Tamil Nadu

StateCommission

FA/211/2013

R. GUNASEKARAN - Complainant(s)

Versus

C. PRAKASH - Opp.Party(s)

V. SRINIVASA BALU

22 Apr 2015

ORDER

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

BEFORE:  HON’BLE THIRU JUSTICE R.REGUPATHI,         PRESIDENT

                                                                THIRU.J.JAYARAM,                                             JUDICIAL MEMBER.

                                                                TMT.P.BAKIYAVATHY                                         MEMBER.

                                                                                              F.A.No.211/2013

(Against the order in C.C.No.253/2010, dated 22.01.2013 on the file of

DCDRF,Coimbatore.)

                                                                          DATED THIS THE 22^nd DAY OF APRIL 2015.                                                                                          

R.Gunasekaran,

S/o. Ramasamy,

52, Ramachandra Nagar,

Ondipudur,

Coimbatore – 641 016.                                 Appellant/Complainant

                                             Vs

C. Prakash,

S/o. Chinnathambi,

54, Thippae Gounder Street No.3,

OndipudurPost ,

Coimbatore – 641 016.                                  Respondent/Opposite Party

 

Counsel for Appellant/Complainant           :  M/s. V. Srinivasa Babu

Counsel for Respondent/Opposite Party    :   M/s. A. Thiyagarajan

                   This appeal coming before us for final hearing on 13.02.2015 and on hearing the arguments of both sides and upon perusing the material records this Commission made the following: 

ORDER

Thiru. J. JAYARAM,JUDICIAL MEMBER.

1.                This appeal is filed by the complainant against the order of the District Forum, Coimbatore in C.C.No.253/2010 dated 22.01.2013, dismissing the complaint.  

2.                The case of the complainant is that he engaged the opposite party for construction of a house for him but the opposite party constructed the house using substandard quality materials and the building was not constructed as per the approved plan though the complainant paid a sum of Rs.39,50,000/- to the opposite party which amounts to deficiency in service on the part of the opposite party and hence the complaint.

3.                According to the opposite party, the complainant purchased the property only as fully constructed building and only on being satisfied with the construction and the materials he purchased the building which was already fully constructed and that there is no deficiency in service on his part. The complaint does not come under the purview of Consumer Protection Act.

4.                The District Forum considered the rival contentions and dismissed the complaint, holding that there is no deficiency in service on the part of the opposite party.  Aggrieved by the impugned order the complainant has preferred this appeal.

5.                The main contention of the complainant/appellant is that he purchased the property and only later the building was constructed by the opposite party/respondent.

6.                Per contra the contention of the opposite party/respondent is that the complainant purchased the property with the building/house already constructed and the complainant purchased the fully constructed house.

7.                On perusal of Ex.A1 dated 06.02.2008, and Ex.A6 dated 05.06.2008 which are the relevant records to decide the point whether the complainant purchased the fully constructed building from the opposite party or whether the property was sold to the complainant as a vacant site by the opposite party. Ex.A1 is the sale agreement and Ex.A6 is the sale deed.

8.                The opposite party submits that Ex.A1 is not a construction agreement and so we are not supposed to place reliance on Ex.A1 to ascertain whether the property was sold as a vacant site or with constructed building. This contention is untenable.

9.                The recitals in the documents Ex.A1 and A6 clearly establish that the property was sold by the opposite party to the complainant as a vacant site with the ongoing construction and that it was not sold to the complainant as a fully built up construction, and whatever be the caption of the document we have to go by the recitals in the documents.

10.               Another argument advanced by the opposite party is that he availed loan from GIC Financing Corporation to construct the building which is evidenced by Exhibits B4, B5 and B6 which are the copy of GIC Housing Finance loan offer letter, copy of GIC Housing Finance disbursement letter, and copy of GIC Housing Finance receipt voucher respectively, to show that the building was constructed even before the sale to the complainant. The loan – related documents cannot be accepted in preference to the recitals in the agreement Ex.A1 and the sale deed Ex.A6.

11.               The further contention of the opposite party in this regard would be that it was sold to the complainant showing it to be a vacant site only for the purpose of evading stamp duty for the registration of the document and we cannot accept such an explanation that it was done so, for the purpose of evasion of stamp duty which is an unsustainable reason.

