Tamil Nadu

South Chennai

CC/371/2013

KTV Padmavathi and S.Durai Babu - Complainant(s)

Versus

LIC Engineering Department - Opp.Party(s)

K.Krishna Munshi

01 Sep 2022

ORDER

                                                      Date of Complaint Filed: 12.11.2013

                                                      Date of Reservation     : 08.08.2022

                                                      Date of Order              : 01.09.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                         : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,         :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,  : MEMBER II

 

CONSUMER COMPLAINT No. 371/2013

THURSDAY, THE 1^st DAY OF SEPTEMBER 2022

KTV Padmavathi and S.Durai Babu,

1/2, New Street,

2nd Floor, Mannadi,

Chennai-600 001.                                                      ... Complainant

     

..Vs..

1. The Chief Engineer,

    LIC Engineering Department,

    Zonal Office,

    LIC Building,

    153, Anna Salai,

    Chennai - 600 002.

 

2. The Chairman and Managing Director,

    LIC of India, 2^nd Floor,

    New India Building,

    SV Road, Santa Crutz (West),

    Mumbai, Maharashtra-400 054.

 

3. The Secretary,

    JBNFOW Association,

    JBN Phase II, Block 60,

    Jivan Beema Nagar,

    Padi Eri Chennai.                                                 ...  Opposite Parties

 

******

Counsel for the Complainant                  : M/s. M.Aravind Subramaniam,

                                                                   M/s. Lavanyavathi, C.K,   

Counsel for the 1^st & 2^nd Opposite Parties : M/s. K.Kumaran

Counsel for the 3^rd Opposite Party           : M/s. D. Ashok Kumar

 

        On perusal of records and after having heard the oral arguments of the Complainant and the Counsel for the Opposite Parties, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to provide proper car park area with adequate space for drive way and direct the Opposite Parties to pay a sum of Rs.1,00,000/- for delay in handing over the flat and direct the Opposite Parties to pay a sum of Rs1,00,000/- for not providing proper car parking area with proper drive way as compensation for the mental agony, severe hardship caused by deficiency in service and cost of Rs.50,000/-.

2.     The averments of Complaint in brief are as follows:-

The Complainant had approached the 1^st Opposite Party through application No.3720 for purchase of flat under LIC Policy Holders Housing Scheme, Part-II, Padi, Chennai.  The Complainant received a letter of allotment on 29.10.2007, which allotment was through draw of lots on 06.10.2007 at Kamaraja Arangam, Teynampet, Anna Salai, Chennai. A flat was allotted to the Complainant namely VIB3FL4 Block/Flat Number 60:B 3/42, Policy Holders Housing Scheme, Phase-II, Jeeven Bima Nagar, Padi Eri, Chennai. In accordance with 1^st Opposite Party’s letter dated 26.12.2007, the Complainant remitted all the amounts in time, totalling to Rs.32,42,800/- inclusive of Registration fee of Rs.50,000/- which were acknowledged by the 1^st Opposite Party under various receipts. Even though the formality of sale deed was over in November 2011 and said flat was handed over to the Complainant only in January 2012. The first Opposite Party executed a sale deed on 14.11.2011 which was registered as document No.4650/2011. Further submitted that there was an abnormal delay in handing over the flat, the flat should have been handed over in 2009 the same was handed over only in January 2012 causing financial loss mental agony to the Complainant. The car parking allotted to the Complainant was not all accessible. There is no provision or passage to drive within the same compound. The Complainant wrote letters seeking remedy from the 1^st Opposite Party who has admitted the mistake while designing the plan in car parking it is defect in lay out plan design. Hence there is no accessibility to park the car for the flat of 41 and 42. The occupants of flats 41 and 42 cannot park their respective vehicle driving through within their block due to mistake committed in the plan design for parking the car. The Complainant submitted that other than the Block 60, other blocks were provided proper Compound wall and driveway to park the Vehicles. But for Block 60 one side of the Compound wall was not built and made open between Block IV and 60 resulting in treating it as common area and abusing, exploiting and misusing the common place. Due to improper planning they could not build a compound wall between Block IV and 60. As of now the tenant of the Complainant is parking his car elsewhere by paying rent for the car parking and in turn the tenant is deducting the same amount from the rent payable to the Complainant, thereby causing financial loss to the Complainant. There was a delay of 1 year 9 months in conveying the sale deed. The Opposite Party who promised to comply with the construction and possession of the flat did not provide a proper car parking to the Complainant. Hence the complaint.

