BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 2nd February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.42/2012
(Admitted on 16.01.2012)
1. Mr. Paneer Rizwan Ahmed,
S/o Late. Haji Vali Abubacker,
Aged 38 years,
Dr. Ansari Road, Bunder, Mangalore.
2. Mrs.Shina Sulthan Rizwan Ahmed,
W/o Paneer Rizwan Ahmed,
Aged 30 years,
Dr. Ansari Road, Bunder, Mangalore.
….. COMPLAINANTS
(Advocate for the Complainants: Sri BNK)
VERSUS
1. M/s H. Grace Property Holdings
Limited, a Company incorporated
Under the Indian Companies Act 1956,
Rep. by Mr. Syed Mohammed Beary,
Having its Registered Office at Beary,s
Horizon, *21, Woodstreet,
Bangalore 560025.
2. Mr. Syed Mohammed Beary,
S/o Late. Haji K. Mohidin Beary,
R/at 5/2, Park View Residency,
III Main, Jayamahal,
Bangalore 560046.
3. Mr. Bapu Nainar,
S/o Late K M Hamza,
H.D-72, His Grace, Hat Hill,
Mangalore 575006.
…..........OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 to No.3: Sri BNP)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaints filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The Complainants claim under registered Sale Deed dated 17.03.2011 he purchased apartment No.S-31 described in the complaint from opposite party No.1 and Opposite party No.2 being through the GPA holder of opposite party No.3 which include car parking space of 145 sq.ft of basement of the building. The car park designated as S31 is grossly insufficient for parking of any car except for cars of size that of Maruti 800 which can be parked only with great difficulty. The height of the parking area which is only 6 feet 1 inch renders it impossible to park any cars other than the cars of size of Maruti 800 . Hence seeks to provide sufficient car parking space to park a car of any description and compensation and cost as claimed from opposite parties.
II. Opposite party filed written version. Opposite party No.1 obtained building licence on 12.4.1994 for the construction from the Mangalore City Corporation (herein after referred as MCC) and occupation certificate on 15.4.1997. After marking car parking slots in the basement for each apartment unit the apartments were sold to various purchasers and his Grace Flat Owners Association for maintenance on 29.3.2004. The complainant approached through one Mr. Mohammed Rizwan and on inspecting the flat No.S-31 and the car parking in the basement purchased the property. The dimension of the Maruthi Ritz is 3715mm length, 1680 mm width and 1620mm height. The car parking space is provided in more the double the dimension is barely be parked is absolutely false. Avail for sale in 2011 of which the complainant verifying after purchase S-31 with undivided points of share of 0.65% in the land. Toyota Innova and Skoda company make can be parked in S-31. The complainants are aware that the building His Grace was constructed in 1994 and NOC Obtained in 1997. Hence seeks dismissal and there is no deficiency in service.
2. In support of the above complaint the complainant Mrs. Shina Sulthan Rizwan filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked Ex.C1 to C9 as detailed in the annexure here below. On behalf of the opposite parties Mr. Syed Mohemmed Beary (RW1) Director of opposite party No.1 and former owner of Residential Flat S-31, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R9 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows:
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The complainant is a purchaser of the flat No.S-31 in His Grace apartment building delivered by opposite parties and the purchase as made in 2011 and the complainant as the consumer and the opposite parties as service provider is established. The complainant claim that the space provided for car parking at 145 sq ft is barely insufficient space for small size car Maruthi 800 is disputed by opposite parties. Hence there is a live dispute between the parties as contemplated under section 2(1)(e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No.(ii): Ex.R1 is the occupation certificate issued to opposite parties on 15.04.1997. Ex.R2 is the copy of the Sale Deed exhibited in favour of complainant by opposite parties. Opposite party No.3 in behalf of opposite party No.1 and opposite party No.2. As seen from this document the Schedule B i.e. the description of the property sold to complainant mentions the exact total extent of property sold as 1775 sq.ft together 0.65% undivided right title interest a schedule ‘A’ i.e. land with 145 sq.ft car parking space in the basement of the said building. In the first place as the complainant with open eye having purchased this property cannot complain that the space for car parking is insufficient. It is not the case of complainant there was force on him to buy the property. Ex.R3, Ex.R4 and Ex.R5 are the photographs of parking of various types of car as mentioned in the written version of opposite party in S.31 car parking space. Ex.R6 is copy of the feature of the Maruthi Ritz vehicle it shows the width of the car at 1680mm height of the car 6020mm. the measurement of the length 395 width, height 1620mm ground wheel base 2360mm this would indicate that there is sufficient space available for parking a car and that the photographs produced by opposite party indicates various model of cars can be parked in the areas sold to complainant. Hence the claim of complainant that opposite party was not produced with sufficient space for car parking is unjustified.
2. In fact a Court Commissioner was appointed to file his report and even the complainant in his replied to the interrogatories did admits the court commissioner did park Maruthi Ritz car at No.S-31 space. Hence the complainant failed to establish the deficiency in service as claimed. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 6 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 2nd February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI 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 Complainants:
CW1 Mrs. Shina Sulthan Rizwan
Documents marked on behalf of the Complainants:
Ex.C1:17.03.2011: Sale Deed
Ex.C2: 17.10.2011: Demand Notice of complainant through Advocate
Ex.C3: 19.10.2011: Postal Receipt for demand notice (two in nos.)
Ex.C4: 22.10.2011: Acknowledgment for Demand Notice
Ex.C5: 28.10.2011: Reply to the Demand Notice
Ex.C6: 05.11.2011: Rejoinder by complainant
Ex.C7: 11.11.2011: Postal receipt for Rejoinder
Ex.C8: 15.11.2011: Acknowledgement for Rejoinder
Ex.C9: 18.11.2011: Reply of Rejoinder
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Syed Mohemmed Beary (RW1) Director of opposite party No.1 and former owner of Residential Flat S-31
Documents marked on behalf of the Opposite Parties:
Ex.R1: 15.04.1997: copy of occupation certificate issued by Mangalore City Corporation
Ex.R2: 17.03.2011: Copy of the Sale Deed
Ex.R3 to R6: Photographs showing different cars being parked at the parking slot No.S-31
Ex.R7: Photographs 6 in numbers
Ex.R8: Negatives
Ex.R9: 15.4.2013 Cash bill issued by Guru Digital Studio and Video
Dated: 02.02.2017 PRESIDENT
