Upper Floor toilet owner not repairing

CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI

FIRST APPEAL NO.1249 OF 2007

Date of filing : 05/10/2007

IN CONSUMER COMPLAINT NO.77/2007 Date of order : 25/03/2009

DISTRICT CONSUMER FORUM, PUNE

@ MISC. APPLICATION NOs.1683/2007 & 344/2008

M/s.Chaitanya Engineers Contractor through its Proprietor- Shri Pramod Baburao Mulujkar R/o. 1644, Sadashiv peth,  Somnath Smruti Apartment,  1st floor Tilak Road,        Pune 411030………..Appellant/org.

O.P.

V/s. Ms.Vrushali V.Amle  R/o.Survey no.18 & 19 Moze Engineering College Near Boys Hostel, Balewadi Pune 411 045 ………Respondent/org.complainant

Corum: Justice Mr.B.B.Vagyani, Hon’ble President Shri S.R.Khanzode, Hon’ble Judicial Member Present : Mr.S.S.Bhalerao-Advocate for the appellant. Mr.N.M.Shinde-Advocate for the respondent.

O R A L O R D E R Per Justice Mr.B.B.Vagyani, Hon’ble President

  1. Heard Mr.S.S.Bhalerao-Advocate for the appellant. Mr.N.M.Shinde-Advocate for the respondent.
  2. Learned Advocate Mr.Bhalerao for the appellant forcefully submitted that the District Consumer Forum has no jurisdiction to entertain the complaint filed by the respondent. According to him, the respondent should have gone to the Civil Court to redress his grievance. We do not agree with Learned Advocate Mr.Bhalerao. Matter pertains to the construction. Building and construction very much falls within the purview of Consumer Protection Act, 1986. Section 3 of Consumer Protection Act, 1986 has given additional remedy to the consumers. The consumer is to exercise his option. Consumer has exercised his option in favour of District Consumer Forum.
  3. Learned Advocate Mr.Bhalerao then submitted that the District Consumer Forum should not have relied upon the report of Court Commissioner, when his request for cross examination was rejected. Moreover, objection was raised to the report of Court Commissioner. No doubt the prayer for cross examination was rejected. The consumer jurisprudence is altogether different. Consumer Forums are quasi judicial Forums. The strict law with regard to pleadings is not applicable. Similarly, procedural law barring few provisions of CPC is not made applicable to the consumer litigation. As of right, request for cross examination in the very matter cannot be made and entertained. Appellant could have tendered the questionnaire to the Court Commissioner. That is not done. Moreover, it is not shown as to why cross examination of Court Commissioner was necessary.
  4. In order to bring on record, the defects in the construction, the District Consumer Forum thought it fit to appoint an expert. Court Commissioner is a competent person. He had taken with him Shri Pawar to assist him and to take measurement. It is also material to note that in presence of both the parties, the commission work was carried out. In absence of rebuttal evidence, Court Commissioner’s report can be acted and relied upon.
  5. From the perusal of the Court Commissioner’s report, it is noticed that because of inferior quality of plaster work, there was seepage. Seepage was noticed in the bathroom, which is below the staircase of the ground floor. Leakage is also noticed to the sink of the kitchen platform. Leakage was also noticed from the eastern, northern, southern and western walls. Leakage was also noticed from the doors and windows. Leakage was also noticed in the passage leading to bedroom on the northern side. Leakage was noticed in the balcony. Leakage was noticed from the storage water tank. Construction work is not carried out as per specification and standard. Quality of work as well as quality of building material is not maintained. As per report of Court Commissioner, an amount of Rs.1,30,000/- is required for rectification of defects. Complainant claimed Rs.1,80,000/-. District Consumer Forum has accepted the figure disclosed by the Court Commissioner. District Consumer Forum has awarded compensation of Rs.20,000/- for physical and mental harassment and thus awarded Rs.1,50,000/- to the complainant with interest @ 12% p.a. Rate of interest awarded by the District Consumer Forum is on the higher side. District Consumer Forum has not given reason as to why interest is awarded @ 12% p.a. We, therefore, modify the rate of interest from 12% to 7% p.a.
  6. Learned Advocate Mr.Bhalerao relied upon the decision of Hon’ble Supreme Court in the case of Synco Industries V/s. State Bank of Bikaner & Jaipur and others reported in AIR 2002 Supreme Court 568. The facts of the said case are quite different. In the said case, detailed evidence was required and therefore Supreme Court observed that claim cannot be entertained by Consumer Forum and the Civil suit is the proper remedy. Case in hand is simple one and can be settled on the basis of affidavits.
  7. Ld.Advocate Mr.Bhalerao also placed his reliance on the decision of Hon’ble Bombay High Court in the case of Khurshed Banoo W/o.Murtaza Hasan (deceased by LRs) V/s. Vasant Mallikarjun Manthalkar (deceased by LRs) AIR 2003 Bombay page 52. The observations made in Head note (B) cannot be pressed into service. In the said case, there was no proof of evidence furnished by plaintiff to substantiate his claim. Therefore, Hon’ble High Court has observed that in absence of proof of evidence, decree cannot be passed on the basis of Commissioner’s report. In the case in hand, District Consumer Forum has examined the Court Commissioner’s report and thereby passed an appropriate order.

In the result, we pass following order:-

ORDER 1. Appeal is partly allowed.

  1. Rate of interest “ @ 12% p.a.” in the operative part of the order is to be read as “ @ 7% p.a.”
  2. Rest of the order stands confirmed.
  3. In lieu of above order in appeal, misc. application no.344/2008 has become infructuous and stands disposed of accordingly.
  4. Misc. application no.1683/2007 for stay stands disposed of.
  5. Copies of the order be furnished to the parties. (S.R.Khanzode) (B.B.Vagyani) Judicial Member President

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1 Comment

  • I am the resident of Thane. I have purchased the flat on the second floor of the building in the year 2014 from previous owner member of the society. Before entering into the sale deed with the owner of the flat, it was brought to the notice of the owner that there is a seepage/leakage from the ceiling of the upper floor which affects the area of kitchen,bathroom, etc. The previous owner of the flat orally assured me that I will look into the leakage and get the same resolved. Thereafter he has turned up till date.

    Now I have become the member of the society. The leakage issue was severally discussed with the upper floor owner and he has been assuring me that he will carryout the repairs. The upper flat owner is having two flats in his name in the society.

    Unfortunately, the leakage issue is not resolved for more than two years. Hence I presented this issue before the AGM of the society. In the AGM of the meeting the upper floor owner assured and agreed to carryout the repairs within two months. the Resolution to that effect is passed by the society.

    I have now made a written complaint to the society about the leakage problem. Plz. advise me on the following points arise in my mind:-

    1)what legal steps I can take against the upper flat owner. (2) whether I have to inform the previous flat owner regarding the issue and drag him in the matter. (3)whether I can take this issue before the local police station (4) what is the role of the society in such problems.

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