Tamil Nadu

North Chennai

154/2014

Mrs.Muthukumari ,W/o.Mr.T.Vinayagam - Complainant(s)

Versus

Mrs.Ruckmani, W/o.E.Neelakandan - Opp.Party(s)

M/s.D.Moses

14 Nov 2016

ORDER

                                                            Complaint presented on:  28.07.2014

                                                                Order pronounced on:  14.11.2016

 

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

 

MONDAY THE 14^th    DAY OF NOVEMBER 2016

 

C.C.NO.154/2014

 

 

 

Mrs. Muthukumari,

W/o Mr.T. Vinayagam,

No.271, Dharmaja Koil Street, Kilpauk,

Chennai – 600 010.

 

                                                                                        ..... Complainant

 

..Vs..

 

Mrs. Ruckmani,

W/o Mr.E.Neelakandan,

No.1, Varalakshmi Nagar,

Maduravoyal,

Chennai – 600 095.

	...Opposite Party

Date of complaint                                     : 04.08.2014

Counsel for Complainant                          : M/s. D.Moses Jeyakaran

Counsel for   Opposite Party                   : M/s. P.Kumaresan

 

 

 

 

 

O R D E R

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

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant’s grandmother, Mrs.Dhanabakiam owned property measuring 8897 sq ft. land at door No.6, Mandapam  cross Road, Kilpauk Chennai – 10. She died intestate and her property was partitioned on 09.02.2007 between her legal heirs Mr.Selvapillai who is her son and daughter of Mrs.Srinivasammal.  The Complainant is the daughter of said Mrs.Srinivasammal.The Complainant mother was allotted 1488 sq ft. in the land partitioned and she entered  joint venture agreement dated 30.03.2007 with the Opposite Party. The Complainant purchased from the Opposite Party an undivided share of 339 sq ft. of land by a registered sale deed dated 25.02.2010 and also entered construction agreement dated 27.04.2010 with the Opposite Party for the construction of  flat No.C1, block C  in the ground floor measuring 564 sq ft  at a cost of Rs.6,72,000/-.  The Complainant husband is running a music school in the said flat. Of late he has noticed that the wall on the western side is developing a huge crack and he has noticed a hollow sound coming from the floor. On 07.12.2013 he saw from the window some persons cleaning the water sump just abutting the southern side wall of the Complainant’s flat and it became known that a huge sump measuring 12 feet in length, 10 feet in height, 10 feet in breadth was built underneath the Complainant flat for storing water for the eight flats. The Complainant was shocked to know material fact that there was a huge sump below her flat meant for would not have purchased the said flat as it will affect the strength of her flat. The Opposite Party  also cheated the Complainant by giving a flat with an area of 424 square feet only including the common area whereas as per the construction agreement dated 27.04.2010 the Complainant was to be given 564 square feet including the common area. The original agreed area with the Complainant’s mother was 600 square feet. Thus the Complainant was given 140 square feet lesser than what was agreed  by the Opposite Party. Further, the Opposite Party also agreed to provide a car park which was not given. The Opposite Party committed Deficiency in Service as stated above she had issued a legal notice dated 02.01.2014 to the Opposite Party to rectify the defect. The Opposite Party also replied. However the Opposite Party did not rectify the flat and hence the Complainant filed this Complaint to close the sump and to rectify the huge crack developed on the western side wall of her flat and for compensation with cost of the Complaint.

2. WRITTERN VERSION OF THE OPPOSITE PARTY  IN BRIEF:

          The Opposite Party is the builder and promoted and she had developed and constructed various flat in and around Chennai. The Opposite Party admits that initially one Mrs.Dhanabakiam is the owner of the property and later after her death, her daughter Mrs.Srinivasammal  got 1488 sq ft land through partition and in respect of the land she entered with this Opposite Party to construct flats and for the same both of them entered in memorandum of understanding dated 30.03.2007. In the said MOU the Opposite Party agreed to give Rs.20,00,000/- and  one flat  in the ground floor measuring 600 sq ft to the Complainant. The Opposite Party developed the property by constructing flat. At the instance of Mrs.Srinivasammal while handing over the flat, the Opposite Party sold 399 sq ft undivided share land to the Complainant and in respect of flat  measuring 564 sq ft a construction agreement was entered on 27.04.2010 between the Complainant and the Opposite Party. The flat measuring was 564 sq ft of the plinth area inclusive of common area. The Complainant had occupied the flat in the year 2010. The water is pumped in and out since then and the allegation that the Complainant is not aware of the same is not accepted. The other averments made in the Complaint are denied and this prays to dismiss the Complaint with costs.

