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Judgment
REVISION Petition No. 3998 of 2012 has been filed by the petitioner/complainant against the order dated 24.7.2012, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, "State Commission") in First Appeal No.764 of 2006.
BRIEF facts of the case as per petitioner/complainant are that the members of the petitioner/complainant Association purchased flats from the respondents/opposite parties as per the specifications mentioned in the brochure, having common facilities and amenities. The respondents assured to provide landscaped garden at ground floor, hanging garden at the third floor, terrace garden at the top floor, worship place, meditation/multipurpose hall at ground floor, TT room with indoor games, its members have occupied the floors and some works were not completed, such as electrification, providing roofing for the pumps and water connection etc. The petitioner/association insisted that the respondent provide the incomplete works as mentioned in the complaint but on some pretext or the other, the respondents postponed the same. The respondents failed to attend the meeting fixed. The respondent has also not accounted for Rs.1,05,000/ - paid by flat owners of the flat towards water and electricity connection. The petitioner issued legal notice on 27.2.2003 and it was received by the respondent on 28.2.2003 but in vain and hence, the petitioner prayed to direct the respondents to complete the incomplete works as mentioned in the schedule of incomplete works, also to pay compensation of Rs.11,00,000/ - towards inconvenience and hardship faced by the members of petitioner/association and costs.
RESPONDENTS in their reply opposed the claim of the petitioner/complainant and denied the allegations made in the complaint and disputed the claim. The brief facts of the counter were as under : - "The compliant is barred by limitation and hence, the complaint is not maintainable. The complainant/association purchased the flats with proportionate undivided share, the respondents have agreed certain common facilities would be given but not as quoted by the complainant. The complainant has not paid the agreed amount for completion of the works. The Ops have completed the entire works except some petty works. It is false to state that the Ops have avoided meeting called by the complainant/association. It is also false to state that the allegations made in the complaint that the Ops have no account for Rs.1,50,000/ - charged them towards water and electricity connection amount. The complainant has issued legal notice deliberately suppressing the material facts for which the Ops gave suitable reply. There is no deficiency in service on the part of the opposite parties and thus, prayed to dismiss the complaint."
District Forum vide order dated 11.7.2005 while dismissing the complaint observed that : - "The submission made by the complainant is not sustainable. The Civil Court is the proper count to decide the dispute is concerned. The complaint is dismissed with a direction to approach Civil Court within six months from the date of the order."
AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission. The State Commission in its impugned order dated 4.7.2012 while allowing the appeal observed as under : - "Admittedly, the complainant association did not file any agreement in between the members of the association and the builders to prove that the said works referred to in the complaint were agreed to be done by the OP, in such circumstances, the contention of the complainant that it got done such incomplete works at its cost vide Ex.A5 bunch of bills could not be appreciated in their favour. It is much more so, when some of the receipts do not contain name of the complainant/ association and none connected to the bills filed affidavits supporting the case of the complainant to the effect that the complainant/association got done such works incurring expenditure. OP contended that complainant/ association agreed to contribute money and that some of the members did not contribute money and therefore, some works could not be completed. In the absence of agreement to the effect that Ops undertaken to complete such works as part of the sale transaction inference is drawn that the OP asked the members of the association to pay money for completion of certain works and that since complainant did not pay any such amount, it could not undertake the works.In the grounds of appeal, the main grievance of the complainant is that the OP did not install generator and landscaping garden.Again with regard to landscaping garden, there is no dependable evidence from the complainant that OP agreed for it to undertake that work at its cost.As far as generator is concerned, even though there is no agreement Ex.A3 brochure discloses that it is G -4 apartment and in such circumstances irrespective of any such agreement invariably life has to be provided to the inmates of the apartments and when it is so it is also equally necessary to provide generator for the purpose of the said lift etc. during electricity power failure.There is no contention from the complainant that life was not provided and hence, it is inferred that the lift was provided in the said complex.The contention of the complainant is that no such generator was provided and certainly it amount to deficiency in service on the part of Ops, because Ops did not establish with any convincing evidence that it provided generator facility in the said apartments.The complainant filed Ex.A6 to A29 vide FAIA 2316/2009 and they were ordered to be received in evidence. Ex.A6 dated 4.11.2009 and 3.11.2009 bunch pertain to the generator evidencing that the complainant/association purchased 12.5 KVA DG set for Rs.4,02,134/ - and Ex.A7 receipt discloses that a sum of Rs.50,000/ - were paid for AMF panel with auto start and for cabling etc. so also incurred expenditure in getting installed the said generator.No evidence that quotations were called for to purchase generators.Therefore, amount of Rs.4,02,134/ - towards cost of generator could not be appreciated.Admittedly, the complainant did not obtain permission either from this Commission or National Commission/District Forum to install such generator nor taken consent of the Ops to install the same and in such circumstances, in getting installed the generator by incurring some expenditure pending without permission could not be appreciated as it was installed before finding is given in the said context whether it amount to deficiency in service or not. But still when it is held that not installing diesel generator set amounts to deficiency in service.Some amount under the said count has to be given to the complainant.More of the bills are without dates names of vendors and name of the complainant and the seal and signature of the vendor and some of them are estimations or quotations.A Commissioner, Sri. E.Purnachandra Rao, was appointed by this Commission to submit his report as to what were the works completed and remained to be completed and he submitted his report dated 30.4.2010 stating that some of the works were incomplete and when there is no agreement between the complainant and OP to provide such facilities agitated by the complainant, the said Commissioner''s report is also not helpful for the complainant.Ex.B -1 photograph shows that the construction of the flats has been completed and people living in the said flats and in that view point also the case of the complainant could not be appreciated.Why 2003 bills out of Ex.A6 to A29 were not filed along with the complainant or subsequently during revision proceedings has not bene explained possibility of manipulating the said bills cannot be over ruled, therefore, none of the said bills are helpful for the complainant. During pendency of the complaint without any permission from the District Forum the works were commenced and Rs.4 lakhs and odd claimed and the same could not be appreciated in favour of the complainant. As already discussed, in the circumstances of the case, we are inclined to award a global amount of Rs.2 lakhs only to the complainant/ association in the said context of installing the generator and not more than that.Thus, the order of the District Forum is liable to be set aside awarding a global amount of Rs.2 lakhs to the complainant in getting installed the generator partly allowing the complaint.
