Tamil Nadu

North Chennai

CC/140/2015

Mr.M.Murali Krishnan - Complainant(s)

Versus

Mrs.R.Sivaranjani - Opp.Party(s)

M/s.G.Abraham Prabhu Fanny Rajan

13 Oct 2017

ORDER

 

 

                                                              Complaint presented on:  16.07.2015

                                                                Order pronounced on:  13.10.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

       PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY THE 13^th  DAY OF OCTOBER 2017

 

C.C.NO.140/2015

 

 

Mr.M.Muralikrishnan,

Son of  Mr.S.Murugan,

Plot No:5, S-1, Block –A,

2^nd Floor, “Glory Park” Apartments,

Umapthy Nagar, Vinayagapuram,

Kolathur, Chennai – 600 099.

 

                                                                              ..... Complainant

 

..Vs..

	1.Mrs. R.Sivaranjani,   F-1, Vijay Flats, Door No:11, Subramani Nagar,   Chennai – 600 099.   2.M/s.Alvins Constructions, Rep by its Proprietrix, Mrs. R.Sivaranjani, Office at 2/27, Sri Nagar Colony, Redhills Road, Kolathur, Chennai – 600 099.
	.....Opposite Parties

Date of complaint                                  11.09.2015

Counsel for Complainant                      : G.Abrahim Brabhu & Fanny Rajan

Counsel for opposite parties                    : M/s.S.Natarajan &K.Karthik Jagannath

     (Set Ex-parte on  05.07.2015  for                                      

      non filing of proof  affidavit

                                                                    of the opposite parties)

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,  

          This complaint is filed by the complainant to provide a separate exclusive car park in Block – A and also to pay compensation for not carrying out construction as per the approved plan and mental agony with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IS IN BRIEF:

          The 1^st Opposite Party was the owner of the vacant land measuring 4665 sq.ft at Umapathy Nagar, Vinayakapuram, Comprised in survey No.1441/2A and as per extract Town Survey No.9/2, Ward D, Madhavaram Village & Taluk, Tiruvallur District. The 1^st Opposite Party is the Proprietor of the 2^nd Opposite Party Construction Company and she was carrying on Construction in the Name of 2^nd Opposite Party. The 1^st Opposite Party developed Construction of Flats in the above said land consisting of 2 blocks A & B. The Complainant approached the 1^st Opposite Party to purchase a flat in the above said project. The Complainant entered an sale agreement dated 09.06.2012 with the 1^st Opposite Party for the purchase of UDS of 382 sq.ft for a consideration of Rs.7, 64,500/- and he paid an advance of Rs.50,000/-  on the same day. Further they entered a construction agreement on the same day and the Opposite Parties agreed to  construct  Flat No.S1 in the 2^nd  floor in Block – A measuring a built-up area of 795 sq.ft including common area  and fixing cost of construction at Rs.22,35,575/-  including EB connection charges with covered car parking. The Complainant paid all the amounts to the Opposite Parties. The 1^st Opposite Party executed a sale deed for 382 sq.ft UDS land in favour of the Complainant. After completion of the construction the Complainant also took possession of the flat in the month of September, 2012.

          2. The opposite parties have not allotted exclusive covered car park to the complainant as per clause: 3 of the construction agreement dated 09.06.2012. Instead of that, he was allotted car park in the common area. Further the CMDA approved plan only for construction of 6 flats in Block – B and 4 in Block – A. However, the Opposite Parties have constructed 8 flats in Block – B i.e 2 flats in the ground floor G-1 & G-2 unauthorizedly against the approval plan. The unauthorized construction of flat No.G-1 was sold to B. Raja Solomon and another flat G-2 was not sold due to unauthorized construction and the same was occupied by the 1^st Opposite Party. Due to violation of construction the common area will be reduced to the Complainant. Further, no completion certificate was issued to the Complainant.  The Complainant gave legal notice and even after that the Opposite Parties have not rectified the above mentioned defects. Hence, the Complainant filed this Complaint for the deficiency in service committed by the Opposite Parties to direct them to provide an exclusive car park in Block – A, itself and also compensation for mental agony and unauthorized construction with cost of the Complaint. 

