BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29th day of September, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.192/2008

Between

Complainants : 1. Thomas Kandoth,

Kandoth House,

Olamattom, Thodupuzha P.O,

Idukki District.

2. Sheeba Thomas,

Kandoth House,

Olamattom, Thodupuzha P.O,

Idukki District.

(Both by Adv: C.K.Vidyasagar)

And

Opposite Party : Benny.K.George,

Associated Building Consultants,

Kottarathara Building,

Idukki Road,

Thodupuzha, Idukki District.

(By Adv: V.C.Sebastian)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainants who are husband and wife, approached opposite party for designing a residential building for them in their 19 cents of land at Olamattom in Thodupuzha village. The opposite party who is an Architect discussed about the plan and fixed Rs. 10,000/- as fee for the same. The opposite party inspected the property and prepared a plan on 05.04.2005 got approval from Municipality for a building with an area of 3017.3 square feet and started the construction. Complainants requested to reduce the area below 3000 square feet in order to get rid of luxury tax . The opposite party then reduced an area of 110.83 square feet by changing the shape of the carporch. So the building was constructed with an area 2906.49 square feet. The complainants started living there in December 2007. Then the petitioners approached the opposite party for getting the completion plan in order to get the possession certificate from Municipality. The Electricity Connection availed was for construction purpose, which was in a high tariff. The possession certificate was necessary for changing the tariff of Electricity. The opposite party declined to give the completion plan even after repeated requests. The opposite party demanded another Rs. 5000/- for issuing the completion plan. Complainants were constrained to pay the amount and received the completion plan from opposite party. When the Building Inspector from the Municipality inspected the building it was found that an area of 250.17 square feet was increased in the completion plan, than the approved plan. So the petitioners requested the opposite party for changing the completion plan. But the opposite party replied that, only the porch area increased in the completion plan and it would not include in floor area. It was revealed by the complainants that the opposite party deliberately made mistake in the completion plan for getting excess fee. The complainants reduced the area of carporch even changing the shape of the building in order to escape from luxury tax, so they never construct the building with increase in area of 23.25 square mt. The opposite party never supplied the completion plan after curing the mistake till now. The long delay made the petitioners to pay heavy amount in Electricity Board because they cannot change the tariff of Electrical connection. So the petition is filed for getting a direction to issue the corrected completion plan and also for compensation.

2. As per the written version of the opposite party, it is admitted that the opposite party designed the residential building of the complainants and approval was got from Municipality. But the fee agreed was Rs. 25,000/-. As per approved plan, the area of the building was 3017.3 square feet. But the complainants never requested to reduce the area in the plan for excluding luxuary tax. When the complainant consulted with an expert in " Thachu Sasthram" for fixing the auspicious location of the building, upon his advice, the building was shifted to north, then the location of the Carporch encroached in to the land of the complainants' son, which is adjacent to their property. In order to limit the building in their on property they reduced the area of the Carporch, so the plan was changed according to them. A completion plan was also prepared and issued to the complainants, in which the increased area of the building also mentioned. The advance fee paid was Rs.10,000/- and the opposite party demanded for balance fee before issuing the completion plan. But the complainants paid Rs. 5000/-, received the the plan and assured to give the balance fee within two days . The complainants made delay to construct the "rain water collection tank" in the building, even repeated demands from 1st opposite party, caused the delay in submitting the completion plan before Municipality. The complainants never paid the agreed fee even after the issue of the completion plan.The complainants again made difference in the construction from the completion plan, so the Building Inspector noticed that the building was having an area which leads to pay luxuary tax. The petitioner requested the opposite party for another completion plan and told that the increased area was removed. But the opposite party demanded for balance fee for doing the same. The opposite party never increased the area in the completion plan. The completion plan was given as per the construction of the building . So there is no deficiency on the part of opposite party.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainants are entitled to?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P21 marked on the side of the complainants and the oral testimony of DWs 1 and 2 and Exts.R1 to  R13 marked on the side of the opposite party.
 

