Good Luck Developers v. Vignesh Shanbhag

complainant. The said cheque dated 02.04.2013 on presentation was dishonoured due to insufficient funds in the account of the petitioner opposite party.

4. The complainant being aggrieved filed consumer complaint in the District Forum South Goa.

5. The petitioner opposite party was proceeded ex parte in the District Forum because of its failure to put in appearance despite of service of notice.

6. The District Forum on consideration of the record allowed the complaint and directed the opposite party as under:

"The complaint is allowed and opposite party is hereby directed to pay a sum of Rs.30,000/- ( Rupees Thirty Thousand only) to the complainant and compensation of Rs.20,000/- ( Rupees Twenty Thousand only) and cost of Rs.5000/- within 30 days from the receipt of this order, failing the said sum shall carry interest @ 9% from the filing of the complaint till its realization.

7. The State Commission on re-evaluation of evidence and record while agreeing with the factual findings of the District Forum modified the operative portion of the order as under:

"It is hereby ordered that the present appeal dated 15.02.2016 filed by the appellant herein is hereby dismissed. The impugned order dated 23.12.2015 passed by the District Forum, South Goa, in complaint no. 54/ 2015 is hereby upheld. However, it is directed that the opposite party in the original complaint no. 54/ 2015 shall pay to the complainant therein the said amount of Rs.30,000/- with interest @ 9% per annum from the date of issuing the said cheque to the opposite party till actual payment. It is also directed that the costs granted by the impugned order is enhanced to Rs.15,000/- instead of Rs.5,000/-. It is further directed that the appellant shall pay to the respondent Rs.10,000/- towards the costs of the present appeal. The aforesaid directions shall be complied with by the complainant in the original complaint within 30 days from the date of this order".

8. Learned counsel for the petitioner has contended that impugned orders of the Fora below are liable to be set aside for the reason that both the Fora below have ignored that the consumer complaint was filed after the expiry of two years limitation provided under section 24-A of the Consumer Protection Act, 1986. Expanding on the argument, learned counsel for the petitioner has contended that admittedly the possession of the apartment was received by the complainant and sale deed was executed on 21.01.2013. It is also the case of the complainant that in the month of July 2013 he noticed seepage in the subject apartment through walls. Therefore, the cause of action for filing the consumer complaint against the defect in construction arose in July 2013 and in order to be within limitation, the complaint ought to have been filed latest by July 2015. The complaint, however, has been filed in August 2015, as such it is barred by limitation.

9. We do not find merit in the above contention. In building construction, the defect can be of two types, one which are latent defects and other which are visible to eye. The leakage from the roof due to seepage from the walls obviously is a latent defect which would be

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apparent only when the walls are exposed to water like heavy rain etc. No doubt, the complainant noticed seepage in the walls in July 2013. Perusal of the complaint would show that according to the complainant the defect in the construction became more apparent when the subject premises was exposed to heavy rainfall in the month of June 2014 when large amount of water seeped into the house through the walls and caused damage to the false ceiling as also the wooden cupboards. Therefore, in our opinion cause of action for raising the consumer dispute occurred in June 2014 and if limitation is computed from June 2014, the complaint filed in the year 2015 is well within the two years period of limitation as provided under section 24-A of the Consumer Protection Act, 1986. Thus, in our view the complaint is within limitation.

10. Next contention of learned counsel for the petitioner is that Fora below have failed to establish the defect in the quality of the construction more so because of the fact that no expert witness has been examined. We do not find merit in this contention. It is pertinent to note that despite of service of notice of the complaint, petitioner opposite party did not put in appearance nor opposite party filed written statement in response to the complaint. As the opposite party petitioner has failed to controvert the allegations in the complaint by filing written statement, the allegations in the complaint are deemed to have been admitted as correct. It is well settled that the allegation made in the complaint if not denied is deemed to be admitted as correct. Otherwise also, the complainant in his affidavit did support the allegations in the complaint. Therefore, it cannot be said that complainant has failed to prove deficiency in service i.e. defect in construction. It is pertinent to note that undisputedly, opposite party issued a cheque of Rs.30,000/- in favour of the complainant which cheque on presentation was dishonoured. The stand of the complainant is that aforesaid cheque was given by the opposite party for meeting expenses for rectifying defects and the damage caused to the cupboard and ceiling. This circumstance also makes it clear that even as per the petitioner opposite party, there was some defect in the construction of the apartment. Thus, in our view, impugned order cannot be faulted.

11, In view of the discussion above, we do not find any jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.

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AJIT BHARIHOKE

PRESIDING MEMBER

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ANUP K THAKUR

MEMBER

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