1) This is an appeal preferred by the Opposite parties under Section 15 of C.P. Act, 1986 aggrieved by the order dated 03.07.2014 of the District Forum, Ranga Reddy in CC No.39/2013 allowing the complaint and directing them to pay to the Complainant an amount of Rs.6,63,894/- along with 6% interest from 03.08.2012 i.e., the date of estimation by a Surveyor till realization and further directed to pay Rs.20,000/- towards costs of the complaint.
2) The case of the Complainant, in brief, is that the Opposite parties 1 to 4 are partners of M/s Maruthi Real Estates, a partnership firm and they represented to Complainant that they were constructing residential apartment under the name and style 'S.S.Residency' in Sy.No.39 at Vinayak Nagar, Hayathnagar with good quality, steel, cement, woodwork and would provide all basic amenities, thereby lured the Complainant to purchase flat No.G-4 in ground floor admeasuring 810 sft., along with undivided share of 22.5 sq.yds., for a total sale consideration of Rs.5,50,000/-, have executed a registered sale deed dt.18.07.2003 conveying the title of semi-finished flat. Complainant obtained housing loan of Rs.3,00,000/- from HDFC Bank. After completion, the Opposite parties delivered the flat in November 2015. As she is residing at Nalgonda, she leased-out the flat to a tenant.
3) It is stated further that within short span of time, the walls developed cracks and eastern part of the flat at the basement, the flooring in all the rooms and marble tiles laid for flooring also sunk. On advise of flat owners welfare association, complainant made phone calls and personally visited the Opposite parties and requested to rectify the defects and even she made written representations on 18.07.2006 and 05.01.2007, but there was no proper response from Ops. It was informed that on account of above problems, the tenant vacated the flat and in spite of registered letter dt.02.09.2009 the Ops gave no reply. As a result of which, flat was kept vacant for 3 years and her brother is staying on a nominal rent in order to protect from further deterioration but major cracks developed in the flat made life of the inmates miserable. On 13.09.2009 Complainant brought the facts also to the notice of flat owners welfare association. As the problems aggravated day-by-day, complainant got issued a notice on 14.04.2011 demanding to rectify the defects. The notices of Ops 1 and 3 were returned unserved as 'no such H.No. in this colony' and the notices of other Ops were served on 18.04.2011. Again she got issued another notice on 18.06.2011 to Ops 1 and 3, which they received but failed to reply.4) It is stated further that Complainant appointed one Mr.Muntha Ravi Kumar, a surveyor to inspect the flat and list out the defective works and to estimate the value of repairs. On 03.08.2012 said surveyor prepared the estimation at Rs.5,80,000/- and opined that the total walls have to be rebuilt and flooring has to be relaid after provision for basement/plinth beams under the walls and total flat should be painted. The act of not responding to phone calls, representations and notices on the part of the Opposite parties amounts to deficiency in service and unfair trade practice. Hence, prayed to direct the Opposite parties to rectify all the cracks in the walls, defects in the flooring and basement, kitchen, ceiling, bedrooms, drawing room, toilets compound wall basement, etc., in Flat No.G4 of SS Residency, to pay compensation of Rs.50,000/- and costs of Rs.25,000/-.5) The Opposite parties resisted the claim of Complainant admitting the sale of Flat No.G-4 to complainant and execution of sale deed for Rs.2,31,000/- but denied paying amount of Rs.5,50,000/-. On account of her avocation, Complainant is staying at Nalgonda keeping the flat vacant with certain food grains in it. As none is staying in the flat, there is no maintenance at all and the other flat owners advised Complainant to keep somebody, it became shelter for rats which dug the ground from outside as such, some cracks occurred on the walls as well as in the flooring because of bad maintenance. Complainant received the flat in good condition and she satisfied with the quality of construction and there was no complaint till she issued notice in the year 2009. Thus, her claim is hopelessly barred by limitation, speculative and vexatious as she is making allegation after 10 years of her purchase. When no one resides in the flat, it is quite natural the construction gets damaged. As a matter of fact, every wall has to be white-washed every year but it is not done for the last 10 years nor anyone is staying in the premises. No complaint is made during the year 2006 and 2007 as alleged by complainant except in 2009, upon which, it was informed to the Complainant that on account of poor maintenance, it all had occasioned and the maintenance is under the control of registered association. The alleged crack on the wall is not the structural defect, but it is the result of bad maintenance or no maintenance. The alleged notices 18.04.2011 and 18.06.2011 are not served on the Opposite parties.
6) It is stated that the estimation of alleged surveyor is not based on the facts and it is not binding on the Opposite parties. The flat was handed over in the year 2003 and the complaint is filed after a gap of 10 years, hence, barred by limitation. The estimations are got prepared keeping in view the present litigation. Neither there is any deficiency of service nor unfair trade practice on the part of Opposite parties. Only to blackmail them, the present complaint is filed. Hence, prayed to dismiss the complaint with costs.
