Tamil Nadu

South Chennai

CC/299/2018

K Suresh Kumar - Complainant(s)

Versus

Madhav Assocaites Rep by Proptr - Opp.Party(s)

M/s S Arivazhagan

20 Oct 2022

ORDER

Date of Complaint Filed : 06.04.2018

Date of Reservation      : 23.09.2022

Date of Order               : 20.10.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 299/2018

THURSDAY, THE 20^th DAY OF OCTOBER 2022

Mr. K. Sureshkumar,

S/o. Krishnamachari,

No. 6/593, Flat B-3,

Neivasal Alagirisamy salai,

K.K.Nagar,

Chennai-600 078.                                                            ... Complainant                 

 

..Vs..

Mr. S.V.S. Kannan,

Proprietor Madhav Associates,

No. 21/9,Bakthavachalam Street,

West Mambalam,

Chennai-600 033.                                                       ... Opposite Party

 

******

Counsel for the Complainant          : M/s. S.Arivazhagan

Counsel for the Opposite Party       : Exparte

 

        On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to reimburse the sum of Rs.40,000/- to the Complainant together with interest @24% p.a till the date of realization and to pay a sum of Rs.19,00,000/- as compensation towards the deficiency in service and mental agony along with cost.     

2.     The averments of Complaint in brief are as follows:-

           The Complainant submitted that the Opposite Party is a builder by profession carrying on business in the name and style of Madhav Associates and doing construction of flats in Chennai and its surroundings. The Opposite Party advertised that they develop residential flats and construct apartments. The Complainant was willing to purchase one such flat from the Opposite Party for a valuable sale consideration. The fact remains that the builder has obtained approval for two flats (kitchen approval) one store room approval, but he constructed three flats one each in first and second floor and one at ground floor instead of a godown at Plot No.69 B AVM Avenue, 24 street, 1^st floor, Virugambakkam, Chennai-600 092. He booked Flat No.3 at 1^st  floor with the Opposite Party and entered into Construction Agreement dated 12.05.2013. As per the Agreement the total cost of the flat was Rs.55,85,000/-. He had paid the entire cost of Rs.55,85,000/- as per the above said Construction Agreement dated 12.05.2013. Further the Opposite Party handed over the possession of the said flat to the Complainant on August, 2014 and the Complainant had rented out the newly constructed flat on February 2015. Even before occupation of the said premises he had raised complaint regarding the inferior quality of construction and that the construction was not as per the specifications stated in the Agreement. When the Complainant visited the flat for undertaking carpentry work, there was leakage in the drainage pipe. The Complainant had promptly pointed out the defect to the Opposite Party but the Opposite Party did not take a serious note of the issue and instructed the plumber to screw the clamp fixed around the drainage pipe to arrest the leakage. He rented out the flat in February 2015. Immediately, there was a complaint from the tenant regarding the leakage of drainage pipe fixed in the toilets. The tenant made repeated complaints because of which the Complainant had to call the Opposite Party to rectify the defect. Despite the repeated requests, the Opposite Party did not turn up. Hence the Complainant had to engage a private plumber in June, 2015 to attend to the leakage. The private plumber engaged by the Complainant checked the point of leakage by removing all the tiles from the bathroom, applied water proof cement and re laid the tiles. He nearly spent Rs.40,000/- for the repair work carried out to check the leakage of pipe. Even after spending huge amount the problem could not be resolved completely and the plumber was not able to locate the exact point of leakage. Hence the Complainant thought that the Opposite Party being builder will be able to locate the problem and rectify it. After many calls, finally the Opposite Party attended to the repair work in August, 2015, assuring the Complainant that there will be no further leakage. Despite of the promise made by the Opposite Party that there will be no leakages, in a gap of three months, the drainage water seemingly draped in the car park area in the ground floor. Alarmingly, the western toilets pipes have been laid in the cross- beam in which the entire building was constructed and the drainage water was settling inside the beam structure this caused rusting of the iron castings inside the beam and in turn shook the entire structure. Both the toilets walls were constructed with single brick which is not as per building norms and is deterrent to the safety and security of the entire apartment. The bedroom situated in the northeastern side of the building was also constructed with single brick and because of this the outer wall of the bedroom was facing dampness in rainy session and almirah doors could not be closed.  The sun shade to avoid the rain water spillage was also not done and both the toilets were not constructed properly because of which there was leakage of drainage pipes. Due to the poor quality of construction there was seepage formed in the building. The single brick column used to close the outer wall portion of pooja room resulted in drenching of the whole eastern side of the wall and water started oozing through the wall into the pooja room.  Owing to the endless mal-construction and irresponsibility of the Opposite Party the Complainant himself engaged an engineer to attend the repair work and the engineer examined and stated that there was no proper drain outlet in all the balconies, the electrical fittings were loose, there was improper seating of sunshade resulting in leakage of rainwater in the walls. The engineer estimated the repair work to a tune of Rs. 10,00,000/-. The Complainant has reported the defects several times to the Opposite Party but the Opposite Party never bothered to rectify any of the defects. Hence the complaint.