3. Written Version filed by the 1^st & 2^nd Opposite Parties  in brief is as follows:-

The case involves complicated question of facts which cannot be decided by this commission which follows summary procedure dealing the disputes pending before it, as such the Complainants if at all they have any grievances they ought to have approached only the civil courts and not this Hon'ble forum for remedy if any.  The above complaint does not fall under the pecuniary jurisdiction of this Honble forum as defined under Sec.11 of the Consumer Protection Act and as such this Honble forum has no pecuniary jurisdiction to try the stove compliant. In this regard it is submitted that as per Sec 11(1) of the Consumer Protection Act, the jurisdiction of this Hon'ble forum is restricted to a claim below Rs 20 lakhs  Even as admitted by the Complainant in para 8 of his complaint, the value of the flat is Rs 32,42,800/-. Further the Complainant has claimed in relief (b) compensation of Rs 1,00,000/-for the delay, in relief (c) Rs.1,00,000-towards compensation for not providing proper car parking area etc. Hence as per Sec.11(1) of the CP Act if we add the value of the service agreed plus the relief claimed the above complaint clearly exceeds the pecuniary jurisdiction of this Commission. It is further submitted that the relief claimed by the Complainant in the above complaint are in the form of mandatory injunction and does not fall within the relief that can be granted by this Hon'ble commission under Sec 14 of the Consumer Protection Act 1986. There is no cause of action against the second Opposite Party herein and as such the above complaint is liable to be dismissed as against the Opposite Parties on this ground alone. Further as the 2^nd Opposite Party is outside the territorial jurisdiction of this Commission, since no permission has been obtained by the Complainant to proceed against them before this Hon'ble Commission as required under Sec 11 (2) of the Consumer Protection Act, the above complaint is liable to be dismissed. It is submitted that the LIC as committed in the brochure and sale agreement, built stilt car parking for all the allottes of phase-II(144 flats) with proper access and sold the flats. If the drive way accessibility was misused by the neighbours, for which the Opposite Parties 1 & 2 cannot be held responsible. The Complainants have to take proper legal action against those obstructing the driveway and not against these Opposite Parties 1 & 2. In this regard it is further submitted that as per the CMDA approved plan, the blocks have enough drive way space around the building and particularly the common area in between Block 4 and 60 (which are adjacent) is more than 6 metres (20 feet) through which the Complainant is supposed to make entry for parking his car. The existing approach road is wide enough for smooth ingress and egress to the stilt car parking of Block 60. The Opposite Parties 1 & 2 denied the allegations of the Complainant that cracks were found on roof of the floor. Initially there were few hairline cracks in water proofing works, which are quite normal in any new construction, until the final setting of cement and other admixtures used for terrace water proofing treatment. However, on receipt of the above complaint, these Opposite Parties once again applied on additional coating of water proofing and hence this complaint is just added up by the Complainant just to strengthening his petition. It is submitted that the parking of cars for flat No.41 and 42 are intermediate parking slots in Block No.60.  It seems like there exists parking encroachments by residents of Block No 4 on the pathway of Block No.60 which has to be taken up by individual owners/residents of Block No 60 or their welfare association.  No builder can take up the responsibility of continuously safeguarding and protecting the interests of the flat buyers from any third party including from their neighbours. It is further submitted that as per the CMDA approval conditions, the undivided share of land is distributed across the entire length and breadth of the colony. As such, no internal compound wall can be built, as per the rules.  It is submitted that the Complainant was well guided on 6-7-2012 to approach their association to solve their issues. Parking problem is a law and order/discipline issue which cannot be solved by any builder. Once built and handed over possession, parking issues are to be sorted out among residents of the block /colony for their mutual peaceful coexistence. It is further submitted that common maintenance of the block 60 has already been taken over by the third Opposite Party.  It is submitted that these Opposite Parties have already provided car parking to the Complainant. The entire issue is encroachment of approach way. Compound wall cannot be built because of common UDS for the entire colony. Therefore prayed to dismiss the complaint.

