ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing the facilities as assured in the sale deed dated 06.03.2020 and for reimbursement of Rs.93,000/- given for painting, electric and window works along with interest at 18% p.a., on the said amount, till payment of the entire amount and also to refund the entire sale consideration of Rs.50,00,000/- with interest at 18% p.a., with registration charges and Rs.5,00,000- as compensation for deficiency in service, thereby causing mental agony and inconvenience and Rs.5,000/- towards incidental expenses and Rs.40,000/- towards litigation expenses and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainants purchased flat No.304 situated at third floor, measuring 1135 sq. feet, with undivided share of 270 sq. feet, constructed and developed by OP in the project Daisy-III Bangalore project, by paying Rs.50,00,000/- as sale consideration. They also paid Rs.20,000/- towards painting work, Rs.20,000/- towards electric work and Rs.53,000/- towards window fitting and other related works.  OP also assured the facilities with BESCOM electricity connection and BWSSB services.  Even though the construction work was not complete, OP handed over possession of the flat to the complainant and the complainants with trust took the possession of the same.  Inspite of assurance BESCOM electricity connection to each of the flat and BWSSB service lift and other facilities were not provided. When the same defects were pointed out regarding leakage in the sealing and on the wall and requested OP to rectify the same, OPs started avoiding the complainant. Even Occupancy Certificate for residential building is not provided by the OP which leads them to suspect the stability of the building. OP made false assurance and when contacted are avoiding them.  Inspite of collecting the huge sale consideration, there is still defects in the flat.  Though OPs assured that the matter would be solved, the same has not been done and the promises made in the sale deed has not been met. Hence they had to issue a legal notice to the OPs through RPAD which was not served and returned as unclaimed/door lock. There is deficiency in service on the part of OP in not fulfilling the assurance given in the sale deed and also of quality work and hence prayed to allow the complaint.

3.      Upon the service of notice, OPs remained absent and hence placed exparte.

4.      In order to prove the case, the complainant has filed his affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

6.     POINT No.1:-

   Perused the complaint, affidavit evidence and the documents produced by the complainant.  From Ex.P1 the sale deed it becomes clear that the complainant purchased flat No.304 in the third floor, belonging to and constructed by OP for a sum of Rs.50,00,000/- and it includes one car parking in the stilt floor. The said sale deed has been registered through which complainant has become the owner of the said property. It is the contention of the complainant that occupancy certificate has not been issued. Further separate BWSSB connection and BESCOM connection has not been provided.

7.     Further it is the contention of the complainant that though he has paid Rs.93,000/- towards painting, electrification and for work in respect of the windows the same has not been evidenced with receipts issued by the OP for having received the said amount.  Notice has been issued as per Ex.P4. The same has not been served on the OPs and the same has been returned.  The whatsapp details have been produced, wherein some messages in respect of leakage in the roof, substandard work has been reported to OP to take steps and to do the needful.  Photographs have also been produced to show that the roof and the wall are leaking and there are water marks on the roof. Even at the light point in the balcony the walls have become dampened as per the photograph produced.

8.     When this is taken into consideration, we have to hold that there is substandard work on the part of the OP in plastering the wall and regarding the painting. Other than that no deficiency has been established. It is the duty of the builder/developer to provide separate BESCOM connection, since this is a multistoried building.  As per the guidelines, common sewage treatment plant has to be set up. Hence no individual sewage connection can be given to the complainant’s house. Whereas, OP has to provide separate BESCOM connection to each and every flat and so also to provide the occupancy certificate in respect of the individual house and see that the khata has to be changed to the purchasers of the each flat. In view of this we answer point NO.1 in the affirmative holding that there is deficiency in service in that respect.

9.     POINT NO.2

In view of the same, OPs are to be directed to provide completion certificate/occupancy certificate to the complainant within six months from the date of receipt of this order. Further OPs are to be directed to carry out the repair works in order to stop the leaking on the roof and on the walls within 30 days from the date of this order and also repaint the same properly, so that the patch work not visible. Further OPs are to be directed to provide BESCOM connection to each of the flat within 30 days from the date of receipt of the order. Since no receipts produced before the forum regarding payment of Rs.93,000/- to the OP, the prayer for refund of the same is not acceptable. Since the complainant has purchased the property under registered sale deed, the prayer for refund of Rs.50,00,000/- is also not acceptable. Further complainant has sought for damages of Rs.5,00,000/- and Rs.40,000/- towards litigation expenses and Rs.5000/- for legal notice, the same has not been substantiated with supporting documentary evidence.

10.   The cardinal principal of granting damages is just and reasonable and not to enrich the person who is seeking damages. It should be proportionate to the sufferance. In this case, complainants have failed to prove the sufferance that they faced due to the deficiency in service. However they have been put to some inconvenience, which cannot be quantified. Further legal notice have been issued by paying fee to the concerned advocate and also his complaint is filed for which complainant has to pay the professional fee. Under the circumstances we are of the opinion that a sum of Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses and Rs.1,000/- towards notice charges if OPs are ordered to be paid would be just proper and reasonable under the circumstance. Hence we answer point NO.2 partly in the affirmative and pass the following.

ORDER

1. Complaint is allowed in part with cost.
2. OPs are directed to provide completion certificate/occupancy certificate to the complainant within six months from the date of receipt of this order.
3. OPs are directed to carry out the repair works in order to stop the leaking on the roof and on the walls within 30 days from the date of this order and also repaint the same properly.
4. OPs are further directed to provide BESCOM connection to each of the flat within 30 days from the date of receipt of the order.
5. OPs are directed to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses and Rs.1,000/- towards notice charges to the complainants.
6. OPs are directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
7. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30^TH DAY OF MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Sale Deed dated 06.03.2020

Ex P2: Copies of the photographs for leakage and cracks

Ex. P3: Copy  of the whatsapp conversation

Ex P4: Copy of the legal notice

Ex P5:Unserved legal notice

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                 MEMBER                       PRESIDENT

HAV*