Date of Filling:     12.02.2014

                                                                                                                       Date of Disposal:  25.06.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.02/2014

MONDAY, THE 25 DAY OFJUNE 2018

P.Velladurai,

S/o. Poonusamy,

Sri Ganesh Apartment(Second Floor)

B-Block, 3^rd Street,

Sabhi Nagar, Muthapudupet,

Avadi, Chennai - 600 054                                                       ….. Complainant.

//Verses//

1.G.Manoj,

   S/o.Gishulal,

   No.192/2,Radha Chetty Compound,

   Avadi, Chennai -600 054.

2.Mr.P.Bharat Sharma,

   S/o.Poonamchand,

   Old.No.112A, New No.205-A

   N.M.Road, Avadi,

   Chennai - 54

3.Mr. Shanmugam,

   Proprietorof S.K.Builders,

  No.12, Ambedkar Street,

  Nehru Nagar, Pattabiram,

  Chennai -72.

4.Dewan Housing Finance Corporation Limited,

   No.118B, Manickam lane,

   Near Gem Garden, Anna Salai,

   Guindy, Chennai - 600 032.                                          ……Opposite parties.

This complaint is coming upon before us finally on 11.06.2018 in the presence of M/s.M.Saravana Kumar, Counsel for the Complainant and 1to 3^rd   Opposite parties are set Exparte for non appearance and Op4 filed written version and not filed proof Affidavit and op4 also set Exparte. Upon hearing arguments,  having perused the documents, evidences, written and oral arguments of the Complainant, this Forum delivered the following.

                                                             ORDER

PRONOUNCED BY THIRU.R.BASKAR KUMARAVEL, MEMBER

This Complaint has been preferred by the Complainant Under section 12 of the Consumer Protection Act,1986 against the Opposite Parties for seeking direction to pay sum of Rs.19,00,000/- towards damages and mental agony caused by the opposite parties by rendering negligence of service to the complainant  with cost.

2.The brief averments of the complaint as follows:-

The opposite parties are jointly doing the business of building construction, the first opposite party is being seller of the property which is morefully described in the schedule, the second opposite party is the power agent and 3^rd opposite party is the builder who runs the construction business in the name and style of S.K.Builders.  The 4^th opposite party is housing loan provider having his finance corporation, in the name of Dewan Housing Finance corporation Limited.  The fourth opposite party is closely associated with 2^nd opposite party.

3. The complainant had purchased one flat admeasuring of 467 sq.ft of undivided share along with constructed flats at second floor from all the opposite parties in particular the first opposite party of being legal vendor, the second opposite party are being power of attorney and the third opposite parties as builder as ostensible seller and the 4^th opposite party is being financier.  The complainant further stated that the first opposite party pretending as sole and absolute owner of the land bear in plot No.B measuring an extent of 1868sq.ft comprised in survey No.36/1, situated at Sabhi Nagar, Muthapuduet village, Ambattur Taluk, Thiruvallur District which is more fully described in the schedule hereunder.

4.The complainant particularly submits that at the time of purchasing of his sale deed from the first and second opposite parties, the land/plot is shown in their sale deeds as follows:

SCHEDULE ‘A’ PROPERTY

All that piece and parcel of the land bearing plot No.B measuring an extent of 1868 sq.ft.  comprised in Survey No.36/1, situated at sabhi Nagar, Muthapudupet village, Ambattur Taluk, Thiruvallur District and bounded on the

North by                    -                   Plot No C belonging to Mr.Vinod

South by                    -                   Plot No A belonging to Dr.D. pachayappan

East by                       -                   20 Feet Road

West by                     -                   property belonging to Mr.Raja

Measuring

Northern side           -                    53 feet 3 inches

Southern  side          -                    60feet

Eastern side              -                    33 feet

Western side            -                    33 feet 6 inches

In all total measuring 1868 sq.ft within the Sub Registration District of Avadi and Registration District of Chennai South.  From the above schedule A property, East by shown as 20 feet Road in the sale deed.

