BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 464/2000 Filed on 23.08.2000

Dated : 15.07.2009

Complainant:

Easow Kurian, Lakethu House, Elanthoor East P.O, Elanthoor Village, Pathanamthitta presently residing at P.O. Box 655, Salalite Town, Nigeria.

(By adv. Rajeev. S.S)

Opposite party:

C.N. George, Managing Director, Rubicon Fabrication Ltd., Medical College P.O, Rubicon Mansions, Ulloor, Thiruvananthapuram.

(By adv. K. Krishna Kumar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 30.12.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 30.05.2009, the Forum on 15.07.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant entered into an agreement with the opposite party for the purchase of a residential flat in Rubicon Fabrication Ltd., that complainant had paid entire consideration of Rs. 14,02,500/- of the said flat to opposite party as per the agreement, that opposite party agreed to deliver the said flat by December 1996 and that opposite party did not deliver the vacant possession of the same as agreed. Thereafter opposite party informed the complainant that the flat would be ready by 1^st April 1997. Complainant came to India with his family to take possession of the said flat in 1997. But on inspection it was found that the entire construction of the flat was not completed and even electricity connection was not availed or provided in the flat, that the flat was not constructed as per the terms of the agreement and construction was of poor quality, several cracks were present of the walls due to the poor quality of plastering and carpentry works were also of cheap quality. Complainant informed the matter to the opposite party and opposite party assured that the said work would be completed within a short time. Complainant left India on the said assurance. Since then there was no proper action from the part of opposite parties. Complainant wrote several letters and made telephonic calls to opposite party enquiring about the completion of the flat and rectification of the defects. At last during January 2000 complainant took possession of the flat under protest as the defects in the construction of the flat were not properly rectified. Non-completion and transfer of vacant possession of the flat within the stipulated time is gross deficiency in service on the part of the opposite party. Complainant has suffered much financial loss and mental agony from the action of the opposite party. Hence this complaint to direct the opposite party to pay Rs. 1,00,000/- towards compensation and costs of the complaint.

Opposite party entered appearance and filed version contending that the complaint is barred by limitation, that complainant entered into an agreement with the opposite party for the purchase of the said residential flat, that opposite party was willing to handover the flat No. C-4 to the representative of the complainant in the month of December 1996 itself as agreed upon with the complainant, that the representative of the complainant however did not accept the key of the flat for want of instructions from the complainant who was then living abroad in Nigeria. The claim of the complainant that he had written several letters and made telephonic calls enquiring about the completion of the flat and rectification of defects is nothing but false. Complainant took control of the flat in the year 1997 itself. Thereafter the control of the said house was in the hands of the workers of the complainant. Hence opposite party cannot be held responsible for the latches on the part of the workers of the complainant. There is no deficiency in service on the part of the opposite party. Complainant did not suffer any loss and so there is no question of compensation and opposite party is not at all liable to pay any compensation to the complainant. Hence opposite party prayed for dismissal of the complaint with compensatory cost.

The points that arise for consideration are:-

1. Whether the complaint is barred by limitation?

2. Whether there is deficiency in service in the construction and delivery of flat?

3. Whether the complainant is entitled to get any relief claimed?

In support of the complaint, complainant's power of attorney holder has filed affidavit and Exts. P1 to P3 and C1 were marked. Complainant's P/A holder has not been cross examined by the opposite party. In rebuttal, opposite party has filed affidavit. Opposite party did not file any documents. Though opposite party has filed objection to commission report, expert commissioner has not been examined by the opposite party.

