Tamil Nadu

South Chennai

489/2004

Vino John - Complainant(s)

Versus

Bala Abirami Builders & developers Ltd. - Opp.Party(s)

N.L.Rajah , K.P.Kiran Roa

16 Nov 2017

ORDER

                                                                        Date of Filing :   14.07.2003

                                                                        Date of Order :   16.11.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.489/2004

THURSDAY THIS  16^th  DAY OF NOVEMBER 2017

 

Mr. Vino John,

Abirami Karpaga Vilas,

Flat No.GB Ground Floor,

Plot No.W-580, SBOA School Road,

Anna Nagar West Extension,

Chennai 600 101.                                            Complainant

 

                                        ..Vs..

 

Bala Abirami Builders & Developers,

(P) Limited,

Rep. by its Director,

Abirami Corporate Centre,

No.10, (Old No.33),

Besant Avenue,

Adyar, Chennai 600 020.                               Opposite party

 

Counsel for Complainants            :   M/s. N.L.Rajah & others        

Counsel for opposite party           :   M/s. Rank Associates.

 

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking directionto rectify the defects alleged in the complaint namely replacement of marbles and unseasoned wood used for windows and doors framesand plastering of walls and ceilings; wood work in kitchen titles; water taps and provision of laying tilesand wash basin support angles have rusted and verandah grill to be paintedand handed over to TNEB/Metro water/ sewerage deposits and to provide provision of car parking area as per the agreement rectification of electrical installation including automatic re-router; starter type switches for the motor and also to provide copy of plumping layout and reimburse the excess amount paid towards electrical installation and also to pay a sum of Rs.25,000/- towards compensation for delay in handing over the possession and Rs.25,000/- towards mental agony and 9 sq. ft. charges collected excessively and to pay cost of the complaint.

1. The averment of the complaint in brief are as follows:

         The complainants submit that  the complainants and the opposite party entered into the construction agreement  on 8.2.2000 for construction of flat measuring  791 sq. ft. in the ground  floor with UDS of 225 sq. ft for a sum of Rs.11,86,500/- on 8.2.2000 and due sale deed for the undivided share of 225 sq. ft. was executed.   As per the construction agreement the possession shall be handed over on or before 31.1.2001 on failure the opposite party shall pay 9% p.m towards the damages.  But the opposite party has not handed over the possession as per the stipulated time. 

2.     Further the complainants state that there are several deficiencies committed by the opposite party in the construction particularly the marbles laid on the floor are cracked and it should be replaced.  Equally the walls and ceilings has not been plastered smoothly it should be rectified and unseasoned wood used for windows and doors resulting gaps and low quality  it should be replaced.  Similarly the wash basin support angles have rusted and to be replaced and wood work in kitchen was peeling off; bath room tiles were broken; taps in the master bed room were leaking; varandha grill was not provided and automatic re-router mechanism has not been provided to the lift. 

       

3.     The complainants further state that the opposite party has not handed over the receipts towards TNEB/Metro water/ sewerage for the plumping etc. cannot be claimed by the complainant and the car parking space has not been provided as per agreement.   The complainant further state that a sum of Rs.12,500/- towards excess amount paid for electricity connection.  Even then  the opposite party has failed and neglected to set right all the defects and deficiencies in construction in spite of repeated reminders by the flat owners and several assurances by the builder.   As such the act of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

 

4.    The brief averments in the  Written Version filed by the opposite party are as follows:

      The  opposite party denies each and every allegations except those that are specifically admitted herein.   The opposite party submit that  it is true that the complainant had booked a Flat with the opposite party and paid certain amounts.   However, the complainant has not paid the amount agreed, for the works executed by the opposite party in full and within the stipulated time, thus resulting in a situation where the opposite party could not hand over the flat in time.  Therefore the opposite party demanded the payment towards the interest as well as the payments for the various additional works carried out as per the instructions of the complainant.  Even though under clause-8 of the agreement the opposite party had agreed to complete the construction of the flat on or before 31.10.2000, that was only subject to the receipt of the entire consideration mentioned in clause 3 of the said agreement.  

