F.A.No.359/2008 AGAINST C.C.No.26/2007, DISTRICT FORUM, WEST GODAVARI AT ELURU

Between:

1. P.V.Raghava Raju, S/o.Penmetsa Ramabhadra

    Raju, Hindu, Male, aged 78 years,

    Retd. Employee, R/o.Plot No.36, Rao & Raju Colony,

    Road No.2, Banjara Hills, Hyderabad.

2. Cherukuvada Lakshmi Narasimha Venkata Surya

    Kantham W/o.late Peda Ramakrishnam Raju,

    Hindu, aged 72 years, R/o.Yendagandi (V)

    Undi mandal, W.G.District.

3. Kalidindi Varalakshmi,

    W/o.late Subrahmanyam Raju, Hindu,

    Aged 70 years, R/o.polamaru,

    Penumantra Mandal, W.G.Dist.,                                                                    ..Appellants/O.P.s 1 to 3

                   And

1. M.S.Prakash Rao,

    S/o.Ramamurthy, Hindu,

    Male, aged 55 years, Advocate

    Flat No.26, Sriram’s Enclave,

    R.R.Pet, Eluru, West Godavari Dist.,                                                             Respondent/complainant.

2. M/s.Ramdas Constructions,

    Rep. by its Managing Partner Sri Alladi

    Punnaiah, S/o.Ramadasu, Flat No.101,

    Ram’s Enclave Plot No.54,

    Kirlampudi layout, Visakhapatnam.                                                              Respondent/O.P.4.

Counsel for the Appellants: Mr.S.Rajan

Counsel for the Respondents: Mr.G.Vasantha Rayudu-R1

                                                   Mr.T.S.Venkata Ramana-R2

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

AND

SMT.M.SHREESHA,  MEMBER

.

WEDNESDAY, THE TWENTY FIFTH DAY OF AUGUST,

TWO THOUSAND TEN

(Typed to the dictation of  Smt.M.Shreesha, Hon’ble Member)
**

        Aggrieved by the order in C.C.No.26/2007 on the file of District Forum, West Godavari at Eluru, opposite parties 1 to 3 preferred this appeal.

        The brief facts as set out in the complaint was that the opposite parties 1 to 3 are legal heirs of late Varahalamma and the said late Varahalamma sold to the complainant under registered sale deed dated 11-8-2004 the undivided share of land on which ‘Sai Ram’s Enclave’ was constructed.  The complainant stated opposite party No.4 was the builder engaged by Varahalamma for construction of the said apartment.  It is the case of the complainant that he purchased flat No.206 from the said apartment from late Varahalamma by paying the consideration of Rs.4,85,000/- and Rs.25,000/- towards car parking  and claimed to have taken possession of uncompleted flat on 30-4-2005.  The complainant alleged that opposite parties failed to complete the construction work  as per the agreement entered into and delivered incomplete flat and as such the complainant had to incur huge expenditure  towards plastering, finishing of bath rooms, painting  and tap connections etc., Opposite parties also failed to provide car parking.  The complainant submitted that the owners of the flats had been facing several problems due to defects in constructions like leakage of water from upstairs into his flat, seepage of water into the cellar  as a result of non construction of concrete work in the cellar and failure to ensure baling out of water by making a permanent arrangement, accumulation of water in the bottom pit of the electrical lift endangering the users.  Non fixing of gates to the way of the entrance of the apartment like cellar steps and two road sides, failure to construct wind and sunshade of middle bedroom to protect it from rain through the winds, failure to allot and demarcate the car parking place, failure to install generator to the lift for use during the time of power failure, non demarcation of common parking , non construction of room and toilets in the ground floor as per the agreement to house the maintaining staff, failure to provide outlet to the overhead tank for removing the over flow and consequential inconvenience to the western flat owners, failure to block the holes and remove the pipes arresting the water leakage into the common passage etc.  Ascribing the failure on the part of opposite parties in not completing the construction as per the agreement and defects stated supra to deficiency in service, the complainant approached the District Forum for a direction to the  opposite parties 1 to 4 to pay an amount of Rs.8,59,125/- with interest towards expenditure incurred for getting repairs to the flat, to award Rs.4,00,000/- and costs.

        Opposite parties 1 to 3 filed their version admitting the execution of sale deed by late Varahalamma and purchased of flat No.206 by the complainant but resisted the allegation that the complainant gook possession of uncompleted flat and spent huge amounts for labour materials etc.,  They submitted that during the life time of late Varahalamma, the complainant never made any complaint about the alleged defects in the construction or delay in completion of construction and delivery of possession and took possession of the flat without protest as constructed by 4^th opposite party.  They further contended that late Varahalamma had nothing to do with the construction made by 4^th opposite parties and denied the other allegations and prayed for dismissal of the complaint.