5. The POINT :- The only dispute is that whether the area in the completion plan issued by the opposite party was different from that of the original construction. The 1st complainant is examined as PW1. The plan prepared by the opposite party which was approved from the Municipality with the building permit is marked as Ext P1. The total plinth area(floor area) of the building is written as 232.90 m2. Copy of the completed residence plan is marked as Ext. P3 in which the total floor area is 256.15 square meter. PW1 deposed that he never asked about the estimate of the building at the time of preparing the plan. PW1 thought that it would came to Rs. 20 lakhs. PW1 is not aware whether the fee is calculating as per the percentage of the estimate of the building. In order to get relaxation from luxury tax, the area of carporch was reduced about 110 square feet and another plan was prepared. The approval from Municipality was not obtained for second plan. No separate fee was given for that plan. There was no supervision of the Architect in the construction. PW1 deposed that he had done construction in excess of the approved plan, in the dining room by 1 meter, on the kitchen side by 1 ½ meter, concrete construction was done with the permission of the Architect. In the roof work total 10 cm each was increased, in the length of shade. Building Inspector also told that there is excess of area in the completion plan than the approved plan. Fee was paid to the excess construction as Rs.150/- and the building was numbered. No notice was received for luxury tax. Now also the building has encroached to the property of the son at about 1 feet. The area of the carporch was reduced in the side of the property of the son. It is in the northern side. Ext. P4(series) is the copy of the Electricity bills. Ext.P18 is the copy of the information issued from Municipality as per Right to Information Act. Only because of the act of the opposite party, the complainants suffered a loss of Rs.62,463/-, loss of about Rs.7,163/- is caused due to the Electricity charges. It needed Rs.2,000/-for changing the tariff. Because of the assessment was not changed there is a loss of Rs.10,000/- caused because of tax. An amount of Rs.12, 000/- was charged as fine for income tax. The Provident fund of the employee was paid as Rs.6,000/-. PW2 is the Assistant Engineer, Building section, PWD, Thodupuzha, who is the expert commissioner. The report was marked as C1. PW2 deposed that there is no evidence found to show that the building was reconstructed. PW2 perused the completion plan as well as the permitted plan. There are difference between plans in the roof work, location and in area. In the wall of the family room there is a projection from the dining room about 2.06 meters.

As per the commission report the portion where excess area shown, where the damaged floor portion of the old building is found. The roof work extends to about 1.06 meter from the roof slab. From the brick wall of the family room, the roof extends upto 2.06 meter. At kitchen portion, projection of roof slab is 1.47 meter and projection from Varanda to tiled roof is 2.53 meter. There is no possibility of changes in the roof work. The roof extends to a distance of 1.06 meter from roof slab.

The opposite party is examined as DW1. Ext R2 is the plan prepared by the opposite party which is the approved plan. Several designs were shown to the complainant and his wife, and they selected the design as per Ext. R1. The estimate price was 24 lakhs. 1 % is the fee for designing. The fee was fixed as Rs. 25,000/. Another plan was prepared by changing the Carporch, which was by the request of the complainants because of the “Thachu Sastram”. Copy of which is Ext. R3. Roof work and kitchen side were extended. Copy of the completion plan is marked as Ext. R11, it was given to Municipality. The Building Inspector cited the difference in plan and so penalty was imposed. Copy of the Municipal file is marked as Ext. R13. Complainant's brother who is a Chartered Accountant is the friend of the opposite party. So the completion plan was given even after receiving Rs.15,000/-. The opposite party never agreed to prepare a plan without demolishing the excess construction. The rain water collecting tank was not constructed. Hence there was a delay for submitting completion plan. The Building Inspector was examined as DW2. As per DW2 deposed that when he inspected the building of the complainant, it was seen that there was excess construction than the approved plan. The building was constructed as per the completion plan. It was told to pay penalty for excess construction and only after that, number was given to the building. The copy of the penalty proceedings is Ext.R13. Complainant paid the penalty. By perusing the evidence of PW1, he himself admitted that there was some excess construction done in the building than the approved plan. It is also reported by the PW2, the commissioner and also DW2, the Building Inspector. As per the complaint the Carporch area was reduced because of the fear of luxury tax. It is also admitted by the complainant that he understood that the Carporch area will not consider in the calculation of the luxury tax. As per opposite party the completion plan was prepared as per the construction of the building and the delay caused for producing the same was because, the complainants made delay in the construction of the rain water collection tank, which is absolutely necessary as per the present rule. The complainant submitted that he caused a heavy loss of money because of electricity charge, due to the difficulty in tariff change, because the building number was not obtained. But as per DW2 Building Inspector the number was given only after the payment of penalty because there was excess construction than the original plan. So we think that, there is no deficiency from the part of opposite party.
 

