Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking provision for car parking; Rs.50,000/- as special damages besides costs.

2.   In brief the averments of the complaint are these:

        The opposite parties 1 to 5 are partners of 6^th opposite party firm and they developed a multistoried residential building “Rama Heights”.   The opposite parties executed a registered sale deed on      02-09-11 in favour of the complainant.   The opposite parties though handed over the flat mentioned in the sale deed failed to provide car parking.   The complainant on many occasions requested the opposite parties to provide car parking.   None of them cared the genuine request of the complainant.   The complainant therefore got issued notice on 23-06-12.   The opposite parties neither gave reply nor provided car parking though received notice.   The opposite parties committed deficiency of service as they failed to deliver car parking as mentioned in the sale deed.   The complaint therefore be allowed.

3.   The opposite parties 2 to 6 remained exparte.

4.  The contention of the 1^st opposite party in nutshell is hereunder:

        Being absolute owners of the site the opposite parties sold it to the opposite parties 3 and 4 and received entire sale consideration and executed an agreement of sale – cum – GPA on their request.   The          1^st opposite party is not at all concerned with the complainant’s claim. The complaint is bad for mis-joinder and non joinder of parties.   Rest of the allegations contra mentioned in the complaint are all false and are created for the sake of complaint.   The complaint therefore be dismissed.

5.    Exs.A-1 to A-9 on behalf of the complainant were marked.  No documents were marked on behalf of the contesting 1^st opposite party.

6.  Now the points that arose for consideration in this complaint are these:

1. Whether the opposite parties committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

7.   POINT No.1:-   The registry took an objection regarding maintainability of the complaint in view of the recitals mentioned in the sale deed.   On hearing the complainant’s counsel this Forum on                                                          24-09-12 passed the following:

                 “The complainant filed this complaint alleging that car parking place was not provided though mentioned in the sale deed dated 02-09-11. Counsel for the complainant contended that the delivery mentioned in the sale deed is a symbolic one.  The counsel for the complainant has brought to the notice of this Forum about the power of this Forum to appoint a commissioner. Counsel for the complainant contended that the factum of delivery of possession is a symbolic or real can be decided after the opposite party entering appearance.   The complainant wants to take risk of running limitation against him in case of loosing case.  Under those circumstances, the office is directed to number the petition if other wise in order.”            

8.  Ex.A-2 is xerox copy of sale deed dated 02-09-11 in favour of Marrivada Anil Kumar (complainant) executed by Gorantla Samabasiva Rao and five others.   Schedule–B of Ex.A-2 related to the property sold and it reads as follows:

       An undivided and unspecified share measuring 33 sq. yards or 27.59 sq.mts., of undivided share out of an extent of 642.3/9 sq. yards of ‘A schedule site and along with semi-finished ONE FLAT bearing No.404, located in THIRD FLOOR of “RAMA HEIGHTS” with a plinth area of 1080 sq.ft., (including common areas) including allotment of one car parking area, which is allotted in the entire construction for the above mentioned share of site is being bounded by:

EAST   :  Open to sky in between this flat and flat No.403

SOUTH:  Open area in ground

WEST  : Open area in ground

NORTH: Common corridor

Within these boundaries one semi-finished flat bearing No.404 located in THIRD floor i.e., above the stilt, ground, first and second floors of the said RAMA HEIGHTS and along with its common and joint rights including the rights of easements, appurtenances etc. SC.No.197464.”

9.   The above recitals revealed that the complainant purchased semi finished flat bearing No.404 and took possession of the said flat including one car parking area.   The learned counsel for the complainant contended that the delivery of car parking area mentioned in the sale deed is only a symbolic as the complainant took possession of semi finished flat.  

10.  The complaint and as well as complainant’s affidavit was silent the reasons for not delivering car parking area.   It is not made known to this Forum whether the vendors sold car parking areas more than those available on ground. If really the car parking area mentioned in the sale deed is not at all available it amounted to deficiency of service and cheating.  

11. In order to decide the area available for car parking commissioner’s appointment is must and necessary.  

12.  The provisions of CPC as mentioned in section 13 (4) of the Consumer Protection Act alone are applicable as held by the High Court of AP in M/s Sivashakthi Builders and another vs. The A.P. State Consumer Disputes Redressal Commission, Hyderabad (WP.No.18735/08 dated 30-01-09) and by the Supreme Court in Ethiopian Airlines vs. G.N. Saboo 2011 (8) SCC 539.  

13.   Except in medical cases complaints have to be disposed off by affidavits and documents.  Oral evidence contrary to recitals in a document can be let in under certain circumstances.   For absence of oral evidence the recitals in document alone has to be taken into consideration. As delivery of car parking area was also mentioned in Ex.A-2 sale deed, this Forum cannot decide the delivery mentioned in it was a symbolic or otherwise or availability of car parking area as it involved complicated procedure.  Under those circumstances, we opine that the complaint is ill conceived and is liable to be dismissed.  We therefore answer this point against the complainant.

14.  POINT No.2:-   In view of our findings on point No.1, the complainant is not entitled to any damages.   We therefore answer this point also against the complainant.

15.  POINT No.3:-     In view of above findings, in the result the complaint is dismissed without costs.

 Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 13^th day of February, 2013.

          MEMBER                        MEMBER                                 PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant  :

For opposite parties:      NIL

                                                                            PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.