This case is coming for final hearing on 03.12.2014 in the presence of Sri D.V.V.R.Pratap Advocate for the Complainant and of Sri S.Rama Rao Advocate for Opposite Party No.3, Opposite parties 1 & 2 called absent and set exparte and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1.       The case of the complainant is that he purchased the Flat bearing No.201 with a plinth area of 900sft along with peace and parcel of the site measuring 34sq.yds inclusive all balconies, common area and parking of 100sft. Which is situated in stilt floor of Morya Enclave in S.No.39 situated at Tenneti Nagar in GVMC from the opposite party on 07.01.2011 by way of paying a sale consideration of Rs.13,00,000/- and the opposite parties had executed the sale deed bearing No.51/2011 in favour of the complainant and delivered vacant possession to that effect. The complainant occupied the said flat recently and he had his own car and as per diagram of car parking area towards north-east corner in the stilt area but the opposite parties allotted slot for car parking of the complainant towards north-west corner of the stilt area and on southern side of the complainant’s slot the opposite parties allotted car parking slot to another purchaser and further he had allotted another slot towards western side of the complainant’s southern side neighbours car parking area, in view of the said allotment, the complainant is unable to move his car from east-west and north-south due to that the complainant is unable to move freely from east-west and in fact the said northern slots and southern slots are surrounded by 4 pillars and western side of the opposite parties constructed a compound wall, in view of that also there is no possibility to move his car.  Recently the complainant got measured the car parking through the licensed engineer by name D.Sudarsan Rao and he supplied the report which shows that the said measurement of the said car parking plinth area is 79.58sft instead of 100sft. 

2.       The complainant stated that the opposite parties collected the entire sale consideration from the complainant, which includes the car parking area, but the opposite parties did not allotted the proper car parking area to the complainant which results the complainant suffering with lack of proper car parking and inconvenience which clearly shows the deficiency in service on the part of the opposite parties.  The Complainant issued a legal notice on 29.09.2011 to the opposite parties by demanding them to allot the proper car parking area but the acknowledgment of opposite parties had not received.  Then, the counsel of the complainant wrote a letter to the Superintendent, Head Post Office to intimate whether the opposite parties received the legal notice or not on 22.12.2011 and in turn the Head Post Master gave reply that the opposite parties have received the notice on 10.10.2011.  But there is no necessary action was taken by the opposite parties, hence this complaint to direct the opposite parties;

a)      to allot the proper car parking area of 100sft in the stilt floor of Morya enclave, Visakhapatnam towards north-east corner of the entire apartment instead of already allotted congested car parking area of 79.58sft slot towards north-west corner of the entire apartment.

b)      to pay compensation amount of Rs.50,000/- besides costs of Rs.10,000/-.

3.       On the other hand, the opposite parties 1 & 2 called absent and set exparte, 3^rd opposite party filed its counter and denied all the allegations mentioned in the complaint but admitted about the purchase of Flat bearing No.201 with a plinth area of 900sft in Morya Enclave for an amount of Rs.13,00,000/- on 07.01.2011 and pleaded that the 1^st and 2^nd opposite parties executed a Sale Agreement in favour of the 3^rd opposite party and she executed the sale deeds in favour of purchasers of respective flats and she is also builder of the said apartment.  The 3^rd opposite party pleaded that at the time of purchase of flat by the complainant, the construction of the said apartment was completed by 80% and only after being satisfied with the construction and other amenities in the cellar area, he purchased the Flat and this opposite party had shown to the complainant, the parking slots that are available as on the date of booking of flat by the complainant and also informed the complainant that the parking slots are allotted on first come first serve basis as per the parking slots available at the time of booking the flats and accordingly, he choosed the said parking slot then i.e., allotted to him.  The complainant is the 10^th purchaser of the flats in the said Morya Enclave, the sale consideration is only towards flat purchased by the complainant, the car parking is shown in the schedule.  The complainant cannot take advantage on the premise that the car parking also part of the schedule and claimed that the measurements of the parking slot are not in terms of the document.  In fact, the associations are supposed to demarcate the car parking slots.  This opposite party did not charge for parking as it is common area.  The 3^rd opposite party is stated that he came to know from the purchaser of Flat No.302 that the complainant is parking his car in the parking slot allotted to Flat No.302 and also erased the number 302 in the said parking slot and marked his flat No.202 in the said parking slot and when the same was noticed by the owner of the said Flat No.302 when he occupied his flat, he immediately informed the same to this opposite party and also to the residents of other flats in the said building.  The flats in Morya Enclave were occupied by the respective owners after registration the said extent of 100sft as mentioned in his sale deed is only error and the complainant got measured the parking slot allotted to him before purchase of flat and he is aware of the fact that the extent of parking slot is approximately 80feet but not 100sft.  Some of the flat owners have more that 100sft towards parking slot, but the extents of parking slots in the respect of those purchasers were shown as 100sft only though the actual extents are more than 100sft, the complainant is well aware of the same and he also knows that is parking area is around only 80sft, but he issued a lawyer’s notice with ulterior motive and after receiving notice the opposite party contacted him and questioned as to why he got issued a notice as he is aware of the actual measurements of the parking slots. 