In the result, the appeal is allowed and the order of the District Forum is set aside. Further, complaint is partly allowed awarding a global amount of Rs.2 lakhs to the complainant/association in getting installed the generator in concerned complex and cost of Rs.5,000/ -. Remaining claim dismissed. Time for compliance four weeks."
DISSATISFIED with the order of the State Commission, petitioner has filed this revision petition.
WE have heard the counsels for the parties and carefully gone through the record.
LEARNED counsel for the petitioner has contended that the impugned order of the State Commission is a non -speaking order since it does not address any of the issues raised by the petitioner. The State Commission has completely failed to render any findings over claims of the petitioner. Firstly, expenses incurred in completion of landscape gardens on the ground floor and the third floor, Secondly, expenses incurred towards construction of sump and supply of water to residential flats, thirdly, direction to respondent to complete the painting of the exterior of the Tirumala Gardens including the common areas and fourthly, direction to the respondent to account for Rs.23,10,000/ - paid to them by the members of the petitioner/association towards water and electricity connection and, therefore, it is submitted that the impugned judgment being violative of principles of natural justice, fair play and equity, is liable to be set aside on this ground alone. The learned counsel for the petitioner submitted that the State Commission manifestly erred in observing that the claim of the petitioner for Rs.4,00,000/ - towards installation of Generator cannot be accepted since the work was commenced without the permission of the District Forum or the State Commission and before a finding in this context could be given. The said observation of the learned State Commission is completely misconceived, erroneous and without any basis for three reasons viz, firstly, it is submitted that the total claim of the petitioner towards cost and installation of the Generator is Rs.6,01,531/ - and not Rs.4,00,000/ - as has been observed and relied upon by the learned State Commission, secondly, no permission was required to be sought by the petitioner from the District Forum or the State Commission for purchase and installation of the Generator, particularly when the respondent in its reply has specifically admitted that the work pertaining to the purchase and installation of generator is pending besides other works and electricity being a human necessity. It was not possible for the petitioner association to wait for the final outcome of the complaint before installing the same and thirdly, when the application of the petitioner restricting its claim towards grant of expenses incurred in installation of the generator, among other prayers was allowed by the State Commission, it was not then open to the State Commission to say that prior permission has to be sought by the petitioner/association before installing a generator. The petitioner submitted that the findings of State Commission that "there is no agreement between the complainant and the OP to provide such facilities as agitated by the complainant" is completely erroneous and without any basis.
THE petitioner further submitted that the State Commission ought to have granted the entire claim of Rs.6,01,531/ - towards purchase and installation of generator, particularly when the bills produced in evidence by the petitioner/association clearly suggest that an expenditure to the tune of Rs.6,01,531/ - had been incurred by the petitioner/association in installation of generator and no evidence to suggest contrary has been led by the respondent.
ON the other hand, learned counsel for respondent drew our attention to the agreement of sale. He contended that nowhere in the agreement of sale were the common facilities as being averred by the petitioner mentioned and hence the respondents cannot be held guilty for deficiency in service in not providing the same.
WE have gone through the agreement for sale. It is a contract between petitioner and the respondents. We are of the view that the petitioner cannot hold the respondents liable for what is not included in the agreement for sale. The brochure is not in the nature of a contract. Further, the petitioner entered into the individual agreements of sale with open eyes. We agree with the findings of the State Commission that "there is no agreement between the complainant and the OP to provide such facilities as agitated by the complainant, the said Commissioner report is not helpful for the complainant." As observed by the State Commission, the complainant has failed to file any agreement between the members of association and the builder to prove that the said works referred to in the complaint were agreed to be done by the respondents/opposite parties.
THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, the State Commission has given detailed and reasoned order which does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby dismissed. No order as to cost.