Seepage from Upper Floor flats
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 84 of 2007
(From the Order dated 9.10.2006 in First Appeal No. 561/2005 of the State Consumer Disputes Redressal Commission, Haryana)
Seepage from Upper Floor flats
Flat No.34-2B, Aravali View
Rail Vihar Phase II, Sector 56 JE
Gurgaon (Haryana) … Petitioner
1. The Managing Director
Indian Railway Welfare Organization
(GHS 1994) Rail Vihar, Phase-II
Sector 56 JE,
2. D.S. Dahiya
R/o Flat No.34-3-B
Rail Vihar, Phase-II, Sector 56 JE
Gurgaon (Haryana) …Respondent
HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
Seepage from Upper Floor flats
For the Petitioner : In Person
For the Respondent No.1 : Mr. Brij Lal Midha, Representative
of the Respondent No.1
For the Respondent No.2 : N E M O
PRONOUNCED ON: 10.01.2011
O R D E R
ASHOK BHAN, J., PRESIDENT
Seepage from Upper Floor flats
Complainant -Petitioner has filed the present Revision Petition against the judgement and order dated 9th October, 2006 passed by the Haryana State Consumer Disputes Redressal Commission (for short, the State Commission) in First Appeal No.561/2005 whereby the State Commission allowed the appeal filed by the Respondent No.1 (Opposite Party No.1 before the District Forum) and set aside the judgement and order dated 23rd December, 2004 passed by the District Forum in Complaint No.1598/03.
Briefly stated the facts are:
Petitioner is allottee of flat No.34-B Type-II, Phase II, Rail Vihar, Gurgaon, developed by the Respondent No.1. Respondent No.2 (Opposite Party No.2 before the District Forum) is the allottee of flat No.34-3-B Type –II. Flat of the Respondent No.2 is on the upper floor of the flat of the Petitioner. Petitioner as well as Respondent No.2 were delivered possession of their flat in the year 1999. Petitioner occupied the flat earlier to Respondent No.2. There was no complaint of any type to the Petitioner till Respondent No.2 occupied the flat in the beginning of 2003. From the date of occupation of the flat by Respondent No.2 water started seeping in the bedroom of the Petitioner. Seepage of the water resulted in huge damage to the wooden work and the other structure. Petitioner immediately reported the matter to the Respondent No.1, which sent a plumber. In spite of the best efforts put in by the plumber seepage did not stop and ultimately on 6th July, 2003 plumber removed the WC seat of the flat of Respondent No.2 and found that the water was coming from GI pipe due to defective construction made by the Respondent No.1. Petitioner by letter dated 8th July 2003 requested Respondent No.1 to remove the defects at theearliest to avoid collapse of the wall of the flat of the Petitioner. Respondent No.1 failed to react to the said complaint. Then Petitioner and Respondent No.2 jointly put their plumber on the job who found that the outlet water pipe of the main bath room passing through W.C. had cracks wherefrom the water was flowing. Petitioner again wrote a letter dated 15.7.2003 to the Respondent No.1 for attending to the work but with no effect. Since the WC seat of the flat of the Respondent No.2 was dismantled and the Respondent No.1 did not attend to the defect, Respondent No.2 pressed Petitioner to get the work done. Petitioner got the work done and for this purpose he spent Rs.10,000/- from his pocket. Thereafter Petitioner by letter dated 6.10.2003 asked Respondent No.1 to reimburse the amount of Rs.10,000/-. Respondent No.1 by letter dated 10.10.2003 admitted that on visit by their project manager the WC seat of flat No.34-3B was found in broken condition and that although that type of repair was not within the scope of Respondent No.1 after the maintenance period was over, but as a gesture of goodwill they had undertaken to assist the petitioner in getting the repair done. It was also stated that seepage was perhaps due to broken WC and not due to defect in construction and that for broken WC Respondent No.1 was not liable.
Thereafter, Petitioner filed the complaint before the District Forum. On being served, Respondent No.1 entered appearance and contested the complaint by filing its written statement. It was pleaded that physical possession of the flats was delivered to Petitioner and Respondent No.2 on 14.6.1999 and 8.8.1999 respectively. As per Clause 22 of the rules of the Respondent No.1 it was liable for removing the defects and deficiency, if any, at the time of giving possession but not at any later stage. But as a goodwill gesture, it had provided maintenance upto 30.9.1999 as per Clause 3(e) of handing/taking over certificate which is the date of after taking possession. It was further stated that the entire family of the Complainant had shifted in the said flat in January, 2003. It was in the month of July, 2003 Petitioner informed about the seepage of water of the of the bath room of the flat of Respondent No.2. Thereafter, a plumber was sent to check the defect, who found that WC seat of the flat of Respondent No.2 had broken from the corner from where water was seeping. It was stated that leakage of water was not the responsibility of Respondent No.1. The plumber reported the matter back to the concerned official of the Respondent No.1 who further informed Petitioner that they had no liability to remove the defect in that regard. Thereafter, Petitioner himself made some arrangement with Respondent No.2 who agreed to get the WC seats of his flat replaced by new one and for which the old seat was removed after breaking. Under the circumstances of the case it was prayed that the complaint merited dismissal.
