BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 24th June 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.99/2014
(Admitted on 20.3.2014)
Dr. Laveena Noronha,
W/o Dinesh Noronha,
Aged about 35 years,
R/at Doctors Quarters,
Next to District TB Center,
Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri NBPR)
VERSUS
- Mr. Villiam Saldanha,
Aged about 57 years,
S/o John Saldanha,
R/at 101, Divya Palace,
Bendore, Mangalore.
- Mrs. Gayathri Pai B,
W.o Mr. Prakash H.S,
Aged about 35 years,
R/at Below Srinivas Kalyana Mantapa,
V.T.Road, Mangalore.
- Mrs. Lucy Saldanha,
Aged about 58 years,
W/o Felix Pinto,
R/at Balika House,
Kuppepadav Post,
Mangalore Taluk.
- M/s Marian Infrastructures,
A Registered Partnership Firm,
Having its office at,
3rd floor, Rama Bhavan Complex,
Kodialbail, Mangalore 575003,
Represented by
- Mr. Ujwal Dsouza,
Aged about 46 years,
S/o Late S.J.B. Dsouza,
R/at Jessvilla, Alvares Road,
Kadri, Mangalore.
- Mr. Naveen Cardoza,
Aged about 37 years,
S/o John Lawrence Cardoza,
R/at Cardozas,
Parameshwari Nagar, 4th cross,
Surathkal, Mangalore Taluk.
….OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 to 4: Sri BJF)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to set right the building in accordance with the approved building plan. To provide accounts for the maintenance charges already collected by the Opposite Parties and to provide and to provide proper accounts for maintaining the apartment till the Association if formed in accordance with law and to provided use of common area facilities to all the occupants, to provide car parking space as agreed by the Opposite Parties in the basement floor by permanently numbering the same and such other reliefs.
2. In support of the above complaint the complainant Dr, Laveena Noronha, filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents Ex.C1 to Ex.C13 and Court document No.1 as detailed in the annexure here below. On behalf of the opposite party Naveen Cardoza, (RW1) Partner of M/s Marian Infrastructures, also filed affidavit evidence and answered the interrogatories served on him and produced documents Ex.R1 to R13.
The brief facts of the case are as under:
We perused the complaint and the version of the parties. This dispute is with regard to non providing of car parking as promised and the defect in the construction of the flat by the opposite parties. The complainant alleges that he had purchased a flat in the opposite parties apartment. He was promised the car parking in the basement area of the building but opposite parties provided the car parking outside the building area. The construction quality and the materials used is of substandard quality and developed defect in the tiles, doors and window etc. There is no place of the fire extinguisher to move around, the rain harvesting is not done and the solar system is also not working, hence alleges deficiency in service on the part of the opposite parties. The opposite parties contested on the ground that, after admitting the sale of the flat to the complainant and the delivery of the possession, submits that the complainant had taken possession after full satisfaction of the construction and the quality of construction and signed the documents like Endorsement of handing over key dated 16.03.2013, Updating the check list for inspection dated 15.03.2013, Issuing possession certificate dated 16.03.2013. The opposite parties also stated that they have given three months’ time for verification and if any defect brought to notice, has been attended. The car parking also provided as per agreement and hence the complainant cannot raise the issue with regard to deficiency in service. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
We have considered the evidence on record and the documents produced by the parties. The material facts admitted are the sale of flat and the possession handed over to the complainant. It is denied by the opposite parties that there is defect in the flats and the car parking is not given as per agreement. The complainant also denies that the car parking is given as per agreement. It is not denied the complainant as the consumer. The allegation like the complainant is not residing in the flat, the complainant is a govt. servant and she misrepresented the govt. with regard to her apartment and by concealing the facts, had obtained the government quarters are not discussed as it is not material to the dispute contested. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the complainant proved there is defective construction and the materials used is of substandard?
- Whether opposite parties prove the car parking is given as per the sale agreement?
- Whether the complainant is entitled for the relief prayed for?
- What order?
On careful examination of the documents produced and the evidence adduced, we have taken note of the notes of arguments filed and heard the parties. We answered the above points as under.
- In the negative.
- In the negative.
- In the affirmative partly.
- As per delivered order.