        The 4^th opposite party filed his version resisting the complaint by contending that he completed the construction of the apartment by standard quality materials as per the terms and conditions of the agreement and delivered the same to P.Varahalamma.  He submitted that they provided lift of a reputed company with one year warranty and fixed Busbar and transformer according to APSEB norms and that he was no way concerned with the transaction between the complainant and late Varahalamma and submitted that he was unnecessarily added as a party to the complaint and prayed to dismiss the complaint.

        Based on the evidence adduced i.e. Exs.A1 to A19 and B1 to B8 and the pleadings put forward, the District Forum directing opposite parties 1 to 4 to rectify all those defects listed in paragraph 2 under point No.2 of its order and more particularly fully repair the flooring of the cellar with a concrete bed and embankment arresting the welling up water and flooding in storm water and with coarse finishing and also pay an amount of Rs.10,000/- towards compensation together with costs of Rs.2,000/-.

        Aggrieved by the said order, opposite parties 1 to 3 preferred this appeal. 
        We observe from the record that opposite parties 1 to 3 who are the appellants herein are the legal heirs of late Varahalamma from whom the complainant purchased undivided share of land vide Ex.A1.  The fourth opposite party is the builder and a Power of attorney vide Ex.A10 was entered into between late Varalamma and the builder.  The complainant purchased flat No.206 in this complex.  It is the complainant’s case that he had taken delivery of the flat which was incomplete and invested huge amounts of money evidenced under Ex.A11 to A19.  The main grievances of the complainant are as follows:

a)    leakage of water from the upstairs into the flat

b)    seepage of water into the cellar as a result of non construction of concrete work in the cellar and failure to ensure bailing out of water by making a permanent arrangement

c)     Accumulation of water in the bottom pit of the electrical lift endangering the users.

d)    ‘non fixing of gates to the way of the entrance of the apartment like cellar steps and two road sides’.

e)    Failure to construct wind and sunshade of middle bedroom to protect it from rain through the winds

f)      Failure to allot and demarcate the car parking place

g)    Failure to install generator to the lift for use during the time of power failure

h)    Non demarcation of the common parking

i)      Non construction of room and toilets in the ground floor as per agreement to house the maintaining staff

j)      Failure to provide outlet to the overhead tank for removing the overflow and consequential inconvenience to the western flat owners

k)    Failure to block the holes and remove the pipes arresting the wter leakage into the common passage.

     
        There was also a Commissioner, who was appointed and the District Forum relied on the Advocate Commissioner’s report directing opposite parties 1 to 4 to rectify all the aforementioned defects and also pay an amount of Rs.10,000/- towards compensation and costs of Rs.2,000/-

        The learned counsel for the appellants contended that late Varahalamma entered into an agreement of sale with Power of Attorney on 11-1-2002 with the builder and as per the said agreement the builder was to develop the property and give 45% of the built up area in the cellar and three floors. The said Varahalamma under the said agreement gave Power of Attorney to Managing Partner of the construction firm for executing sale deeds in favour of the nominees.  The said Varahalamma executed a sale deed in favour of the complainant  on 11-8-2004 conveying in his favour the undivided share of land to an extent of 35 sq. yds and another agreement was entered into between the said Varahalamma and the complainant herein who purchased flat No.206 and the construction specifications are in accordance with agreement dated 11-8-2004.  The complainant paid the sale consideration and after having been satisfied took delivery of the said flat from Varahalamma on 30-4-2005.  Subsequently the said Varahalamma died on 13-7-2005 and 19 months after taking delivery of the flat, the complainant got issued a legal notice alleging several deficiencies in the construction including common amenities. 

        Keeping in view that all the items prayed for by the complainant  are with respect to deficiencies in construction for which the builder is liable and the agreement entered into between the complainant and the said Varahalamma on 11-8-2004 makes it clear that the same specifications were within the scope of the work to be executed by the builder, we are of the considered view that the builder alone can be made liable and therefore the order of the District Forum  is set aside with respect to liability appellants/opposite parties 1 to 3 only and the entire liability is fastened on opposite party No.4, who is the builder herein.  It is pertinent to note that F.A.No.1738/2007 filed by the builder against the same C.C.26/2007 has been dismissed by this Commission confirming the order of the District Forum  against the liability of the builder.

        In the result this appeal is allowed and the order of the District Forum  is set aside with respect to the liability appellants/opposite parties 1 to 3 while confirming the order of the District Forum  against the builder i.e. opposite party No.4.  There shall be no order as to costs in this appeal.

                                                                                                                        Sd/-PRESIDENT.

                                                                                                                Sd/-MEMBER.

JM                                                                                                                     Dt.25-8-2010