Biswanath Bhattacharya vs Ganapati Apartment

THE complaint filed by Shri Biswanath Bhatacharya, before the West Bengal State Consumer Disputes Redressal Commission in CC No. 16/0/2006 was partially allowed. The State Commission directed the OPs to remove the defects and pay a compensation of Rs. 5,000 to Shri Bhatacharya. Dissatisfied with the award, Shri Bhatacharya has filed this appeal seeking enhancement of compensation to Rs. 22.5 lakh, together with direction to the Respondents/OPs to install a lift in the building of Ganapathi Apartment -II. The case of the Complainant before the State Commission was that he had entered into an agreement with the opposite parties on Nov. 15, 2000 to purchase a flat in Ganapati Apartment on assurance given by the opposite parties that Deed of conveyance shall be executed by the opposite parties after completing all working including lift, plastering, etc., within five months from the date of agreement. However, despite receiving the entire sale consideration the lift was not installed by the opposite parties nor the plastering of the outer wall of the flat in question was done. Due to non -installation of lift the wife of the complainant, suffering from knee pain, had to use the staircase and she became completely bed ridden. Complainant had to take her to Vellore for treatment and he spent Rs. 1,00,000 on her treatment. Complainant along with other flat owners made several representations to the opposite parties to install the lift and to complete the plastering work of the outer wail of 4th and 5th floor and to remove the defects of the water tank which was causing damage to the roof of the flat of the complainant. But, no action was taken by the opposite parties.

Evidently, the main issue involved in the complaint was failure of the OP to install a lift in the building. This has been examined at considerable length in the impugned order. The State Commission has observed that:

"On careful consideration of the record and various documents it is seen by us that the OPs have admitted that there was specific provision in Sale Agreement regarding installation of lift. But the OPs did not take any step to install the same. There is no dispute that the Complainant took possession in the said flat and the Deed of Conveyance has been executed in favour of the Complainant in the year, 2001. But it is curious to us that without installation of lift why the Complainant became agree to sign the Deed of Conveyance and why the Complainant did not raise any objection in writing regarding non -installation of the lift. We have noticed that the Complainant for the first time issued an Advocate''s letter upon the OPs asked for installation of lift on 23.3.2006 i.e. after a lapse of more than five years from the date of taking possession in the said flat. The Complainant for such prolonged delay regarding non -installation of the lift has assigned no reasons. It is an admitted fact that no amount has been paid by the Complainant towards installation of the lift, he only paid the cost of the said flat. We have perused the Agreement which was signed by and between the parties and case in hand the Complainant has failed to make the flat owners association as a necessary party. Therefore, we are unable to direct all the inhabitants of the said flat for payment towards installation of lift in the said flat. It is true that the Complainant cannot bear the entire cost for installation of lift and that will be legal and proper. To inspect the matter one Engineer/Commissioner was appointed by this Commission, who carried out a joint inspection on 5.7.2008. From the visual inspection he observed that although the provision of lift arrangement has been made in the building, no lift has been found installed and overhead water reservoir was found leaking from the walls of the reservoir, outside weatherproof paint on the wails have not been made. From the above mentioned report it is clear that the OPs did not install the lift and there are some defects in the water reservoir and outer wall. As the OPs have received entire payment towards the flat in question the liability cast upon the shoulder of the OPs to remove the defects and complete the unfinished work apart from the lift. In case of lift as it is not possible to bear the entire cost of installation lift for the Complainant, we cannot direct the OPs to install the lift and we also cannot direct the inhabitants of the said flat for payment towards installation of lift as they are not the parties to this proceeding. But as there was specific -clause for installation of lift in the Sale Agreement signed by and between the parties, there is deficiency in service on behalf of the OPs, for which they are liable to pay some compensation to the Complainant. In our opinion it will meet justice if the OPs will pay a sum of Rs. 5,000 to the Complainant for deficiency in service on their part. In case of defective works the OPs are liable to remove the defects as specified by the Engineer/Commissioner (apart from the Lift) in his report:

WE have carefully perused the records of the case and heard Mr. Sanjoy Kumar Ghosh for the appellant. Mr. Amit Ghosh, Advocate has been heard on behalf of the Respondents/OPs. The main contention of the appellant is that the State Commission should have considered the fact that as per the agreement for sale dated 15.12.2000, the Respondents was under an obligation to install a lift in the building. Learned Counsel for the appellant also argued that the Complainant and his wife, being elderly persons, had agreed to accept the flat on the 5th Floor only because the sanctioned plan and the agreement both have made a provision for a lift, it was also argued that the painful orthopedic condition of the Complainant''s wife was direct result of non -provision of the lift. He therefore, made out a very strong plea for issue of a direction to Respondent to install a lift as for the commitment already made. As against the above, Counsel for the Respondents drew our attention to a specific provision in the same agreement between the two parties, which has been relied upon by the appellant. Clause 10 therein clearly states that in addition to the total consideration, agreed between the parties, the purchasers also had to pay proportionate cost to the developers in six items mentioned therein. One of them is about payment of proportionate charge for the lift. In this behalf, he argued the lift could not be installed due to failure of the purchasers to pay the proportionate charge for it, in spite of existence of a specific clause in the agreement.

IN this context attention of Counsel for the appellant was drawn to the observation of the State Commission that the Complainant did not raise any objection regarding non -installation of lift at the time of execution of the deed of conveyance. Similarly, his attention was also drawn to the observation in the impugned order that the OPs could not be directed to bear the entire cost of installation nor could the other flat purchasers/occupiers be directed to make proportionate payment as the fatter were not even parties to the proceedings before the State Commission. Learned Counsel for the appellant had no answer to either and could not point to any evidence on record, contrary to these observations of the State Commission. As per the evidence on record, the OPs did have a conditional obligation to install the lift. It came from a corresponding obligation of the flat purchasers to proportionately pay for it. Evidently, failure of the flat purchasers to pay became the reason for failure of the OPs to install. We, therefore, have no hesitation in concluding that the decision of the State Commission, insofar as the installation of the lift is concerned, is based on correct appreciation of evidence on record and does not call for any interference by this Commission. In the result, the appeal is held to be devoid of any merit and is dismissed as such.