7) The complainant in proof of her case filed her affidavit evidence and the affidavit of the occupant of the flat, her brother and got Ex.A1 to A14 marked while the Opposite parties filed affidavit evidence of one M.Sudhakar Reddy and the affidavit evidences of other four flat owners and got filed no documents.
8) The District Forum after considering the material placed on record, allowed the complaint opining that the cracks on the walls do not look like holes made by any rats and it is clearly structural defects due to a) using substandard materials; b) improper levelling of ground; c) no laying of concrete bed or beams before laying the flooring; d) not treating the loose soil/ground for firmness and e) lack of curing i.e., pouring water on the cement construction. It opined that the construction of other flat owners are satisfactory and the quality of construction of complainant’s flat which is in dispute and the photographs are clear proof of the defective construction.9) Aggrieved by the said order, the Appellants/Opposite parties preferred this appeal contending that the alleged letters of 2007 were fabricated for the purpose of complaint and absolutely there is no record of issuing registered notices and service of the same on the appellants till 2011. The District Forum failed to appreciate the evidence of other flat owners and questioned awarding of Rs.6,63,000/- with interest and costs of Rs.20,000/- while the total cost of the flat is Rs.2,31,000/-. The estimation of Mr.M.Ravi Kumar is taken into consideration, who is not an approved structural engineer competent to estimate the repairs without any qualification and that the interest is granted from the date of estimation while the complaint is filed in the year 2013. The Appellants further contend that they are only the GPA holders and the original owners are not made as parties to the complaint. As the Respondent/ Complainant failed to attend the periodical maintenance of the flat, it resulted cracks on the wall. Hence, prayed to allow the appeal setting aside the order of District Forum.
10) The Respondent/Complainant filed FAIA 90/2016 before this Commission to receive the additional documents and the same was allowed and documents are marked as Exs.A15 to A23. Counsel for the Respondent/Complainant filed written arguments. The Appellant argued the appeal with reference to the written arguments already filed by them.
11) The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
12) It is an undisputed fact that the Appellants/Opposite parties are Builders and have sold the flat in dispute to the Complainant for a sale consideration therein. It is also not in dispute that the Respondent/Complainant took possession of the same. The only dispute is that cracks developed on the walls, the flooring is damaged and it has become not habitable for use and occupation.
13) It is contended by the Appellant that the complaint is hopelessly barred by limitation. In this regard, it is to be stated that the Appellant received the notices in the year 2009 as is evident from their own admission in the complaint before Forum below and thereafter the Respondent/Complainant got issued notice again in the month of June, 2011 which they acknowledged but failed to respond. Admittedly, the complaint is filed on 02.02.2013, which is within the period of limitation. Even otherwise, having been put on notice of the defects and repairs to the flat, the Respondents/Opposite parties failed to attend the same over a period of time, which gives a continuing cause of action till the same are attended or answered to. Except making a vague allegation that Respondent/Complainant is orally informed as to the defects in the flat, nothing is brought on record.14) Coming to the aspect of cracks developed on the walls, it is to be stated here that to determine how serious a wall crack might be, it's best to examine the shape of the crack and the direction it runs on the wall. If the crack is vertical and starts near the apex where the wall and ceiling meet, it might be a sign that it was created when the foundation settled after construction. Vertical cracks run the same direction as drywall, generally making them less serious. If the crack is horizontal or runs at a jagged 45-degree angle, it might mean there's a more serious problem such as severe foundation shifting or water damage. More severe cracks usually require professional help to determine the exact cause and might include some reconstruction to prevent further damage. A stair-step crack looks like a flight of stairs and runs in both vertical and horizontal directions across the wall. The continuous pattern usually follows the grout or cement lines between cinder blocks. According to Almost Home, stair-step cracks in cinder block foundation walls - usually found in unfinished basements - are a result of soil settling beneath the center of the wall. Stair-step cracks in masonry jointsare a bigger concern, especially if the wall is bulging or the crack is wider than inch. A plugged gutter or other moisture problem outside is probably exerting pressure on that part of the wall. Horizontal cracksare most serious. It may be that water-saturated soil froze and expanded, pushing in and breaking the foundation. Or, you may have soil that expands when damp and shrinks dry. The bad news: You probably need a whole new foundation. In the instant case, from the photos Exs.A24 consisting of 24 photos clearly goes to show that the cracks are widened ones and there is much gaping to one another. Viewed from any angle, the cracks developed on the walls of the flat in the photographs filed establish that they developed due to some defect in the quality of construction.
15) It is further averred in the grounds of appeal that the original owners are not made parties to the complaint. In this context, it is to be stated that the owners never entered into picture. It is the Appellants/Opposite parties, who on behalf of the owners as General Power of Attorney holders claiming to be the developers entered into deeds and sold the flats to the intending purchasers including the flat in question. Hence, this plea on the part of the Appellants/Opposite parties is not sustainable.