REASON
POINT NO 1: The complainant alleges that the specification mentioned in the brochure as, attractive melamine polished main door, other doors concrete frames with flush shutters enamel painted are not provided. The latches provided to the door are sub-standard and rusted within a short span. Superior quality fixtures are not provided, 24 hours water supply is not provided rain water harvesting is also not provided, solar water system is not working. The building is not constructed in accordance with approved plan. The complainant also alleged that the formation of association is not made and the accounts with regard to maintenance collection is not handed over. The complainant to prove his case appointed an expert commissioner and the commissioner given his report.
2. The expert commissioner had visited the apartment on 26.03.2016 and submitted the report on 29.11.2016. It has come to our observation that the possession of the flat was given on 16.03.2013 and commissioner visited on 26.03.2016 after 3 years of handing over the possession. Under this background we consider the commission report. The main allegations by the complainant as per Para 5 of the complaint and the commission report compared below. Melamine polished main door: The report says it is polish faded over the years. Other doors: the report says, doors are made up f concrete door frame and provided with flush door shutters with enamel paints. Door frames paint peeled off over the years. Latches provided are substandard and superior quality fixture not provided: The report says it is of medium quality and faded over the years and few are rusted. Internal doors frame have bigger holes than require. Rain harvesting: The report says there is rain water harvesting arrangement but silent with regard to it works, as the visit was in the summer season. Solar system: The report says there is solar installations and the photograph also provided. But silent about working as well as capacity of the system.
3. The building is not constructed with the approved plan: The commissioner has investigated and given the report. But it will not be in our preview to look into the dispute with regard to the construction departure from the original plan and also with regard to fire extinguisher movements as there is corporation authorities to take action. It is also pertinent to note that the corporation authorities have given the completion certificate and it is deemed the authorities have taken care in issuing completion certificate. Even if not, the complainant or the association can very well approach the authorities for their grievances.
4. We also come across the document EX R 7 the possession certificate. The opposite parties have given three moths time at the time of possession handing over to ascertain the defect and intimate which will be attended to on the cost of the opposite parties. Our surprise is the most of the defect pointed out by the complainant like polishing the door or quality of door and interior doors, the latches could have been noticed at the time taking possession while inspecting with the checklist (EX R 6) provided. The complainant not noticed any defect and also even within three months. Only the complaint made is about one tile in the balcony which is mentioned in the last page of check list. It is told by the opposite parties that they have rectified it and it is not disputed.
5. Also the complaint like polishing or painting defect cannot be considered as the commissioner visited after three years. We also understood from record that the complainant was not residing in the flat but it is the tenant who occupied the flat and he has not been examined.
6. There is also allegation with regard to crack in the walls. The commissioner has reported and produced the photograph also. On observation it is found that the cracks are not alarming and so wide as to danger the building. The commissioner also stated it can be rectified by joint fillers. It is not known when this crack developed. Even the complainant not alleged this defect in the complaint.
7. The opposite party also produced a report by Mahale Associates (EX R 2) in which it is said they have interviewed on 24.04.14 three different flat owners/occupants who have expressed their satisfaction for the quality of work and the materials used.
8. The allegation with regard to formation of Apartment owners Association it is submitted during the course of the arguments that the Association is now been formed and allegation of the Accounts and the original documents can be taken up by the Association and sorted out.
9. With all the above facts it is proved that there is no deficiency in service on the part of the opposite parties with regard to construction of flat. Hence we answered the point no 1 in the negative.
POINT NO 2: The complainant alleges that the car parking was given to him outside the building and as per agreement the opposite party promised to allot the car parking in the basement area. The opposite party contended that the parking is given as per agreement. So it is opposite party burden to prove the car parking is given as per the agreement.
2. We have referred few records. As per commission report the car parking is given outside the building area with PVC roofing and produced the photograph also. It is true the complainant was given car parking area outside the main building with temporary roofing.
3. On referring to page 4 of the sale deed EX C 1 it is mentioned a covered car parking No 503 in the basement floor of the apartment building. In page 8 in the B schedule it is mentioned a car parking on basement floor. In EX R 8 the deed of declaration in page 3 Para 7 it is stated that the building area of 63185 sq.ft. includes residential premises & car parking with terrace. Also in Para 5 it is stated the basement floor consists of car parking. In page no 4 under subheading Basement floor it is mentioned the car parking slots provided for 501 to 509. It is clear the complainant was promised the car parking slot in the basement area as per agreement.
