Date of Filing:       26.09.2017

                                                                                                                       Date of Disposal:  08.01.2020

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.,                                 .…. PRESIDENT

                   TMT.      K. PRAMEELA. , M.Com.,                                         ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.,                   ……MEMBER-II

CC No.43/2017

THIS WEDNESDAY THE 08^th  DAY OF JANUARY 2020

Saji Sebastian, S/o. Sebastian,

No.28/50-A, F-2, Kuppal Illam,

Abhiramipuram Main Road,

Ambattur, Chennai - 600 053.                                                             ….. Complainant. 

                                                                        //Vs//

P.L.Annamalai, (Builder)

Kumaran Homes,

Sathiyamurthy Street,

Vijayalakshmipuram,

Ambattur, Chennai -600 053.                                                              …Opposite party.

This Complaint is coming upon for final hearing before us on 13.12.2019 in the presence of Mr.N.Veeraragavan, counsel for the complainant and M/s. A.Sugumar, counsel for the opposite party and perusal of the both side documents and hearing the arguments on both side, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite party to direct the opposite party to rectify all the defects in the complainant’s flat or to pay a sum of Rs.2,00,000/- being the cost for rectifying the defects and to pay a sum of Rs.3,00,000/- towards compensation for causing mental agony, hardship and irreparable loss to the complainant and to direct the opposite party to pay the cost of proceeding.

2.The brief averment in the complaint is as follows:-

The complainant is one of the flat owners of the four flats constructed by the opposite party in the flats named and styled as Kuppal illam, Abhiramipuram Main Road, Ambattur, Chennai-53 from the year 2015 and in which the complainant’s flat is in the 1^st floor of the building measuring 465 square feet including common areas was purchased by the complainant for Rs.11,23,800/- as mutually agreed upon and cost of the flat was fully paid by the complainant under due acknowledgement from the opposite party and the land cost of Rs.5,85,200/- was also duly paid by the complainant for the undivided share of 266 square feet of land.  The sale deed of the above flat was duly registered vide document no.8958/2015 on 25.06.2015 in Sub Registrar Office at Ambattur.  But the nature of defects in the opposite party’s construction work in respect of the complainant’s flat. 1) Water leakage is always found due to poor quality of material used for roofing and side wall constructions. 2) All windows are not properly fixed. 3) Main door is not in usable condition. 4) Electrical installation and house wiring is not properly done. 5) The water tank is completely leaking 6) All walls are not properly plastered. 7) Electrical Main meter and connected switch board are not covered safely. 8) Common areas are not properly constructed. 9) Bed room tiles are not properly fixed. 10) The compound all are not constructed properly to ear mark the boundaries of the site. 11) Mother Document of the schedule property was not handed over to all the flat owners even after a lapse of two years from the date of occupying the building.  It is mandatory to handover the mother document. The complainant duly informed about the construction defects right from the date of occupying the above said flat during September2015 for which the opposite party has promised the complainant to rectify the defects immediately.  Even after laps of two years the opposite party has not kept his promise and the complainant is compelled to live in a flat which is totally not fit for occupation.  The entire cost of the flat was duly paid by the complainant to the opposite party in time and therefore the complainant should be adequately compensated for the irreparable loss, hardship and mental agony caused on account of the deficiency in service committed by the opposite party.  Hence this complaint.

3. The contention of written version of the  opposite party is as follows:-

The opposite party is proprietor of “Kumaran Homes” at Ambattur, Chennai.  Admittedly the complainant was purchased property at 1^st floor measuring at 465 square feet in Abhiramipuram Main Road, Ambattur, Chennai-53 on 25.06.2015 vide document No.8958/2015 registered at Sub-Registrar Office Ambattur. As per construction agreement the opposite party complied the condition and the opposite party has handed over the flat to the complainant with good condition.  The complainant also took the physical possession.  Before the execution of sale deed the complainant thoroughly verified the building thereafter the complainant entered in the sale deed with the opposite party.  Apart from the complainant totally four families are residing at the same address including opposite party. Now the complainant wantonly filed the present complaint with fake allegation.  The complainant initiated the present complaint before this forum for the purpose of receiving extorts money from the opposite party. The mother document cannot be hand over to the complainant since the four flat owners are purchased on various flat at the same building.  Therefore there are no defects on the part of the opposite party in constructing the flat and therefore the complainant is not entitled to claim any relief mentioned in the prayer as the same is highly speculative imaginary and malicious. Hence it is prayed this forum may be pleased to dismiss the complaint.

4. In order to prove the case, on the side of the complainant, proof affidavit filed as his evidence and Ex.A1 to Ex.A7 were marked.  While so, on the side of the opposite party proof affidavit filed as his evidence and no document filed and adduced oral argument on both sides.

5. At this juncture, the point for consideration before this forum is:-

(1) Whether there is any deficiency in service on the part of the opposite party?

(2) Whether the opposite party is liable to rectify the defects found in the complainant’s flat?

(3) Whether the complainant is entitled for mother document from the opposite party:

(4) Whether the complainant is entitled for compensation and cost?

(5) To what other relief the complainant is entitled to?

