Date of Filing      : 16.03.2017

                                                                                                                  Date of Disposal: 29.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                 .…. PRESIDENT

                 THIRU.J.JAYASHANKAR, B.A.,B.L.,                                                            .....MEMEBR-I

                 THIRU.P.MURUGAN,B.Com.                                                                     ....MEMBER-II

CC. No.19/2017

THIS FRIDAY, THE 29th DAY OF JULY 2022

 

Mr.N.Murugan, S/o.T.N.Natarajan,

Plot No.41, Breeze County,

(near Apollo Engineering College),

Padur, Poonamallee Taluk,

Thiruvallur – 602 105.                                                                        ……Complainant.

                                                                     //Vs//

1.M/s.Avalon Properties,

   Partership Firm,

   Rep.by its Partner V.Vijayakumar & 3 others,

   Plot No.31, Breeze County,

   (near Apollo Engineering College),

   Padur, Poonamallee Taluk, Thiruvallur – 602 105.

 

2.V.Vijayakumar, S/o.V.Varadan,

    Parther of M/s.Avalon Properties,

    New No.17, Old No.10, Aziz Nagar 2nd Street,

    Kodambakkam, Chennai -600 024.

 

3.G.Sakthivel, S/o.M.Ganesan,

    Partner of M/s.Avalon Properties,

    No.14, Asian Harmony, Flat D, 5th lane,

    Indira Nagar, Chennai – 600 020.

 

4.T.V. Selvan, S/o.Thiyagesan,

   Parther of M/s.Avalon Properties,

   E-111, 16th Cross Street, Besant Nagar, Chennai -600 090.

5.S.Anandakumar, S/o.C.Subramani,

   Partner of M/s.Avalan Properties,

   No.12/15, Sri Lakshmi Nagar Main Road,

   Velachery, Chennai – 600 042                                                 ..........Opposite parties. 

 

Counsel for the complainant                                              :   M/s.A.Muruganandam, Advocate.

Counsel for the opposite parties                                       :   Mr.L.Thanigaivel, Advocate. 

                         

This complaint is coming before us on various dates and finally on 20.07.2022 in the presence of M/s.A.Muruganandam, Advocate  counsel for the complainant and Mr.L.Thanigaivel, Advocate counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties along with a prayer to direct the opposite parties to pay a compensation of Rs.10,00,000/- for the mental agony and hardship caused to the complainant and to direct them to rectify  all the defects  in the construction along with the cost of the complaint. 

Summary of facts culminating into complaint:-

 

The complainant is the owner of the property in plot No.41, Breeze County, Padur, Poonamallee Taluk, Thiruvallur District having been purchased it from the 4th opposite party and had entered into an agreement for construction of plot measuring an extent of 700 square feet built up area.  The agreement was registered at SRO, Sunkuvarchattram on 23.02.2015 vide document no.734/2015 and the consideration was fixed at Rs.10,92,000/-.  The complainant paid entire money as agreed and possession of the house was handed over by the opposite parties on 29.06.2015.  After certain period of time the defects of the building was exposed and the complainant found the following defects in the construction as given below;

1. Cracks on the inner & outer wall;

2. Cracks on main door;

3. Cracks on window doors;

4. Electrical gadgets used in all electrical points and switches were broken;

5. Receipt of additional charges of Rs.70,000/- for laying flooring tiles;

6. Amount Rs.15,000/- received for single phase connection, which is included in the construction agreement, to be refunded;

7. Sub-Standard Filter had been used in the sink;

8. Weathering course not done as agreed;

9. Sub standard paint was used;

10. No development/amenities were provided for better usage;

11. No land was earmarked for OSR land and no land is gifted to the local authority;

12. Cement plastering on the staircase and main entrance steps was broken.

 

When the complainant approached the opposite parties they promised to rectify the defects but failed to do so till the date of filing of this complaint and thus aggrieved the complainant issued a legal notice for complying the promise made on 03.10.2016 and filed the present complaint for the reliefs to direct the opposite parties to pay compensation of Rs.10,00,000/- for the mental agony and hardships caused to the complainant and to direct them to rectify  all the defects  in the construction along with cost of the complaint.

