BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.914/2010 against CC.No.183/2008
District Forum-I, VISAKHAPATNAM.
Between
1. M/s.Pavan Builders, rep. by
Proprietor Sri P.V.Narasimha Rao
S/o.P.V.G.K.Murthy, aged about 43 years,
Pavan Palace, Station Road,
Dwarakanagar, Visakhapatnam.
2. P.V.Narasimha Rao
S/o.P.V.G.K.Murthy, aged about 43 years,
Proprietor, Pavan Builders,
Pavan Palace, Station Road,
Dwarakanagar, Visakhapatnam. ..Appellants/
Opp.parties 1 & 2
And
1. Pavan Residency Flat Owners Welfare
Association, rep. by its President,
Sri Nuthakki Ravindranath
S/o.late Venkaiah, RRV Puram,
Simhachalam Road,
Visakhapatnam-530 018. Respondent/
Complainant
2. The Vice Chairman, VUDA
VUDA Building Complex, Siripuram,
Visakhapatnam.
3. The Municipal Commissioner,
The Greater Visakhapatnam Municipal
Corporation, Near RTC Complex,
Visakhapatnam. ..Respondents/
O.Ps.3 & 4
(Respondents 2 and 3 are not necessary parties)
Counsel for the Appellants : M/s.K.Srinivasa Rao
Counsel for the Respondents : Mr.D.V.S.S.Raju-R1
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER,
TUESDAY, THE TWENTIETH DAY OF MARCH,
TWO THOUSAND TWELVE
Oral Order (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.183/2008 on the file of District Forum-I, Visakhapatnam, the opposite parties 1 and 2 preferred this appeal
The brief facts as set out are that the complainant is a registered society consisting of 160 members who are flat owners of the flats in Prithvi, Varsha, Varun and Pavan Blocks of Pavan Residency. The complainant submitted that opposite parties 1 and 2 purchased land covered by Plot No.7, Survey No.123 P and 124 P of Vepagunta Village in Vepagunta Panchayat and built 4 blocks consisting of 160 residential flats in Pavan Residency. The construction of the said flats is completed by 2004-2005 and opposite parties had also retained two flats and they are also members of complainant association consisting of 160 members and paying monthly maintenance charges regularly from November, 2005. 4th opposite party is having control over the complex which is constructed under its jurisdiction and also an authority to carry out inspection and issue ‘fit for occupancy certificate’. The complainant submitted that opposite parties 1 and 2 had collected a total sum of Rs.12 lakhs at the rate of Rs.7,500/- along with flat costs from each flat owner representing that it will form part of corpus fund and that the same would be handed over to the Association which will be formed after completion of construction of flats. Opposite parties 1 and 2 assured the flat owners that they will facilitate formation of association and also the responsibility of maintaining the common areas for one year and collected Rs.4,200/- for each flat aggregating to a sum of rs.6.27 lakhs towards meeting the cost of maintenance of common areas. The complainant submitted that the opposite parties 1 and 2 had not taken any steps either to call for meeting of the flat or form an association for 13 months after declaration of completion of construction of 3 blocks and even after completion of one year and they are duty bound to form and register the association within four months from the date on which the minimum number of persons required. However, while withdrawing maintenance of flats, opposite parties 1 and 2 advised the residents of Prithvi, Varsha and Varun Block vide letter dated 19-8-2005 to contribute and collect monthly maintenance charge from 1st September, 2005 through the Association formed by them and stopped maintenance of those three blocks.
The complainant submitted that opposite parties 1 and 2 have neither handed over the common areas, facilities and assets nor made any alternate arrangements for maintenance of common areas, facilities and assets during the entire year and have not taken any steps whatsoever to form association and guide the office bearers and staff and therefore the flat owners formed adhoc committee in September, 2005 and thereafter the Association was formed in November, 2005 and is taking care of the maintenance. So far as Pavan Block is concerned, opposite parties 1 and 2 stopped maintenance without any communication to the Association with effect from 1st June, 2006 and therefore its maintenance was also taken over by the complainant. The complainant submitted that although for Pavan Block maintenance money was paid till the end of June, 2006, opposite parties 1 and 2 did not make any arrangements for proper security, waste disposal, drainage cleaning, operation of water pumps and common areas light system etc. from January, 2006 and since opposite parties 1 and 2 have collected the maintenance charges for Pavan Block from flat owners, the complainant is entitled for pro-rata maintenance charges relating to the above services from opposite parties 1 and 2 for the period from January, 2006 to June 2006 aggregating to Rs.30,000/- and also have to render account for the maintenance charges and refund the balance of maintenance charges to complainant association.