4.       At that time, the 3^rd opposite party asked the complainant, that if he is not satisfied with the allotment, the opposite party is prepared to repay the sale consideration with bank interest, at that instance this opposite party provided parking slot like the parking slots which are allotted to three other flat owners.  The Flat owner of Flat No.401 is having similar parking slot as that of the complainant, he also physically verified the measurements and agreed for that and these two parking slots are last allotted in the parking areas.  Thus, even after arranging separate parking slot the complainant filed the complaint suppressed the material facts.  Hence, there is no deficiency of service on the part of the 3^rd opposite party.  More over, the complainant is not residing in the said flat and the same was leased out to a tenant who is not having a car and the allotment to the car parking to the complainant in the shed is quite spacious and free access to parking the four wheelers and it cannot be any difficulty to park his vehicle or there is an access to come out of the parking area freely like the other vehicles.  The opposite party pleaded that she has prepared to buy back from the complainant after repaying the sale consideration plus bank interest, as the complainant is unnecessarily harassing him by resorting frivolous litigation.  Hence the complaint is to be dismissed.

5.       At the time of enquiry, the complainant filed his evidence affidavit along with documents which are marked as Exhibits A1 to A14.  On the other hand, the 3^rd opposite party filed its counter and evidence affidavit along with documents which are marked as Ex.B1 & B2.  The complainant also filed his written arguments, treated no written arguments for opposite party.  Both the counsels were heard who reiterated their versions. 

6.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite parties, if so can the complainant entitle for the reliefs prayed for?

7.       Exhibit A1 is the Sale Deed dated 07.01.2011 which was executed by the opposite party to the complainant is not in dispute.  Ex.A2 is the diagram of parking area allotment in Morya Enclave, Visakhapatnam which was signed by S.Usha Rani i.e., 3^rd opposite party.  Ex.A3 is the approved plan of the entire premises dated 26.05.2008 which is not disputed by the opposite party.  Ex.A4 is the copy of the report of licensed engineer D.Sudarsana Rao wherein, it shows the car parking of Flat No.201 is 79.58sft.  Ex.A5 is the legal notice issued by the complainant to the opposite party dated 29.09.2011 and Ex.A6 is the postal receipt dated 08.10.2011 of Ex.A5.  Ex.A7 is the letter issued by the complainant to the post master on 22.12.2011 regarding the information obtained by the complainant that the opposite party received the legal notice or not. Ex.A.9 is the reply letter from the post master on 31.12.2011 stating that the said registered letter was delivered on 10.10.2011.  Ex.A10 is the photographs along with CD.  Ex.A11 is the Agreement for sale wherein it was mentioned in page-5 under schedule of property that the Flat No.201 with a plinth area of 900sft inclusive of common areas in the first floor and car parking of 100sft in stilt floor of Morya enclave.  Ex.A12 & 13 are the Photostat copies of cheques bearing No.572249 and 572250 for an amount of Rs.13,00,000/- and Rs.2,91,182/- respectively.  Ex.A14 is the power home sanction letter wherein an amount of loan was mentioned as Rs.16,35,000/-. 

8.       The 3^rd Opposite party’s main plea is that the complainant purchased the flat after satisfied with the construction and other amenities in the cellar area and the parking slots are allotted on first come first serve basis and more over, he choosed the said parking slot which is allotted to him.  The sale consideration is only towards flat purchased by the complainant and the measurements of the car parking is in terms of the document, but it is to be noted that, in Ex.A1 and A.11 sale deed and Sale Agreement wherein it clearly shows about the car parking of 100sft in the stilt floor in page Nos.8 & 5 respectively.  Ex.B1 is the photographs showing the parking slot and Ex.B2 is the certificate of Encumbrance of property.  Ex.B3 is the Photographs of car parking area. The opposite party’s main contention is that there is sufficient car parking and that too after verification and satisfaction only, the complainant occupied the flat and he knows that some of the flat owners have more than 100sft towards parking slot some are less than 100sft and the complainant was fully known that his parking is only 80sft more over the sale consideration was only towards flat purchased by the complainant not for the car parking.  But in Ex.A1 i.e., Sale Deed in page-8 it was clearly mentioned that “the extent of flat is 34sq.yds with a plinth area of 900sft and car parking of 100sft”.

