Date of Filling:     10.04.2017

                                                                                                                       Date of Disposal:  21.05.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.20/2017

Monday, THE 21 DAY OF MAY 2018

M.Harish,

S/o.K.P.Sivaraman,

No.16, Flat F1, A Block,

Fortune Garden, Hospital Road,

Ambattur, Chennai 600 053.                                                …..  Complainant.

//Verses//

1.B.Chandra,

   W/o. Bakthavatsalam,

   No.18, 2^nd Street,

   East Banu Nagar,

   Ambattur, Chennai -600 053.

2.G.Hemasri,

    W/o Umashankar,

    No.18 2^nd Street,

    East Banu Nagar,

    Ambattur, Chennai -600 053.                                          ……Opposite parties.

This complaint is coming upon before us finally on 08.05.2018 in the presence of Thiru.C.Sridhar Counsel for the Complainant and 1&2^nd Opposite parties are set Exparte for non appearance and upon hearing arguments,  having perused the documents, evidences, written and oral arguments of the Complainant, this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT

This Complaint has been preferred by the Complainant Under section 12 of the Consumer Protection Act,1986 against the Opposite Parties for seeking direction to rectify and carry out work as per the  building approval and to pay a sum of Rs.10,00,000/- towards damages and mental agony caused by delay of handling over the flat with cost.

The brief averments of the complaint as follows:-

1.The Opposite parties are the partners of the Building Paradise, a Partnership firm carrying out construction business in and around Chennai.  The Complainant approached the Opposite parties for purchase of a flat in the year 2013.

2. The Opposite parties offered a flat at Poonambalam Street, Ambattur, Chennai-600 053.  The Opposite parties offered a 452Sq.ft  undivided land  in Survey No’s 598/1&599 with total extent of 1100Sq.ft built up area in First floor F-3 Flat, Poonambalam street, Ambattur, Chennai -600 053 of the proposed flat.

3.  That the complainant paid the amount to the Opposite parties on various dates and the opposite parties also issued receipts to the complainant and entered a registered construction agreement with the opposite parties vide Doc.No.10337/2015 Dated 15.07.2015 at Ambattur S.R.O,.  The complainant and the Opposite parties mutually agreed a sum of Rs.25,63,400 /- (Twenty Five lakhs Sixty Three thousand four Hundreds Only) as a cost of construction in total.

4. The Opposite parties who are the power of attorney of the above said property sold out a 452 Sq.ft undivided property to and in favour of the complainant vide sale deed Doc. No10338/2015 dated 15.07.2015 Ambattur S.R.O. the complainant paid the sale consideration sum of Rs.14,91,000/-(Fourteen lakhs Ninety One Thousands Only) as per the construction agreement the complainant paid a sum of Rs.5,00,000/- by way of cheque.  At the time of registration the complainant paid further sum of Rs.14,22,550/-.  As per the terms of construction agreement the opposite parties has to complete the project within 10 months from the date of construction agreement. But the Opposite parties took almost 18 months to complete the project.  The complainant applied for housing loan, the officials from the Bank inspected the suit schedule property and found out various deviations.  The construction was not carried out as per the approved plan.  Hench the loan applied by the complainant was cancelled by the bank.

5. The complainant enquired the same with the opposite parties.  The opposite parties were not at all responded.  The complainant personally visited the flat and came to know that the Opposite parties were not carried out the construction as per the construction agreement and only carried out work for 750Sq.ft instead of 1100Sq.ft.  Since the opposite parties were not constructed as per the building approval and wide deviation in the construction, there is a deficiency in service on the part of the opposite parties.

6. Further, the complainant requested the opposite parties to engage an engineer to assess the value of the constructed flat. As per his assessment the complainant will pay the remaining amount.  But the opposite parties were not at all responded to the complainant. The complainant so far paid a sum of Rs20,00,000/-(Twenty Lakhs only).  The complainant further states that the complainant requested the opposite parties to hand over the suit property at the earliest.  The opposite parties not at all cared about the request of the complainant.  Further the opposite parties are in possession of the sale deed and other revenue documents of the suit schedule property.

7. That till date, the opposite parties have not handed over the flat to the complainant. As per the construction agreement, the opposite parties ought to have hand over the flat within8 months from date of construction agreement.  Further the Opposite parties has not constructed the apartment according to the plan sanctioned by the CMDA authorities.  Moreover there are several defects in the construction work in the flat and refused to rectifying the same. It caused much damages and mental agony   hence this Complaint.

8. Though sufficient opportunities given to the Opposite party they did not turned up before this Forum even on receipt of notice.  Hence Opposite parties 1&2 were  set Exparte.

9.  On the side of the complainant, the complainant filed Proof Affidavit as his evidence in order to substantiate his case and Exhibit A1 to A10 are marked on his side.

10. At this Juncture, the points for determination before this forum are as follows:-

1.     Whether there is any deficiency in service on the side of the opposite parties as narrated in the complainant?

2.     Whether the complainant is entitled for any relief as prayed for?

11. Written Arguments filed by the complainant and oral Arguments adduced on the side of the complainant.

12. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents putforth before this Forum, though the Opposite parties are set Exparte.

Point No:1:-

13. According to the case of the complainant the  Opposite parties  have not completed the flat purchased by the complainant and not carried out the construction  as per the construction agreement and infact, they have only carried out  work only for750 Sq.ft instead of 1100 Sq.ft.   It is further stated that there are several defects in the construction work in the flat and thereby caused damages and mental agony and the same have to be compensated by the Opposite parties.  .