The complainant further submitted that the flat owners formed association and elected the office bearers and convened a meeting and opposite parties 1 and 2 in the general meeting assured them that the corpus fund and balance of maintenance charges would be transferred to the association as soon as separate bank account was opened by them and assured full co-operation. After the association was formed the committee requested opposite parties 1 and 2 to hand over the common assets, furnish relevant documents relating to various assets, equipments and approvals of various authorities and settle the accounts of corpus fund, audited maintenance account and refund the maintenance charge relating to 13 flats for which they did not render full one year maintenance although the amount was collected. The complainant also sent a letter dated 8-12-2005 to opposite parties 1 and 2 requesting for joint inspection and handing over the common areas and facilities, to discuss and settle various outstanding issues followed by another letter dated 27-12-2005. The printed bye-laws of the association were forwarded with a letter dated 13-1-2006 for which opposite parties 1 an 2 addressed a letter dated 26-1-2006 refusing to recognize the association and advised the flat owners to join an association said to have been formed by opposite parties 1 and 2 with a view to divide the flat owners. After a meeting of the Governing body on 13-3-2006, opposite parties 1 and 2 agreed to refund the corpus fund together with interest and further agreed to provide an eco static casing to the generator, rectify the intercom system but none of the issues were taken. The complainant submitted that notice was issued with regard to certain obligations which are still unfulfilled by opposite parties 1 and 2. Therefore, opposite parties 1 and 2 have to provide:
a) Separate generator for each of the 4 blocks but only one Generator was provided that too without eco static casing and required pollution control devices and it was based under the ramp. During the trial run itself, the ramp developed cracks due to high vibrations.
b) alternate power supply of two tube lights, 2 fans, and one TV in each flat stand by generator and hence bound to refund Rs.12,00,000/- @ Rs.7,500/- for each flat collected from them.
c) intercom facility in working condition or refund Rs.3,20,000/- @ Rs.2,000/- per each flat.
d) common assets like lifts, water pumps, electric installations, were not handed over to the association and are bound to handover original invoices, operating manuals and warranty and guarantee to the association.
e) the construction drawing were not made available which are essential for maintenance work.
f) the approvals from competent authorities as to construction should be handed over.
g) the builder converted some of the common areas to staff rooms and guest rooms without approval from competent authority.
h) The statutory obligation of fire fighting, lightening arrestors, water tanks and water pipes are to be furnished.
i) The builder failed to furnish occupancy certificate from VUDA together with policy of insurance for a year for entire complex
j) They are construction defects like seepage of rain water through cracks of side walls, improper plumbing work in bath rooms and sinks.
k) Sub stilt floor was provided which is contra to the approved plan and violation of VUDA approval.
Hence the complaint for a direction to opposite parties 1 and 2 as well as Municipal Corporation and VUDA to get the defects rectified and also pay compensation of Rs.1,00,000/- for causing mental agony and refund the amount collected from the flat owners and also for a direction to opposite parties 3 and 4 to issue occupancy certificate to each flat owner.