3.POINTS FOR CONSIDERATION:

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

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

4.POINT : 1

          It is an admitted fact that the Complainant’s grandmother, Mrs.Dhanabakiam owned property measuring 8897 sq ft. land at door No.6, Mandapam  cross Road, Kilpauk Chennai – 10 and she died intestate of property and her legal heirs namely  viz.  her son Mr.Selvapillai and daughter Mrs.Srinivasammal  who is the mother of the Complainant  partitioned in the property and the said  Mrs.Srinivasammal was allotted 1488 sq ft land and in respect of the said land the said  Mrs.Srinivasammal and the Opposite Party entered to a joint venture  in respect of the same Ex.A1 memorandum of understanding was entered between them on 30.03.2007 and the construction was proceeded by the Opposite Party and in the year 2010 the Complainant approached the Opposite Party at the insistence  of Mrs.Srinivasammal agreed to purchase the found floor flat and in respect of the same the Opposite Party executed Ex.A2 sale deed dated 25.02.2010 measuring 399 sq ft and also entered Ex.A3 construction agreement  dated  27.04.2010 to construct C1 flat measuring 564 sq ft inclusive of common area.

          5. Nowhere stated when she occupied the flat however the Opposite Party pleaded in written version that the Complainant occupied the flat in the year 2010. This fact was not disputed by the Complainant. Hence it is held that the Complainant took possession of the C1 flat as per Ex.A3 construction agreement in the year 2010.

          6. The Complainant alleged deficiency  against the Opposite Party is that on 07.12.2013 she saw from the window that some person cleaning the water sump just abutting the southern side wall of her flat and also get damaged due to heavy rain and seasonal changes and she has noticed western side wall developing a huge crack and further instead of giving 564 sq ft flat including the common area the Opposite Party gave only 424 sq ft  which is 140 sq ft lesser than what was agreed by the Opposite Party.

          7.  The Opposite Party denies the above allegation and the Complainant is in occupation from the year 2010 and hence she noticed the water sump below to her flat on 07.12.2013 is not accepted and the Opposite Party also handed over 564 sq .ft including common area and not 424 sq ft as alleged by the Complainant and therefore prays to dismiss the Complaint.

          8. Admittedly as per Ex.A3 construction agreement the Opposite Party has to construct and hand over 564 sq ft. in the ground floor.  The Complainant alleged that she was given flat 140 sq ft lesser in area than what was agreed to her. The Complainant has not given any measurement either in the Complaint or in any one of the document to arrive the said C1 flat measures only 424 sq ft inclusive of common area. When the Opposite Party specifically alleges that she has handed over the flat measuring 564 sq ft to the Complainant, it is for the Complainant to prove that she was handed over 424 sq ft only and not 564 sq ft. Absolutely there is no   evidence forthcoming to prove the contention of the Complainant that her flat measures only 424 sq ft inclusive of common area. Therefore we hold that the Complainant has not proved that her flat measuring only 424 sq ft instead of 564 sq ft.

          9. The next contention of the Complainant is that she noticed that a huge crack is developing on the western side wall and further on 07.12.2013 she saw that some person cleaning the water sump just abutting the southern side wall of the Complainant and such location of the sump was suppressed to the Complainant. The Complainant occupied the flat in the year 2010. Cleaning water sump should have been  done periodically on occupation of the flats.  After occupation only on the 3^rd year i.e; on 07.12.2013 the Complainant saw through her window that some person and cleaning this sump below her flat is not accepted. Further, in Ex.A3 construction agreement at para – 9 it has been specifically mentioned “ the purchaser to have access to the work while the same or under construction and inspite of the same,  if the purchaser found any deviation from the specifications mutual by agreed upon, he shall intimate the vendor  for immediate rectification and the purchaser has no right to make any Complaint of any deviation  after completion of the construction and the vendor shall not  bound to attend the defects.” As per the above clause during construction of the flat or before occupying the flat the Complainant should have intimated about the water sump. Having failed to do so, after 3 years of occupation the Complainant alleged such defects of location of the sump cannot be accepted as deficiency.

          10. The Complainant alleged deficiency a huge crack developed in the wall. On scrutiny of Ex.A7 photograph at page 38 in the middle of the photograph and at page 39 an hairline crack only available and such hairline cracks cannot be held as deficiency after three years of the occupation of the flat. Therefore we hold that none of the deficiencies alleged by the Complainant is proved against the Opposite Party and therefore we hold that the Opposite Party has not committed any Deficiency in Service.

 11.POINT :2      

Since the Opposite Party has not committed any deficiency in service, the complainant is not entitled for any relief as prayed in the complainant and the complaint is liable to be dismissed.

          In the result the complaint is dismissed. No costs.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 14^th   day of November 2016.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 30.03.2007                   MOU between the Complainant’s mother and the

                                                    Opposite Party

 

Ex.A2 dated 25.02.2010                   Sale Deed in favour of the Complainant

 

Ex.A3 dated 27.04.2010                   Construction Agreement between the Complainant

                                                    and the Opposite Party

 

Ex.A4 dated 02.01.2014                   Notice from the Complainant’s counsel to

                                                    Opposite Party

 

Ex.A5 dated 25.01.2014                   Reply from the Opposite Party’s counsel to

                                                    Complainant’s counsel

 

 

Ex.A6 dated 10.03.2014                   Rejoinder from the Complainant’s counsel to the

                                                    Opposite Party’s counsel and Opposite Party with

                                                 acknowledgement

 

Ex.A7 dated 16.06.2014                   Photographs (8)

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

                                                …… NIL …….                                          

 

MEMBER – II                                                               PRESIDENT