AI Structured Summary
Not yet generated for this judgment
Judgment
THE complainants have filed this complaint for recovery of Rs. 8,21,828/- from the opposite party for deficiency in services by the opponent who constructed "Residential-cum-shopping complex", under self-financing scheme at Bus Stop No. 2, 1250 Qrs., Bhopal and delivered possession thereof to the complainants. THE deficiencies pointed out are sub-standard material, defective planning and designing, unnecessary delay in handing over possession of flats, amounts charged for works not done, amounts charged for works done which are totally unconnected with the costs of residential flats, excess amounts charged for stair-cases and balconies, for INT EXT electrifications and cost of land not sold to the complainants. THE plaints have claimed the above noted amount as per details worked out in the "statement at a glance" appended to the complaint.
THE complainants were allotted in December, 1991, MIG flats having built-up area of 827.22 sq. ft. at an estimated cost of Rs. 2,63,500/- and were directed to pay the entire estimated cost in four bi-monthly instalments as per schedule mentioned therein and fifth instalment of lease rent, service charges, registration charges and balance if any etc. before taking possession of the flat. Last bi-monthly instalment of estimated cost of Rs. 2,63,500/- was to be paid on 20.8.1992. In October, 1992, the complainants were informed by the opposite party that the cost had escalated and the complainants were asked to pay Rs. 46,866/-. within 10 days. THE complainants paid the escalated cost and obtained possession of the flats in October/November, 1992. Besides alleging that the complainants had to pay escalated cost, under threats of cancellation of allotment in case of non-payment, the complainants have complained of following deficiencies and have claimed amounts shown against each deficiency per allottee from the opposite party: (i) The estimated cost of Rs. 2,63,500/- included charges for construction of shops, road work, asphalting of road, structural consultancy etc. which expenses were totally irrelevant and not connected with the costs of sixteen residential flats - Rs. 19,283/- per allottee. (ii) Delay in possession of flat for which claimed interest at the rate of 18% p.a. - Rs. 11,560/- per allottee. (iii) Excess amount charged towards the cost of land not sold to the complainants - Rs. 3500/- per allottee. (iv) Amounts illegally charged for 100% area of stair-case and balconies-Rs. 28,054/- per allottee. (v) Amounts charged for the work of sumpwell, boundary walls etc., which has not been done and amount excessively charged for INT & EXT electrifications - Rs. 23,750/- per allottee. (vi) Compensation for sub-standard and poor workmanship, use of sub- standard material and defects etc. as detailed in paras 11 and 12 of the complaint-Rs. 94,312/-. per allottee.
In support of their contentions the complainants filed documents as per list of annexures and their affidavits. The complainants also brought to the notice of the Commission, the inspection report of Superintending Engineer for Chief Technical Examiner dated 21.7.1993 pointing out certain defects in the construction of these flats and also the dangerous defects noticed by A.E. (Electrical safety) during his inspection of the premises in question and conveyed to E.E. (E & M), BDA vide his letter dated 6.10.1993.
THE opposite party in their reply refuted all the allegations and in support submitted documents as per list and also affidavits of concerned officials of the BDA. On receipt of rejoinder to the reply supported by affidavit, and other documents filed by parties for proper appreciation of dispute, the Commission appointed Shri G.S. Palnitkar, Retired Engineer- in-Chief (PWD) to inspect the site in respect of constructions of civil nature and appointed Shri Ramlingam, Retd. Executive Director, MPEB to inspect the site in respect of electrical works and directed both of them to make their inspection, after giving due notices to both the parties and in presence of both of them and to submit their inspection reports to the Commission. THEy were further directed to submit alongwith their report an estimate of the expenditure that will have to be incurred for rectifying the defects noticed by them. On receipt of their reports, copies were furnished to both the parties to file objections. After receipt of objections, and written submission on behalf of both the parties, the arguments of both the parties were heard and case was closed for orders. In all, six types of deficiencies have been pointed out by the complainants. We do not find sufficient justification in the contentions of the complainants regarding deficiencies pointed out by them in paras 6,14 and para 8 of the complaint. Without structural consultancy, without construction of basement and road work etc., construction of convenient residential flats was not possible. Allotment of flats was done on self- financing scheme in December, 1991, last instalment of estimated cost was paid in August, 1992 and flats were allotted in October, 1992. As such, there has been no delay in handing over possession of the flat. What is meant by "land not sold" has not been properly highlighted. Amounts charged for stair-case and balconies is fully justified because these are meant for use of owners of residential flats only and none-else.
