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Judgment
The present Appeal is filed against the order dated 25.10.2016 passed by State Consumer Disputes Redressal Commission, West Bengal (in short ‘State Commission’) in Consumer Complaint No.77/2015.
As per office report, the Appeal has been filed with a delay of 12 days. However, the Appellant has not filed the application for condonation of delay. In the interest of justice, delay is condoned.
Appellant No.1 is the Director/Proprietor of M/s Baba Lokenath Construction. Appellant No.2/Opposite Party No.2 is the Developer. Respondents are Complainants.
Case of the Complainants/Respondents is that on 24.06.2014 they entered into an agreement with Opposite Party No.1 as well as the Land owner for purchase of a flat of 850 sq. ft. super built up area for a consideration of Rs.24,00,000/-. The Complainants paid the entire amount by 15.09.2014. The Complainant received possession of the flat. On 19.09.2014, the flat was also registered in favour of the Complainants. The Complainants found that size of the flat was much less than the agreed size. The Complainants got the measurement of the flat done by the Civil Engineer Shri Sanjib Saha, Licensed Building Surveyor (LBS), authorized by Kolkata Municipal Corporation, who observed that measurement of flat was 702 sq. ft. Opposite Party No.1 gave 148 sq. ft. area less than the agreed size. Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, Respondents/Complainants filed Consumer Complaint before the State Commission with the following prayer: -
“a) To admit the complaint case and be pleased to issue notices to the opposite parties by showing causes to them as to why the prayer of the complainant shall not be allowed.
b) To pass an order by directing the opposite parties to refund the amount of Rs.4,10,000/- to the complainant alongwith @18% P.A. to till the date of actual payment.
c) To pass an order by directing the opposite parties to pay the compensation amount of Rs.20,00,000/- to the complainant for causing physical and mental harassment and to pay the cost of litigation of Rs.10,000/- to complainant.
f) To pass such further order or orders as this Learned Forum may deem fit and proper.”
Opposite Party No.1 was served with the notice by usual mode of service. Opposite Party No.2 was served with the notice by publication. Despite service of notice through publication, the Opposite Parties did not appear before the State Commission. The Opposite Parties were, therefore, proceeded ex-parte. The State Commission after hearing the Counsel for the Complainants and perusing the record, vide order dated 25.10.2016, allowed the Complaint in the following terms:-
“In the view of above, the instant consumer complaint is allowed exparte with cost of Rs.10,000/- to be paid by the OPs in favour of the Complainants.
The OPs are jointly and severally directed to refund of Rs.4,10,000/-, a compensation of Rs.3,00,000/- and also litigation cost of Rs.10,000/- totaling Rs.7,20,000/- in favour of the Complainants within thirty days from date otherwise the amount shall carry interest @ 12% p.a. till its realization. ”
Aggrieved by the order of the State Commission, the Appellants/Opposite Parties preferred the instant Appeal with the following prayer:-
“(a) That the exparte Order dated 25.09.2013 passed by the Learned State Consumer Disputes Redressal Commission, Kolkata in C.C. Case No. 77 of 2015 (Sri. Sudarshan Karmakar and another Vs. Sri. Sankar Shaw and another) be set aside/ modified/ rescind/ cancelled;
(b) That the appeal be kindly allowed, the Final order/ judgement of the Hon’ble State Commission be kindly set aside and the appellants be kindly declared not liable to pay any sum of money to the respondents in connection with the complaint of the respondents and the matter may be sent back on remand Before the Learned Forum below fresh order after hearing all the parties;
(c) Stay of the impinged order dated 25.10.2016 till the disposal of the appeal;
(d) Any other order or orders.”
Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellants/Opposite Parties submitted that they were never served with the notice and the publication made in “SANGBAD PRATIDIN” newspaper dated 27.11.2015 did not come to the notice of the Opposite Parties. It was submitted that said Bengali newspaper was not widely circulated in the locality. It was also submitted that mother tongue of the Appellant No.1 is “Hindi” and he read “Hindi daily SANMARG” newspaper. Therefore, no reasonable opportunity of being heard was given to the Appellants by the State Commission.
On merit, it was submitted that the State Commission wrongly held that the State Commission had misunderstood the one sided and incomplete report of the Civil Engineer. The State Commission should have appointed a Chartered Engineer from the approved list for conducting measurement in presence of both the Parties. Learned Counsel submitted that the State Commission erred in holding that the size of the flat would not exceed 710 sq. ft. He submitted that the State Commission had not recorded its findings while calculating “super built up areas” and relied upon the wrong calculation made by the Civil Engineer.
Learned Counsel for the Respondents/Complainants submitted that the order of the State Commission is based on the report of the Licensed Building Surveyor (LBS) who was authorized by Kolkata Municipal Corporation. The report clearly mentioned the measurement of the flat as 702 sq. ft. which was 148 sq. ft. less than the agreed size. It was submitted that the Opposite Parties indulged in unfair trade practice. Learned Counsel further submitted that the impugned order does not suffer from any illegality and the Appeal be dismissed.
It is admitted that the Complainants entered into an agreement with the Opposite Parties for purchase of a flat measuring 850 sq. ft. super built up area for a total consideration of Rs.24,00,000/-. It is also admitted that the Opposite Parties received the entire amount by 15.09.2014 and the flat was registered in the name of the Complainants on 19.09.2014. Possession of the flat was also handed over to the Complainants. The only dispute is that the Opposite Parties gave a flat of 702 sq. ft. instead of 850 sq. ft.
So far as service of notice is concerned, State Commission observed that notice upon Opposite Party No.1 was duly served and notice upon Opposite Party No.2 was served through publication dated 27.11.2015 in a daily leading newspaper from Kolkata. Learned Counsel for the Appellants took the ground that mother tongue of Appellant No.1 is Hindi. It is not the case of the Appellants that Appellant No.1 did not know Bengali language. Service of notice through publication is deemed to be sufficient service in the eyes of law. The argument of the Appellants that they were not served with the notice is rejected.
Opposite Parties alleged that the State Commission erred in relying report of the Civil Engineer deputed by the Complainants. Opposite Parties have not produced any evidence whatsoever to show that the measurement report of the Licensed Building Surveyor deputed by the Complainant was not correct. Regarding measurement of the flat in question, the State Commission observed as follows: -
“To ascertain the actual state of affairs, at the behest of the Complainants one Sri Sanjib Saha, Civil Engineer was appointed, who after enquiry being LBS has submitted his report. The said report clearly indicates that covered area of the flat is 495 sq. ft. and windowsill area of flat is 50 sq. ft. meaning thereby the covered space is 545 sq. ft. In such a situation, even if we calculate or add 30% of the area as super built up area, in any circumstances, the size of the flat would not exceed 710 sq. ft. We do not find any reason to disbelieve the report of LBS in absence of any contrary evidence.
Further, the Opposite Parties have not produced any expert report/opinion regarding measurement of the flat. In absence of any evidence contrary to the report of the Licensed Building Surveyor deputed by the Complainant, we find that the order of the State Commission based on the above report was justified.
For the foregoing discussions, we find no infirmity or irregularity in the impugned order of the State Commission. The Appeal stands dismissed with no order as to costs.