5.      Further the opposite party  state that as per the terms of the agreement, the opposite party was obliged to provide marbles only in the hall and the dining room, does not reveal any crack and does not require any replacement.   The plastering of the walls have been done.   The allegation regarding the usage of the unseasoned wood is unfounded and in the absence of any complaint of any bulging or cracking in the wood the allegation is not sustainable.    The wash basin angles which are exposed to water are bound to rust, over a period of time and the opposite party is not liable to replace them.  Similar is the case of the complaint regarding the taps leakage.   Even though the service Verandah grill was not agreed under the terms of the agreement.    The  TNEB / Metro Water / Sewerage / Deposits it may be seen that unless such deposits are given the connection would not be provided by the concerned departments.    The opposite party is also taking steps  to have an Engineer to visit the flat and file his report.    

6.       The opposite party further state that the car parking space is available and has to be utilized by the occupants and the parking space cannot be provided.   There was no agreement to provide starter type switches for the motor and automatic phase, re-router in the lift.    Certain comments have been made by the Engineer which are outside the purview and object with which the Engineer has been commissioned to file the report.      Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.      

7.     In order to prove the averments of the complaint, the complainants has filed proof affidavit as their evidence and documents Ex.A1 to Ex.A10 marked.  Proof affidavit of opposite party filed and no documents   marked on the side of the opposite party.

8. The points for the consideration is:  

 

1. Whether the complainant is entitled the relief of rectifying the defects alleged in the complaint namely replacement of marbles, unseasoned wood used for windows and doors frames  and plastering of walls and ceilings; wood work in kitchen tiles rushed water taps and provision of laying titles  and wash basin support angles verandah grill to be painted  and handed over to TNEB/Metro water/ sewerage deposits as prayed for ?

 

2. Whether the complainant is entitled the relief of provision of car parking area as per the agreement, rectification of electrical installation including automatic re-router; starter type switches for the motor as prayed for?

 

3. Whether the complainant is entitled the copy of plumping layout and reimburse the excess amount paid towards electrical installation as prayed for?

 

4. Whether the complainant is entitled to a sum of Rs.28,000/- towards compensation for delay in handing over the possession and Rs.25,000/- towards mental agony and 93 sq. ft. charges collected excessively with cost as prayed for ?

 

 

9.  POINTS 1 to 4:

 

           Heard both sides.  Perused the records.   The learned counsel for the complainant contended that admittedly the opposite party entered into the joint venture with  the original owner of the property as per Ex.A1.    The learned counsel for the complainant further contended that she and the opposite party entered into the construction agreement  on 8.2.2000 for construction of flat measuring  791 sq. ft. in the ground floor with UDS of 225 sq. ft for a sum of Rs.11,86,500/- on 8.2.2000 and on 21.7.2000 due sale deed for the undivided share of 225 sq. ft. was executed.  As per the construction agreement the possession shall be handed over on or before 31.1.2001 on failure the opposite party shall pay 9% p.m towards the damages. The learned counsel for the complainant contended that the opposite party has not handed over the possession as pre the stipulated time; but the complainant has not paid the amount in time as per agreement Ex.A1.  Hence the complainant is not entitled any amount towards either damages or rent as compensation.

10.    Further the learned counsel for the complainant contended that there are several deficiencies committed by the opposite party in the construction particularly the marbles laid on the floor are cracked and it should be replaced.  Equally the walls and ceilings has not been plastered smoothly and it should be rectified; the unseasoned low quality wood used for windows and doors resulting gaps it should be replaced.  Similarly the wash basin support angles have rusted, the wood work in kitchen was peeling off; bath room tiles were broken; taps in the master bed room were leaking should be replaced and the varandha grill was not provided and automatic re-router mechanism has not been provided to the lift to be provided.  The complainant further contended that the  Engineer appointed and inspected the property and submitted his report in detail.  But on a careful perusal of the agreement Ex.A1 all the deficiencies shall be rectified if it is informed to the opposite party within the period of six months.  In this case there is no record to prove that the complainant requested the opposite party for rectify the said defects.   On the other hand the cracks in the marbles are not correct.   The Engineer during cross examination admitted that the only small type of marble alone used.  Engineer has not stated anything about the cracks in the marbles.  Similarly smooth plastering of walls and ceiling cannot be accepted because while handing over the apartment the building was duly colour washed and handed over.  Similarly unseasoned wood has not been explained in this forum; even by the Engineer.  There is no record to prove that there are gaps in the  windows and doors etc.   as per agreement country wood can be utilized for such wood work.  

