Per Shri S.R. Khanzode, Honble Presiding Judicial Member
1. Alleging deficiency in service on the part of Civil Contractor and an architect, namely, O.P.no.1 and O.P.no.2 to build a bungalow as per sanctioned plan and to obtain Completion certificate and which resulted into non-delivery of possession of the bungalow, as agreed; compensation is claimed to the extent of Rs.1,10,000/- for mental tension, agony and for disturbing peaceful life. Other claims made viz. direction against opposite parties to hand over possession after completing the construction work as per the sanctioned plan, damages for delay in handing over the possession, and remaining reliefs are not pressed at the time of arguments and are given up on behalf of the complainant since she has sold the property, as per submissions made by her counsel.
2. Undisputed facts are that complainant engaged services of O.P.no.1 Mr. Shivaji Thorat, a Civil Contractor to construct a bungalow at Nasik Road at plot no.33 situated at Ashvin Co-operative Housing Society Ltd. Initially, agreement dated 27/1/1998 was executed between the complainant and O.P.no.1. After the plinth level, work was stopped for about a year and further construction work was started by entering into a fresh agreement dated 15/3/2000. The work was to be completed within 6 months from the said agreement. O.P.no.1 was to be paid charges @ Rs.330/- per sq.ft. for 1550 sq.ft. as per sanctioned plan, total amounting to Rs.5,11,000/-. Though delayed, the work was almost completed. However, Completion certificate could not be obtained since the Corporation raised objection to the effect that the work was not completed as per the sanctioned plan, particularly, the height of canopy to the terrace over the staircase exceeded the permissible limit of height.
3. It is case of the complainant that instead of 1550 sq.ft. area as per sanctioned plan, O.P.no.1 exceeded the limits and claimed to have made construction of total area 1616 sq.ft. Additional demand raised by O.P.no.1 for additional area of construction was, therefore, rejected and the claim towards it was denied by the complainant. When she came to know that the completion certificate could not be obtained on the ground of exceeding the height of the canopy over the stair case, she asked the O.P.no.1 as well as Architect engaged, namely, O.P.no.2-Mr.Dilip Kajale to demolish that extra height portion and also intimated that it is they who are responsible for that extra height since it was constructed not agreeing with the sanctioned plan. Dispute was even taken to the Municipal Commissioner. These events resulted in causing delay in getting possession of the bungalow and complainant had to face lot of mental torture, tension and anxiety and for which she claimed compensation, supra. She also claimed that she has paid all the price agreed i.e. total payment of Rs.5,30,000/- to O.P.no.1 and also paid fees of O.P.no.2 to obtain completion certificate.
4. O.P.no.1 appeared and denied in toto the allegations levelled against him. According to him, he was only appointed on contract for labour and procurement of the material construction and guarantee the construction under the supervision of the complainant. He carried out construction including stair case and canopy as per the instructions received by him from time to time by the complainant. Therefore, he is not responsible for delay in obtaining completion certificate, since the construction exceeded the permissible limit of height for construction. He also claimed that the complainant owe to him charges for additional work done to the extent of Rs.1,35,000/-.
5. O.P.no.2 served, but remained absent and did not file any written statement.
6. Heard Ms.Sadhana Bakhale-Advocate for the complainant, Mr.A.V.Patwardhan-Advocate for the O.P.no.1 and O.P.no.2 remained absent ex parte.
7. Only point that arises for our consideration as to whether complainant established her claim for compensation on the ground for mental tension, agony and for disturbing her peaceful life, since O.Ps failed to stand by the sanctioned plan for construction and carried it contrary to the same and which resulted in failure to obtain the completion certificate. Our finding is in affirmative and we quantify amount of compensation to the extent of Rs.25,000/- payable by each one of the O.Ps (Thus total compensation Rs.25,000/- + Rs.25,000/- = Rs.50,000/-).
8. O.P.no.1 though claimed that he was not engaged in his capacity as Civil Contractor to construct the bungalow but only for carrying the masonry work and to procure the material, his such claim appears untrue in the light of the written agreement dated 15/3/2000 on record. He was engaged for a consideration i.e. payment of fees of charges @ Rs.330/- per sq.ft. for carrying out the construction work of the bungalow. Said rate includes the cost of building material.
9. As per the agreement dated 15/3/2000, remaining work of the bungalow i.e. above the plinth level was to be completed within 6 months from the date of said agreement. Thus the work was to be completed by the end of 15/9/2000. However, it is revealed from the record that the work was almost completed with minor deficiencies by the end of the year 2000. This is reflected from the letter dated 4/6/2001 (marked as âExhibit C as annexure to the complaint) and receipt of which is not disputed by the O.P.no.1. It also refers to appointment of a new Architect namely O.P.no.2. Further, letter dated 4/6/2001, which is also not disputed by O.P.no.1 and O.P.no.2 did not come forward to deny, was addressed to one Mr.Ramesh Thorat who is brother of O.P.no.1 and O.P.no.1 himself. It also speaks for payment of professional charges of O.P.no.2 through Mr.Ramesh Thorat. It also spelled out concern of the complainant for delay in obtaining completion certificate after complying with the requirement and conditions of Municipal Corporation i.e. bringing the height of the bungalow within the permissible limit. Such concern for the delay in obtaining completion certificate is further reflected in their letter dated 10/10/2001 addressed to the Town Planning official of Municipal Corporation as well as another letter dated 31/10/2001 addressed to the Municipal Commissioner. Telegram was sent to O.P.no.2 on 30/11/2001 reflecting the same concern. Even the Municipal Corporation and Town Planning Official of Nasik Municipal Corporation by its letter dated 18/1/2002 (marked at âExhibit I as annexure to the complaint and which is addressed to O.P.no.2), asked the Architect to ensure to reduce the raised height within the permissible limit so as to enable them to issue a completion certificate. It also make mention to the concern of the complainant on the issue.
10. Considering these documents as well as affidavits of both the contesting parties and considering preponderance of probabilities, we find, the complainant has substantiated her case for compensation about mental agony and anxiety and disturbing her peaceful retired life, which she faced and undergone as a result of failure of O.P.nos.1 and 2, firstly, to ensure that the construction is carried out as per the sanctioned plan and at the second instance, failure to comply with the direction of Municipal Commissioner and Town Planning officer to reduce the height of the raised construction of terrace and its canopy within the permissible limit as per the sanctioned plan to enable the authorities to issue the completion certificate. Under the circumstances, we find they are guilty of deficiency in service and liable to compensate the complainant accordingly.
11. Complainant has produced on record certain documents, hotel bills as well as telephone bills, etc. But they are neither relevant nor proved nor tendered in evidence as per the provisions of section 13 of the Consumer Protection Act, 1986 (Herein after referred as âActâ). However, as stated earlier, the acts of opposite parties, viz. not carrying construction of bungalow following the sanctioned plan, delay in obtaining the completion certificate, etc. certainly caused mental anxiety and also disturbed post retirement peaceful life of the complainant. Therefore, it would be just and proper, according to us, to direct each one of the O.Ps individually to pay Rs.25,000/- as compensation to the complainant. We hold accordingly and answer point for determination accordingly. Hence, the order:-
Order
1. Complaint is partly allowed.
2. O.P.no.1- Shri Shivaji Thorat and O.P.no.2- Mr.Dilip Kajale, each one are directed to pay Rs.25,000/- to the complainant within 45 days from receipt of this order and on failure of which they may require to pay interest over the same @ 18% p.a.
3. Both the O.Ps to bear their own cost and each one shall pay Rs.5000/- as cost to the complainant.
4. Copies of the order be furnished to the parties.