SULAKSHA JAGANATH PARULEKAR vs K. RAVINDRANATH

THE present appeal has been preferred by the opposite party in Complaint No. 77/96 of the District Forum, South Goa, being aggrieved by order dated 21.10.2002.

BOTH parties have filed written arguments. For convenience the parties to this appeal will be referred as arrayed before the District Forum. The factual matrix of the complainant''s case is that he availed of the services of the opposite party for constructing a flat on ownership basis being flat No. 4 admeasuring about 80.03 sq. mts. on the second floor of "Sulaksha Apartment" at Maimolem, Vasco Da Gama, Goa. The parties entered into an agreement for sale dated 5.12.1990 wherein the opposite party agreed to construct the said flat for a consideration of Rs. 2,60,097.50. The complainant made the entire payment of the consideration to the opposite party. The said agreement also stipulated that the said flat would be duly completed in all respects ready for occupation on 31.12.1991, however the opposite party failed to complete the said flat within the stipulated time.

Prior to booking of the flat the complainant was staying in a rented premises on a monthly rent of Rs. 800/-. The complainant also arranged the entire amount paid to the opposite party by drawing from his Provident Fund accumulation and by obtaining housing loan from L.I.C., Housing Finance Ltd., Panaji-Goa. It was alleged that the repayment of the L.I.C. Housing Finance Ltd. It is also stated that the complainants besides paying the instalment amount of Rs. 1,509/- towards the housing loan had also to bear the rental liability of Rs. 800/-.

THE complainant took possession of the incomplete flat in January 1994, on oral assurances of the opposite party to complete the unfinished work in due course. It was also alleged that the opposite party failed to obtain Occupancy Certificate and Completion Certificate. The complainant engaged the expert services of Mr. Arun Godshay, Civil Engineer who prepared a report and opined that the construction of the building/flat was defective and sub-standard nature and that low quality materials were used.

THE complainant listed out the patent defects inside the flat, staircase, septic-tank and sewage disposal system as well as the surroundings in para 9 of his complaint. In the same para the complainant has also listed out the incomplete work as well as non provision of amenities such as parking area, approach road, water connection etc. THE opposite party did not make any attempt to form a society nor came forward to execute the Deed of Sale. The expert Engineer engaged by all the complainants/residents of the building estimated the amount required to complete the balance work in the building at Rs. 14,00,000/-. The said expert also quantified the amount required to rectify the defective work in the complainant''s flat at Rs. 13,000/-. The complainant along with other purchasers of the building jointly addressed 3 letters to the opposite party calling upon them to carry out the incomplete works etc., however, the opposite party failed to comply with the requests. The complainant has prayed for reliefs set out in para 19 of the complaint, which can be briefly summarised as directions to the opposite party to provide independent water connections along with sump and overhead tank; to provide soak pit and septic tank of required size; to comply with amenities sketched in the approved plan, to provide common electric fixtures in the staircase; to hand over completion certificate; to rectify the faulty works inside the said flat or alternatively pay the sum of Rs. 13,000/- to rectify the faulty and incomplete works in the building and to execute Sale Deed. The complainant also prayed for a direction to the opposite party to pay an amount of Rs. 1,17,800/- towards mental torture etc.

PER contra the opposite party contended that the contractors of the building M/s. Naveen Decorators were responsible for the delay in construction and that the said Contractor instituted a civil suit in the Civil Court at Vasco against the opposite party. The complainant had also failed to pay the instalments within the contracted time and also failed to pay for the additional works that were carried out in the flat at his request. The complainant did not inform the opposite party about the loan taken and that no mention of the same was made in the agreement. The Municipal Council granted Occupancy Certificate for the building and certified that the construction was fit for human habitation and was in accordance with the approved plans.

ON the said pleadings after hearing the complainant and the opposite party the District Forum held that there was deficiency of service on the part of the opposite party and granted all the prayers of the complainant with the exception of compensation of mental torture wherein an amount of Rs. 25,000/- was awarded. The District Forum also directed the opposite party to pay costs of Rs. 2,000/- to the complainant. We agree with the finding of the District Forum that there were defects and deficiency in service on the part of the opposite party. The complainant produced a report prepared by Shri Arun Godshay who inspected the said flat as well as the said building and listed out the several defective and incomplete works carried out by the opposite party. The said expert has also filed an affidavit on behalf of the complainant. It is seen from the record that no attempt was made by the opposite party to cross-examine the said expert nor produce a report of an expert to counter the expert opinion of Shri Godshay. We agree with the finding of the District Forum that the evidence of Shri Godshay was unchallenged and uncontested.

We are also not convinced with the defence of the opposite party that the construction could not be completed in time on account of the litigation with the contractor as there was no evidence in this respect. In any case this would be of no consequence qua the complainant.

THE District Forum has directed the opposite party to release water connection independently to the flat of the complainant. Facilities of under-ground sump and overhead water tank, provision of individual water connection is not specified in the specifications annexed to the agreement as Annexure II. Besides we understand that the PWD does not permit water connection to individual flats. We, therefore, partly modify the District Forum''s directions in this regard. THE appellant is directed to obtain a single domestic water connection exclusively for the building and connect the same to the common underground sump. We may clarify that the directions regarding provision of facilities of underground sump and overhead tank shall remain unchanged. The District Forum has awarded an amount of Rs. 25,000/- to the complainant as notional compensation in respect of inconvenience, hardship and mental torture suffered by the complainant. The complainant has not quantified the losses suffered by him on this account with the exception of expenditure incurred towards wages of the maid servant engaged for fetching water from the public tap. In our opinion and in the facts and circumstances of the case the complainant would be entitled to compensation of Rs. 10,000/- on this account.

THE other directions of the District Forum need not be interfered with and the same are confirmed. In the light of what is stated above this appeal is partly allowed. The impugned order is partly modified to the extent as discussed above. Order accordingly. Appeal partly allowed.