 

Defence of the opposite parties:

The opposite parties jointly filed version disputing the complaint allegations contending interalia that the complainant took possession of the property without any protest as no defects was seen at the time.  It was denied by the opposite parties that sub-standard materials were used for construction.  The opposite parties further admitted that the purchase of the plot by the complainant and construction agreement was entered between them and that all the construction activities were carried under the guidance, supervision and instruction of the complainant and his wife and the complainant had requested to carry various additional works and agreed to pay the cost for the same.  Thus additional works for a sum of Rs.1,82,000/- was done for the complainant’s house.  It was also submitted that there is a contractual balance of Rs.36,800/- to be paid by the complainant to the opposite parties.  Thus it was submitted that the complainant has agreed to pay a total sum of Rs.2,18,800/- for the opposite parties. The opposite parties further stated that it was clear from the construction agreement that as per clause No.18 the complainant shall accept delivery of the house only on the complete satisfaction regarding all aspects and it was true that the possession has been delivered to the complainant on 29.06.2015 and at that time, the complainant without any grievances had accepted the delivery of the house.  However the opposite parties rendered the following explanations to the defects specified by the complainant;

Cracks may appear in the new walls.

When the opposite parties inspected the main door and windows no cracks has been found.

All electrical switches are found to be in good condition.

Regarding tiles it has been specifically mentioned in the specification of the construction agreement, the cost of the vitrified tile shall be Rs.40/- shall be provided by the opposite parties and only the complainant has requested to provide costly tiles and they agreed to pay the difference in cost. 

When MCB had been provided in the electrical item, there is no chance for ceiling fan coil had been burnt.

The opposite party had paid the cost of the three phase service connection, since the complainant is owner of the property the bills have been issued in the complainant’s name by the authorities.  If no arrangement had been made for the provision of electricity supply, it would not have been possible for the complainant to stay there even for a day.

As per the manufacturer’s instructions regarding filter it has to be changed once in six months.

Kitchen platform had been provided as per the instruction of the complainant. 

Regarding weathering course the opposite party has complied what they committed.

Regarding peeling of painting it can be possible if somebody wantonly done it.

Regarding the development charges the opposite party had developed the areas by laying black top roads, street lights, two entrance gates, arch, and avenue trees by spending huge amount than what they collected from the buyers.

Regarding water motor the opposite party used to install Suguna 1 H.P.water motor the complainant has requested the opposite parties to pay the cost of the Suguna 1 H.P. water motor and on receipt of the said amount from the opposite parties the complainant has installed Texmo 1 H.P. water motor.

Regarding the OSR land, the same shall be delivered to the authorities only on completion of all the 65 portions.

Regarding the complainant’s main entrance steps were broken, it is on enquiry came to know that the complainant has put some heavy iron materials on the same and damaged the steps by dashing the cycle subsequently.

 Thus submitted that they have completed more than 30 houses including the complainant’s house and except the complainant no plot owners had no allegations against the opposite parties they sought for the dismissal of the complaint.

The complainant’s proof affidavit was filed and documents Ex.A1 to A15 were marked. On the side of the opposite parties proof affidavit was filed but no documents were produced by them.

Point for consideration:

Whether the complainant is successful in proving the alleged deficiency in service against the opposite parties in constructing the house with defects and sub standard materials as alleged by him and if so to what relief the complainant is entitled?

Point:

On the side of complainant the following documents were filed in proof of complaint allegations;

Affidavit of indemnity bond dated 03.01.2015 was marked as Ex.A1;

Sale Deed in favour of complainant dated 23.01.2015 was marked as Ex.A2;

Receipts for development charges dated 23.01.2015 was marked as Ex.A3;

Construction agreement between the parties dated 23.02.2015 was marked as Ex.A4;

Bank letters to opposite parties dated 25.02.2015 and 05.05.2015 were was marked as Ex.A5 & Ex,A7;

 Receipt issued by the opposite parties dated 25.02.2015 & 06.05.2015 were marked as Ex.A6 & Ex.A8;

EB connection receipt dated 12.06.2015 was marked as Ex.A9;

Bank letter to opposite parties dated 11.07.2015 was marked as Ex.A10;

Receipt issued by the opposite parties dated 12.07.2015 was marked as Ex.A11;

Legal notice issued by the complainant to the opposite parties dated 03.10.2016 was marked as Ex.A12;

Reply notice issued by the opposite parties dated 08.06.2016 was marked as Ex.A13;

Rejoinder notice issued by the complainant to the opposite parties dated 19.10.2016 was marked as Ex.A14;

Photos were marked as Ex.A15;

The Advocate Commissioner’s Report was marked as Court document (Ex.C1).

 Heard the oral arguments and perused the written arguments filed by both parties along with the evidence produced by them.  The crux of the arguments of the learned counsel appearing for the complainant was that there are various defects found in the construction made by the opposite parties which are pointed out in the PWD Engineer’s Report.  He further submitted that though Rs.15,000/- was received by the opposite parties for pending for EB connection, the complainant spent Rs.25,000/- for getting a 3 phase connection and the open space allotted for park was not provided by the opposite party.  He also submitted that the PWD Engineer has filed an evaluation report stating the cost for repair as Rs.99,763/- which clearly reveals the defects found in the construction.  Thus he submitted that the opposite parties had committed negligent and poor service which amounted to unfair trade practice and sought for the complaint to be allowed with compensation of Rs.10,00,000/- for all the defects to be rectified along with cost of this proceedings.