11.   The wood work in the kitchen admittedly made of by Medium Density Fiber wood.  The opposite party admitted it should be rectified but all other alleged deficiency in works are not in an timely matter but  imaginary.    Starter type switches; automatic re-router mechanism in the lift are all out of the agreement. 

12.     Further the learned counsel for the complainant contended that the opposite party has not handed over the receipts towards TNEB/Metro water/ sewerage for the plumping etc.; cannot be claimed by the complainant and it shall be handed over  to the association by the opposite party. Further the learned counsel for the complainant contended that the car parking space has not been provided as per agreement.   But admittedly the ground floor is utilized for commercial purpose using the public.   Even though the opposite party shall demarcate the car parking area to each owner.   

13.     The learned counsel for the complainant further contended that the claim of Rs.12,500/- towards excess amount paid for electricity connection; but the complainant has not produced any document.   Equally the complainant has not produced any document for such payment.  The complainant also has not proved in such  manner for claim towards mental agony.   The learned counsel for the opposite party contended that after execution of  Ex.A1 construction agreement and after due execution of sale deed for undivided share,  the complainant has not paid the amount as per the stipulation mentioned in the agreement.   Even though the opposite party fully constructed the  building and handed over to respective owners including the complainant.    The complainant and other owners after careful verification took possession of the irrespective apartments.  As per the agreement Ex.A1 the complainant and other owners are entitled to claim any deficiencies within six months;   But none of the parties has not raised any objection within six months.   Even then  the opposite party agreed and accepted to rectify the defects in proper time; but without considering the assurance the complainant and other apartment owners filed cases, after engaging and engineer without any notice to the opposite party and collecting the report from the Engineer unilaterally and filed this case.   Though the engineer during cross examination admitted very clear that he has not given any notice to the opposite party and has not noted the date of inspection and all other details.    Further the learned counsel for the opposite party contended that the marbles laid in the apartment are having cracks but the engineer during cross examination admitted very clear that the marbles laid are small type, but as per agreement in hall and dining room alone should be laid by marble; but the opposite party laid marble to the entire area.    The contention  that  the walls and ceiling have no smooth plastering are false.   Due plastering has been made in such manner and it is quoted with due colour wash. All other deficiencies particularly started type switches; automatic re-router mechanism, and low quality of electrical switches are not covered by the agreement.   Further the contention regarding shortage of 9 sq. ft. in the construction area never arise because 900 sq. ft. includes common area.   Even the unilateral Engineer’s report also is absolutely silent regarding such calculation.  Further the learned counsel for the complainant contended that the claim of Rs.15,500/- towards electricity connection charges is imaginary. There is no record also. Considering the facts and circumstances of the case this forum is of the considered view that  the opposite party shall carry out the work of polishing the marbles with appropriate materials covering the alleged cracks  if any and  car parking area to the respective appropriate owner with compensation of Rs.10,000/- and cost of Rs.5,000/- and the points are answered accordingly.

        In the result the complaint is allowed in part.  The opposite party shall carry out the work of polishing the marbles with appropriate materials covering the alleged cracks if any and ear mark the car parking area  to the apartment owners within one month  and also shall pay compensation of Rs.10,000/- (Rupees ten thousand only)  towards mental agony and cost of Rs.5,000/- (Rupees Five thousand only) to the complainants

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% p.a to till the date of payment.

           Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the16^thday  of  November 2017. 

                 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants’ side documents:

Ex.A1  8.2.2000    - Copy of Sale and construction agreement.

Ex.A2  19.3.2002  - Copy of letter from apartment owners.

Ex.A3  19.3.2002  - Copy of letter from apartment owners.

Ex.A4  15.4.2002  - Copy of letter from apartment owners.

Ex.A5  29.7.2002  - Copy of letter from opposite party.

Ex.A6  31.7.2002  - Copy of letter from apartment owners.

Ex.A7  16.8.2002 - Copy of letter from  opposite party

Ex.A8  11.9.2002  - Copy of letter from Apartment owners.

Ex.A9 24.12.2002         - Copy of letter from opposite party to association Members.

Ex.A10  17.2.2003         - Copy of Engineer’s Report.

Opposite party’s side document:     Nil   

 

MEMBER-I                        MEMBER-II                             PRESIDENT.