VITHAL M.RANE vs MILAN CONSTRUCTION-Opposite party

XTHE complainants have filed this complaint against the opposite parties alleging defects and deficiencies in the construction of the building known as "Sai Shradha" at New Vaddem, Vasco, and have prayed for directions to the opposite party Nos. 1 and 2 to remove the various defects and deficiencies set out or alternatively to pay an amount of Rs. 7,12,000/- and for further direction to the said O.P. to form a Co-operative Society or any other legal entity for the building.

THE complaint in short is that the complainants by various individual identical agreements agreed to purchase from the opposite party Nos. 1 and 2 a flat in the building "Sai Shradha" constructed on the land belonging to opposite party Nos. 3 to 7. Upon completion of the flats and obtaining occupancy certificate, possession of the flat was delivered to the complainant between January, 1995 and October, 1995. After taking possession of the flat and within the passage of the monsoon, the complainants noticed certain defects and deficiencies which were common in nature, and are set out in para 8 of the complaint. THE complainants obtained an expert''s report from Mr. K. Karunakaran who quantified the expenses for remedying the defect and deficiencies at Rs. 7,12,000/-. THE complainants also alleged that it was mandatory for the opposite party Nos. 1 and 2 to form a Cooperative House Society and that this had not been done thereby causing hardships in the maintenance. Upon being noticed, the opposite parties 1 and 2 submitted that the complaint did not come within the purview of the Consumer Protection Act and that a civil suit ought to have been filed. It was alleged that some of the complainants'' signatures were fraudulently obtained and that the complaint was filed on the instigation of two complainants in order to wreck personal vengeance against the opposite party Nos. 1 and 2. The opposite parties alleged that the complainant carried out major changes in their respective flats and the seepage of water may have been on account of these changes. Open balconies were amalgamated with the adjacent room by removing the partition walls. The complainants inspected their flats for any defects or shortcomings and took possession after being satisfied with the same. The opposite party Nos. 1 and 2 did not form a Housing Co-operative Society as some of the complainants had not cleared their dues and also six of the purchasers had expressed their desire to execute Sale Deed in accordance with the agreement. The opposite parties denied that there were any defects and submitted that the buildings were constructed in accordance with approved plan. The opposite party prayed for dismissal of the complaint with cost.

Parties have filed their Affidavit in Evidence. In addition, the complainants filed the affidavit of their expert Mr. K. Karunakaran and also report of another engineer Mr. Arun E. Godshay. The complainant No. 1 and his expert Mr. K. Karunakaran were also cross-examined. This Commission also appointed a Commissioner Shri Ernesto Moniz who filed his report and was also cross-examined by the parties.

MR. U.G. Shetye and MR. A. Kantak advanced lengthy arguments on behalf of the complainants and the opposite parties respectively and also filed written synopsis. We have gone through the records and considered the submission of the parties. In the light of the rival contentions, the following points arise for determination in order to arrive at a conclusion for disposal of this complaint : (1) Whether the complaint is representation in character and not maintainable under the Consumer Protection Act ? (2) (a) Whether the complainants proved that the construction work carried out by the opposite parties was defective ? (b) Whether the complainants are entitled to compensation of Rs. 7,12,000/- for rectification of the defective work ? (3) Whether the complainants proved that the opposite party Nos. 1 and 2 are liable to form the Co-operative Housing Society in terms of the agreement ? Point No. 1

THE opposite parties have alleged that the complainants have no locus standi to file the present complaint and that the same has been filed without seeking leave of the Commission. THE opposite parties argued that a group of consumers cannot be clubbed together for class action as each and every consumer has a distinct agreement signed at different time for different types of premises. He cited K. Parthasarthy v. Unitech Ltd., 2003 (3) CPR 338 (Kar.); Yusuf Ajij Shaikh v. Special LAO, AIR 1994 Bom. 327, and THE Assistant Commissioner, Hindu Religious and Charitable Endowment v. Nattamai K.S. Ellappa Mudaliar, AIR 1987 Mad. 187. In our opinion the cited cases do not apply to the facts of the present case. THE complainants are all purchasers of the suit buildings, there is nothing on record to show that there are any more purchasers of the suit buildings other than the 16 complainants. Leave of Commission would be required if some of the consumers filed their complaint for their own benefit as well as for benefit of other consumers who have a common cause of action but have not been made partners to the complainant. In our opinion, therefore, leave of the Commission was not required and the complaint is maintainable in the present form. Point No. 2(a) The complainants have alleged that after they took possession of their respective flats, they noticed various defects and deficiencies in the workmanship and quality in the buildings. They addressed a letter dated 17.4.1996 to the opposite party No. 1 listing out the various defects/deficiencies and gave to him to rectify the same. The Court Commissioner Shri Ernesto Moniz inspected the suit building on 24.9.1999 and submitted his report. The Commissioner made the following observations/recommendations : (i) The horizontal crack below the beam in some flats are shrinkage cracks on the internal face of the wall and will not allow seepage of rain water, so also the cracks seen in two places on the external walls, can also be shrinkage cracks. (ii) Glazed windows or RCC grills to be provided in the opening of staircase block to avoid entry of water. (iii) Reinforcement dowels protruding from the columns at roof level to be cut and surface to be covered with water proofing concrete. (iv) The builder not liable to provide chajja beyond external wall face as these not shown in the plan. (v) Proper weather protection with metal frames and plastic sheets to be provided at all places where verandahs have been enclosed. (vi) Raising of the length of parapet wall to 90 cms. from existing 65 cms. (vii) Rain water outlet at terrace level are insufficient in number and sizes. Recommended that 4" diameter down take pipes be fitted. (viii)Estimated cost of carrying out rectification work is Rs. 1,57,000/-.