 

3. WRITTEN VERSION OF THE 1^st & 2^nd OPPOSITE PARTIES IN BRIEF:

          The complainant is designedly vague and lacking in material particulars. It bristles with tissue of utter falsehood, prevarications and inconsistencies. The complainant only after completely ascertaining and verifying details as to fully constructed flats, absolutely satisfied with quality of construction after utmost satisfaction, bought the flat. The agreement of sale dt:09.06.12 of the undivided share of land of 382 sq.ft on payment of Rs.7,64,500/- and the Construction agreement dt:07.09.12 were done thereafter and the complainant took possession of the fully completed flat is all aspects in Sept 2012 itself.

          4. This complaint is liable to be dismissed for the same is time barred. As a matter of fact, complainants’ legal notice dt:29.12.14 admits taking possession in Sept 2012, but complaint alleging deficiency seeking compensation is filed only on 31.08.2015. The complainant took possession of the flat in September 2012 with covered car park identified and coloured yellow earmarked for flat No.S-1. Hence the car park was not allotted to the complainant is false and imaginary. Regarding EB connections there is a common meter for the respective  blocks. A provisional service connection of flat F3 existed at time of beginning was later on completion given to the flat owner on his purchase, hence the contrary allegations made in this regard, remains to be proved only by the complainant.

          5. The complainant alleged illegal construction, usage of poor quality materials besides defects, diminishing common area without any substantive proof or documents.  The complainant without any protest or demur took possession of the flat in September 2012 as per the construction agreement. The opposite parties used only superior quality materials towards construction of the entire flats. The complaint has no cause of action. The opposite parties have not committed any deficiencies to the complainant and prays to dismiss the complaint with costs.

6. POINTS FOR CONSIDERATION

          1. Whether there is deficiency in service on the part of the opposite parties?

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

7. POINT NO :1

The admitted facts are that the 1^st Opposite Party was the owner of the vacant land measuring 4665 sq.ft. at Umapathy Nagar, Vinayakapuram, Comprised in survey No.1441/2A and as per extract Town Survey No.9/2, Ward D Madhavaram Village and Taluk Tiruvallur District and the 1^st Opposite Party is the Proprietor of 2^nd Opposite Party Construction Company and she  had developed Construction of Flats in the above said land consisting of 2 Blocks A & B and  the Complainant approached the  1^st Opposite Party to purchase a flat in the above said project and  they  entered Ex.A2 sale agreement dated 09.06.2012  for the purchase of UDS of 382 sq.ft  by the Complainant from the 1^st Opposite Party  for a consideration of Rs.7,64,500/- and on the same day  they entered a construction agreement and the Opposite Parties agreed to  construct  flat No.S1 in the 2^nd  floor in Block – A measuring a built-up area 795 sq.ft including common area  and fixing cost of construction at Rs.22,35,575/-  including EB connection charges with Rs.1,50,000/- for covered car parking and after completion of construction the Complainant also took possession of the flat in the month of September, 2012.

          8. The Complainant alleged deficiencies against the Opposite Parties are that

          1. Covered Car Park was not allotted as per Ex.A3

              agreement, Schedule -C, instead open Car Park was

              allotted in the path way,

          2. The Open Car Park was inconveniently allotted to the

              complainant in the path way,                 

          3. UDS value reduced due to unauthorized construction of

               two flats G-1 & G-2 in the ground floor of Block –B  and

          4. There were several constructions deficiencies in the flat

              purchased by the complainant.

 

          9. Ex.A3 is the construction agreement. In the said agreement in schedule – C Property mentioned as “flat No.S-1, Block – A in the 2^nd floor, super built-up area 795 sq.ft including common area and one covered car parking area together with all amenities connections, fittings fixes and others”. The above C- Schedule reveals that car parking area included in the schedule along with flat and other amenities. Therefore, the Opposite Parties ought to have allotted covered car park area only in block A, instead they allotted open car park in the path way between A & B and  hence the complainant was unable to use the said open car park. Therefore as per the construction agreement schedule – C, the opposite parties failed to allot covered car park at Block – A, proves that the opposite parties have committed deficiency in service on their part.  