4. Written Version filed by the 3^rd Opposite Party in brief is as follows:-

There is a defect in layout plan and design of Block 60 in Phase II of constructions averred in the complaint. Due to the defects in layout and design and constructions of Block 60, the stilt car parks provided to Flat 41 and 42 are not provided with proper entry and exit path. There is a only a very narrow space available to the above car parks and cars cannot be moved. There is deficiency in construction of Block 60 and deficiency of service provided  to the occupants of flats 41 and 42. Ever since its formation from the year 1995, till date it has been functioning for the welfare of all the flat owners  / residents and for getting all basic and social amenities and to rectify the defects in construction, the Association has filed several cases for solving the issues.

5.  The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-7. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the 2^nd and 3^rd Opposite Parties, documents Ex.B-2 and Ex.B-3 were marked. On the side of the 3^rd Opposite Party, documents Ex.B-1 was marked.      

6.  The documents of the Advocate Commissioner was marked as Ex.C1 and Ex.C2.

Points for Consideration:-

1. Whether the Complainant is a Consumer as defined under the Consumer Protection Act 1986?

2. Whether this Commission has got Jurisdiction, both Pecuniary as well as territorial to entertain this complaint?

3. Whether there is deficiency in service on the part of the Opposite Parties?

4. Whether the Complainant is entitled for reliefs claimed?

5. To what other reliefs the Complainant is entitled?

Point No.1:

The undisputed facts are that the Complainants as LIC Policy Holders had  purchased a flat bearing No: 60 – B 3/42 under  the “LIC Policy Holders Scheme” Phase II, in Jeevan Bima Nagar, Padi Eri, Anna Nagar Extension, Chennai for sale consideration of Rs.32,02,800/- inclusive of Registration fee of Rs.50,000/-. The dispute arose in respect of the car parking though the Complainant had paid all the amounts in time. The contention of the Complainants was that the 1^st Opposite Party had executed a Sale Deed in favour of the Complainants for the Undivided share of land, flat and car parking as per Schedule A and B of the Sale Deed which was conveyed to the Complainants but the path leading to the car parking is not at all proper and it was difficult for the Complainant to drive his car through the drive way to park his car in the allotted area. The Complainants had raised the car park issue to the Opposite Parties through several letters as per Exs.A-10 to Ex.A-19. But the Opposite Parties had not resolved the issue. Further contended while other Blocks constructed by the Opposite parties are provided with proper compound wall and drive way to park the vehicle, unfortunately the Complainant were not given a proper pathway to park his vehicle due to improper planning. The 1^st and 2^nd Opposite Parties had asked the Complainant to approach the 3^rd Opposite Party, when the Complainant approached the 3^rd Opposite Party they expressed their inability. Moreover the 1^st  and 2^nd Opposite  Parties had executed sale deed to the Complainant and hence they are liable to resolve the issue of car parking.

The Opposite Party contended that the relationship between the Complainant and the Opposite Parties 1 and 2 are that of a vendor and purchaser of an immovable property and the Complainant is not a consumer as defined under the definition of Sec 2(1) of the Consumer Protection Act,1986. Further it is settled position of law that the purchaser of an immovable property is not a consumer, the Complainant had purchased a flat along with undivided share of land and got the sale deed executed in their favour for the transfer of the undivided share of land along with a flat as such the purchaser of an immovable property is not a consumer. Also contended that the Complainant has not purchased any goods or availed any services and had purchased only an immovable property from the 1^st and 2^nd Opposite Parties and hence they are not consumer.

