Date of filing:7.10.2013
Date of Disposal:16.4.2014
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II::
VIJAYAWADA, KRISHNA DISTRICT.
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
WEDNESDAY, THE 16TH DAY OF APRIL, 2014.
C.C.No.161 OF 2013.
Between :
Narayana Anjaneyulu, S/o Suryanarayana, Hindu, 50 years, R/o D.No.41-20/3-87, Vallurivari Street, Krishnalanka, Vijayawada – 13.
….. Complainant.
And
Dasari Hanumantha Rao @ Anil Kumar, S/o Siddaiah, Hindu, 48 years, Proprietor of Sri Sai Builders, R/o D.No.41-5-75, Old Police Station Road, Krishnalanka, Vijayawada – 13.
…..Opposite Party.
This complaint is coming before us for final hearing on 4.4.2014 in the presence of Sri G.Rajesh Kumar, Counsel for complainant and Sri D.Anil Kumar, Counsel for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Smt N. Tripura Sundari)
This complaint filed under Section 12 of the Consumer Protection Act, 1986.
The averments of the complaint in brief:
1. The complainant and the opposite party entered into a development agreement on 19.8.2010 to construct flats in the property of the complainant on 50:50 ratio. At the time of agreement the complainant and the opposite party entered into a memo of understanding mentioning specifications i.e., structure, walls, cement, iron, bricks, flooring, wall putti, doors, windows, painting, lift, electrical, kitchen, cupboards etc. The opposite party mentioned in the agreement that he will provide Everest or Apple Company lift to the apartment complex. The opposite party constructed the flats and handed over the possession of the same to the complainant on 3.5.2012. But contrary to the agreement the opposite party provided Royal Company life instead of Everest or Apple Company, which is an inferior quality and giving troubles frequently. The complainant is suffering from knee pains while using stair case. The complainant has to wait long time to get repair of the lift. Under the said circumstances the complainant issued a notice calling upon the opposite party to provide Everest or Apple Company Lift in place of Royal Company which is sub-standard one and to pay compensation. The opposite party issued reply notice with all false allegations without questioning the genuine request of the complainant. Hence the complainant is constrained to file this complaint against the opposite party praying the Forum to direct the opposite party to provide Everest or Apple company lift in the building of the complainant, to pay Rs.1,00,000/- towards for mental agony and to pay costs.
2. The version of the opposite party is in brief:
The opposite party denied all the allegations of the complaint and submitted that the construction was made by the opposite party under the development agreement dated 19.8.2010 in an extent of 410-6/9 sq.yds. From this extent 15-6/9 sq.yds towards South Eastern side was left to meet the purpose of vastu and also for the purpose of drainage pipes, water pipes sullage water pipes, rain water drains for all 14 flats. A boundary wall is also built around the site. Owing to dispute regarding the same the opposite party also filed O.S.No.953/2012 on the file of Second Additional Junior Civil Judge, Vijayawada against the complainant his brothers and mother. Though in the memo of understanding there is a mention that lift is to be provided by the opposite party shall be of Everest or Apple Company. The opposite party installed the lift made by Royal Company which is better than that of Everest and Apple Company with the consent of the complainant and other occupants of the apartment. The opposite party informed the complainant and other occupants that if they are wanting Everest or apple Company Lift the opposite party has no objection for installing the same but they have but to wait eight months upon which the occupants of the apartment revealed that they had discussed about the quality of the lift royal Elevator company Everest and Apple company and came to know that all these three companies are good companies and requested the opposite party to complete the installation of Royal Company lift at the earliest. Therefore the said lift was installed by the opposite party. The said installation took place long back nearly one and half years ago and the same was used by the complainant and other occupants, their visitors, workmen’s, relatives etc. During the said period none of the occupants of the apartment reported any problem with the lift. The complainant and his brothers entered into a mutual agreement on 22.9.2012 in the presence of elders and as per the understanding in the said agreement the complainant and his brothers settled the matter with opposite party fully and finally about the construction and other aspects for the building covered under the development agreement dated 19.8.2010. As per the said agreement it is clearly mentioned that the construction of the apartment was completed by opposite party in accordance with development agreement and out of the security deposit of Rs.10,00,000/- made by opposite party a sum of Rs.9,50,000/- was returned to the opposite party and the balance of Rs.50,000/- was retained by the complainant for the purpose of completion of some minor left over works. The said amount is to be used for common works of the building and the opposite party has nothing to interfere in the said building. Having used the lift for number of months i.e., more than 18 months now the complainant came forward with false notice to trouble the opposite party. As such the opposite party is under no obligation to meet or complied with the demands of the complainant and he had no obligation to provide Everest or Apple Company Lift to the said building or to pay Rs.1,00,000/- to the complainant for the alleged breach of contract. There is no deficiency in service on the part of the opposite party towards the complainant and prayed to dismiss the complaint with costs.