On the side of opposite parties it is represented that the written arguments filed by them may be treated as oral arguments.  In their written arguments the opposite parties admitted the purchase of plot by the complainant and the construction agreement entered between them and also delivery of the building to the complainant. But they specifically deny that the constructed plot handed over to the complainant was with defects.  It is further stated that all the construction activities were carried under the guidance, supervision and instructions of the complainant and his wife.  It was also stated that still an amount of Rs.1,82,000/- yet to be paid by the complainant towards additional works done by the opposite parties and contractual balance of Rs.36,800/- is yet to be received from the complainant and they sought for dismissal of the complaint.

On appreciation of the available materials and pleadings, this Commission feels that we have to give credence to the Advocate Commissioner’s Report along with the PWD Engineer’s Report.  It is found that the opposite parties had not filed any objection to the Advocate Commissioner’s Report.  As per the report of the Advocate Commissioner he has cited as follows;

“I submit that during the inspection i found there were some defects in the above said building and the PWD Engineers noted down the completed and deficient works in the said building.

I submit that i have note down the Physical features of the Building and the PWD engineer assessed the value for the defects to be rectified”

Hence it is well established by the complainant that there are certain defects in the construction through the Advocate Commissioner’s Report.  Further the PWD Engineer who inspected the property and had assessed the amount required to rectify the defects had filed a very detailed report as to what are the defects/shortcoming found in the building, the affected area and also the amount required for repair.  As per the report of the PWD Engineer the total amount required to rectify the defects would amounts to Rs.99,763/-.  It is pertinent to note that the opposite parties had not filed any objections for the report filed by the Advocate Commissioner and PWD Engineer.  In these circumstances it is to be presumed that they accepted the same to be true.  Therefore this commission has to came to a conclusion that there is deficiency in service on the part of the opposite parties in constructing the plot with certain defects as alleged by the complainant and we answer this point accordingly.

With regard to the relief to be granted to the complainant we accept the independent report filed by the PWD engineer and for rectification of the defects award a compensation of Rs.1,00,000/- towards the same.  Further Rs.1,00,000/- was ordered as compensation for the mental agony and hardships caused to the complainant and Rs.10,000/- awarded as cost of this proceedings to the complainant.

In the result, the complaint is partly allowed. The Opposite Parties 1 to 5 are jointly and severally liable 

a)to pay a sum of Rs.1,00,000/- (Rupees one lakh only) for rectification of the defects; 

b) to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for mental agony, harassment, stress and pressure caused to the complainant;

c) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) to be paid within four weeks from the date of receipt of copy of this order failing which an interest of 6% will be levied on the said amount from the date of complaint till realization. 

 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29th day of July 2022.

 

     Sd-                                                     Sd-                                                            Sd-

MEMBER-II                                    MEMBER -I                                            PRESIDENT

 

List of document filed by the complainant:-

 

 

Ex.A1 03.01.2015 Affidvait of indemnity. Xerox

Ex.A2 23.01.2015 Sale Deed. Xerox

Ex.A3 23.01.2015 Receipt for development charges. Xerox

Ex.A4 23.02.2015 Construction agreement. Xerox

Ex.A5 25.02.2015 Bank letter to opposite parties. Xerox

Ex.A6 02.02.2015 Receipt issued by the opposite parties. Xerox

Ex.A7 05.05.2015 Bank letter to opposite parties. Xerox

Ex.A8 06.05.2015 Receipt issued by the opposite parties. Xerox

Ex.A9 12.06.2015 EB connection receipt. Xerox

Ex.A10 11.07.2015 Bank letter to opposite parties. Xerox

Ex.A11 12.07.2015 Receipt issued by the opposite parties. Xerox

Ex.A12 03.10.2016 Legal notice with acknowledgement. Xerox

Ex.A13 08.10.2016 Reply notice. Xerox

Ex.A14 19.10.2016 Rejoinder notice with acknowledgement. Xerox

Ex.A15 ............. Photos. Xerox

 

 

Document filed by the opposite parties:

 

Nil

 

 

Ex.C1 08.02.2019 Advocate Commissioner’s Report. Xerox

 

 

 

      Sd-                                                        Sd-                                                       Sd-

MEMBER-II                                          MEMBER-I                                       PRESIDENT