Respondent No.2 supported the version of the complainant.
District Forum on appraisal of the pleadings of the parties and the evidence led by them, accepted the complaint and directed Respondent No.1 to pay Rs.10,000/- with interest @ 9% from the date of demand was made by the Petitioner to Respondent No.1 i.e. after getting the work done till payment.
Respondent No.1 being aggrieved by the order of the District Forum filed Appeal before the State Commission. By the impugned order State Commission reversed the Order of the District Forum holding :
“The above finding, as such, cannot be sustained because entire blame has been sought to be shifted on the opposite party No.1 without ignoring the basic fact that possession of the allotted flat was taken in the year 1999 and for a period of more than three years, no complaint whatsoever had been made by the complainant with regard to the seepage of the water to the opposite party No.1. It was the duty of the opposite party No.2 to have checked the functioning of the W.C. at the time when he took the possession of the flat in question. If at all there is any negligence in this regard, it is on account of the opposite party No.2 because the seepage is directly attributed to the blockage of W.C. pipe located in the flat of the opposite party No.2 After a gap of three years from the date of taking of possession of the flat, the opposite party No.1, as such, has no liability to rectify the same and as such the responsibility cannot be spelled out from any document placed on record. Under the circumstances of the case, it cannot be said that there was any deficiency of service on the part of the opposite party No.1 qua the flat allotted to the complainant by it. The District Forum has not given due consideration to these aspects while deciding this complaint.
An official of the Respondent appeared before us seeking adjournment on the ground that his counsel is out of station. Petitioner who is appearing in person has opposed the adjournment on the ground that this is the third time he has come to this Commission to argue this case and each time counsel for the Respondent is not available. Prayer for adjournment is declined.
Petitioner and the official of the respondent have been heard at length.
It is not in dispute before us that the Petitioner and Respondent No.2 are the allottees of flat No. No.34-B Type-II and flat No.34-3-B Type –II respectively. That the possession of the flats was handed over to them in the year 1999, although according to the Petitioner it was only a paper possession. We have gone through the orders passed by the District Forum as well as the State Commission Petitioner shifted in his flat earlier to Respondent No.2. Soon after the occupation of the flat by Respondent No.2, which is on the upper floor of the flat of the Petitioner, water started seeping in the flat of the Petitioner. Letter dated 6th July, 2007 written by the Petitioner to the Respondent No.1 shows that seepage could be detected only on the occupation of the flat by Respondent No.2. Plumber deputed by the Respondent No.1 removed WC seat of the flat of the Respondent No.2 and found that water was coming from GIpipe which was broken. The outlet water pipe of the main bath room passing through W.C. had cracks which led to the flow of the water. It was the duty of Respondent No.1 to provide defect free construction and structure, which it failed to provide. Since it was a hidden defect, Respondent No.2 could not have detected the same at the time of taking over the possession. This defect could only be detected on the occupation and usage of the flat by Respondent No.2. Seepage of the water affected Petitioner only and not Respondent No.2 as the water seeped from upper floor to the floor below which was occupied by the Petitioner. Observation of the State Commission that the Respondent No.2 should have checked the functioning of the WC at the time of taking over possession cannot be accepted. Even if the WC of the flat of the Respondent No.2 had been checked at the time of taking possession of the flat, the seepage to the floor below could be detected only after the usage of the bath room. Soon after the occupation of the flat and usage of the bath room by the Respondent No.2, seepage was detected which was pointed out by the Petitioner to the Respondent No.1. There was a defect in the construction and Respondent No.1 should have carried out the repair. Petitioner who was directly affected by the seepage had to get the repair done at his own expenses in order to stop the seepage. The District Forum had rightly held that Respondent No.1 was deficient in service in not attending to the defective construction put up by it. The Petitioner had asked for and was granted the actual sum of Rs.10,000/- spent by him for getting the repair done.
For the reasons stated above, the Revision Petition is accepted, the order of the State Commission is set aside and that of District Forum is restored. Respondent No.1 is directed to pay the sum of Rs.10,000/- with interest @ 9% as directed by the District Forum, to the Petitioner within two months of receipt of a copy of this Order. No costs.
Registry is directed to send a copy of this Order to the Parties
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