NARENDER KUMAR S. JAIN vs ASHOK D. ADHYAPAK

Challenge in both these revision petitions is against the common order dated 1.12.2006 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore by which the State Commission dismissed appeal Nos. 1605 of 2005 and 1606 of 2005 filed by the petitioners and also dismissed the cross-appeal Nos.1668 of 2005 and 1669 of 2005 filed by the respondent against the orders passed by the District Forum, Belgaum in complaint Nos.80 of 2004 and 81 of 2004. Since both these revision petitions filed by the two complainants are against the common order of the State Commission, they are being disposed of by this common order.

Briefly stated, the facts relevant for disposal of these petitions are that considering their requirement for residence of about 1500 sq.ft., the petitioners who are husband and wife, booked

two small adjacent flats in question with the respondent/opposite party for their bonafide residential use. After the construction of the flats, sale deeds were executed in favour of the complainants/petitioners and they were also put in possession of the respective flats. After taking possession of the flats, the petitioners filed two separate complaints in question before the District Forum alleging that there were defects in the construction of the flats. According to the complainants, there were leakages and cracks in the walls. In order to ascertain the truth or otherwise of the complaints, the District Forum appointed a Commissioner to inspect the flats and submit a report. The Commissioner after carrying out inspection of the flats, submitted a report pointing out that there were certain defects as referred to in the order of the District Forum. After the receipt of the said report, the OP/respondent appointed an engineer to rectify the defects in the construction by paying a sum of Rs.60,200/-. This fact is not under dispute. The District Forum vide its separate orders dated 30.8.2005 in both the complaints partly allowed the complaints and gave similar directions to the OP which may be reproduced thus: "Complaint is partly allowed. The opponent is directed to pay Rs.40,000/- towards repair charges, Rs.25,000/- towards compensation and Rs.2500/- towards cost of the complaint. All these amount should be paid to the complainant within 30 days from the date of receipt of this order."

Both the parties challenged the orders of the District Forum by filing their respective appeals, referred to above, before the State Commission. The complainants/petitioners prayed for increase in relief and the OPs prayed for setting aside the orders of the District Forum. The State Commission after considering the contentions raised by the parties in their appeals, dismissed all the four appeals thereby upholding the relief granted by the District Forum to the petitioners. Not satisfied with the partial relief granted by the fora below, the present revision petitions have been filed by the petitioners/complainants praying for enhancement in the relief granted by the District Forum while partly accepting their complaints and setting aside of the impugned order of the State Commission.

The facts of the case by in large not being under dispute, the only issue which has arisen for our consideration in this case is as to whether in the facts and circumstances of this case, the partial relief granted by the District Forum is fair and just or there is a case for enhancement as prayed for by the petitioners.

We have heard Shri Pawan Kumar Ray, Advocate, counsel for the petitioners and S/Shri Amol Chitley, Nirnimesh Dube and Ms. Shweta S. Parihar, Advocates appearing for the respondent. We have also perused the record. The main contention of learned counsel for the petitioners was that the State Commission has gravely erred by dismissing the appeals of the petitioners without considering and examining the evidences produced by the petitioners to enhance the relief for refunding the additional payments, cost of repair, interest cost and financial losses for the period of delay which caused irreparable losses to the petitioners. He submitted that the petitioners have presented a good case through these petitions for enhancing the relief both in respect of the cost of the repairs as well as financial losses for the period of delay as also the compensation for mental agony and harassment as made out in the revision petitions. During the course of hearing, it was fairly admitted by the counsel that the petitioners did not object to the report of the Local Commissioner appointed by the District Forum based on which, the District Forum gave the partial relief. His contention, however, was that the petitioners had paid more than Rs.3 lakhs for carrying out the additional items of work which has not been done and as such the State Commission should have enhanced the relief. He, therefore, pleaded that the impugned order of the State Commission be modified and the revision petitions be allowed.

Per contra, the counsel for the respondent supported the impugned order and submitted that it is a fair and just order and there is no case for any enhancement in the reliefs already granted by the District Forum and confirmed by the State Commission in the facts and circumstances of this case. He specifically pointed out that the grievances of the petitioners in regard to the defects in the flats including seepage were looked into in great detail by the Local Commissioner whose report has not been challenged by the petitioners. Repairs to the flats were accordingly carried out as suggested by the Local Commissioner and after considering these aspects, the District Forum has granted reliefs to the petitioners which could be justified in the given circumstances and as such the orders of the fora below deserves to be maintained and the revision petition be dismissed since there is no case for any additional relief.

