IMPORTANT POINT
Damage to building due to earthquake does not indicate weak foundation of building.

Mrs. Vineeta Rai, Member—This First Appeal has been filed by eight members of Atulraj Owner’s Residents’ Association (hereinafter referred to as the ‘Appellants’) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the ‘State Commission’) which dismissed their complaint against opposite parties Rajul R. Shah and another, Respondents herein.

2. In their complaint before the State Commission, Appellants had contended that they had purchased flats from the Respondent and during the earthquake that occurred on 26.01.2001, there was heavy damage to these flats because of the unauthorized construction including penthouse, gallery etc. which had been constructed by the Respondents in violation of the sanctioned building plans and had put extra load on the building causing the damage. Further, the material used in the construction was also of inferior quality because of which the foundation of the building itself was very weak and against the stipulated safety norms. Therefore, being aggrieved because of the deficiency in service and the loss caused due of the damage to the building including the fact that during its extensive repairs, Appellants had to stay in rented accommodation, Appellants filed a complaint before the State Commission and requested that the Respondents be directed to pay Rs.16,20,000/- which included Rs.4 lakhs for physical and mental harassment and Rs.10,000 as litigation costs.

3. Respondents on being served filed a written rejoinder denying the allegations made in the complaint which was also barred by limitation since it was filed more than 2 years beyond the statutory period of limitation. It was specifically denied that the damage caused to the building in the earthquake was because of any defects or illegal construction as alleged. In fact, the entire construction was done under the guidance of a structural engineer the building plans were also got passed by the Ahmedabad Municipal Corporation. It was further contended that the premises were handed over to the Appellants in 1998 and no complaints were received at that time and till 2001 about any defects or unauthorized constructions. Even the present complaint has been filed by only some of the members of the Association and that too after 4 years to exploit the Respondents.

4. The State Commission after hearing the parties and on the basis of evidence filed before it dismissed the complaint on grounds of limitation as also on merits. The operative part of the order of the State Commission reads as follows:

“As it transpires from the facts stated that circumstances mentioned though the possession were handed over to the complainants in 1998, till 2001 neither there were any disputes reported nor alleged for any defects in construction. The complainants averred that the defects were not visible prior to but the damage caused in 2001 earthquake, it came to their knowledge that the damage was only because of irregular and substandard construction and therefore, the cause of action had arisen only after the knowledge of damage. Thus, the complaint which was filed on 28.01.2002 is well within the time limit. We are unable to accept this submission keeping in mind the facts, documents and the statement of the complainants. Moreso, because the complainants have not filed any application for condonation of delay or obtained any order from this Commission thereupon. The complainants had sufficient time and opportunities. Thus, the complaint is obviously time barred.

The complainants have admitted that they had obtained possession of the respective flats from the Shivam Non-trading Association and they never complained regarding the substandard work at the time possession or thereafter. Thus, the complaint also suffers from vice of non-joinder of necessary party.

The complainants have not produced any expert opinion as to the cause of damage suffered by them. Nothing is mentioned, either in the