Point Nos.1, 2 & 4:-

The opposite party is the proprietor of Kumaran Homes situated at Ambattur who is a builder.  The complainant purchased an undivided share of land to the extent of 266 square feet at No.50-A measuring to an extent of 1207 square feet situated at Abiramipuram Main Road, Chithu Oragadam, Chennai-52, comprised in old survey No.153/3A1Aa and New survey No.153-3A/1A3 of Oragadam village, Ambattur Taluk for Rs.5,85,200/- from the opposite party on 25.06.2015.  Ex.A1 is the copy of sale deed dated 25.06.2015.  On the same date the complainant entered in to a construction agreement with the opposite party to construct a flat in the first floor(F2) measuring an extent of 465 square feet including common and service area at a cost of Rs.11,23,800/-.  Ex.A2 is the construction agreement and the same was registered on 25.06.2015.  The opposite party also admitted the sale of undivided share of property and execution of the construction agreement. In the above said agreement the opposite party agreed to complete the construction of the flat within three months from the date of agreement.  The complainant also paid the cost of construction and took possession of the flat in the year 2015.

6. The case of the complainant is that there are many defects in the construction are found in the complainant’s flat and the opposite party committed deficiency in service by selling a substandard flat to the complainant.  The complainant also alleged that there are water leakages in the flat due to poor quality of material used for roofing and side wall constructions. 2) All windows are not properly fixed. 3) Main door is not in usable condition and the Bed room tiles are not properly fixed.  The complainant alleged that there are defects in the construction in his flat and to support the same he also filed an engineer’s report along with complaint. Ex.A6 is the engineer’s report dated 23.10.2017 and the engineer mentioned the following defects in the complainant’s flat.

“1. Water leakage is found from the roof slab and side wall constructions.

2. All windows are not properly fixed and there is leakage during rainy season from the window sill level to the bedroom area.

3. Main door is not in usable condition and there is bend in the wood and it has to be repaired and fixed perfectly.

4. Electrical Insulations and house wiring is not properly done.

5. The overhead tank is leaking and the seepage in all the side walls is seen.

6. Huge vertical cracks are seen in hall and bedroom.

7. The electrical main meter and connected switch board is not covered safely and the live wire is hanging endangering human life.

8. Bedroom tiles are not properly fixed and there is sound if the tiles are tapped and causes inconvenience to the owner.”

7. To prove the above allegation, the complainant filed an application to appoint an Advocate Commissioner to inspect the property and to find out the defects in the construction. This forum appointed an Advocate Commissioner to inspect the complainant’s flat along with a qualified engineer and to submit their report regarding the defects in the construction.  The Advocate Commissioner filed his report with photo and engineer’s report on 24.05.2019 and found the following defects in the premises.

1. In the kitchen area switch board fixed and tiles fixed over the wooden pieces.

2. Cracks are developed above the window in the eastern side wall.

3. Cracks are developed in both 2sides of the southern side wall at sill level of the kitchen window.

4. Cracks are developed above the lintel level and switch board backside in the hall.

5. Cracks are developed below the roof beam in the outer side.

6. Cracks are developed to full height (ie. from floor level to Roof ceiling) in both 2 sides (ie. inner and outer) at left side of main entrance of building.

7. Cracks are developed below the roof beam in outer side of bedroom.

8. Cracks are developed above the switch board at partition wall located in left side of main entrance of building.

9. Cracks are developed sill level of window at bedroom.

10. E.B. Service board not covered and it is open to rainfall.

11. One leakage found in the balcony.

12. in roof finishing work, slope not provided on both 2 sides to drain the rain water.

8. Hence the opposite party who is the builder not constructed the flat as per the agreement and there are defects in the construction.  It is the duty of the opposite party to construct the flat without any defects but here in this complaint the opposite party constructed the flat with defects.  The above attitude of the opposite party amounts to deficiency in service.  Since the opposite party has not constructed the building as per agreement, the complainant suffered mental agony and financial loss due to the deficiency in service on the part of the opposite party.  It is the duty of the opposite party to rectify the defects.  Under these circumstances there is deficiency in service on the part of the opposite party and the opposite party is liable to rectify the defects in the construction and the complainant is entitled for compensation and cost from the opposite party. Thus the point Nos.1, 2 & 4 are answered accordingly.

9. Point No.3:-

The complainant prays for an order directing the opposite party to return the mother document to the complainant and also rectify the defects in the common area.  There are four flats in the premises.  The complainant is one of the flat owner and other three flats are occupied by other persons.  The other persons have not mentioned any defects in the common area.  With respect to rectification the defects in the common area the other flats owner has to given their consent.  Further there is no allegation from other flat owners that there is incomplete construction of compound wall, leakage in the common area etc., Further the complainant is not entitled for mother document because the complainant is one of the co-owner and there are three other co-owners in the same premises.  The complainant can get a certificate copy from the Sub-Registrar office on payment of proper fees. Under these circumstances the complainant is not entitled for mother document and also not entitled for other reliefs claimed in the complaint.  Thus the point No.3 is answered accordingly.

10. Point No.5:-

In the result, this complaint is allowed in part.  Accordingly the opposite party is directed to rectify the defects found in the complainant’s flat within two months from the date of receipt of this order failing which the opposite party is directed to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards cost of rectifying the defects found in the complainant’s flat and to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards compensation for causing mental agony and financial loss to the complainant due to the deficiency in service on the part of the opposite party and also to pay sum of Rs.10,000/-(Rupees ten thousand only) towards cost of litigation to the complainant.  With respect to other reliefs this complaint is dismissed. 

The above said amount shall be  payable by the opposite party within three months from the date of receipt of the copy of this order failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 08^th January 2020.

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MEMBER-II                                             MEMBER-I                                        PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite party:-

-Nil-

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MEMBER-II                                  MEMBER-I                                               PRESIDENT