The Consumer Protection Act, 1986, though excludes the purchaser of immovable property, the development and construction of flat come well within the purview of the Consumer Protection Act, 1986 and hence the Complainant having entered into an Agreement of Sale dated 21.01.2008 to develop a Public Housing Scheme under the LIC Policy Holders’ Housing Scheme and Construction of Flats, agreeing to sell the Flat No.60-B3/42, in VI-B3, Type measuring 1280sq.ft (super built up area) in Floor : IV of Block No.60 in Phase-II in Jeevan Bima Nagar, Padi Eri, Anna Nagar West Extension, Chennai 600 101 and the Complainants having purchased the said Flat vide Sale deed dated 14.11.2011 registered as Document No.4650/2011 along with Undivided Share and Car Park from the 1^st and 2^nd Opposite Parties are well within the definition of the Consumer as provided under the Act. Accordingly, Point No.1 is answered.

Point No.2:-

The contention of the Opposite Party that the Complainant had purchased the flat for Rs.32,42,800/-, the relief of compensation of Rs.1,00,000/- and Rs.1,00,000/- for not providing proper car parking area which exceeds the pecuniary jurisdiction of this Commission and hence this Commission has no pecuniary jurisdiction to decide the Complainant will not hold good for the reason that the dispute is with regard to the car park area allotted to the Complainant and hence this Commission has jurisdiction to entertain the Complaint.

As regards the territorial jurisdiction, the 1^st Opposite Party is within the jurisdiction of the Commission. The Consumer Complaint could be filed where one of the Opposite Parties resides or carries on business. The 1^st Opposite Party, who had entered into Sale Agreement with the Complainant is situated within the Jurisdiction of this Commission and hence this Commission has got territorial jurisdiction to decide the Complaint.

Point No.3:-

The Learned Counsel for the Complainant contended that the car parking allotted to the Complainant is not accessible, the lay out plan design is defective and there is no accessibility to park the car for the flat of 41 and 42, which the Complainants had communicated to the 1^st Opposite Party vide Exs.A-9 to A-19. One side of the compound wall was not built in Block 60 and made open between Block IV and 60 resulting in treating it as common area and misusing the common place. While other Block are provided with Car sheds the Complainants are not being provided with Car shed which amounts to deficiency in service. The Learned Counsel for the 1^st and 2^nd Opposite Parties contended that the Complainant are provided with the Car Park as agreed. As per the Inspection Report of the Civil Engineer, Ex.C-1, the inter block gap between Block No.60 (Type-VI) and Block No.4 (Type-II) as per the approved plan is 6.00 m but at the site it is 6.70m which is 0.70m more that the approved plan. The dimensions of the Complainant’s car parking is not specified in the car parking plan attached with the sale deed. But the physical measurements at car park site is 10’-3” x 17’ – 0” (i.e., 3.12m x 5.18m). The only way for Complainants to park their car is through the inter block gap but the Complainants are practically facing difficulty in parking their car in the allotted slot due to encroachment of the inter block gap by other owners. As per Ex.C-2, the Advocate Commissioners Report dated 20.11.2017 he has submitted that “the observations on inspection the Complainant’s car parking area it appears that the other flat owners have encroached the common area by parking their vehicles in the common area and the drive way and it is difficult to the Complainants to move their vehicle. It is further submitted it was plainly clear that it would be extremely difficult for vehicular movement and parking of the vehicle due to the encroachment and it wont be possible to turn the car and park it without damaging the other vehicles parked in the common area.”

Exs.C-1 and C-2 would reveal that the 1^st and 2^nd Opposite Parties had provided car park to the Complainants as agreed and the area allotted for the car park is more that the approved plan. The difficulty faced by the Complainants in parking the car is due to the encroachment of the other owners in the inter block gap for which the Opposite Parties cannot be held liable.

The Contention of the Complainant was that there was delay in handing over the Flat which was countered by the Opposite Party pointing out Clause 1(g) of the Agreement for Sale dated 21.01.2008, which reads that the project period is for a minimum duration of 24 months from 01.05.2008 and may be extended in the event of unforeseen conditions and acts of God beyond the control of LIC as well as the agencies of LIC who undertake the work for which the Purchaser shall not have any claim whatsoever. It is evident from Ex.A-8, that the Flat was handed over on 14.11.2011 by the 1^st and 2^nd Opposite Parties which was taken possession by the Complainants without any protest. Subsequent e mail communications by the Complainants to the 1^st and 2^nd Opposite Parties does not address the delay in handing over possession. Hence the 1^st and 2^nd Opposite Parties cannot be held for the deficiency in service.