4. From these above documents it is clear, the complainant as per agreement has been promised with car parking in the basement area. The opposite parties drawn our attention towards page no 7 Para 1 and argued that the basement area is the exclusive right of the grantors and they need not provide car parking there. It read as the parking area on the basement floor of the LAKE VIEW shall be exclusively held by the grantors to be parceled out to the apartment owners. The grantor reserves the right to demarcate set apart car parking area to the apartment owners..... etc. This does not mean an open right but only to parcel out and demarcating for individual owners. It is not to hold back for opposite parties use.
5. The opposite parties vehemently argued the basement floor included the outside building area also. The meaning of basement, the word it self expresses the meaning as the base on which the building standing. We have referred the meaning of the basement floor in the Google which states as A basement or cellar is one or more floors of a building that are either completely or partially below the ground floor. So basement floor must be below the building and not our side. There is no vigor in the argument of the opposite parties as to meaning of the basement area.
6. We also observed in the checklist provided EX R 6 that there is no mention about the car parking in the list given for checking and confirming. The reason best known to the opposite parties.
7. As per above discussion it is established that the opposite party have not given the car parking area to the complainant as per agreement as the agreement states the car parking is in the basement floor. Hence we answered the point no 2 in the negative.
POINT NO 3: The prayer with regard to defective construction the complainant not proved his case and hence the relief with regard to defect cannot be considered. The prayer with regard to formation of Association of owners, as we observed it is now settled during the pending proceedings. The construction matter with regard to as per plan & Fire extinguisher movement also dealt with as it is not in our purview to grant relief. The prayer with regard to car parking, the complainant is entitled to get the car parking area in the basement floor under the ground floor within the building roof. Since the opposite parties not provided the car parking as per agreement and committed unfair trade practice as well as deficiency in service. There is also negligence on the part of the opposite parties, and the complainant also entitled for an amount of Rs.50,000 as compensation. The complainant also paid an amount of Rs.5,000/ as court commissioners fees for which he is entitled refund. In our view an amount of Rs. 10,000/ towards legal expenses including the court commissioners fees.
POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is allowed in part. The opposite parties shall provide the car parking for the complainant in the basement floor as described. The opposite parties also shall pay an amount of Rs.50,000/ as compensation and Rs.10,000/ as cost of proceedings. The opposite parties shall jointly and severally comply the order within 30 days from the date of the copy of the order received.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 13 directly typed by Member, revised and pronounced in the open court on this the 24th June 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Dr, Laveena Noronha
Documents produced on behalf of the Complainant:
Ex.C1: The Notarized copy of the sale deed.
Ex.C2: The notarized copy of the Khatha Extract.
Ex.C3: The office copy of the legal notice.
Ex.C4: The Postal Receipts (6 in numbers)
Ex.C5: The acknowledgement. (4 in numbers).
Ex.C6: The returned envelop.
Ex.C7: The returned envelop.
Ex.C8: the copy of the rejoinder notice.
Ex.C9: The postal receipt.
Ex.C10: Brochure
Ex.C11: Copy of the message sent to Naveen Kardoza.
Ex.C12: The circular issued by the Government of Karnataka dated 1.2.2008.
Ex.C13: E mail dated 28.2.2013 along with certificated and CD.
Court Document No.1: Expert Commissioner Report
Witnesses examined on behalf of the Opposite Parties:
RW1 Naveen Cardoza, Partner of M/s Marian Infrastructures
Documents produced on behalf of the Opposite Parties:
Ex.R1: Notarized copy of General Power of Attorney.
Ex.R2: Original inspection/investigation report with 7 photographs.
Ex.R3: Copy of agreement.
Ex.R4: Office copy of reply notice.
Ex.R5: Endorsement for handing over keys of the flat.
Ex.R6: 15.3.2013: Updating the checklist for inspection of completed flats from complainant.
Ex.R7: 16.3.2013: Issuing possession certificate.
Ex.R8: Registered deed of declaration.
Ex.R9: Sketch.
Ex.R10 to 12: Photos
Ex.R13: Reply notice dated 14.3.2014.
Dated: 24.06.2017 MEMBER
