Tamil Nadu

StateCommission

CC/34/2015

M/s.K.C.S. Darsan's Flat Owners Associations (regd.No.170/2014) Rep by its President Mr.Julians Judes Vaz - Complainant(s)

Versus

Mr.K.Satish Kumar, Prop. K.C.S.Builders - Opp.Party(s)

K.V.Sudir BaBu

27 Mar 2023

ORDER

                             Date of filing:19.12.2014

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE      Hon’ble Thiru Justice R. SUBBIAH          PRESIDENT

                             Thiru R VENKATESAPERUMAL                          MEMBER

 

CC.NO. 34/2015

 DATED THIS THE 27^th DAY OF MARCH 2023

M/s. K.C.S.Darsan’s Flat Owners Association

          (Regd.No.170/2014)

Rep. by its President Mr.Jullians Judes Vaz

No.6/15, Kamam Street, Selaiyur

Chennai -600 073                                                             ....Complainant

 

                                                  Vs 

K.Satish Kumar

Prop. K.C.S.Builders

No.5/17, Solomon Street

East Tambaram

Chennai- 600 059                                                         ....Opposite party

 

Counsel for complainant                               :   M/s  K.V.Sudhir Babu

Counsel for opposite parties                         :   M/s. V. Benedict Vincent

 

            Opposite parties are set exparte for not filing Proof affidavit

 

         This complaint coming before us for hearing finally on 28.11.2022 and on hearing the arguments of counsel appearing for complainant and upon perusing the material records this Commission made the following order:

ORDER

Justice R. SUBBIAH,  PRESIDENT    

1.       This complaint has been filed under Sec.17 of the Consumer Protection Act, 1986, as against the opposite party praying for a direction to the opposite party to pay a sum of Rs.389000/- to each of the complainants for the pain and mental agony incurred by the complainants, to pay Rs.1 lakh to each of the complainants for the damages caused, and to pay Rs.20000/- towards cost.  

 

2.       The case of the complainant in brief is as follows:

          The members of the complainant’s association started purchasing the flats from the year 2010.  During the period of purchase, the builder/ opposite party has made lot of promises and false representations to all the flat purchasers.  The purchasers purchased their flats, solely believing the representation made by the opposite party in between October 2010 till February 2014.  At the time of purchase, the opposite party did not give time or chance for verification of the documents or building specifications.  The opposite party had sold the flats together with car parking , representing that each purchaser will get one covered car parking, but has not allotted specific or enough slots of car parking to all the owners by which a confusion remains and misunderstanding exists among the flat owners .  Therefore, there is deficiency in service on the part of the opposite party.  The opposite party also had not laid the flooring of the common area properly.  The compound wall near the entrance is not constructed by the builder, and the compound wall on the other side though constructed is not plastered.  The opposite party had not painted the grill gates or treated with anti rust materials, grill gate locks are kept in reverse direction, and glass slab was not provided for the 4^th block, because of which rain water enters into the house.  These deficiencies were reminded often by the association.  The sewage lines were not properly interconnected and the sewage water gets stagnant at all the times in and around the flats and consequently had caused infectious diseases to the inmates and neighbours.  Several emails were sent to the opposite party, requesting to resolve the issues, but he had not chosen to do the same.  Atlast the opposite party had provided labour only for two days and did not complete the work which is evident from the e-mail correspondent dt.8.6.2014 at 6.58 a.m.  The opposite party had represented to the flat purchasers that he will maintain the flats for one year, and then he will facilitate for the formation of an association, but did not keep up his promise.  The opposite party being the builder of the flats had not handed over the original documents till date after repeated requests by the Association.  Thus alleging deficiency in service on the part of the opposite party, the complainant filed the present complaint, praying for the relief as stated supra. 

 

3.       The version filed by the opposite party in brief is as follows:

          The complainant being the President of the Flat Owner’s Association, has no locustandi to file the complaint against the opposite party.  The opposite party has handed over the entire flats to the purchaser’s in the month of January 2011 itself, after completing entire work.  Further, the opposite party had denied all the allegations raised by the complainant. 

 

4.       The opposite party though filed their written version, they have failed to file their proof affidavit.  Therefore, they have been set exparte.

 

5.       In support of their contentions proof affidavit and written arguments are filed by the complainant.  The documents filed by the complainant in support of the contentions are marked as E.A1 to A9.   

 

6.       During the pendency of the complaint, at the instance of the complainant an Advocate Commissioner was appointed to inspect the property alongwith an engineer.  The Advocate Commissioner had inspected the property alongwith the expert engineer, and filed his report, which is marked as Ex.C1.

 

7.       The point for consideration is

          1. Whether the service rendered by the opposite party is deficient?

          2. If so what relief the complainant is entitled to?

 