Opposite parties 1 and 2 filed counter denying the allegations made in the complaint. They submitted that the flats were delivered to the respective flat owners on 1st September, 2004 almost four years lapsed since the respective flat owners were put to occupation of their respective flats and the complaint is barred by limitation and a bare perusal of the complaint is nothing but a modified version of their earlier correspondence/legal notice, clearly depicts that the dispute is not concerned to non delivery of flats, leakages cracks in flooring or plastering and hence for non fulfillment of promised amenities like Generator etc., the complainant ought to have instituted a civil suit. They further submitted that the correspondence between the parties will amply prove that substantive issues have been settled long back but still the complainant association was pestering the complaint. They pleaded that neither the sale deed nor the brochure provided separate Generator for each block and have agreed for common area, lighting and water pumps. Provision of separate generator rooms in different blocks was conceived only at a later point and flat owners themselves would install generators of their choice. They submitted that they reserved the right to modify the plans and features while releasing the brochure and the sale deed and agreement proceedings will be binding on them and the respective flat owner. They further submitted that they were advised by structural designers and expert electricity consultants not to have separate generators as the maintenance and running cost would far out weigh the utility and cabling will become complex and contributes immeasurable sound. They submitted that they never agreed for eco static casing to be provided to generator. With regard to corpus fund, it pleaded that the same was refunded to flat owners by way of separate demand drafts with interest approximately amounting to 12% p.a. and was done as the association failed to provide its authenticity. The common assets were in fact already handed over long back and the members of the association are in enjoyment of the same and the association has no right to demand the construction drawings and designs and this construes intellectual property, however, it is ready and willing to give copies. As part of providing general facilities, some of the common space was given to departmental store, doctor chambers, gymnasium and laundry as per the brochure itself and ownership of same lies with them only. As per clause 26 of sale deed, it is the responsibility of apartment owners to take care of fire safety. The maintenance charges were already spent and so question of refund does not arise and vouchers and accounts were also given to Sri M.Ramdas, Advocate who acted as Mediator checked and verified the same and satisfied and necessary steps were taken to obtain occupancy certificate from the local bodies and members of complainant association have been in occupation of the flats for last 4 years and obtaining occupancy certificate at this stage becomes redundant. As majority of the flats were insured by respective bankers in Housing loan obtained from them, no separate insurance cover need be furnished by the Builder. The intercom system was damaged due to voltage fluctuations in the electrical transformer and the system was functioning properly when the flats were delivered and the warranty period lapsed and the complainant can pursue its remedy against AP Transco or the manufacturer. The sub stilt floor was laid as there was unexpected gradient from South to North and boulders and loose soil at an enormous expense, which contributed for structural sturdiness and the same is used by occupants of flats for parking. Opposite parties submitted that the complaint is barred by limitation and does not fall under the ambit of consumer dispute and submitted that they filed a Criminal complaint 368/2008 against the bearers of complainant association for causing damage to their reputation.
Opposite party No.3 filed counter stating that it issued approval in RC 1039/02/GII, dated 18-11-2002 with certain conditions for construction of the building and no relief was claimed against it and prayed for dismissal of the complaint.
Opposite party No.4 filed counter pleading that there are violations in making construction and that it would take steps as per rules under HMC Act and submitted that it was unnecessarily impleaded and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A25 and B1 to B464 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties 1 & 2
i) to provide separate proper generator of adequate capacity to each of 4 blocks not only for operation of lift, water pumps, illumination of common areas but also to provide alternate power from the generator to 2 tubelights, 2 fans and 1 TV in each flat in the place earmarked for generator in the plans of 4 blocks by recoversion of shop room into generator rooms, within 3 months, failing which, refund Rs.12,00,000/- @ Rs.7,500/- per flat with interest at 9% p.a. from the date of complaint i.e. 24-3-2008 till the date of payment.
ii) To get the intercom system already installed revived and make functional or provide a new one at his own cost within 3 months or refund Rs.3,20,000/- @ Rs.2000/- per each flat with interest at 0% p.a. from the date of complaint
iii) To furnish copies of approved plans and drawing of the construction made, electric and plumbering works, maintenance works within three months.
together with costs of Rs.10,000/-.
Aggrieved by the said order, the opposite parties 1 and 2 preferred this appeal.
FA.IA.No.2787/2011 to receive additional evidence ordered by making Exs.B465 to 468.
It is the complainant’s case that it is a registered society consisting of 160 members who are the flat owners of Pawan Residency consisting of four blocks. Opposite parties 1 and 2 released brochures stating that the building is approved by VUDA and they also retained two flats. All the members are paying maintenance charges including opposite parties 1 and 2 and opposite party No.4 is having control over the complex. Opposite parties 1 and 2 have collected a total sum of Rs.12,00,000/- at the rate of Rs.7,500/- apart from the flat cost to form corpus fund. They also collected an amount of Rs.4,200/- towards meeting the maintenance of common areas. One year maintenance was paid by 160 members while withdrawing the maintenance of flats, advised the residents of the blocks by letter dated 19-8-2005 to collect monthly maintenance charges from 01-9-2005. It is the complainant’s case that opposite parties 1 and 2 did not make any arrangements for proper security, waste disposal, drainage, cleaning, operation of water pumps and common areas from January, 2006. The association also signed a joint letter on 08-12-2005 (A8) requesting the opposite parties for joint inspection and to hand over the common areas. This was followed by another letter dated 27-12-2005. The opposite parties vide their letter dated 26-1-2006 advised the flat owners to join the association formed by opposite parties 1 and 2 for which the Association replied vide letter Ex.A11 dated 12-2-2006 that the Association was duly formed and opposite parties 1 and 2 attended the meeting held on -1-3-2006 (Ex.A12) and minutes were drawn and counter singed by opposite parties 1 and 2.
