Tamil Nadu

South Chennai

CC/103/2022

M.S. Sampath and another - Complainant(s)

Versus

Aston Constructions Private Ltd by its Director Mr.Jeethendra Bhandari, - Opp.Party(s)

M/s. Meera Ganasekar

31 Jan 2023

ORDER

                                                                                                                    Date of Complaint Filed : 14.03.2022

                                                                                                                    Date of Reservation      : 20.01.2023

                                                                                                                     Date of Order               : 31.01.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No.103 /2022

TUESDAY, THE 31^st DAY OF JANUARY 2023

 

1.M.S.Sampath S/o M.Srinivasan

2.Shanthi SampathW/o M.S.Sampath

Both at 42/1, 3^rd Cross Street,

Minor Trustpuram,

Chennai 600094.                                                                                                                                 …   Complainant

..Vs..

 

Aston Constructions Private Ltd by its

Director Mr Jeethendra Bhandari,

484-485, Pantheon Plaza,( Basement),

Pantheon Road,Egmore,

Chennai 600008.                                                                                                                            ...  Opposite Party

  

******

Counsel for the Complainants       :M/s. Meera Gnanasekar

Counsel for the Opposite Party      :Exparte

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party direct the Opposite Party to pay a sum of Rs.10,00,000/- towards damages for deficiency in service/mental agony and to pay a sum of Rs.1,64,000/- towards loss caused due to shortfall UDS area allotted for C 104 and to pay a sum of Rs.7,20,000/- towards loss of rental income for Cypress C104, from March 2018 till February 2022 @ Rs.15,000/- p.m and to pay a sum of Rs.2,00,000/- for loss caused to Complainant due to amount spent on improvements in apartment C 104 and to refund the Corpus Deposit amount of Rs.50,000/- along with interest @18% from date of notice till date of payment along with cost of Rs.50,000/-.

