Date of Filing:17.01.2022

Date of Disposal:29.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainant files a complaint against the OPs with this Commission under Section 35 of the Consumer Protection Act of 2019 for deficiency of service and such other reliefs.

2.   The following are the complaint's key facts: 

It is the case of the complainant that the complainant and OP have entered into agreement of sale on 22.03.2018. As per theagreed termsof the sale agreement by paying an advance sale consideration they have enter into sale agreement and subsequently after the completion of the said project the OP has to handed over the possession of the said flat by executingsale deed.On 22.03.2018 on payment ofentire sale consideration to the OP they have registered sale deedand construction agreement also came to be executed between the complainant and the OP pertaining to the construction of the said flat on 08.08.2016. On execution of the registered sale deed and also completion of construction of the said project the OP has handed over the possession of the said flat to the complainant on receipt of entire sale consideration.The complainant had received the possession of the property and he has started residing in the said flat and later the complainant found and alleged that some of the facilities which is provided in the said flat are not as per the terms of the agreement which is entered between them. Further, the complainant alleged that some of the work is unfinished and incomplete both in the project as well as in his flat. The complainant has also listed some of the faults both in the quality and quantity of the work done in the said flat, which was carried out by the OP. It is also further alleged that the OP has failed to provide some of the basic amenities in the said project as agreed in the agreement. By alleging same when the complainant approached the service provider i.e.OP, but they have not at all responding to the allegations of the complainant and they have carelessly and negligentlyrefused to render any service to the complainant. When all the efforts of the complaint went in vain. The complainant was forced to file the present complaint and seeking for reliefwith a direction from the Commission to provide amenities and facilities as described in para-4 of the complaint and also sought for claiming of Rs.10,00,000/- towards deficiency of service and alsosought for some of the reliefs as prayed against the OPs. Thereafter the complainant being aggrieved by the act and action of the OP he was forced to file present complaint and sought for relief of refund of the said amount along with other reliefs as prayed in the complaint.

3. Notice to OPs  duly served. OP-1,2,3 have represented by the counsel, they have neither fielded written version nor chief examination affidavit and the commission observed both version and affidavit of OP-1 to 3 is taken as not filed. OP-4,5 & 6 remained absent and they have placed exparte.

4.  The complainant filed chief-examination affidavit along with annexure documents in support of his contention.

5.  Heard arguments. The matter is reserved for order.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?

2. What order?

7. The findings on the above points are as under:

Point No.1                :       Negative

Point No.2                :       As per final order

REASONS

8. POINT NO.1:-  It is observed from the complaint averments as well as allegations that there is transaction between the complainant and OP in so far as purchase of   flat in the project which iss constructed by OP developer. As per the  agreed terms  of the sale agreement by paying an advance sale consideration they have enter into sale agreement and subsequently after the completion of the said project the OP to handed over the possession of the said flat by executing  sale deed.  On 22.03.2018 on payment of  entire sale consideration to the OP they have  executed registered sale deed  and construction agreement also came to be executed between the complainant and the OP pertaining to the construction of the said flat on 08.08.2016. On execution of the registered sale deed and also after completion of construction of the said project the OP has handed over the possession of the said flat to the complainant on receipt of entire sale consideration.  The complainant had received the possession of the property and he has started residing in the said flat and later the complainant found and alleged that some of the facilities which is provided in the said flat are not as per the terms of the agreement which is entered between them. Further, the complainant alleged that some of the work is unfinished and incomplete both in the project as well as in his flat. The complainant has also listed some of the faults both in the quality and quantity of the work done in the said flat, which was carried out by the OP. It is also further alleged that the OP has failed to provide some of the basic amenities in the said project as agreed in the agreement. By alleging same when the complainant approached the service provider i.e. OP, but they have not at all responding to the allegations of the complainant and they have carelessly and negligently  refused to render any service to the complainant. When all the efforts of the complaint went in vain. The complainant was forced to file the present complaint and seeking for relief  with a direction from the Commission to provide amenities and facilities as described in para-4 of the complaint and also sought for claiming of Rs.10,00,000/- towards deficiency of service and also  sought for some of the reliefs as prayed against the OPs.

9. The complainant filed chief examination affidavit and also produced some of the documents as per annexure 1 to 96. All these documents which is produced by the complainant clearly shows that complainant has purchased above said flat from the OP and the allegations of complainant as against the OP is that not providing basic amenities and also not completing the work in the project as well as in the flat of the complainant. It is also  seriously alleged by the complainant that there is shortfalls in the quality and quantity of the work which is  carried out by the OP pertaining to the said flat. It is also agitated  that OP has failed to provide amenities which has been agreed by them during the course of agreement.

10.  Apart from the complainant made making of mere oral allegations has failed to prove complaint allegations as against OP by way of adducing any expert report on the issues. The dispute between the complainant and OP is pertaining to the construction work and when it is alleged some of the shortfalls and incomplete work and not providing basic amenities. All these facts will have to be proved by way of adducing any expert or commissioner report on the issue. The complainant has merely and orally pleaded all  these construction shortfall allegations, they have not made any single attempt to produce any document  on the said allegations as against OP. The commission in so far as allegation  concerned, the commission works as layman, it  requires an expert report both in mechanical or construction issue is concerned. The complainant has also pleaded some of the shortfalls of the OP project. All these allegations cannot be considered only on the basis of mere pleadings, the pleadings will have to be supported by cogent evidence on the issue by expert. In the absence of any of these reports on the point of issue the commission is not in a position to adjudicate the complaint on merits on the extent of any expert report.

11.  In view of the above discussion, the commission has no hesitatation to held that the complaint deserves to be dismissed for want of expert report on the disputed issue. Consequently the complaint is hereby dismissed for the above said reasons and complainant is also fail to prove deficiency in service on the part of OP. Accordingly, the Point No.1 we answer in negative.

12. POINT NO.2:- In the result, we passed the following:

ORDER

1. Complaint filed complainant under section 35 of Consumer protection act, 2019 is hereby dismissed.  No costs.

2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^th April 2023)

(RAMACHANDRA M.S.)

PRESIDENT

       (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

                 MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Sri M.Nagaraj-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OPs by way of affidavit: Nil

Documents produced by the OPs: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*