It is the main case of the complainant that opposite parties 1 and 2 are committed to provide a separate generator for each of the complex for operation of lift, water pump and illumination of the common areas but opposite parties provided only one generator for all the four complexes. In fact during the trial run of the generator, the ramp on which it was housed developed cracks due to vibrations and since the opposite parties did not make arrangements to house the generator in a proper manner. The learned counsel for the appellants denied that four generators were ever promised. He contended that 160 K.V. generator which was provided for common areas and water pumps would suffice. He contended that in Ex.B1 brochure under the additional features under the heading ‘Generator’ it is mentioned as ‘stand by generator for common area lightings and water pumps. It is meant for common areas only as is mentioned in the sale deed. However, while installing the generator, the appellants provided generator for all the blocks for common areas as well as water pumps but the complainant without any basis is claiming additional power supply for two tube lights, 2 fans and one T.V. The District Forum did not appoint any expert to inspect the capacity of the generator whether it is catering to their needs. To reiterate, we observe from Ex.B1 brochure in additional features under the heading ‘Generator- for common areas and water pumps would be provided’ and under the exclusive features in P-2 of the brochure, it is clearly stated that stand by generator for common areas, LIFTS and pumps would be provided. The existing generator was used by the complainant for a period of six years and submit that the existing generator is sufficient for lighting of the common areas and also pumps.
We observe from the brochure Ex.A1 first floor plan that there is a provision for construction of a generator room in each complex, each complex is an independent entity. We observe from Ex.A5 letter dated 29-8-2005 that there is a request to provide individual generators to each of the blocks and there is correspondence continuously for request of separate generator for each block as promised. We also observe from Ex.A12, Minutes of the Meeting held on 01-3-2006 that the Association Members have stated that opposite parties have collected Rs.7,500/- from each flat owner with a promise to provide energy for two fans, lights and a T.V. but the opposite parties never denied receipt of such payment but only contended that it is more economical to run and operate a single generator than four generators. He also agreed to shift the generator to another location and make necessary arrangements to minimize the sound pollution and stated that he would give the required information within a week but we observe from the record that no such information was given and Ex.B465 which is the report of the Engineer filed by the opposite parties state as follows:
3. The location of the Generator was inspected by the electrical
Inspectorate & approval were issued, hence it is in accordance
to the norms prescribed by the competent authority. The Generator
installed is of 160 KVA which is sufficient for common area lighting
lights, pumps and a specified load for every apartment. The Generator
was commissioned by the suppliers on 15-7-2005.
As seen from this report, Ex.B465, it is evident that though the generator capacity is 160 KVA is supposed to be sufficient for common area lights and pumps, it does not state anywhere that it is sufficient for the LIFTS which has been clearly stated in the additional features on Page-2 of Ex.B1 brochure. Opposite parties 1 and 2 did not deny the receipt of these amounts. As it is evident from Ex.A1, brochure, first floor parking plan each block has a provision for independent generator room, it could be construed that there is a provision for an independent generator for each block. Apart from Ex.A12, Minutes of the meeting dated 01-3-2006 between the complainant association and the opposite party, the governing body report of the complainant association dated 21-5-2006, Ex.A13 requesting for provision of individual generators in each block and also in their letter dated 23-5-2006, Ex.A15, the complainant association once again requested for provision of separate generators. These requests of the complainant association was repeated again in their legal notice Ex.A20 dated 29-4-2007 and in their letter dated 20-12-2007, Ex.A22, the complainant association clearly stated that opposite party No.1 collected Rs.7,500/- from each of the 160 flat owners for provision of alternate power to each flat for two tube lights, two fans and one T.V. set and seeks refund of that amount. We observe from the reply notice, the opposite parties did not deny receipt of these amounts towards alternate energy but only submitted that they never promised separate generator for each block as evidenced under Ex.A18 dated 9-11-2006 and Ex.A19 dated 21-4-2007. There is also an inspection report, Ex.A25, which states about the generator being housed on the ramp is causing severe noise and air pollution. It is also pertinent to note that opposite parties 1 and 2 in their proof affidavit and in their written arguments did not deny receipt of Rs.7,500/- collected towards extra energy for provision of alternative power for two tube lights, two fans and one T.V. but instead in their clarification and this allegation was amply explained in clarification ‘a’ and this with respect to generator for each block reads as follows:
My clarification: There is no mention of provision of generator in sale deed, vide brochure in additional features in the heading generator, it is mentioned as ‘stand by generator for common area, lightings and water pumps’ This means it was meant for common areas only. However, while installing generator, I have even calculated full capacity of all the block for common areas as well as moderate power for lighting and fans for working.