As contended by the 3^rd Opposite Party that there was no privity of contract between the Complainants and the 3^rd Opposite Party and as the contract is between the 1^st and 2^nd Opposite Parties, and as the 3^rd Opposite Party is not concerned in any way to the reliefs claimed by the Complainants, the 3^rd Opposite Party cannot be held liable for the deficiency in service.

In view of the foregoing discussions this Commission is of the considered view that the Opposite Parties 1, 2 and 3 are not liable for any deficiency of service. Accordingly Point No.1 is answered.

Point Nos.4 and 5:-

We have discussed and decided that there is no deficiency in service on the part of the Opposite Parties and thereby Complainant is not entitled to get the reliefs as claimed in the complaint and for any other relief/s. Accordingly, Point Nos. 4 and 5 are answered.

In the result this complaint is dismissed. No cost.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 1^st of September 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT

 

 

List of documents filed on the side of the Complainant:-

 

Ex.A1		Brochure
Ex.A2	11.04.2007	Confirmation letter for flats by 1st Opposite Party to Complainant
Ex.A3	21.09.2007	Communication Reg-draw of lots 1st Opposite Party to Complainant
Ex.A4	29.10.2007	Letter of allotment along with plan 1st Oppsoite Party to Complainant
Ex.A5	26.12.2007	Letter from 1st Opposite Party to Complainant payment of installment etc
Ex.A6	21.01.2008	Agreement of Sale between 1st Opposite Party and Complainant
Ex.A7	18.02.2009	Communication of status of work 1st Opposite Party to Complainant
Ex.A8	14.11.2011	Sale Deed in favour of Complainant by 1st Opposite Party along with Plan
Ex.A9	27.04.2012	Email letter – Complainant to 1st Opposite Party
Ex.A10	28.04.2012	Email letter – Complainant to 1st Opposite Party
Ex.A11	26.05.2012	Email letter – Complainant to 1st Opposite Party
Ex.A12	23.06.2012	Email letter – Complainant to 1st Opposite Party
Ex.A13	28.06.2012	Email letter – Complainant to 1st Opposite Party
Ex.A14	06.07.2012	Email reply by 1st Opposite Party to Complainant
Ex.A15	10.07.2012	Email letter – Complainant to 1st Opposite Party
Ex.A16	12.04.2013	Email letter – Complainant to 1st Opposite Party
Ex.A17	27.04.2013	Email letter – Complainant to 1st Opposite Party
Ex.A18	05.09.2013	Email letter – Complainant to 3rdOpposite Party with copy to 1st Opposite Party
Ex.A19	18.10.2013	Email letter-Complainant to 3rd Opposite Party
Ex.A20	22.07.2013	Legal notice
Ex.A21	-	Acknowledgement cards
Ex.A22	08.08.2013	Copy of reply by 1st Opposite Party

 

 

List of documents filed on the side of the 3^rd Opposite Party:-

 

Ex.B1

12.11.1994

Sale Deed executed by L.I.C of India in favour of Sri Narayana Swamy Mahendran/Purchaser/ Policy holder of Flat No.13, Block IV in Phase I of the construction which is adjacent to Block 60 in Phase II of the construction of Jeevan Bhima Nagar.

 

List of documents filed on the side of the 1^st and 2^nd Opposite Parties:-

 

 

Ex.B2		Copy of the sale deed bearing document No.4650 of 2011, dated 14.11.2011 SRO, Villivakkam
Ex.B3		Copy of the approved layout

 

List of documents filed on the side of the Advocate Commissioner:-

 

 

Ex.C1		Copy of Inspection Report
Ex.C2		Copy of report of the Advocate Commissioner

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                B.JIJAA

         MEMBER II                      MEMBER I                         PRESIDENT