SO far as deficiency of non-construction of sumpwell, boundary wall and grills as alleged in para 7 of the complaint is concerned, the opposite party has admitted in its reply dated 6.10.1994 filed on 7.10.1994 that boundary wall and grill were not provided as per advice of architect, as they would have caused inconvenience to the allottees. The reply is silent about sumpwell. The opposite party has not denied that in the estimated cost as contained in Ann. I filed by complainants, Rs. 2,50,000/- were provided for sumpwell, boundary wall and grills. The opposite party has not stated anywhere that this cost was deducted from the estimated cost or was not collected from allottees, after, as per advice of the architect, construction of these items was dropped. Naturally, therefore, the complainants are entitled for refund of Rs. 2,50,000/- divided by 16 = Rs. 15,625/- per allottee, if not already deducted from the costs paid by the complainant. SO far as the allegation of highly excessive electrification expenses, as contained in para 7, is concerned, we do not discuss that issue here in view of the specific report of Shri Ramlingam in respect of electrical works. So far as electrical works are concerned, Shri Ramlingam has apportioned Rs. 4,000/- per flat as the amount alleged to have been charged excessively for internal and external electrification and Rs. 5,000/- for sub-standard and poor workmanship. The very fact that the reports of Shri Ramlingam and A.E., MPEB (Safety) are alike as admitted by the BDA, confirms that majority view supports the allegations of the complainant. As against the expert opinions of these two independent experts, the statement of BDA''s own employee, an E.E. (Electrical & Maintenance), unless corroborated by additional evidence is not acceptable in the eyes of law, more so when in the objections against this report, the BDA has admittedly deducted Rs. 75,000/- from contractor''s final bill (for obviously poor quality of work). In view of these facts and circumstances, the complainants are entitled for refund of Rs. 9,000/- for poor workmanship and having been charged excessively for internal and external electrification. Thus, according to us, for deficiencies pointed out by complainants in para 7 of their complaint, they are entitled for refund of Rs. 15,625/- + Rs. 9,0007- = Rs. 24,625/-, but the complainants have asked for a refund of only Rs. 23,750/-, as such it would be proper to order refund of that amount only which has been prayed for and not more than that.
SO far the defects pointed out by Shri Palnitkar in his report are concerned, a copy of report was furnished to both the parties for filing their objections if any. The opposite party filed following objections : (i) Such a heavy burden for replacement of brick parapet as pointed out in para 11(i) of the report should not be placed on opposite party. (ii) Opposite party is not liable to make payments for defects pointed out in the report.
THE complainants in reply to this report have requested that the amounts deducted from the bills of the contractor should be refunded to the complainants. So far as first argument of the opposite party is concerned, we agree that replacement of brick parapet wall should not be directed as not essentially required. However, we do not agree that opposite party is not liable to make payments for defects. In AIR 1994 SC 787, the Honourable Supreme Court has held that "if service is defective or it is not what was represented, then it would be unfair trade practice as defined in the Act." "If a builder of a house uses sub-standard material in construction of a building then consumer is entitled to claim value under the Act." The opposite party has not rebutted the contents of the report of Shri Palnitkar by any other expert opinion. As such, we accept the recommendations of Shri Palnitkar, Shri Palnitkar is Retd. Engineer-in-Chief (PWD) of Government of M.P. and is also Ex-Member. M.P. Arbitration Tribunal. The recommendations which we accept are as under: (i) Payment of Rs. 1753/- to each complainant for cracks as pointed in para 11(i) of the report. (ii) Payment of Rs. 489/- per flat for bending balcony. (iii) Payment of Rs. 875/- per flat for in- uniform size of steps. (iv) Payment of Rs. 323/-per flat to cover the deficient work of flooring in bath and W.C. (v) Payment of Rs. 1123/- + Rs. 164/- i.e. Rs. 1284/- per flat for defects in doors and shutters.
For a number of other defects pointed out by the complainants, the Commissioner, Shri Palnitkar has pointed out that for these defects deductions have been made from the contractor''s bills, while making final payment to the contractor and no financial burden had to be sustained by the occupants for deficient quality of material used in construction. We have no information on record with us whether the deductions made from contractor''s bills have been deducted or not, from the final cost charged from the complainants, who got these flats constructed under self-financing scheme, nor do we consider it necessary to postpone disposal of this case to obtain this information and pass orders as under: (i) The opposite party shall pay to each of the complainants Rs. 15,625/- for non-construction of sumpwell, boundary wall, grills etc. as alleged in para 7 of the complaint, if not already deducted from the costs finally charged from the complainants. (ii) The opposite party shall pay to each of the complainants Rs. 8125/- for sub-standard and poor workmanship in internal and external electrification fittings etc. (iii) The opposite party shall pay to each of the complainants. Rs. 5844/- for defects in constructions of civil nature as pointed out in sub-paras (i) and (iv) of para 13 of this order. (iv) If the opposite party has already deducted from the final cost charged from the complainants, the amounts deducted from contractor''s bills as pointed out by Shri Palnitkar in his report for defects for which he has not recommended payment to complainants, nothing will be payable to complainants but if it has not been done so, the opposite party shall further pay to each complainant I/16th portion of the amounts deducted from contractor''s bills for such defects.
THE opposite party shall further pay to each complainant interest at the rate of 9% on the amounts payable as per directions contained in Sub-paras (i) to (iv) of para 14 of this order w.e.f. the date of delivery of possession of the flat till payment. THE opposite party shall also pay Rs. 500/- as cost of these proceedings to each complainant. Each of the complainant shall deposit within 15 days with the Commission Rs. 800/- as fee to be paid to the Commissioners and similarly opposite party will contribute Rs. 800/- for the same purpose. Out of the amounts so received, each of the Commissioners shall be paid Rs. 2,000/- as their fee for their inspection report.
WITH the above directions complaint is disposed of. Complaint disposed of.