Neither the sale deed nor the plan enclosed to it mentions about generator or provision of generator room for respective blocks or a single generator which sufficiently caters to the power needs of all the flats. The emphasis of the complainant that a generator room is shown in the plan of each block in the brochure, even taken on its face value doesn’t mean establishing a generator for each block separately. Since I have originally agreed to provide the standby generator only for common area lightings and water pumps, I conceived of providing separate generator rooms in different blocks so that the flat owners at a later point of time, depending on their collective wish and affordability, install generators of their own choice. I reserved right to suitably modify the plans and the features while releasing the brochure. Ultimately it is the sale deed and the agreement preceding it, are binding upon me and the respective flat owners. I submit that I was advised by the structural designers and expert electricity consultants not to have separate generators as the maintenance and the running cost would far out weight and utility and the cabling will become complex and contributes immeasurable sound, in any case as the generator installed by me, which as a matter of fact not promised nor installed as per agreement. It was installed with higher capacity to cater the needs of inmates of the flats and for lift users. Non provision of separate generator rooms is not deficiency of service, it is always open to the complainant to make suitable arrangements depending on the wishes, affordability and convenience of the flat owners. I have not charged a single rupee for providing extra capacity generator.
That with regard to the demand of eco-static casing it was never agreed that on eco static casing would be provided for the generator. Even as per brochure there is no assurance for providing for electric supply for common areas (please see the terms and conditions of agreement and clauses in sale deed).
b. Provision of alternative power to flats:
Allegation of the complainant: a sum of Rs.12 lakhs (@ Rs.7,500/- from each flat) was collected with a promise to provide alternate power to two tube lights, two fans and one T.V. in each flat from standby generator but till date no such provision was made.
My clarification: This allegation was amply explained in my clarification given for the above issue’.
From the aforementioned, it is clear that there is provision for a generator room in Ex.A1 first floor parking plan which construes that there is a provision for generator in each block and in Ex.B1 brochure where in the 2nd page under Special features, it is clearly given generator for common areas lighting, LIFTS and water pumps. From the documentary evidence filed and discussed in the aforementioned paras, it is clear that an amount of Rs.7,500/- was collected from each flat owner i.e. an amount of Rs.12 lakhs which refund was repeatedly requested by the complainant association in their letters and in the exchange of legal notices as evidenced in Exs.A18, 19 and 20 and the opposite parties never denied receipt of these amounts. Therefore, with respect to first direction, we do not see any ground to interfere with the order of the District Forum.
With respect to the direction of the District Forum to revive and make functional the intercom system already installed or provide a new one or refund Rs.3,20,000/-, we set aside the same as we observe from Ex.B465 which is the Engineer’s report dated 18-2-2010 that intercom is of reputed make and manufacture, the same is in operation and use and for any repairs and maintenance, the association should approach the manufacturer. It is not the case of the complainant that intercom was not provided, it is its case that it is not in working condition. The construction was made in the year 2004 and the intercom facility was provided by the appellants in the same year. In Ex.A25, the Engineer also observed that the intercom facility was working from the security room to the respective flats who inspected the premises gave the report, Ex.B465 stating that the intercom provided by the builder is of reputed make and manufacture. Therefore, we are of the considered view that the builder has provided good intercom system and it is up to the complainant’s association to get it rectified.
Therefore, we do not see any reason to interfere with the first direction of the District Forum with respect to providing separate generator of adequate capacity to each of the 4 blocks not only for operation of lift, water pumps, illumination of common areas but also provide alternate power from the generator to 2 tube lights, 2 fans and one TV in each flat in the place earmarked for generator in the plans of 4 blocks by reconverison of shop room into generator room within 3 months failing which refund Rs.12,00,000/- @ Rs.7,500/- per flat with interest at 9% p.a. from the date of complaint i.e. 24-3-2008 till the date of payment. We also do not see any grounds to interfere with the other directions of the District Forum with respect to furnishing copies of approved plans and drawing of the construction made, electric and plumbing works, maintenance works.
In the result this appeal is allowed in part and the order of the District Forum is modified setting aside the direction of the District Forum with respect to intercom system while confirming the other two directions i.e. with respect to generator and also with respect to handing over copies of approved plans to the complainant association. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt. 20-3-2012