5.The complainant respectfully submits that all the opposite parties had jointly colluded with each other, suppressed the entire material fact and applied building plan to the commissioner, Avadi Municipality and obtained planning permission for the construction of  schedule mentioned property and showed at Eastern portion as 20 feet road at his sale deed based on his application, the commissioner of Avadi Municipality also approved for construction of ground floor, the first floor,(two flats) and the second floor at the schedule property as per the sale deed executed in favor of complaint but has shown in the building plan Eastern side the extent of 20 feet Road is not available  in front of the  ‘B’ block  because  some person /encroachers  already constructed  upto 10feet remaining 10 feet only  is available on the eastern side of the ‘B’ block.  The complainant submitted that the opposite party by suppressing this fact cheated and executed the sale deed in favor of.

The complainant entered into construction agreement with 3^rd opposite party, in which the specification of construction described as D schedule, as shown below:-

1. Foundation structure:- The super structure is built of column foundation.  The structure is framed with walls.

2. Floors: Ceramic tile flooring (2x2)

3. Doors: Main door will be teakwood frame and furnished paneled door and all other doors will be flush doors frame would be country wood.

4. Windows: windows will be wooden frames and glassed shutters with steel grills.

5. Sanitary wares & fitting:  Each dwelling is provided with a white wash basin, while Indian water closet in the toilet a shower provision and ceramic glazed tiles in toilet walls all round to a height 7 0

6. Loft & Cub Boards:  Provision will be made for a loft and a cupboard in the kitchen and in bedroom.

7. Kitchen supply: Distribution will be made from the overhead tank and taps will be provided in each floor at kitchen, bathroom, toilet and washbasin.  Kitchen wall have the black granite for with glazed tiles at  2 height and single bowl stainless steel sink will be provided.

8. Painting:  Internal walls, painted with primer and cement paint (supercem). External walls will be painted with cement paint (Supercem). Main Door will be varnished and all other door frames will be painted with enamel.

9. Roof: reinforced concrete roof.

10. Electrical Points: Electrical wiring will be provided as detailed below:-

(a) Hall:  Two fan points, two light points and one plug point as well as TV point, Telephone point will be provided.  Extensions for this can be given a additional cost in bedroom.

(b) Bedroom:  Two light points, one fan point and one plug point will be provided for bedrooms, AC point will be provided for master bedroom only.

(c). Kitchen: two light points and two plug points will be provided and exhaust fan opening will be provided.

(d). Bathroom &Toilet: one light point and one plug point will provided.  Geyser point will be provided in common toilet only.

(e). Common: One calling bell point and entrance light point will be provided.  Cupboard and lofts will not be provided with shutters.

6. Common: To provide septic Tank, sump, overhead tank, compound wall, electrical fittings such as lights bulbs, fans, calling bell and specifications needed that will be charged extra.

7. The complainant state that the 3^rd opposite party not followed the construction agreement and the specifications as above mention, all almost all D schedule construction specifications are violated and are not done properly by the 3^rd opposite party.  It is constructed at very inferior quality, as how, the said flat are now at very apprehension or endangered condition.   Therefore, the complainant alleges the opposite parties are collectively liable for construction of inferior quality flat.  Therefore, all of them are liable to pay Rs.19,00,000/- to the complainant and the opposite parties have to pay by way of damages of Rs.30,00,000/- in total for deficiency of service and unfair trade practices  and suppression of material fact is that the unapproved flat  sold out as it is approved one.

9.The complainant submit that as per the commissioner, Avadi Municipality approval No.353/11/F2 dated 15.06.2011the opposite party is to be constructed for 3 flats only at ground and First Floors, whereas all of them had constructed one flat at ground floor which is retained by T.J.Nagarajan and the one of the first floor flats is M.Nirmala and another is occupied by some other person who is close friend of the first and second opposite parties and second floor is also constructed at schedule property which is unauthorized construction one.

10. The complainant sent the notice to the commissioner Avadi Municipality to inspect the schedule property before granting approval to the builder but, the commissioner failed to inspect the same.  Hence, the opposite parties as well as the Commissioner, Avadi Municipality are collectively liable for the violation of building Rules.

11.The complainant submit that the opposite parties 1to 4 are jointly and severally liable to compensate to the complainant of their negligence rendered to the complainant because of the negligent act of the opposite parties, the complainant suffered untold mental agony, for which the opposite parties have to pay compensation to the complainant.

12.The complainant submit that he sent a legal notice on the opposite parties 1to 3,  dated 30.01.2014 stating the negligence of service rendered by  them towards the complainant after receiving the notice the opposite parties had not chosen to send any reply.  Hence this complaint.

13. Though the sufficient opportunities given to the opposite parties, they did not turned up before this Forum even on receipt of notice.  Hence opposite parties 1to 4 were set Exparte.

14.  On the side of the complainant, the complainant filed Proof Affidavit as his evidence in order to substantiate his case and Exhibit A1 to A9 were marked on his side and Ex.C1 to Ex.C4 and Ex.C5(s) marked as court document.

15. At this Juncture, the points for determination before this forum are as follows:-

1.     Whether there is any deficiency in service on the side of the opposite parties as narrated in the complainant?

2.     Whether the complainant is entitled for any relief as prayed for?

16. Written Arguments filed by the complainant and also the oral Arguments adduced on the side of the complainant.

17. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents putforth before this Forum, though the Opposite parties are set Exparte.

18.Point No:1:-

According to the case of the complainant the opposite parties have not carried out the construction work as per the agreement and there are several defects in the construction work in the flat and the entire building is not up to the mark and thereby caused damages and mental agony and the same have to be compensated by the opposite parties.

19. At the outset, this Forum wants to enlighten that though the opposite parties were set exparte, it is the bounden duty of the complainant, to prove his case beyond all reasonable doubts with concrete evidence for the deficiency service committed by the opposite parties.

20. At this juncture, on careful perusal of the averments of the complaint and also the evidence placed by the complainant, it is seen that the complainant has purchased the plot No.B measuring an extent of 467sq.ft of undivided share along with constructed flats at the second floor out 1868 sq.ft in S.no.36/1 of A schedule property from the 2^nd opposite party power agent of first opposite party, who is legal vendor who has executed Ex.A6 is the sale deed in favour of complainant.  The construction agreement Ex.A5 executed by the 3^rd opposite party  in favour complainant. 

21. It is further seen that the complainant has paid entire amount purchasing flat to the opposite parties 1to3 through  the op4 which is evidence by Ex.A7.  From the above facts, it is crystal clear that there is no dispute at all in purchasing the above mention flat with undivided share from the opposite parties. But there is a dispute between the complainant and opposite parties reveals only about the improper construction of flat not as per construction agreement Ex.A5.  After taking over the possession of the flat by the complainant found several defects in the constructed flat which prevented into occupy and reside in the flat which is caused severe mantel agony and damage to complainant. 

22. At the outset, this Forum has to consider, if there is any deficiency in service as alleged by the complainant caused by the opposite parties and the same have to be proved with reliable evidence by the complainant alone.  Infact , it is pertinent to note that there is no other document filed on the side of the complainant except the Exhibit A.1 to A9.  Instead of complainant side documents Ex.C1 to Ex.C4 are marked as Advocate Commissioner Report, Surveyor Report, PWD Engineer Report and Ex.C5(s) are marked along with CD. The Ex.A5 construction agreement and Ex.A6 is the sale deed in favour of the complainant and Ex.A7 is the statement of account issued by the op4 to the complainant.  First of all regarding the incompletion and defects in the construction of flat it is the duty of the complainant to prove the same by means of expert evidence through the report and estimation of the experienced civil engineer to show the actual cost incurred and other facts of damages which are just and necessary to arrive the actual damages and the leakage if any in the construction of the flat as alleged and the cost of the same to be incurred.  In this aspects, the complainant took proper steps before this Forum and obtained permission to appoint Advocate Commissioner along with experienced Civil Engineer and surveyor to assess the improper construction of building and to file a report pertaining to damage and actual cost to be incurred.   The Advocate Commissioner was also appointed along with experienced civil engineer and surveyor.  They have filed their report before this Forum after execution of the order of this Forum, these report are marked as Ex.C1to Ex.C4 and C5(s).    Moreover, it is alleged that the construction is not done as per the approved plan of the Avadi Municipality Commissioner and the plan of building approved filed on the side of the complainant and the same has been marked as Ex.A2 with all this relevant documents this Forum came to a conclusion that there are damages and defects in the construction of the flat by the opposite parties as alleged by the complainant in his complaint.  Moreover, the complainant specifically averred the defects in the construction of the flat in corroboration with evidence produce by the complainant which is enough to arrive correct finding about the damages.

23.As per the Ex.C3 and C4 the PWD Engineers inspection report and valuation of building at first floor and abstract of the second floor filed by the PWD engineer assessment amount of total value of building damage furnished as Rs.99,301/- for which the complainant  has not filed any objection before this Forum after obtaining  copy of the PWD engineer report and in his written argument  he has claimed the  building assessment of total amount of PWD engineer is less  in compare to present market value and construction labour charges.  In order to proved is claim as stated in his written argument not filed any relevant documentary evidence before this Forum.  Therefore, this Forum ought to have relied upon the PWD engineer report and affirmed the damaged building value as stated in the PWD engineer report. Therefore, the complainant is not entitled to claim any enhanced amount for damage of the building.  At the end this Forum considered and determined to award as damage a sum of Rs.99,301/- only.

24. The last but least point to be considered is that the opposite parties have constructed the flat by deviating the approved plan and not as per the specifications mentioned in the ‘D’ schedule even after paying the entire consideration. In fact, the complainant paid entire purchase amount for the flat and  the same is proved by Ex.A7 issued by the op4 to the complainant and the complainant sent the  legal notice to the opposite parties 1to3 which is marked as Ex.A8 and even after receiving the notice the opposite parties had not chosen to sent any reply until institution of the consumer complaint before this Forum by the complainant and after institution of the consumer complaint against the opposite parties after receiving notice from the Forum the opposite parties are not appeared before this Forum to answer the claim of the complainant, therefore the opposite parties 1to3 set Exparte  whereas op4 alone filed written version and not filed proof Affidavit. Therefore he also set Exparte.  It is crystal clearly shows that the opposite parties1 to 3 are committed deficiency of service as per the Consumer Protection Act1986.

25. After analyzing facts and circumstances case of the complainant along with relevant documentary evidence produce by him, the complainant has approached this Forum with clean hands and proved his case beyond reasonable doubt.

26. In the light of the above discussion, this Forum arrived that the complainant has proved with all his probabilities the deficiency of service committed by the opposite parties as alleged in the complaint through proper and concrete evidence.  Accordingly the point No.1 is answered.

Point No.2:-

27. In view of the above discussion arrived in the point No.1, the complainant is entitled for relief as against Op1 to Op3 and Op4 is the financer only.  Therefore, the complainant is not entitled to claim any relief against Op4. Thus, the point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1to3 jointly and severally are directed  to  pay  the amount sum of Rs.99,301/- (Ninety nine thousand three hundred and one only)  with interest at the rate of 9% per annum from the date of complaint i.e. (12.02.2014) till the date of this order (25.06.2018) towards damages caused in the petition mentioned building and   Rs.30,000/-(Thirty Thousand only) towards compensation  for causing mental agony and financial loss  due to the deficiency of service of the opposite parties 1 to 3 to the complainant and Rs.5,000/-(Five Thousand only) towards the cost of  the proceedings  to the complainant. In respect of Op4 this complaint is dismissed, without cost.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.  Since the complainant has not prayed the reliefs specifically in the complaint.  This Hon’ble Forum in the interest of justice passed the above order with its discretion. 

This order was dictated by the President to the Steno-typist, typed by him, corrected, signed and pronounced by us in open Forum, today on this 25^th day of June 2018.

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            MEMBER                                                                              PRESIDENT

List of documents filed by the complainant:-

Court Documents filed by the Advocate Commissioner:-

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MEMBER                                                                                                             PRESIDENT