8.       POINT NO.1 & 2:

          By relying upon the report of the Advocate Commissioner, the learned counsel for the complainant submitted that the opposite party had deviated from most of the portions of the construction.  There are lot of controversies and discrepancies in the actual building plan and the physical structure of the apartment, that is why the builder is reluctant to handover the original documents and building plans to the association and has handed over it to the owner of the block 2G1 who is the second purchaser.  At the time of purchase, the opposite party promised that each owner would be provided with a car parking, but after construction the opposite party did not demarcate it and the space provided is not sufficient.  The flooring of the common area is not properly laid which makes the kids and aged people get injured.  The compound walls are incomplete. The grill gates are not painted and the locks are kept in reverse direction, glass slab is not provided.  Sewage lines are not interconnected and so the water gets stagnant all around the building and causes infectious diseases in the neighbourhood.  This has been intimated to the opposite party through emails dt.27.5.2014, for which they have reciprocated on 28.5.2014.  The rain water harvesting is not proper and the water gets wasted and stagnant making the whole area slippery.  There is only one water sump for all the four blocks, but each block is entitled for a water sump and water is a mandatory provision for a flat.  Ownership of one of the flat which has some complications in allotment of UDS had been retained and was registered in the name of opposite party father-in-law and when days passed off the complications automatically got diluted and the opposite party then have sold the same to one Mr.Bandari, and submitted the original documents to him.  The completion certificate had not been provided by the opposite party, due to the deviations committed in the premises.  The builder had joined two piece of property by encroaching a water channel and pathway leading to the petitioner property, for which the complainant had filed a writ petition in W.P.No.23223/2015 before the High court, which was allowed in favour of the complainants, which proves the criminal attitude of the builder.  Thus the learned counsel had pointed out several defects, and had submitted that the Advocate commissioner report and the photographs marked had endorsed their allegations.   

 

9.       The Advocate Commissioner in his report, state as follows:

  At the end of the pathway from the entrance, block Nos.2,3 & 4 are constructed in the wider portion of the plot.  The compound wall encompassing these blocks has been cut open subsequent to its construction apparently by the revenue authorities.  The compound wall has been plastered with cement and whitewashed only on the inner side while leaving it bare on the outer.  The longevity of the wall is comprised as the bricks of the wall is exposed to the elements from the outside without any protection provided by cement plaster.  The demolition of compound wall has also compromised on the security to the complex since it provides clear access to the adjacent lands for human and stray animals.

  The flooring at the parking level of blocks 2,3, and 4 are plastered with ordinary cement and not with any sort tiles as found at passage at the entrance.  The cement flooring is uneven on the surface paving way for dirt and water being collected in many places.  The flooring has also developed cracks at several places.

  Block Nos.2,3 and 4 have houses in the first and second floors.  There is only one house in the ground floor of block No.2.  Excepting that the whole of the ground floor is kept vacant for car parking.  The columns erected to support these blocks are irregular and do not appear to be strong enough to support the weight of the super structure.  These columns appear very thin like a stack of bamboos.  The wear and tear of the columns are visible from the cracks and brittles these columns have developed.  The safety and longevity of the building has been compromised by such unplanned and haphazard placement of columns.  The columns are also very thin perhaps made an intention to cut costs. 

  The ground floor of block Nos.2,3 and 4 are left vacant apparent for providing covered car parking.  But due to the irregular placement columns and due to the space constraint, no drive way has been provided, as a result, the parking space became limited.

  The grill gate leading to the terrace was placed in a peculiar manner that it would have been impossible to open the entrance to the terrace.

 

10.    We have heard the learned counsel for the complainant, and had perused the materials produced in support of the complaint.

          It is not out of place to mention here that the complaint is drafted by raising vague allegations.  However only from the reading of the Advocate Commissioner’s report, this commission could come to a conclusion that there are several defects in the building, which was not rectified by the opposite party.  Therefore, it is clear that there is deficiency in service on the part of the opposite party.

          However, we are of the view that the complainant had not proved their case beyond ambiguity.  Though they have listed out so many defects, there is no proof to show that those works have been agreed to be done by the opposite party.  Moreover, when there were deviation in the construction like construction of car parking, how did the residents accept the possession.  Likewise, the complainants have not proved the estimated cost of incomplete work.  Therefore, the complainants have not made out the case for the claim of Rs.389000/- towards compensation to each of the complainant, by producing proper and tangible evidence. 

          Eventhough, considering the fact that there appears to be some defects in the construction, as per the report of the Advocate commissioner we are inclined to award a nominal compensation towards the mental agony suffered by the complainant.  Accordingly, we feel that awarding a sum of Rs.20,000/- to each of the resident/ owners of the complainant’s association, alongwith cost of Rs.5000/- to each of the owners would meet the ends of justice.  Point No.1 and 2 answered accordingly.

 

10.     In the result, the complaint is allowed in part, by directing the opposite party to pay a sum of Rs.20000/- towards compensation, alongwith cost of Rs.5000/- towards cost, to each of the resident/ owners of the complainant association.  Time for compliance two months from the date of receipt of the copy of the order, failing which the amount awarded as above, shall carry interest @9% p.a., from the date of default, till realisation.  

 

            R  VENKATESAPERUMAL                                      R SUBBIAH     

                       MEMBER                                                   PRESIDENT

 

Exhibits filed on the side of complainant

A1    04.04.2014 Association registration letter with articles of association

A2    27.05.2014  to

        17.07.2014  Email correspondence of the complainant & OP

A3    05.07.2014 to Email correspondence of flat owner 2G1 Mr.Bhandare and the

        28.07.2014             Association

A4    29.06.2014  Email correspondence of owner of Block 4F1 and the OP

A5                       Photos of Sewage stagnation

A6                       Photos of broken car parking

A7    02.09.2014  Legal notice by the complainant

A8    05.09.2014  Acknowledgement card

A9    13.09.2014  Reply legal notice by OP

 

 

 Exhibit marked by court:

C1       11.10.2022  Advocate Commissioner report

 

 

 

 

  R  VENKATESAPERUMAL                                              R SUBBIAH     

           MEMBER                                                              PRESIDENT