KAILASH MALPANI vs KISHORE KUMAR KHATRI

THIS Revision Petition has arisen out of the Order dated 7.2.96 passed by the Maharashtra State Commission at Bombay upholding the order dated 17.12.94 of the Consumer Disputes Redressal Forum, Bombay Sub-urban District, partly allowing the complaint and granting the relief''s hereinafter mentioned.

THE complainant had booked flat No. 307 in the proposed building known as Shiv Parvati building to be constructed by the opposite party and the parties had executed the agreement dated 10.3.87. According to the complainant there were deficiencies in the construction of the building by the opposite party inasmuch as there was poor workmanship, wooden doors and windows were substandard, the floors were defectively laid and the aluminium windows fixed by the opposite party needed replacement as they were of defective quality. THE complainant also alleged that there was considerable delay in the delivery of the possession of the flat beyond the agreed date of possession. THE complainant claimed several relief''s on the basis of delayed possession for 20 months and the poor quality of workmanship and material and deficiency in the construction of the flat. THE notice of the complaint was sent to the opposite party who put in appearance but did not file the written version within the time allowed and in fact chose to remain absent. THE District Forum received the affidavit of the complainant detailing the poor quality of workmanship and material as well as factum of delayed possession as also the estimated cost of replacement of defective material as certified by the architect. In the prayer clause of the complaint, the complainant had prayed for the replacement of wooden doors and windows for that the complainant estimated the cost for six doors at Rs. 42,000/- and for the windows at the rate of Rs. 2,000/- per window for three windows. As against the total estimated costs of Rs. 48,000/- the architect had assessed it at Rs. 23,158/- for the replacement of the doors and windows. THE architect''s estimate for the replacement of the existing floor was Rs. 53,350/- as against the estimated cost by the complainant of Rs. 20,000/-. THE architect''s estimate for the replacement of the defective aluminium windows was Rs. 15,000/- THE District Forum on the consideration of the affidavit of the complainant and the estimate of the architect granted the relief to the complainant. THE District Forum directed the opposite party to pay Rs. 48,000/- as replacement cost of old doors and windows, Rs. 20,000/- as replacing the flooring and Rs. 15,000/- for sliding windows and also directed the complainant to return the old doors and windows as well as the material of the sliding windows. THE District Forum, however, directed the payment of interest at the rate of 24% on the total amount paid till 31st December, 1989 commencing for the period 1.1.90 till the date of possession and the demand of the said amount from the opposite party. THE District Forum also directed refund of the amount of Rs. 1,000/- charged for common Antenna which had not been installed at all with interest at the rate of 24% per annum from the date of payment. THE District Forum also granted a compensation of Rs. 5,000/- for mental agony and harassment. The opposite party being aggrieved of the order of the District Forum dated 17.12.94 filed an appeal before the Maharashtra State Commission. Before the State Commission it was urged that the opposite party had entrusted the defending of the case to one Shri Shankar Waghe, Estate Manager of the opposite party who had appeared and sought adjournment on 30.12.93 and 15.3.94 and those were granted by the District Forum. It was also urged before the State Commission that a reply affidavit was prepared after 15th of March, 1994 and Shri Shankar Waghe was deputed to file the same before the District Forum and he neglected and failed to do so. The State Commission considered this submission and came to the conclusion that it was obligatory on the part of the opposite party to have deputed a proper person and should have filed the written version within the statutory period but the opposite party chose to remain absent and allowed the complaint to proceed against him without putting his case before the District Forum. The State Commission also noticed the admission of the opposite party that there was a delay of 20 months in the handing over of the possession of the completed flat. The State Commission also considered the report of the architect and the agreement entered into between the parties as well as other material on the record and upheld the decision given by the District Forum.

We heard Mr. K. Madhavan, Advocate for the Revision Petitioner and Mr. Jehangir B. Gai, the Authorised Representative of the complainant and have gone through the records. There is a concurrent finding of fact of the delay in the delivery of possession of the flat by the opposite party to the complainant and in fact there is an admission of the opposite party of the delay of 20 months. There is also a concurrent finding of fact as to the defects in the construction of the floors and poor quality of workmanship and material used in the wooden doors and windows as also the aluminium sliding windows which all require replacement. However, there is an error apparent on the face of the record in the direction to pay an amount of Rs. 48,000/- on receipt of old door and windows from the complainant as against the finding recorded in para 3 of the order of the District Forum that the claim to the extent of Rs. 23,158/- for replacement of the doors and windows is accepted. The award of interest at the rate of 24% per annum is also on the higher side as the interest is generally granted at the rate of 18% per annum by the State Commission as well as by the National Commission. We do not find any other illegality or irregularity in the exercise of jurisdiction by the State Commission as well as the District Forum.

THE order of the District Forum as upheld by the State Commission is modified to the extent that instead of an amount of Rs. 48,000/- it shall be Rs. 23,158/- and the rate of interest instead of 24% per annum, it would be 18% per annum. THE order of the District Forum as upheld by the State Commission is modified to the above extent and rest of the orders are confirmed. THE Revision Petition is disposed of with no order as to costs. Petition disposed of.