16) It is to be further stated that the average of a structure consisting of RCC will withstand atleast for a period of more than 20 years. In the instant case, the flat which is sold to the Respondent/Complainant was constructed in the year 2003 and within a few years, the Respondent complained of the defects in the flat and requested to rectify. The defects which developed, are not rat made or by bandicoot rats or any other insects but instead those cracks paved the way for rats, bandicoots and insects to secure place in the flat. The plea of the Appellants that on account of poor maintenance of flat, the cracks developed is not believable.17) The counsel for Respondent placed reliance on the following Judgments:
i) III (2005) CPJ 1 (SC) in the case of Md.Suleman Ansari (DMS) Vs. Shankar Bhandari, wherein it is held as follows:
'Medical Negligence : Complaint : Limitation : Condonation of delay : Respondent-minor suffered fracture of his hand : Taken to appellant who held himself registered medical practitioner by his father : Appellant bandaged respondent’s hand and prescribed some medicines : Respondent was in acute discomfort and taken to other doctors : By this time, damage to respondent’s hand was permanent : Complaint filed four years after complainant examined by appellant : District Forum held issue ought to be decided by Civil Court : State Commission allowed appeal/awarded compensation : National Commission held sufficient evidence to show fracture plastered by unskilled person and appellant not entitled to practice : Even if cause of action continuing one, respondent did not complaint for period of four years since last seen by appellant : Court directs appellant to pay sum of Rs.80,000/- in full and final settlement.
The learned counsel appearing on behalf of the respondent has submitted that although there was no application filed for condonation of delay nevertheless, this Court should under Article 142 of the Constitution overlook the lacuna. It is further stated that in any event the period of limitation could not be said to have run in view of the fact that it was a continuing cause of action.'
ii) IV (2012) CPJ 36 (NC) in the case of Raghava Estates Ltd., Vishnupuram Colony Welfare Association & Anr, wherein it is held as follows:
'Consumer Protection Act, 1986 – Sections 24-A, 21(b) – Limitation – Where there is immovable property and amenities promised by Opposite party were not provided, it can be construed as continuing cause of action and it cannot be said to be barred by time.'
iii) I (2005) CPJ 96 in the case of Terence Correya Vs. Maruti Udyog Limited & Anr., wherein it is observed :
'…….There was some telephonic conversion also between the complainant and the said Regional Manager. The complainant again on 13.12.2000 sent a letter together with his affidavit and other documents evidencing payment of money through M/s Ras Motors Pvt., Ltd., It was only when no action was taken by respondents that the present complaint was filed. The cause of action for complaint has obviously arisen when no payment was made despite notice dated 15.2.2002 sent to both the respondents. The complaint is, therefore, found to be within limitation. The C.P. Act is a benevolent legislation intended to protect the interests of the consumers. Initially, no limitation was prescribed for filing complaint under the Act and it was only in 1993 (w.e.f. 18.6.1993) that new Section 24A providing limitation period, was inserted. So while construing the said provision of limitation, we have to take a liberal view and a genuine claim of a honest consumer should not be allowed to be defeated on the technical ground of limitation.'
iv) Lastly, I (2005) CPJ 329 in the case of Jamnagar Mahila Sahakari Bank Ltd., Vs. Pragnaben Kishorbhai Hathi, wherein
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it is observed : 'Limitation – time barred – Refund money lying with O.P. bank for long time – Credited belatedly in account – Limitation begins from date of demand – Complaint within 2 years from date of demand, within limitation.' Admittedly, in the case on hand too, the Respondent/Complainant noticed the defects after a period of time and immediately after noticing the same, the same were brought to the notice of the Appellants/Opposite parties with a request to rectify the same, which the Appellants admitted of having knowledge of bringing it to their notice in the year 2009, which they failed to attend as on date, which is nothing but a continuing cause of action. The citations referred above squarely applicable to the facts of the case on hand.18) The contention of Appellants that the Surveyor who estimated the cost of repairs had no qualification and is not a competent structural engineer. Ex.A18, the licence issued in favour of Mr.M.Ravi Kumar by the Additional Chief City Planner, Greater Hyderabad Municipal Corporation bearing No.293/Strl.Engineer/TP10/GHMC dated 26.05.2014 for the period from 01.04.2014 to 31.03.2019 disproves this contention.19) The District Forum below has rendered a reasonable and well deserved finding and it needs no interference. In the above facts and circumstances, this Commission do not find any error or irregularity in the findings rendered by the District Forum and hence the same is not liable to be set aside, modified or interfered with, in any manner. The point framed for consideration in paragraph No.11, supra, is answered accordingly. 20) In the result, the appeal fails and is accordingly dismissed but under circumstances, no costs. Time for compliance four weeks.