2.     The averments of Complaint in brief are as follows:-

The Opposite party is the builder who had developed the land belonging to one Rajan Babu and Lakshmi Ammal situate at Mannivakkam and by putting up 686 apartments in two blocks after getting approval from CMDA in the year 2012. The 1^stblock is known as Serene Adinath consisting of 228 flats, which is basically a retirement home for senior citizens. The 2^ndblock is known as AdinathShanthinikethan wherein 428 apartments have been constructed for sale for general public. The Complainant and their family members own 3 apartments in AdinathShanthinikethan. They are owners in respect of Flat No Cypress C 104.Similarly the flat C 105 is owned by his brother M.S.Srinath along with his wife Andal Srinath.The subject matter for purpose of this complaint is Flat Cypress C 104. The sale deed in respect of the UDS was executed in their favour on 14.12.2017 and possession of the subject flat was handed over on 19.02.2018. Even at the time of handing over of the possession of the said flat, through their mail the Opposite Party was informed about the incomplete work in several aspects, the issues pointed by them were not rectified till now. Initially the opposite party was in charge of the maintenance activity in the complex, but the service provided was pathetic to say the least. Right from day one the STP has not been functioning properly and the untreated water overflowed in the OSR area. He had sent several e-mails in this regard to the opposite party with photographs regarding the ground reality. They understand the tank capacity of the STP installed will not be able to cater to the needs of all the 686 apartments which also one of the reasons for non-functioning of the STP. On 21.8.2020 the opposite party had entered into an agreement with the association whereby partial maintenance activity in respect of house keeping as also the security was taken over/handed over to the Association (ASRWA). The other activities viz Electrical, Plumbing, OSR maintenance, STP operations, Club House maintenance, continued with opposite party. They also understand that the plant which has not been put up as per the plan. In July 2021 the Tamil Nadu Pollution Control Board on complaint inspected the plant and found it in a non working condition and also issued notice to opposite party. But nothing happened to set right the plant. In fact as per the Board, no permission was obtained by opposite party to run the STP. The sewage water not only is overflowing in the complex but get mixed up with bore water thereby contaminating the ground water which caters to the needs of the apartment owners. The opposite party who is in charge of maintenance of STP are not even removing the sewage water by lorries as promised. The ground water has also been polluted due to the untreated water being discharged all over the complex making it unfit for usage. The entire OSR as also the complex, has become a health hazard due to the untreated water over towing which even on a modest estimate everyday is over 1 lakh litre since there are 686 apartments in the complex which let out water which the STP is supposed to treat, which has not happened. They understand that untreated sewerage water is flowing even to the next apartment Laxmi Nivas, as the STP plant is situated adjoining their compound wall. Adding insult to injury, the opposite party passes on the lorry charges of Rs.1400/- per load to respective association Viz., ASRWA & SARCOA who inturn pass on the same to the apartment owners which results in the increase of the monthly maintenance charges of the apartment owners. All expenses in regard to STP is the look out of opposite party since the same is under their control and the same cannot be passed on to the apartment owners. Thus for failure in not maintaining/ non functioning of the STP, the opposite party are making the owner's suffer mentally, health wise, as also monetarily. As highlighted in various mails that was one of the prime reason for the apartment not being taken on lease as persons who come to have a look at the apartment simply walk away on seeing the untreated water all over the complex/ garden/OSR area which is bang opposite to complainant's apartments, as OSR entrance is right opposite to their apartments. Further, the opposite party had also collected a sum of Rs.15,930/- in advance as maintenance charges though no proper maintenance has been provided on site. Which is nothing but unjust enrichment and unfair trade practice. Further, the opposite party had sold several flats in the complex without proper electricity connection and they understand that the total number of such apartments comes to 111 in all. The opposite party is drawing electricity from the common meter and supplying electricity to all the flats which do not have individual electricity connection, which act in the eye of law is illegal. The completion certificate relates only to the building aspect and has got nothing to do with all other shortcomings in the premises which still persists even as of this day, besides the non completion of various works. Further, they understand recently the garden /OSR maintenance has also been relinquished by opposite party and has been taken over to the association. OSR is common for both Serene and ASRWA the cost of maintenance is being shared by both. The opposite party cleverly had relinquished all its maintenance activities one by one and passed on the burden to the association who in turn charge the owners by way of maintenance charges for maintaining the premises. For the deficiency in work committed by the opposite party and failure of the opposite party in not providing proper service, as also non completion of pending works the apartment purchasers were made to suffer. Further, as of today STP facility and Electricity, Club House maintenance, etc are within of the opposite party. After their purchase they had spent monies for improvements in the hope that property can be leased out as persons looking out for lease require amenities for their comfortable stay. Due to the various short comings in the complex they were unable to let out the apartment and thus their entire investment became a dead investment for no fault of theirs. They had spent on improvements by doing complete wood work as also electrification besides installing 3 Air Conditionerswith a hope to lease out to persons require basic amenities for their comfortable stay. Besides the STP issue the opposite party had also not provided the promised amenities like club house facility, Swimming Pool facility, indoor theatre, ATM.The kids area in the club houseis affected by termites which was not set right till date and unless necessary treatment is given the same will spread and affect the entire club house building. Inspite of bringing it to notice of the opposite party to rectify all the above nothing has happened. Their property could not be let out for various reasons stated above. The monthly rental loss even on a modest estimate is pegged at Rs 15,000 per month for Flat C 104, which the opposite party has to make good from March 2018 which till February 2022 which works out to Rs.7,20,000. The opposite party is also drawing current to its office premises/portion which is situated in the club house from the common meter intended for STP and passing on the current charges on all the owners. The opposite party had signed the Partial Take over arrangement with the residents association (ASRWA) on 21.08.2020 wherein they had promised to complete all the pending works listed therein as also refund the corpus funds by September 2020. Further, the corpus fund of Rs.50,000 collected from each owner has also not been refunded as undertaken in the agreement. In the meeting held on 15.8.2021 with Serene as also ASRWA representatives /owners, Mr Girish Bhandari the authorized signatory of the opposite party, promised that by September 15^th all works will be completed and full hand over would be done, but it has only been an empty promise till date and there has been no improvement in ground reality. Further, the swimming pool attached to the club house is also not maintained at all and they understand the waste water from the pool is also let out in the OSR garden polluting the air as also the ground water. CC T.V's. Genset, have not been installed as undertaken. The club house area in full inclusive of swimming pool, mini theatre, the toilets therein are not maintained. Further, the opposite party have in all documents executed by them specifically claimed the total land extent is 8.55 acres. The opposite party filed a writ petition in the High Court and at that point in 3^rd week of February 2021survey of land was conducted by owners, when it was found that the extent of land available is only 8.22 acres. Thus the opposite party has also played fraud on all the purchasers of apartments by mentioning in all documents an extent of land which is non-existent. The land shortfall is over 10,000 square feet. They have also issued a legal notice in this regard also. Adding fuel to the fire, and as a double whammy, a gift deed has been executed in favour of TANGEDCO for an extent of 390 square meters by opposite party claiming as POA of the land owners. In fact the opposite party has in and by its letter dated 06.11.2015 issued to one of the apartment owners has categorically admitted that all the land areas belong only to all the apartment owners. They have also filed a civil suit in the DMC Chengelpet in O.S. No 259 of 2021 questioning the illegal gift deed executed in favour of E.B and the case was posted for notice to the Opposite Party for hearing on 01.03.2021. The opposite party had adopted different modes of calculation for UDS all the 686 owners. The purchasers of apartment in Serene have been allotted excess UDS than what they are legally entitled to. Similarly purchasers of apartment from the land Owner MrRajan Babu and Mrs Lakshmi Ammal had been benefitted in allotment of UDS. The purchasers of apartment directly from the opposite party like them had been allotted lesser UDS land when they were entitled for a larger extent as per law. As family members they have 3 apartments and that in so far as Cypress C 104 which is the subject matter there is shortage of 56 square feet of land. Further, the opposite party is bound to reimburse the value of the shortage area to them and the value of one square feet of land in the area is Rs 3500. One Mr.Narayanan the owner of apartment bearing No. Aspen D 306 by mail dated 06.11.2015 confirmed the fact that the entire land belongs only to all the apartment owners on their purchase.