14. At the outset, this Forum wants to enlighten that though the opposite parties were set exparte, it is the bounden duty of the complainant, to prove his case beyond all reasonable doubts with concrete evidence for the deficiency service committed by the Opposite parties.

15. At this Juncture, on careful perusal of the averments of the complaint and also the evidence placed by the complainant, it is seen that the complainant had purchased the mentioned flat measuring an extent of 1100Sq.ft. in which   the undivided share of a land measuring 452Sq.ft out of A schedule property bearing the flat No.F-3 by means of the construction agreement Exhibit A7 and Exhibit A 8 is the sale deed.  It is learnt from the construction agreement total cost price of the flat as well as the undivided share of Rs.25,63,400/-(Twenty  laksh sixty three thousand and four hundred) with  construction cost.

16.  It is further seen, that out of which the complainant has paid about 20,00,000/- (Twenty Laksh) on different dates and receipts issued by the Opposite Parties are marked  as A1 to A6.  Exhibit A9 is the sketch of the in which alleged flat F- 3 and Exhibit A10 is encumbrance certificate issued in the name of the complainant.

17. From the above facts, it is crystal clear that there is no dispute at all in   purchasing the above mentioned flat with undivided share from the opposite parties.  Such being so, the allegation made on the side of the complainant is that the opposite parties have not carried out the construction work of the alleged flats as per the Exhibit A7 construction agreement.  It is further alleged that the opposite parties have actually constructed the area which contains 750 Sq.ft only instead of 1100Sq.ft. and not handed over the flat within the stipulated time as mentioned in the Exhibit A7 and also there is several defects found in the flat and thereby caused mental agony and damages to the complainant.

18. At the outset, this forum has to consider, if there is any deficiency in service as alleged by the complainant caused by the opposite parties and the same have to be proved with reliable evidence.   Infact, it is pertinent to note that there is no other documents filed on the side of the complainant except the receipts Exhibit A1to A6 and the Exhibit A7 to A9 the construction agreement and sale deed respectively.  First of all regarding the incompletion and defects in the construction of flat it is the duty of the complainant to prove the same by means of expert evidence through the report and estimation of the experienced civil engineer to show the actual cost incurred and other facts of damages which are just and necessary to arrive the actual damages and the lacking if any in the construction of the flat as alleged and the cost of the same to be incurred.  But no such engineer report or any other documents   produced by the complainant before this Forum.  Moreso, it is alleged that the construction is not on par with the specification and approved by the CMDA.  In order to prove the same the complainant has neither produced the said approval plan of the CMDA or not come forward to take any steps to call for the same from the concerned authority and to the file any petition is the appointment of Advocate commissioner along with the aid of any Expert Engineer.  Thus, without this documents, the forum cannot come to conclusion about the alleged damages or defects or error if any in the construction work of the opposite parties. Not only that, even in the complaint, there is no specific averments about the defects in the construction of the flat except the mere mentioning as several defects in the construction which is not enough to arrive correct finding about the damages.

19. Secondly, in respect of allegation that the opposite parties have not fulfilled the construction measuring 1100 Sq.ft as per Exhibit A7 agreement.  In this aspects also there is no concrete evidence placed on the side of the complainant.  The next point to be taken into consideration is whether the Opposite parties have actually handed over the alleged flat to the complainant within stipulated time as per ExhibitA7.  At this instance,  it is pertinent to say that without they handed over the flat, how is it possible to the complainant to say about the leakage in the constructed flat and several defects as mentioned in the complaint is in question.  So it can be easily presumed that the Opposite parties have handed over the flat to that the complainant within the stipulated time.  Similarly, there is no proof of documents regarding the cancellation of the loan applied by the complainant by the Bank.  It is common knowledge that if anybody applied for housing loans in any Bank, the Bank released the loan only stage by stage on inspecting the building in respect of construction work.  If it is so, the allegation made by the complainant that the bank cancelled the loan applied by the complainant only for the reason that the construction work was not carried out as per the approved plan becomes futile.

20. The last but least point to be considered is that the opposite parties have constructed the flat by deviating the approved plan, the complainant requested the opposite parties to reduce the construction cost. Infact in para 12 of the complaint, the averments  made by the complainant clearly shows that the complainant paid a sum  of Rs.20,00,000/-(Twenty Laksh)  only instead of 25,63,400 /- as per  Exhibit A7.  If is so, there is no written letter or some  of kind legal notice  sent to that effect to the opposite parties with request to  engage the engineer in order to assess the value  of the constructed flat and also for the defects in the construction work and also about the deficiency of service  committed by the opposite parties.  Therefore, it is crystal clear that the complainant is a defaulter in payment as per the Exhibit A7 who is not entitled for any relief under Indian contract Act.

21. From the foregoing among other facts it is needless to say that the complainant has moved this Forum without clean hands and relevant facts and thereby, the complainant is failed to prove the averments made in the complaint.

22. In the light of the above discussion, this forum can easily arrived that the complainant has not at all proved the deficiency service if any committed by the opposite parties as alleged in the complaint through proper and concrete evidence.  Accordingly  the point No.1 is answered.

            Point No:2:-

23. In view of the above discussions arrived in the point No.1,the complainant is not entitled for any relief as made in the complaint.  Thus, the point No.2 is answered accordingly.

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

This order was dictated by the President to the Stent-typist, typed by her, corrected, signed and pronounced by us in open Forum, today on this 21^th day of May 2018.

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MEMBER                                                                                PRESIDENT

List of documents filed by the complainant:-

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MEMBER                                                                                                        PRESIDENT