3. The complainant filed his affidavit and got marked Ex.A.1 to Ex.A.7. One Sri N.Krishna filed 3rd party affidavit on behalf of the complainant. On behalf of the opposite party Sri D.Hanumantha Rao filed his affidavit and got marked Ex.B.1
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1.Whether there is any deficiency in service on the part of the opposite party in
not providing the lift made of Everest or Apple Company in the building of the complainant as agreed?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the material in hand it is an admitted fact that the complainant along with his brothers and mother entered into an agreement with the opposite party under Ex.A.1. That the complainant, his mother and brother have to give their plot 355 sq.yards to the opposite party to develop the land by constructing the apartments in it and to share them on 50:50 ratio with the said specifications of structure, walls, cement, iron, bricks, flooring, wall putti, doors, windows, painting, lift, electrical, kitchen, cupboards etc., in all rooms. Ex.A.2 is copy of plaint in a suit filed by the opposite party against the complainant, his brother and his mother O.S.No.953/2012 on the file of the Junior Civil Judge Court, at Vijayawada for Interim and Permanent Injunction Order claiming that the complainant handed over the land of 410-6/9 sq.yards to the opposite party and out of which an extent of 15-6/9 sq.yards is lying towards the South Eastern side to meet the purpose of Vastu and for the purpose of drainage pipes, water pipes, sullage water drain pipes, rain water drains etc for all the 14 flats. The boundary wall built around the building is now being attempted to be demolished and efforts were made to alienate 15 sq. yards to third parties. The defendants (now the complainant and others) contested the matter and filed their written statement under Ex.A.3. The complainant said in his complaint and chief affidavit that the same was dismissed on 2.7.2013. The construction of the flats was over and 50% of the share of the flats were handed over to the complainant, his brothers, and his mother. The opposite party installed Royal Lift to the building instead of Everest or Apple company as agreed in the agreement. The complainant says that as the said Royal lift is troubling so many times and when it was got repaired the occupants of the building have to move through the stair case and it is so difficult to them. So he demanded the opposite party to install Everest or Apple company lift removing the Royal company Lift. As there was no action by the opposite party he issued a legal notice Ex.A.4 and Ex.A.5 dated 18.7.2013 to the opposite party through his advocate demanding the opposite party to install the Everest or Apple Lift as agreed in the agreement and to pay compensation of Rs.1,00,000/- and costs of Rs.500/- to legal notice otherwise he will proceed to the court of law. The opposite party received the same under Ex.A.6 and gave a reply notice under Ex.A.7 dated 20.8.2013 stating that the said lift was installed by him more than 18 months ago and the occupants of the building used the same for a long time and all the occupants agreed the same Royal lift and as per agreement dated 22.9.2012 he has no obligation whatsoever to maintain the said building. The opposite party filed the said agreement dated 22.9.2012 which is marked as Ex.B.1. The brother of the complainant filed his affidavit as 3rd party affidavit stating that the opposite party has failed to install the lift as mentioned in the agreement and he installed the Royal lift which is cheaper and the same is causing troubles to the occupants of the apartments.
7. On observing the documents and hearing the both parties we noticed that the opposite party agreed to install Everest or Apple lift to the above said building in specifications of agreement and signed on the same. But he installed Royal Lift to the said building which is not working properly. Therefore the opposite party committed deficiency in service by violating the terms and conditions of the agreement and is causing troubles by installing Royal Lift instead of Everest or Apple Lift. Hence he is liable to install the Everest or Apple Lift to the above said building as agreed by him. 50% of the flats are in possession of the complainant, his mother and brothers. So the complainant and his other family members are entitled for the relief which the complainant prayed.
POINT No.3:-
8. In the result, the complaint is allowed in part and the opposite party is directed to install the lift of either Everest or Apple brand to the apartment complex of the complainant by removing the Royal Lift and to pay costs of Rs.2,000/- (Two thousand rupees only) to the complainant. Time for compliance one month. Rest of the claims of the complainant are rejected.
Dictated to the Stenographer K.Sivaram Prasad, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 16th day of April, 2014.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite party:-
P.W.1 N.Anjaneyulu D.W.1 D.Hanumantha Rao @ Anil Kumar
Complainant Proprietor of the opposite party
(by affidavit) (by affidavit)
P.W.2 N.Krishna
3rd party,
(by affidavit)
On behalf of the Complainant:
Ex.A.1 19.08.2010 Photocopy of Agreement.
Ex.A.2 . . Photocopy of plaint filed in the court of Junior civil Judge at Vijayawada.
Ex.A.3 . . Photocopy of Written Statement filed on behalf of the
defendants 2 and 3 under Order VII, Rule -1, of CPC in the
Court of the II Additional Junior Civil Judge Court, Vijayawada.
Ex.A.4 18.07.2013 Office copy of legal notice.
Ex.A.5 18.07.2013 Postal receipt.
Ex.A.6 . . Postal acknowledgement.
Ex.A.7 20.08.2013 Reply notice.
For the opposite party:-
Ex.B.1 22.09.2012 Photocopy of understanding agreement.
PRESIDENT