Hence the petition dismissed.

Pronounced in the Open Forum on this the 29th day of September, 2009
 

Sd/-

SRI. LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT. SHEELA. JACOB(MEMBER)

Sd/-

SMT. BINDU. SOMAN(MEMBER)

APPENDIX

On the side of Complainant :

PW1 - Thomas Kandoth

PW2 - Shali K.H

On the side of Opposite Parties :

DW1 - Benny.K.George

DW2 - C.K.Babu

Exhibits:

On the side of Complainant:

Ext.P1 - Photocopy of Building Permit dated 5.04.2005

Ext.P2 - Photocopy of Approved Plan

Ext.P3 - Photocopy of Completed Residence Plan

Ext.P4 - Photocopy of Electricity Bills(5 Nos)

Ext.P5 - Photocopy of complainant's notice dated 13.06.2008

Ext.P6 - Photocopy of opposite party's reply notice dated 21.06.2008

Ext.P7 - Photocopy of Notice dated 26.08.2008 issued by the Secretary, Thodupuzha

              Municipality under the Right to Information Act, 2005

Ext.P8 - Photocopy of Complainants' letter dated 3.06.2008 addressed to the

              Municipal Secretary, Thodupuzha

Ext.P9 - Photocopy of complainants' letter dated 10.06.2008 addressed to the

             Municipal Council, Thodupuzha

Ext.P10 - Photocopy of Information given by the Public Information Officer,

                 Thodupuzha Municipality dated 24.11.2008 under Right to Information Act, 2005

Ext.P11 - Photocopy of Information given by the Public Information Officer,

Thodupuzha Municipality dated 06.01.2009 under Right to Information Act, 2005

Ext.P12 - Photocopy of Floor Plan, Section & Elevation

Ext.P13 - Photocopy of Plan

Ext.P14 - Photocopy of Notice of Demand No.C1/5450/2008 dated 22.12.2008 of

                Tahsildar, Thodupuzha

Ext.P15 - Photocopy of Sale Deed in favour of complainants' son

Ext.P16 - Photocopy of Completion Certificate by Architect

Ext.P17 - Fee Receipt dated 21.01.2009 for Rs.2,500/- received by Adv:P.L.Johnson

Ext.P18 - Photocopy of Information given by the Public Information Officer,

Thodupuzha Municipality dated 24.11.2008 under Right to Information Act, 2005

Ext.P19 - Calculation in I(a) tariff received from the Senior superintendent,

Electrical Section No.1, Thodupuzha

Ext.P20 - Electricity Bill dated 29.01.2009 for Rs.2,351/-

Ext.P21 - Tax Levy List

Ext.C1 - Commission Report

On the side of Opposite Parties :

Ext.R1 - Residence Plan

Ext.R2 - Approved Plan

Ext.R3 - Residence Plan – changing the carporch

Ext.R4 to R10 - Plans(6 Nos)

Ext.R11 - Completion plan

Ext.R12(series) - Plans for Tress Work(5 Nos)

Ext.R13 - Certified copy of Municipal file