We have considered the rival contentions carefully. The points raised by the petitioners before us have been looked into at great length in the well-reasoned order passed by the District Forum. We do not wish to repeat the reasons recorded by the District Forum except reproducing the following observations made by the District Forum which summarize the reasons recorded by the District Forum to justify the partial relief granted to the petitioners:- "The opponent though agreed in the agreement, the handing over the possession of the flat within 4 months of the entering in to an agreement. The complainant has produced enough material to show that he has paid the requisite amount as agreed in instalments to the opponent for the construction of the flat. He has also paid the additional amount for the extra job done by the opponent. The opponent has not produced any documents to show that the complainant has failed to pay the consideration amount to the opponent. Definitely there was a delay in handing over the possession and moreover the electricity was not supplied to the flats at the time of executing the sale deed. This itself goes to show that the opponent is deficient in providing the basic amenities. On the basis of the Commissioners report and the records produced by the complainant, it can be seen that there has been seepage in the walls and the opponent had failed to cure the cracks and seepages only after submission of the Commissioner''s report, the opponent under look to cure the walls and terries for which, the opponent has produced photographs of the estimation of the engineer. Inspite of curing terries and the cracks, as per the complainant, the seepage persists. The opponent has failed to produce the affidavit of the engineer and under took to cure the walls and terries for Rs.60,000/- and above. Under these circumstances, the complainant has proved his case; the opponent is deficient in service. The Commissioner has estimated the cost / charges for repairs at Rs.80,000/- for two flats. Hence, in our opinion the complainant is entitled for Rs.40,000/- to carry out the repairs and Rs.25,000/- for the mental agony and harassment caused to the complainant due to the deficiency in service on the part of the opponent. The complainant is also entitled for the cost of the complaint. Hence, we answer the point under consideration in affirmative."

While dismissing the appeals filed by both the petitioners as well as the respondent and upholding the order of the District Forum, the State Commission has recorded the following reasons in paras 5 and 6 in support of its impugned order:-

"5. According to the complainants even after the repair works were attended to by the Engineer there were certain defects in the construction. The complainant has not asked the District Forum to appoint a new Commissioner in order to show that even after attending to the repair work, the defects in the construction still continued. The further case of the complainants is that they have paid a sum of Rs.2,80,000- in respect of one Flat and another sum of Rs.65,000/- in respect of another flat to the OP to do certain extra work but the work turned out by the OP is only to the extent of Rs.35,000/-. This contention has not been specifically pleaded by the complainants in the complaints. Further, so far as the additional work said to have been entrusted to the OP is concerned, there is no written agreement between the parties agreeing to do any specific work or for receipt of any consideration. Besides this, the complainant has also not produced any evidence to show that the work turned out by the OP is only worth Rs.35,000/-. If at all there were any defects in the construction, the complainants ought to have pointed out the same when they were put in possession of the flats by drawing a ''Panchnama'' in the presence of some persons. In the instant case, no such Panchnama has been drawn. The complainants have taken possession of both the flats without raising any objection, even though there was a delay of about 8 months in the delivery of flats. The total consideration in respect of both the flats is Rs.4,25,000/- and Rs.2,70,000/- respectively. Therefore, looking at the amount paid by the complainants in respect of the flats, we do not think that the complainants are entitled for compensation as claimed in the complaint. In fact, the compensation awarded by the District Forum is just and reasonable, as there was some delay in delivery of possession of the flats.

The OP has also filed two appeals aggrieved by the orders passed by the District Forum. Since there was a delay of about 8 months on the part of the OP in the delivery of the Flats, in our view, there is no reason to interfere with the impugned orders at the instance of the OP."

Thus we find that both the fora below have returned their concurrent findings of fact justifying the partial relief granted by them considering the facts and circumstances of this case. Keeping in view the concurrent findings of both the foras below which are based on facts of this case, normally no interference would be called for. However, we may note that when these revision petitions were taken up for admission hearing, the petitioners had contended that the job of repairs carried out was not properly done and the flats are still leaking. Since there was no finding returned by the State Commission on this aspect, vide our order dated 26.2.2007, this Commission requested the District Forum to appoint a retired Executive Engineer (Civil) as Local Commissioner who should visit these flats and give his report on the status of leakage. Accordingly, one Shri M.P. Metri, Executive Engineer (Retd) from Belgaum was appointed as Local Commissioner for the purpose who submitted his report on 9.4.2007 through the District Forum, a copy of which is placed on record. Regarding the status of the leakages, his observations may be reproduced thus:- "1) The western side wall shows marks of dampness at some places particularly above lintel level. Some minor plaster cracks were also seen at some places on the surfaces of wall, therefore the said dampness on the western side wall may be due to the above minor plaster cracks, particularly on the outer exposed surface.

There were marks showing the leakage/dampness in the roof slab particularly at junction of column and beams and a few places on the slab portion.

During my inspection it was observed that some repairs have been carried out both for western wall and as well as to the roof slab. However some surface cracks were seen on the roof top, which might be the cause for persistence of leakages/dampness.

The western side wall and the roof slab of the subject flats need for the repairs/treatment to prevent leakages/dampness in the flats."

It is seen from the report that both the parties were present at the time of the inspection of the Local Commissioner but it appears that the respondent later disassociated himself with the inspection done by the Local Commissioner. Be that as it may, even though the fora below have returned their concurrent findings in regard to the grievances of the petitioners and granted partial relief, since certain amount of leakage/dampness in the flats still persists, there is a fair case for some further compensation in this regard to the petitioners. In view of this, we direct the opposite party/respondent to pay a further sum of Rs.20,000/- in respect of each of the two flats to the complainants/petitioners within a period of four weeks from the date of this order. Rest of the order of the State Commission and the District Forum is maintained without any modification. With these directions, the impugned orders of the fora below are thus modified and the revision petitions are partly allowed subject to these modifications. There shall be no order as to costs for this stage of litigation.