Further, they also understand the load of each transformer that were to be installed as originally planned was 500 KVA for both Serene and ShanthiNiketan, but opposite party has installed 500 KVA in Serene only and 250 KVA only in Shanthinikethan due to which severe electric outages take place, cables get burnt which replacement cost for no fault of us is being tried to be passed on to the association which ultimately lands up in the lap of apartment owners and the opposite party had energized Serene with more power than what they are entitled to, thereby denying the owners of Adinath ShanthiNikethan their due share. Besides the opposite party has energized its office premises situated at present in the club house area, by drawing a illegal line from the common line meant for STP thereby making all the owners pay for the illegal current consumption enjoyed by the opposite party at the expense of all owners of Adinath Shanthi Nikethan. They had issued legal notice on more than one occasion besides sending mails to the Opposite Party rectify all the defects but of no avail. The acts of the Opposite Party amounts to unfair trade practice as also deficiency in service. They were put to mental pain and agony besides financial loss caused to them. The deficiency of the Opposite Party is continuing one even today in spite of acknowledging and having agreed to rectify all defects as also agreed to complete all pending works, had failed to do so. They are co-owners having common interest in the various issues mentioned in the complaint, since the Opposite Party had failed to deliver the infra structure and other amenities as promised by them.Hence the complaint.

4.   The Complainants submitted their Proof Affidavit and Written Arguments. On the side of the Complainants, documents were marked as  Ex.A-1 to Ex.A-8. The Opposite Party did not appear before this Commission even after sufficient notice was served and remained set exparte.

 

 

Points for Consideration:-

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant are entitled?

Point No.1:

On perusal of the complaint and the exhibits marked in support of the complaint, from Ex.A-1 mails sent by the Complainant from June 2018 to March 2020 to the Opposite Party, in reply to the claim of annual maintenance charges demanded by the Opposite Party, wherein handing over of possession of the subject flat was found to be made during February/March 2018 to the Complainant and mentioned that certain photos been sent to the Opposite Party about the condition of the flat in which it was handed over and also about the annual maintenance charges paid in advance at the time of handing over of the Flat, in spite of the same the demand for annual maintenance charges was found to be made by the Opposite Party. When the annual maintenance charges for the year 2019 was demanded by mail dated 05.09.2019 it was replied that lots of issues were not resolved by the Opposite Party for which the Complainant had already sent mail and as he was in USA would get in touch on return. Further for the demand made in mail dated 30.12.2019 by the Opposite Party, it was replied by the Complainant pointing out the condition of the flat and its surroundings, and failure on the part of the Opposite Party in rectifying the defects pointed out by the Complainant, particularly  the issue of stink from the drainage water stagnating in the park was unbearable and the doors/windows of the flat could not be opened for fear of foul smell as also it causes health hazard. Further the Common works like gym, club house construction, hall therein were not completed, and thereby until the defects are rectified the Opposite party is not entitled to claim maintenance charges. Similarly reply sent by the Complainant on 02.06.2020 for the demand made by the Opposite Party vide mail dated 01.06.2020. Thus it would be clear that the Opposite Party is keen in collecting the maintenance charges in spite of rectifying the defects pointed out by the Complainant, more particularly the drainage issue which found to be directly affecting the flat of the Complainants. From Ex.A-2 the mail correspondences exchanged between the ASWRA, the owners Association of AdhinathShanthiniketan and the Opposite Party, it is clear that the STP was managed by the Opposite Party and the same was not working properly resulting in disposing the excess water through transport. Further, from Ex.A-3 the Partial Maintenance handover arrangement entered into between the Opposite Party and the ASWR Association on 21.08.2020, whereby it was agreed that the Association has to collect the maintenance charges, the Opposite Party had agreed to complete the list of pending works before 31.08.2020 as mentioned in Annexure -I to the said arrangement, also to transfer Corpus Fund of all flats to the Association by 30.09.2020 as well as the Opposite Party would continue providing maintenance services of Electrical, plumbing, STP operations, Club house maintenance & OSR. From Exs.A-4 and A-6, the Proceedings of Tamil Nadu Pollution Control Board dated 30.07.2021 and 29.12.2021 sent to the Opposite Party and to the Association, it was observed that the STP was found not operated effectively, the aerators (blowers) provided for the aeration tank was not in operation and found in damaged condition, No MLSS was found in the aeration tank for effective treatment of the sewage generated from the said residential complex, the untreated sewage was found discharged on land for gardening and the said residential complex was in operation without obtaining consent to operate from the Board and sought for explanation, would clearly prove the submissions made by the Complainant with regard to non-functioning of STP and the same was not rectified in spite of several communications sent by the Complainant as well as from the concerned department. It would be clear that the non-functioning of the STP and the excess sewage water flooded all over the Apartment Complex as found in Ex.A-7. The Notice dated 23.11.2021 Ex.A-5, sent by the 1^st Complainant to the Opposite Party explaining the issues/defects faced by the Complainant and had claimed for compensation for deficiency in service on the part of the Opposite Party as well as towards financial loss sustained by the Complainants, in spite of receipt of the said notice, there was no response from the Opposite Party.

On discussions made above and on considering the facts and circumstances of the case, it is clear that the Opposite party had acted lethargically and negligently and had sold the subject flat to the Complainants without following the rules and regulations and had failed to rectify the defects as agreed under Ex.A-3 on the agreed / stipulated date. Though many of the defects pointed out by the Complainants are found to be with regard to common amenities, it is to be noted that only on assurances and promises of the Common amenities to be provided to the Apartment Complex, the flats would have been booked by the purchasers such as the Complainants, hence the Opposite Party should have handed over the subject flat to the Complainants only after the completion of entire project without any defects in all aspects. Having not done so and having handed over the subject flat to the Complainants with defects that are directly affecting the Complainants clearly amounts to unfair trade practice as well as deficiency in service on the part of the Opposite Party and thereby had caused mental agony and monetary loss to the Complainants. Accordingly Point No.1 is answered.

Point Nos.2 and 3:

As discussed and decided in Point No.1 against the Opposite Party, the Opposite Party is liable to pay sum of Rs.3,00,000/- towards unfair trade practice, deficiency in service, monetary loss and mental agony caused to the Complainants, along with a sum of Rs.5,000/- towards litigation cost.As the Complainants had not produced any documentary evidence to substantiate the reliefs claimed in complaint prayers (b), (c), (d) and (e), before this Commission, the Complainants are not entitled for the said reliefs and also not entitled for any other relief/s. Accordingly Point Nos. 2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) towards unfair trade practice, deficiency in service, monetary loss and mental agony caused to the Complainants, along with a sum of Rs.5,000/- (Rupees Five Thousand Only) towards litigation cost, within 8 weeks from the date of receipt of this order.

          In the result this complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 31^stof January 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

Ex.A1	June 2018 to March 2020	Emails exchanged as between the 1st Complainant and Opposite Party
Ex.A2	December 2020 to Jan 2021	E mail exchanged as between the Complainant’s Association & Opposite Party with copy to Complainant’s
Ex.A3	21.08.2020	Partial Take Over Arrangement between ASRWA and Opposite Party
Ex.A4	30.07.2021	Copy of notice issued by Pollution Control Board to Opposite Party
Ex.A5	23.11.2021	Copy of demand notice  by claimant to Opposite Party with Ack
Ex.A6	29.12.2021	Copy of notice issued by Pollution control Board to Opposite Party
Ex.A7	-	Photographs of overflowing sewerage and termite Damage in Club House
Ex.A8	23.02.2022	E Mail from Mr. Narayanan to the 1st Complainant forwarding letter dated 06.11.2015 issued by Opposite Party

 

List of documents filed on the side of the Opposite Party:-

 

NIL

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT