BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 100/2010 Filed on 26.03.2010
Dated : 16.02.2011
Complainant:
V. Ganapathy, H 332, Nandini Gardens, West Fort, Thiruvananthapuram-23.
Opposite party:
Kerala State Housing Board, Press Road, Thiruvananthapuram represented by its Secretary & Regional Engineer, Tvpm Housing Unit-1.
(By adv. Saji. S.L)
This O.P having been heard on 22.12.2010, the Forum on 16.02.2011 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
Brief facts of the case are as follows: In this case the opposite party is Kerala State Housing Board. The opposite party allotted a residential flat bearing No. 332 of Punnackal Thope B site to the complainant and he is in possession of the same. The complainant filed this complaint before this Forum for rectification of the defective construction and major repair of the said flat allotted to him, to prevent leakage of rain water from roof top into the living rooms at the Housing Board's cost exclusively well before the relative sale deed in his favour is prepared and offered to him at its estimated cost on today, without adding the repair cost to the current cost for payment by him before registration of the deed. As per the Hire Purchase Agreement the apartment was offered to the complainant on 29.03.1990. The complainant states that in terms of clause of 2 of the agreement, he was permitted to occupy the apartment with full belief of its non-defective construction. But thereafter dampness of water leakage appeared on the inside ceiling of the top roof, on the wall leading to the bathroom and also in the verandah roofing, which gradually developed to profuse leakage and flooding the passage and verandah areas, making free movement in the apartment without difficulty impossible. The complainant says that the Secretary of the Association advised him that the opposite party's officials would take notice of the defect and leakage when they come for routine inspection from time to time as provided in clause 17 of the Agreement. But no such officials came for routine check up at any time. Aggrieved at the inaction of the Board, he sent a registered notice to the Regional Engineer on 31st October 2008 appealing to him for immediate repair of the leakage. Still there was no official response or visit of their officials even after a reasonable lapse of time. As per clause 21 of the Agreement Board's permission is required for the repairing works. But there was no reply received from the Board. Thereafter the Board sent two officials to survey the extent of damage. They seemed to be convinced of the damage and yet no reply has been received from the Board. The complainant states that the apartment remains the sole property of the Board by virtue of clause 23 of the agreement until the final Sale Deed is executed. As clause 21 forbids the complainant from making any additional or alteration without the prior written consent of the Board which is not given for which the complainant filed this complaint before this Forum.
In this case the opposite party Kerala State Housing Board filed their version. In the version they admitted that Flat No. CF6-332 in Punnackal Thoppe HAS was allotted to the complainant and agreement executed on 29.03.1990 and the complainant is well aware of the conditions of the agreement and he is bound to comply those conditions. The complainant had taken possession of the flat and he is still in occupation of the said Flat. The flat was allotted and possession was given to him in good condition. There were no leakages or damage to the flat. Twenty years passed after the handing over. The periodical maintenance and repairs shall be done by the complainant himself. And as per the conditions of agreement the complainant is liable to do the maintenance and repairs. As per the terms of agreement the complainant is liable to remit the monthly instalments in time and within the stipulated period. After completing all the payments only the complainant is entitled to get the sale deed executed in his favour. As per clause 2 of the agreement the complainant was permitted to possess the flat on the terms and conditions express and implied. As per clause 15, the complainant shall maintain the flat in good condition and he is liable to the Board for all damages caused by his negligent use of the building. As per clause 13, the complainant agreed to purchase the flat with full and definite knowledge of its nature and condition at the time of handing over. The Board shall not be responsible/liable for any defect discovered later and the rectification defects if any after the handing over is the sole responsibility of the complainant and he is not entitled to claim any damages or compensation from the Board. The clause 17 authorize the officers of the Board to enter up on the property and the building to inspect, carry out addition and alteration of work upon the premises at the cost of the allottee. The agreement is purely bilateral and mutually agreed between the parties. The flat was handed over to the complainant in the year 1990, in good condition. The complainant reported about the leakage after a lapse of 18 years i.e; on 30.10.2008. Clause 21 prohibits the petitioner to make any addition or alteration to the apartment without the prior written consent of the Board, but the same does not impose any restriction for the timely repair and maintenance of the flat which are to be done by the complainant at his expenses and cost. The opposite party had handed over the flat to the complainant in a habitable condition and the opposite parties are not liable to compensate for the present complaint. As per the agreement the complainant will be entitled to get the sale deed registered in his favour, only after payment of all his outstanding dues to the opposite parties. The complainant had failed to fulfil his part of the agreement. Hence they prayed for the dismissal of the complaint.
In this case the complainant has filed proof affidavit and has produced 4 documents. The complainant has been examined as PW1 and the opposite party has cross examined him.
Points that would arise for consideration are:-
Whether there is deficiency in service from the side of opposite party?
Whether the complainant is entitled to get the reliefs and costs?
Points (i) & (ii):- The case of the complainant is that flat No. CF6-332 in the Punnackal Thope B site was allotted to the complainant vide agreement executed on 29.03.1990. He is in possession of the flat and he is residing therein till date. This complaint is for the rectification of the defective construction and major repair of the said flat allotted to him, to prevent leakage of rain water from the roof top into the living room at the opposite party's cost before the sale deed is prepared without adding the repair cost to the current cost for payment by him before the registration of the deed. Complainant alleges that as per clause 21 of the agreement he intimated the matter to the officials of the opposite party several times, but there was no response from them. Opposite party stated that as per clause 15 of the agreement the complainant shall maintain the flat in good condition and he is liable to the Board for all damages caused by his negligent use of the building. The opposite party argued that the flat was handed over to the complainant in the year 1990 in good condition. The complainant reported about the leakage after a lapse of 18 years i.e; on 30.10.2008. Clause 21 prohibits complainant to make any addition or alteration to the apartment without the prior written consent of the Board, but the same does not impose any restriction for the timely repair and maintenance of the flat which are to be done by the complainant at his expense and cost.
In this case complainant has produced 4 documents which were marked as Exts. P1 to P4. Ext. P1 is the letter dated 21.12.2002 issued by the opposite party to the complainant informing him that the opposite party had complied the order of the CDRF in OP. No. 525/2000. Ext. P2 is the copy of letter dated 31.10.2008 sent by the complainant to the Regional Engineer, KSHB. Through this letter the complainant demanded the opposite party to repair the work and enable him to accept the title deed in a habitable condition. There is a foot note seen in the letter that “Met Mr. Unnikrishnan Ag.Reg. Engr. Who said all maintenance work lies with the allottee and repair of the roof top is 'maintenance' & the Board is not liable to do the work. …......” The date of this note is seen as 06.02.2009. From this document we can find that the opposite party had permitted the complainant to do the repairing works at his cost. Ext. P3 is the letter dated 30.01.2010. Ext. P3 is the original letter. Complainant has not adduced any evidence showing that this letter was sent to the addressee. Ext. P4 is the copy of agreement between the opposite party and the complainant. We find that as per clause 15 of the agreement, the complainant shall maintain the property apartment and the building thereon in good condition. As per clause 21 of the agreement written consent of the opposite party is necessary for any alteration. In this case as per Ext. P2 document the opposite party's officials permitted the complainant to do the repairing works of the roof which is not alteration work, but it comes under 'maintenance'. Clause 21 prohibits the allottees to make any addition or alteration to the apartment without the prior written consent of the Board, but the same does not impose any restriction for the timely repair and maintenance of the flat which are to be done by the complainant at his expense and cost. Complainant in this case has been possessing the flat since 29.03.1990, now after a lapse of 20 years he is alleging that there is damage to the flat and leakage of rain water. As per clause 15 of the agreement the complainant shall maintain the flat in good condition and he is liable to the opposite party for all damages caused by his negligent use of the building. In this case it is the duty of the complainant to do all the maintenance work in time. Complainant has the right to do the maintenance work at any time, he would have to repair the leakage. From the evidences and documents adduced by the complainant we cannot find any deficiency in service or unfair trade practice from the side of opposite party. There is no cause of action for filing this complaint before this Forum. We find that this case is a baseless one only to harass the opposite party. Hence the complaint is dismissed.
In the result, the complaint is dismissed.
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 16th day of February 2011.
BEENAKUMARI. A : MEMBER
G. SIVAPRASAD : PRESIDENT
S.K. SREELA : MEMBER
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C.C. No. 100/2010
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - V. Ganapathy
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of letter dated 21.12.2002 issued by opposite party.
P2 - Copy of the letter dated 31.10.2008 sent by the complainant.
P3 - Copy of letter dated 30.01.2010
P4 - Copy of agreement between opposite party & complainant.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
PRESIDENT
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