ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing proper space for car parking and for providing a car parking with an area of five meters in length, 2.5 meters in width, and 2 meters in height, to park his car and for compensation of Rs.5,00,000/- for the harassment and inconvenience, frustration and mental agony caused and for Rs.50,000/- towards legal expenses and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant purchased the flat bearing No.305, B Block, of Poorab Menor Apartment, from OP on 25.03.2011 under a registered Sale Deed for Rs.30,73,800/- which included covered car parking.  OP allocated one car parking during August 2014 and it was not enough for parking his car, as per the plan submitted to BDA, which was brought to the notice of OP.  Afterwards during January 2015 re-allocated another car parking area and that was also not sufficient for him to park his SUV and has become very difficult to park said SUV car in the allotted area which is not big enough to accommodate his car and the car parking area is also not as per the plan submitted and approved by BDA. To comply with the fire safety directions, OP made an enclosure in front of the lift which is just opposite to the parking area allotted to the complainant with bricks upto knee level and a glass above it, with glass door made the parking of his car impossible.  The parking area allotted is totally unacceptable to him and is much violation of BDA conditions and rules specified.  He requested the OP to allocate other car parking area with enough space which has not been done by the OP. Taking money for providing car parking area and not providing enough space to park the car amounts to deficiency in service and unfair trade. OP maintained the apartment complex till August 2016 and handed over the maintenance to the association formed by the owners of the flat. Inspite of repeated reminders, request, and demand, OP did not provide a car parking to park his car. Hence the complaint.

3.      Upon the service of notice, OP appeared before the Commission and filed his version admitting the complainant purchasing the flat No. B 305, 2 BHK + study along with a car parking area and the registration of the said sale deed in favour of the complainant. There is no reference of proper car parking in the sale deed. Hence the claim of the complainant is misleading the Court. It has denied as false that they have not constructed the parking area as per the plan approved by the BDA.  All the parking arrangements were completed in 2011-12 itself and complainant utilized the parking space identified for the respective flats, and the contention that invalid slot has been given has been denied by OP.   Complainant had filed a complaint in CC No.130/2015 before the Hon’ble DCDRF, which was dismissed on merits. Providing fire safety measures and construction of bricks to the knee level and glass door upon it has been done as per the statutory guidelines issued by the Director General of Police, (Fire Safety) which is altogether in a different place than the parking area. It is false to allege that usable car parking area with proper drive in and out has not been provided. OP has not received any request letter demanding for providing a proper car parking area and it has given a proper reply to the notice issued.

4.      It is further contended that as per the Sale Deed, one covered car parking area was given to the complainant and complainant was put in possession of the same as per the possession certificate.  After the registration of the sale deed and taking possession of the flat, and the parking area, in the year 2011 itself after five years the complainant has come for proper allocation of car parking area and compensation for the suffering is altogether barred by limitation.

5.      At para 6 of the sale deed, it has been mentioned that the vendor shall not be responsible for any defect in the building noticed after a period 12 months from the date of handing over possession of schedule C property.  The possession certificate clearly reveals that on 22.08.2011 the possession of the flat and the car parking area was given to the complainant and now after lapse of five years five months, has filed this complaint which is liable to be dismissed. The complaint filed by the complainant in CC 130/2015 for deficiency in service in not providing the amenities mentioned therein, has been dismissed on 13.06.2016.  In that complaint, there is no whisper of inadequate car parking area and inconvenience in parking the car. Now the complainant has come up with this fresh complaint, which clearly shows the malafide intention of the complainant and the complaint is frivolous and vexatious.

        6.     It is further contended that the owners of the flat have formed an association and registered under Karnataka Apartment Ownership Act 1972 and OP has handed over all the papers pertaining to the apartment.  Complainant is also one of the member of the association, which has a responsibility of maintaining the common area of the apartment including the parking space. Now the complainant has to approach the association for change of car parking space.  Said association has not been made as party to this proceedings and hence this complaint is defective for nonjoinder of necessary party.  Hence prayed the Commission to dismiss the complaint by imposing cost of Rs.10,000/- to the complainant as per section 26 of the Consumer Protection Act.

7.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Party?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1 AND 2 :               In the Negative

                                                For the following.

REASONS

9.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant is the purchaser of flat No.305 of B Block, constructed by OP and the Sale Deed is registered in his favour and possession has been taken by him.  The said sale deed also makes it clear that the complainant has also purchased one covered car parking area.  On perusing the entire documents produced by either side, it becomes clear that the complainant was allotted one car parking area and upon the request the same was changed.  It appears that the changed car parking area is not having sufficient space to park the car which the complainant is having.  It appears that earlier the complainant was having a small car and now has purchased a bigger one i.e., an SUV car Duster as one has can be made out by the photographs produced.  The complainant has to park the said car in a narrow area just by the side of the stair case, leading to upstairs from the basement and that the said car parking is just below the stairs.  Since the firefighting equipments are also placed on the walls, it has become difficult for the complainant to operate the doors of the car.  Even the length of the car parking area is not sufficient and it extends upto the steps of the stair case and there is a projection of the wall to the extent of about 2 to 3 feet and to a height of 1½ to 2 feet which him the maneuverability of the car. On perusing the said photographs it would be very difficult for a person to come enter into the car in the parking area itself or to come out after parking the same in the said area.  It becomes very clear that the said parking area is very insufficient for the car which the complainant is having.

        10.   Further an attempt is made by the Commission to get the matter settle amicably and suggested to remove the extended wall of about 2 feet in length and 1½ feet in height for which the OP submitted that it is not possible to remove the same since the same be objected by the fire safety department.