MUCH of the controversy regarding seepage through external walls at places where the balconies have been enclosed, centres around the dispute of whether the said balconies were enclosed by the opposite parties or by the complainants after taking possession of their respective flats.

IN our considered opinion, this question is irrelevant as the building plan showed independent balconies, and even if these were enclosed by the opposite parties the complainants never raised any objection to the sa me and the same is not evident either from the correspondence of even in the complaint. The Court Commissioner has opined that the balconies were enclosed by erections of single brick masonry wall on the external face and the dampness is the result of the water absorption. Secondly, the building plan did not provide for such chajja projecting beyond the external face of the building thus further aggravating the problem.

In these circumstances, the opposite parties cannot be saddled with the liability of rectifying the dampness defect at such places, nor providing weather proofing for windows fixed on the Verandah parapet as the same must have been done with the knowledge and consent of the complainants. Point No. 2(b)

THERE is an unanimity of opinion between the two experts on the existence of defects in the building. These can be enumerated an valued as under: (i) Water Proofing of the roof of the suit building. The Court Commissioner has valued this work at Rs. 40,000/- and this ought to be the correct value of the said work. (ii) Provision of adequate rain water down take piles from the roof slab to the ground level: The Court Commissioner valued this work at Rs. 20,000/-. In our opinion this ought be correct value of the work. (iii)Provision of cover for staircase opening at various floor levels : The Court Commissioner recommended the use of glazed windows or RCC grills to be provided in the said openings, however, in his recommendation he has estimated the cost of aluminium glazed shutters only. Shri K. Karunakaran estimated the cost of RCC grills/jallies at Rs. 17,389/-. In our opinion the value of this work could be estimated at Rs. 17,389/-. (iv) Raising the height of parapet wall "A" building. THERE is a variation in the estimated cost of this work in the reports of the two engineers, while Engineer E. Moniz has valued the same at Rs. 10,000/- the same work is valued by Shri K. Karunakaran at Rs. 3,345/-. In our opinion the amount of Rs. 7,000/- being the mean of the two can be estimated as the work. (v) Cutting of column reinforcement dowels protruding beyond roof slab level and water proofing : While the Court Commissioner did not value the cost of this work, Shri K. Karunakaran valued the said work at Rs. 9,600/- which value we are inclined to accept.

In our considered opinion the opposite parties 1 and 2 should be directed to carry out the above listed work within 60 days failing which they should be directed to pay to the complainants an amount of Rs. 93,989/- being the estimated cost of the same. Point No. 3

THE agreement for sale between the opposite party No. 1 and the complainants forms the contract between the parties. Clause 6 of the said agreement stipulates that the purchaser has agreed to join as a Member Co-operative Housing Society .... and sign all necessary applications and shall pay proportionate share of expenses relating thereto. There is no commitment on the part of the vendor - opposite party No. 1 to form such Co-operative Society or legal entity. In our opinion, therefore, O.P. Nos. 1 and 2 are not liable to form the Co-operative Housing Society or legal entity for the building. In view of what is discussed above we pass the following order : (1) The opposite party Nos. 1 and 2 are directed to carry out the repairs/rectification work to the satisfaction of the engineer of the complainants within 60 days failing which they are directed to pay to the complainants an amount of Rs. 93,989 within 30 days thereafter. (2) The opposite parties 1 and 2 are directed to pay to the complainants an amount of Rs. 4,000/- as costs of this litigation. Order accordingly. Complaint disposed of.