          10. Ex.A15 is the CMDA plan approved by them to construct Block – A with two flats in the first floor and two flats in the second floor and ground floor is only car parking.  Likewise, Ex.A16 is the CMDA plan approved by them to construct Block – B with three flats in the first floor and three flats in the second floor and ground floor is only car parking. However, the opposite parties have constructed two flats G-1 & G-2 in the ground floor of Block- B and totally 8 flats in that block is a clear violation of the Ex.A16, CMDA plan. Such unauthorized construction of two flats in the ground floor is nothing but an unfair trade practice. Further, one of the unauthorized flat G-1 sold to Mr.Rajasolomn under Ex.A1 sale dated 06.07.2012 establishes the unfair trade practices of the opposite parties. Further apart from the flats approved by the CMDA, there were two flats where unauthorizedly constructed and  Mr. Rajasolomn who had purchased the  unauthorized flat  was given 342 sq ft. UDS land in Ex.A1 sale deed.  Likewise for other unauthorized flat also the opposite parties will give some UDS land while selling the same. The UDS land given for the unauthorized flats has to be shared among the authorized flat owners of the Block A & B either in their UDS or by enjoying as common area. Therefore the contention of the complainant that due to unauthorized construction the UDS value reduced to him is accepted and hence it is held that in this respect also the opposite parties have committed deficiency in service.

          11. The complainant also contended that there were construction deficiencies due to substandard materials.  Ex.A17 photographs at page 23 shows the cracks were developed in the walls. Such a development of cracks proves that the opposite parties used substandard materials for construction.  Therefore it is held that the opposite parties have not allotted covered car park as per Ex.A3 construction agreement and instead allotted open car park in the path way and also used substandard materials for construction also proved by the  complainant and hence it is further held that the opposite parties 1 & 2 have committed deficiencies in service.   

 12. POINT NO: 2

           The Complainant prayed for a separate car parking in Block –A itself. Having agreed in the construction agreement itself, the Opposite Parties owes a duty to allot car park at Block – A itself and therefore the Opposite Parties can be directed to allot a car park in the Block – A to the Complainant.  The Complainant claimed compensation for that she was deceived to buy a flat from the Opposite Parties and also compensation for mental agony. There is no evidence that the Complainant was deceived to buy the flat. However, due to unauthorized construction and not allotting car park in the Block – A, the Complainant suffered with mental agony is accepted and for the same, it would be appropriate to order and direct the Opposite Parties to pay a sum of Rs.2,00,000/- towards compensation for mental agony would meet ends of justice and apart from that a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Parties 1 & 2 jointly or severally are ordered to allot a covered car parking area to the Complainant in the Block – A itself within 3 months from the date of this order and further ordered to pay a sum of Rs. 2,00,000/- (Rupees two lakhs   only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 13^th day of October 2017.

 

MEMBER – I                                                                PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 06.07.2012                   Sale Deed of Unauthorized Flat

Ex.A2 dated 09.06.2012                   Sale Agreement

Ex.A3 dated 09.06.2012                   Construction Agreement

Ex.A4 dated 07.09.2012                   Sale Deed of the Complainant

Ex.A5 dated NIL                     Approved CMDA Plan

Ex.A6 dated 28.11.2012                   Letter given by Opposite Parties  to the

Block –B flat owner

Ex.A7 dated NIL                     Sale Deeds of other Flat Owners

Ex.A8 dated NIL                     List of Flat Owners and EB cons numbers

 

Ex.A9 dated NIL                     EB consumption details for the Unauthorized

                                                    Flats and common area

 

Ex.A10 dated 29.12.2014                 Legal Notice sent by the Complainant

Ex.A11 dated 09.01.2015                 Reply Notice sent by the Opposite Parties

Ex.A12 dated 09.02.2015                 Encumbrance Certificate

 

Ex.A13 dated 25.10.2010                 Sub-division plan of plot No. A and B      

         

Ex.A14 dated BIL                             Brochure

Ex.A15 dated 14.10.2012                 CMDA plan of Block A in Plot No. A

 

Ex.A16 dated 29.10.2012                 CMDA plan of Block B in plot No. B

Ex.A17 dated NIL                             Photographs

Ex.A18 dated NIL                             Engineer Report

 

 

MEMBER – I                                                                PRESIDENT