Points (i) to (iii):- Admittedly, complainant had entered into an agreement with the opposite party for the purchase of a residential flat in Rubicon Mansions, Ulloor, Thiruvananthapuram. It has been the case of the complainant that he has paid the entire consideration of Rs. 1402500/- of the said flat to opposite party as per the agreement. Neither the complainant nor the opposite party has mentioned the date of the said agreement. Submission by the complainant is that the opposite party had agreed to deliver the vacant possession of the fully built flat by December 1996. Opposite party submits that they were willing to hand over the same in the month of December 1996 itself as agreed upon with the complainant; and that representative of the complainant did not accept the key of the flat for want of instructions from the complainant. It has been contended by the complainant that opposite party did not complete the construction of the flat by December 1996, that on enquiry opposite party informed that the said flat would be ready by April 1997 and that on inspection by the complainant in April 1997, it was found that the entire construction of the flat was not completed and even electricity connection was not availed or provided in the flat, that the flat was not constructed as per the terms of the agreement, several cracks were present on the walls due to poor quality of plastering and the carpentry works were also of cheap quality, that complainant informed the same to the opposite party who assured that the work would be completed within a short time. Submission by the complainant is that complainant took possession of the flat during January 2000, under protest as the defects in the construction of the flat were not properly rectified, that the opposite party could provide the electricity facility in the flat only by the end of 1998. Ext. P1 is the copy of the letter dated 22.11.1999 addressed to opposite party by the complainant informing him of the delay in completing and handing over the flat to the complainant. Ext. P2 series are the copies of the receipts issued by the KSEB to consumer No. 8908 in the year 1998 and bill dated 21.12.1999. Evidently from Ext. P2 series it is seen that electricity was provided in the flat in 1998 only. The onus of proving the delivery of the flat would rest on the opposite party. Opposite party never furnished any documents to prove the delivery of the flat by April 1997 itself nor did opposite party furnish the copy of the agreement also. Evidently by Exts. P1 & P2 we hold that the said flat was not completed and delivered by opposite party to the complainant in time and that there was delay in completing and delivering the same. If that be so, we find cause of action being continued and hence complaint is not barred by limitation.

Both parties admit agreement. The terms of the agreement not furnished by both parties. In the absence of the document showing the terms of the agreement it will be difficult to ascertain the quality of the construction. Ext. C1 is the expert commission report. As per Ext. C1, the flat in question is seen thoroughly examined by the expert commissioner. According to the expert i) a diagonal crack in the wall in between the two rear bed rooms is seen sealed. Though the crack would not adversely affect the structural stability of the wall, sealing the crack is very well visible and give a bad look; ii) vertical hair line cracks are seen developed in wall adjacent to Aluminium windows, these are appeared to be temperature cracks; iii) one crack seen in roof slab in left side bed room is also seen repaired and iv) hairline cracks are seen in the balcony slab. Other defects noted by the expert include (i) bathroom wall on the side of service chamber is seen wet; (ii) In case of Aluminium door, there is small gap between the door frame and shutter affecting the privacy of bed rooms and (iii) the quality of pointing works to the mosaic tiles flooring as well as a dadoing works in bath rooms with ceramic tiles are not up to the required standard. Expert has ascertained the losses due to defects which are as follows:

1. Dismantling and reconstructing the wall in which

   crack was developed. Rs. 4500

2. Redoing the pointing to mosaic tile flooring Rs. 2005

3. Replacing the defective Aluminium shutters

   (Original cost and fitting charge of new one

   minus the resale value of existing one) Rs. 5500

4. Miscellaneous rectification works Rs. 1750

------------------

Total Rs. 13755/-

==========

It is to be pointed that as per Ext. C1, that, in general, the structural stability of the framed structure (RCC structure consisting the columns, beams and slabs) housing colony is found to be constructed under sound engineering principles and standard workmanship and the construction materials used and workmanship cannot be said to be of defective nature in flat under dispute. Though opposite party had filed objection to commission report, opposite party did not attempt to examine the commission to prove the authenticity/validity of the CR. Hence we are inclined to accept the Ext. C1 Commission Report as such. According to the commission, the defects found of curable within two weeks and the total cost of repairing the defective works is found to be Rs. 13755/-. He has further stated in Ext. C1 that he has depended the PWD schedule of rates of material and labour as well as rates prevalent locally for valuing the rectification works. In the light of Ext. C1 commission report, we find there is deficiency in service on the part of opposite party in the construction work of the flat and its delivery to the complainant. No purpose will be served if opposite party is directed to cure the said defects after a lapse of more than 10 years of its construction. Taking into consideration of totality of circumstance, we are of the considered opinion that justice will be well met if complainant is granted an amount of Rs. 13,755/- towards losses due to the defects as stated in Ext. C1 report.

In the result, complaint is allowed. Opposite party shall refund an amount of Rs. 13,755/- to the complainant towards the amount of losses due to the defects. Opposite party shall also pay a sum of Rs. 5,000/- towards compensation and Rs. 3,500/- towards cost of the complaint. The said amounts will carry interest, if not paid within two months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of July 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 464/2000

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 22.12.1999 issued by the complainant to the opposite party.

P2 - Copy of receipts.

P3 - Copy of advocate notice dated 05.06.2000 issued to the opposite party.

P3(a) - Acknowledgement card dated 07.06.2000 and postal receipt.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT

C1 - Commission Report dated 06.06.2002.

PRESIDENT