        11.   Advocate for OP has produced a report stating that in the A Block, 126 parking spaces have been provided, out of which 105 are covered parking area, which has already been sold and allotted to the respective owners and the remaining 21 are open parking which is unsold.  In the B Block 112 parking spaces have been formed out of which 107 are covered parking area, which has already been sold and remaining 5 are open car parking which is unsold.  OP has also produced the approved plan by the concerned authorities, wherein he has clearly undertaken to provide total car parking area for 276 car, of which basement car parking for 208 and open car parking for 68 cars. 

        12.   When this is compared with the report of the counsel for OP, there is shortage of 38 car parking area, whereas the covered parking area according to the report is 212 which is 4 more than the approved plan. That means there is deviation from the approved plan. 

13.   Further OP has produced the photographs in respect of B block parking area and A Block parking area also.  In respect of the car parking provided to complainant the No. is mentioned as 305 wherein a Tata car has been parked. For this car the parking provided under the stair case which has been explained above is quite sufficient, whereas since the complainant has changed his vehicle he is finding difficulty in parking in the said area. He ought to have thought over the parking space before purchasing the bigger car.  In the photographs produced by the OP, it has been mentioned that after painting for the parking area, one parking space is unallotted and so also in the B Block marked as 76 and 78. Wherein, as per photograph B-5 and B-6.  If that is so, and the said parking areas available are if the two wheelers parked in the said spaces could be accommodated elsewhere, the said parking area could be allotted to the complainant.  Of course, it is subject to the availability of the said space and if it is not sold to any of the purchasers of the flat in either A Block or B Block to accommodate the complainant in parking his car and in turn parking lot allotted to him under the stair case could be made use of parking the two wheelers.

14.   All these problems have arisen because there is no clear mention of the measurement of the car parking area to be sold along with the flat. Had it been mentioned, this situation would not have arisen. Further in the approved plan also, there is no mention of the area i.e., the length and the breadth of the car parking area either in the basement or in the open space.  Further as per the standard prescribed car parking area and as per the building byelaws the stilt floor i.e., height of the roof of the covered parking area should be atleast 2.4 meters to 2.7 meters, by considering the total height of the entire building.  Further as per the municipal byelaws the dimension of the covered parking area should not be less than 18 sq. meters i.e., 3 meters in width and 6 meters in length for the four wheelers as per table 13 of the building bye laws. 

15.   When this is taken into consideration, and when the photographs are taken into consideration in respect of the complainant’s parking area, the said parking area is short of the said area. It also specifies that adequate space for parking of the vehicle shall be provided as per the standards given in table 13 of the building bye laws.

16.   In view of this we hold that the area of covered car parking allocated to the complainant is very insufficient and to hold that there is deficiency in service in that respect and answer point No.1 in the Affirmative.

17.   POINT NO.2:

The OP has contended that the complainant and others had filed several complaints against it in respect of various deficiencies and the same was dismissed. It is born out from the record that against the said dismissal order, they preferred an appeal and the Hon’ble State Commission allowed the appeal in part and directed OP to act according to the said order. On perusing the same it becomes clear that the car parking area was not in issue.

18.   It is further contended by OP that in the sale deed executed in favour of the complainant, the vendor shall not be responsible for any defect in the building noticed after a period of 12 months from the date of handing over the possession of the schedule property and after five years five months gap, the complainant has come up with this complaint of short space in the parking area and this complaint is five years five months after the execution of the sale deed and hence it is barred by limitation.

19.   OP cannot sherk his responsibility of not providing the proper car parking area even though there is a clause incorporated in the sale deed.  If he had provided the proper car parking in accordance with the bye law and approved plan, then OP could have taken the defence under the said clause. Having fault on himself, he cannot claim equity. Further on the point of limitation, it is to be held that it is a continuous of cause of action till the problem is set right and hence we are not inclined to accept the say of OP that the complaint is barred by law of limitation. As held by the Hon’ble National Consumer Commission in R.P. 3745/2012 Hansmukh Patel –vs- Dr.Sunil Kumar and others it is held that it is the bounden duty of the petitioner to provide all the facilities to the flat buyers as agreed.  They cannot have benefit of both worlds, they must abide by the agreement and do the needful.

20.   Further OP has taken the contention that already the flat owners formed a society and duly registered which has to take care of the needs of the owners of the flat and that it OP has nothing to do with the affairs of the society. The copy of the registration certificate in respect of the flat owners forming society and registering with it has been produced. At para 12 of the complaint itself, complainant has submitted that the OP maintained the apartment/complex until August 2016 and also paid the maintenance to the OP till Sept 2016 and subsequently the complainant along with association took over the maintenance of the said apartment complex.

21.   When such being the case, complainant ought to have filed this complaint against the flat owner’s association in not providing him a proper car parking area. As per his contention only, in August 2016 itself, the association has taken over the maintenance of the building apartments. When such being the case, how the present OP is liable to provide the parking area as sought by the complainant.  He has already transferred all the right and title over the property to the association. Then only, the association can take up the maintenance work. In view of this, the contention raised by the OP that the complaint filed against it is bad in law and liable to be dismissed for mis-joinder and non-joinder of proper party.

22.   Under these circumstances, it is to be held that the contention of the OP that the complaint is not maintainable for non joinder of necessary party has to be accepted. In view of this, we answer point No.2 in the Negative and pass the following;

ORDER

1. The complaint filed against OP is dismissed. It is made clear that in case the complainant wants to have a separate car parking area or an alternate car parking area, he is at liberty to file complaint against the association or the concerned persons subject to the limitation and rights.
2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 22^ND DAY OF JANUARY 2021)

MEMBER                                PRESIDENT