairs and also spent Rs. 23,650 for obtaining drainage connection, there would be some evidence to suggest the amount spent by the Association under both the heads and the learned Forum had to be satisfied about the amount stated to have been spent by the complainant Association considering which appropriate order in the complaint could be passed. The learned Advocate for the respondent-complainant has fairly stated that there was no evidence produced before the learned Forum suggesting the amounts spent by the complainant Association either for carrying out the repairs in the flats damaged in the earthquake or payment made to the local authority for obtaining drainage facility. Looking to the state of record, in our opinion, it is necessary to have a re-trial setting aside the order passed by the learned City Forum with liberty to both the sides to adduce evidence to substantiate their respective contentions because in our opinion this is a case where impugned order has been passed by the learned City Forum without any satisfactory and reliable evidence especially when it is the say of the respondent evidence especially when it is the say of the respondent association that it spent Rs. 1,38,800 for carrying out the repairs in the flats, stair-cases, etc. and Rs. 23,650 for getting drainage connection to the complainant association. For these reasons, the appeal deserves to be allowed setting aside the order passed by the learned Ahmedabad City Forum in Complaint No. 952 of 2001 on 28. 3. 2005. We, therefore, pass the following order. ORDER The appeal is allowed. Order dated 28. 3. 2005 passed in Complaint No. 952 of 2001 by the learned Consumer Disputes Redressal Forum, Ahmedabad City is set aside. The complaint is remanded to the learned City Forum, Ahmedabad for re-trial and disposal in accordance with law. The appellant and respondent shall appear before the learned City Forum on 11. 2. 2008. Appeal allowed.