12.               Therefore, we hold that the complainant/appellant purchased the property and only thereafter the building was constructed by the opposite party and the contention of the opposite party/respondent that he sold the fully constructed house to the complainant cannot be accepted and is untenable. We further hold that the complainant is a consumer and that the complaint comes under the ambit of the Consumer Protection Act.

13.               In the report Ex.C2 filed by the Chartered Civil Engineer along with the Commissioner’s report Ex.C1, under the heading physical features, the above Engineer has pointed out the various defects in the construction of building, and it clearly establishes the deficiency in service on the part of the opposite party in the construction of the building.

14.               The further contention of the complainant is that the house was not constructed as per the approved plan and also that the building was constructed with substandard quality materials. In this context we have to peruse the reports of the Engineers and the report of the Advocate Commissioner. The complainant has engaged one Engineer Panaiappan and according to him the total cost of the building would be  Rs.15,01,971/- and one Engineer Dhanasekaran who has inspected the property along with the advocate Commissioner has filed his report wherein he has assessed the value of the building at Rs.22,83,270/-. At the instance of the opposite party one Engineer Pichaiya has filed his report wherein he has estimated the total value of the property at Rs.39.27 lakhs.

15.               It is further pointed out by the opposite party that legal notice was sent to him by the complainant only after 18 months after registration of the sale deed.  It is seen that the complainant has waited for some time and only after rainy reason he could ascertain the various defects in the construction.  However, we find that the complaint is filed within the period of limitation. Therefore the delay in issuing notice to the opposite party need not be attached much importance.

16.               It is pertinent to note that in the report Ex.A11 of Engineer Panaiappan, filed on the complainant’s side the value of the vacant site is not included and has assessed the value of building at Rs.15,01,971/-. It is further pertinent to note that in the report Ex.B1 of one Engineer Pitchaiya filed on the side of the opposite party it is quite apparent on the face of it that, it does not reflect the correct position. The above Engineer was cross examined and on considering his report and his evidence in the cross examination we find that his report is totally misleading. In these circumstances it would be just and proper to assess the value of the property placing reliance on the report of Engineer Dhanasekaran filed along with the advocate Commissioner’s report and accordingly we fix the total value of the property with the fully constructed building  at Rs.22,83,270/-.

17.               According to the complainant he has paid a total sum of Rs.39,50,000/- to the opposite party and according to the opposite parity the complainant paid Rs.1,00,000/- less than Rs.39,50,000/- and he received only Rs.38,50,000/-. It is stated by the opposite party that a sum of Rs.1,00,000/- was deducted by the complainant towards payment of vacant land tax of Rs.64,150/- and water tax connection charges of Rs.12,000/-. We are of the view that the deduction of Rs.1,00,000/- is unwarranted. Therefore the amount paid to the opposite party by the complainant is Rs.38,50,000/- only. Therefore the amount payable by the opposite party to the complainant is Rs.38,50,000/-less Rs.22,83,270 = Rs.15,66,730/.

18.               The District Forum has erred in dismissing the complaint holding that the property was sold by the opposite party to the complainant as a fully constructed house and that the complaint is not maintainable, in view of the fact that there is no construction agreement between the parties specifying the terms and conditions and that there is no deficiency in service on the part of the opposite party. In view of our finding otherwise, the order of the District Forum in dismissing the complaint is to be set aside.

19.              In the result the, appeal is partly allowed setting aside the order of the District Forum and directing the opposite party to pay a sum of Rs.15,66,730/-(Rupees fifteen lakh sixty six thousand seven hundred and thirty only)with interest at the rate of 9% per annum from the date of filing of the complaint (viz.,04.05.2010)till realization, towards compensation for the defective construction of the building and the deficiency in service on the part of the opposite party and to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) as compensation for mental agony, and to pay costs of Rs.5000/ (Rupees five thousand only).

          Time for compliance – Two months from the date of receipt of copy of this order.

 

P.BAKIAVATHY                  J.JAYARAM                          R.REGUPATHI

      MEMBER                             (J)MEMBER                                   PRESIDENT