9.       The other plea of the opposite party is that by the owner of Flat NO.302 Opposite party came to know that the complainant is parking his car in the parking slot allotted to Flat No.302 and erased the Flat No.302 in the said parking slot and marked his Flat No.201 in the said parking slot and the same was noticed by the owner of the Flat No.302 and he informed the same to the 3^rd opposite party, but as per Ex.A2 i.e., the parking area allotment given by GPA holder S.Usha Rani i.e., 3^rd opposite party with her signature, where in it clearly mentioned in that, that north-east corner is car parking for Flat no.201, but the opposite party allotted car parking in North-west corner to complainant.  More over, the opposite party not filed any affidavit by the owner of the Flat No.302 regarding the erasing the slot numbers by the complainant.  In the evidence affidavit filed by Opposite party No.3 in Page No.3 para-7, opposite party No.3 stated that she filed the affidavit by the owner of Flat No.302 to support her contention.  But there is no affidavit by the owner of Flat No.302 filed by the 3^rd opposite party as mentioned in her evidence affidavit.  Thus she failed to substantiate her plea.

10.     The other plea of the opposite party is that the complaint is not maintainable and not come under Consumer Protection Act, but in our view, if there is any deficiency of service on the part of the builder in the construction as well as the allotment of car parking as per the specifications, the complainant can file the complaint under Consumer Protection Act and the Forum has jurisdiction. 

11.     It is to be noted that the opposite party had executed the sale deed on 07.01.2011 and after occupation, the complainant within 8 months issued a legal notice to the opposite party i.e., Ex.A5 regarding the allotment of car parking towards north-west corner instead of north-east corner.  Hence, the Forum is of the view that immediately after the occupation of the flat by the complainant, he came to know about the inconvenience in the car parking and requested the opposite party to allot the car parking as per the parking area allotment which was issued by the opposite party and more over as per Ex.A4 i.e., report of the licensed engineer wherein, it clearly mentioned that Flat No.201 car parking area is 79.58sft, but the opposite party agreed in her sale agreement as well as in Sale Deed to allot 100sft of car parking, but she failed to do so. 

12.     The Forum watched the CD in the laptop regarding the car parking which was allotted by the opposite party to the complainant and came to know that car parking is very congestive to get the car out and to park the car in, as third side of the car parking there is allotment of parking for another car and one side it is wall, hence, the Forum came to know that if there are no cars then only the complainant can park the car easily.  If there is any car besides his parking place, it is not easy to get the car out or park the car in as it is very narrow because of the pillars also.  That too, the opposite party herself agreed to allot 100sft for car parking, but failed to do so, which clearly shows the deficiency in service on her behalf. 

13.     Ex.A2 is the crucial document which was issued by the opposite party herself to know that car parking which was allotted to the complainant is very congestive.  The opposite party pleaded that the complainant is not residing in that flat and he leased that flat to others whatever it may be as per the terms and conditions the opposite party has to allot the car parking as agreed in the document.  Hence, in our view, the opposite party has to allot the car parking as per Ex.A2 to the complainant.  More over, the opposite party did not deny about Ex.A2. Hence, there is liability of opposite party regarding the allotment of car parking as per Ex.A2. 

14.     Non allotment of car parking as per acceptance given by the opposite party caused severe mental agony to the complainant is probable, hence, the complainant can entitle the compensation of Rs.10,000/- from the opposite parties.

          Accordingly, this point is answered.

15.     In the result, the complaint is allowed directing all the opposite parties to allot the proper car parking area of 100sft in stilt floor towards north-east corner of the apartment instead of already allotted car parking area of 79.58sft. towards north-west corner of the apartment to the complainant and the opposite parties are further directed to pay Rs.10,000/- towards compensation besides costs of Rs.2,000/-. Time for compliance 30 days from the date of receipt or order.

 Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 23^rd day of December, 2014.

      Sd/-                                                                                                 Sd/-

Member                                                                 President (FAC)

                                                                   District Consumer Forum-I 

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

    Sd/-                                                                                                   Sd/-

Member                                                                  President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

//VSSKL//