3.    The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-3  were marked.

4.  The Opposite Party did not appear before this Commission even after  sufficient notice and remained absent and hence set exparte.

Points for Consideration:-

1. Whether the complaint is barred by limitation?

2. Whether there is deficiency in service on the part of the Opposite Party?

3. Whether the Complainant is entitled for the reliefs claimed?

4. To what other reliefs the Complainant is entitled?

Point Nos.1 to 4:-

The contention of the Complainant was that he had booked the Flat No.3, at Plot No.69 B, 1^st Floor, AVM Avenue, 2^nd Street, Virugambakkam, Chennai – 600 092 and entered into a Construction Agreement dated 12.05.2013 for a total sale consideration of Rs.55,85,000/-. After payment of the entire cost of the Flat, the Opposite Party had handed over the possession of the said Flat to the Complainant in August 2014. Further contended that the Complainant had made complaint regarding the inferior quality of construction even before taking possession of Flat to the Opposite Party. Later in February 2015, after renting out the Flat, on complaint from the tenant regarding leakage in drainage pipe, the Complainant had to engage a plumber who removed all the bathroom tiles, applied water proof cement and relaid the tiles which had cost him Rs.40,000/-. Even thereafter as the problem could not be rectified the Opposite Party attended the repair work in August 2015. Subsequently after 3 months again there was a leakage of drainage water, the western toilet pipes have been laid in the cross beam in which the entire building was constructed and the drainage water was settling inside the beam structure this caused rusting of the iron casting inside the beam and in turn shook the entire building, both the toilet walls were constructed with a single brick, bedroom was constructed with single brick due to which the outer wall of the bedroom was facing dampness in rainy season, sun shade to avoid the rain water spillage was also not done, single brick column used to close the outer wall portion of pooja room resulted in drenching of the whole eastern side of the wall. Further contended that when the Complainant engaged an Engineer to attend the repair he had examined and estimated the repair work to Rs.10,00,000/-. Due to the negligence and dereliction of the duty of the Opposite Party, the Complainant had to suffer huge loss, hence the Complainant had sent a legal notice dated 04.07.2017, which was received by the Opposite Party, but no action taken by the Opposite Party.

The Complainant had taken possession of the Flat in August 2014, who had knowledge about the defective construction in August 2014 itself. According to the Complainant he had raised complaint about the interior quality of Construction even before occupation of the flat. As per the Builders Agreement dated 12.05.2013, Ex.A-1, the defect liability period is one year from the date of handing over the building. Even otherwise, from the date of handing over of the possession of the flat and from the knowledge of defective Construction the Complainant should have been filed within 2 years, i.e., by August 2016. However the compliant was filed on 06.04.2018, which is clearly barred by limitation.

The Complainant himself had admitted that the Opposite Party had attended the repair work in August 2015, but according to the Complainant, the problem persisted even thereafter. The Complainant had not  taken any steps to appoint Advocate Commissioner  to find out the defects or had filed an Engineer’s report or any other document to prove the various defects pointed out by the Complainant regarding the defective Construction of the flat.

 Considering the facts and circumstances of the case this Commission is of the considered view that the Complainant had failed to prove that any deficiency has been committed by the Opposite Party and hence the Complainant is not entitled for reliefs sought for in this complaint and is not entitled for any other relief.  Accordingly the points are answered.

         In the result, the complaint is dismissed.  No cost.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 20^th day of October 2022.  

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	17.04.2013	Copy of Builders Agreement
Ex.A2	20.02.2016	Copy of Notice to the Respondent
Ex.A3	04.07.2017	Copy of legal notice

 

List of documents filed on the side of the Opposite Party:-

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                             PRESIDENT