Date of Filling :14.07.2014
Date of Disposal :06.11.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S.SUJATHA,B.Sc., … MEMBER-I
CC.44/2014
Tuesday, the 06th day of November 2015
K.R.Sathish Babu,
C2-31, Pulicat Nagar,
Sullurpeta, SPSR Nellore,
Nellore District – 524 121. …Complainant
/Vs/
- The Chief Executive Officer,
Central Government Employees Welfare Housing Organization,
6th Floor, ‘A’ Wing, Japath Bhavan,
Janpath, New Delhi – 110 001.
- The Project Manager,
Central Government Employees Welfare Housing Organization,
Kendriya Vihar –II, Block No.C-5/58, 1st Floor,
Paruthipattu, Avadi, Chennai- 600 071.
- The Project Engineer,
Central Government Employees Welfare Housing Organization,
Kendriya Vihar –II, Block No.C-5/58, 1st Floor,
Paruthipattu, Avadi, Chennai- 600 071.…Opposite Parties
….
This Complaint is coming upon before us finally on 30.10.2015 in the
Presence of Thiru.R.Pandian, Advocate on the side of the complainant and Thiru.M.krishnamurthy, Advocate for the opposite parties and upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party seeking direction that the opposite party has to pay compensation of Rs.6,50,000/- towards negligent and deficiency of service with interest.
The Brief averments of the complaint as follows:
1. The complainant working in Technical Department in Sathish Dhawan Space Centre (SDSC), Sriharikottah Range, ISRO, Sriharikotta and came across Central Government Employees Organization (CGEWHO), in housing scheme promulgated by the Ministry of Housing and Urban Poverty Alleviation, Government of India, Extended to all Central Government Employees and decided to apply for the same. That the opposite parties had quoted the price of Type ‘B’ dwelling unit at Rs.9,90,000/- by duly mentioning in their brochure and the complainant made an application as prescribed by the CGEWHO rules on 17.01.2006 by paying an earnest money deposit of Rs.40,000/- for which the CGEWHO had allotted type ‘B’ dwelling unit in flat No.51, Block -4, Kendriay Vihar II, Paruthipattu Post, Avadi, Chennai.
2. That the complainant further received a communication dated 29.10.2007 stating that, due to increase in whole sale price indices, the cost of the project was increased by 11% and the complainant was further intimated on the cost to be paid along with 6th and final installment. But there was no such apparent increase in the raw materials market, which would give rise to a steep increase of 11%. That the complainant had received a circular from the opposite parties dated 02.04.2008 which contained the revised quote with regard to increase in the cost of the project and it was fixed at Rs.14,24,250/- which resulted in a difference of Rs.4,34,250/- than that of the original quote and estimation. Further the complainant had duly paid all the amount including the final installment amount of Rs.2,94,807/- with a legitimate expectation that he would be provided with the flat which he was allotted without any defects. The opposite party sent a circular dated 01.02.2011, had conveyed the complainant that the proposed project would be completed by the month of May 2011, but again the wait was in vain, as the complainant had received yet another circular from the opposite party dated 29.07.2011 stating that the project would be completed only in the month of August 2011, but it was not completed even in the month of August 2011.
3. The opposite party had sent a another communication dated
16.01.2012 to the complainant that by stating that if the complainant had not taken possession of the flat on 30.06.2012, he would be liable to pay Rs.1,500/- per month as maintenance, as if the complainant was least bothered to take possession of the flat. The complainant suffers in assessment and payment the property tax which are due to the Municipal Authorities, as the property still stands in the name of the Project Manager in their records, even after lapse of couple of years after registration of the dwelling unit in the name of the complainant and even the electricity connection for the dwelling unit is still in the name of the Project Manager and not in the name of the complainant.
4. The opposite party had executed a sale deed in favour of the complainant in November 2011 itself, whereas the actual possession was done only in October 2012, contrary to the salient feature of timely completion of projects as mentioned in their brochure. (probable time period ofr completion of project was mentioned as 30 months), thereby causing vast delay giving rise to immense mental agony as well heavy fiscal loss to the complainant, which is a deficiency of service.
5. The opposite party having collected such a huge amount from the complainant, had rendered defective service by handing over the actual possession of the dwelling unit to the complainant without fulfilling the promise of providing the community hall and children play area, which ere parts of the amenities to the provided which are specified as salient features in their brochure, further most of the specifications mentioned have been changed at the discretion of the opposite parties, viz., precise cement door frames instead of pressed steel frames, change of flooring etc.
6. The opposite parties had never cared to redress the grievance of the complainant till date despite repeated complaints communicated to the opposite parties vide letters dated 12.03.2013, 07.06.2013, 21.10.2013 with regard to leakage in ceilings and seepage of water from top floor causing dampening of walls and damaging the wooden wardrobe in master bedroom installed, spending almost of Rs.1,00,000/- which clearly amounting to deficiency of service. Hence this complaint.
The contention of the written version of the opposite parties as brief as follows:
7. The opposite parties state that it is one of the unit of the Central Government Employees Welfare Housing Organization an autonomous body under Ministry of Housing and Urban Poverty Alleviation, Government of India. That for the welfare of the Government servants the opposite parties have been carrying out Housing Projects at various places through out India and retired Government employees are also entitled to claim the housing benefit from these opposite parties. The opposite parties submit that Chennai phase-II scheme project was launched during the year 2006 and accordingly these opposite parties floated a scheme for inviting the prospective allottees for availing the flats in the place which is situated in Paruthipattu, Avadi Poonamallee Road, Chennai – 71. As per the scheme these opposite parties had stipulated CGEWHO Rules for Chennai, Housing scheme and mentioned the terms and conditions and indicated about the likely date of commencement of project and to conclude the approximate time for completing the same. As per the scheme the proposed project was likely to commence in the year 2006 and would be completed within 30 months from the date.
8. The opposite party planned a scheme for the construction of 37 blocks for 572 dwelling units, comprising of stilt plus 4 floors measuring an extent of 12.52 acres. On that basis allottees have approached these opposite parties to select the flats ranging from 550 sq.ft. to 1500 sq.ft. in the form of A,B,C,D categories of flats. During that time these opposite parties have fixed the price at tentative cost of Rs.1041/- per sq.ft. including the cost of land. As per the Central Government Employees Welfare Housing Organization (CGEWHO) rules 4 relates to the eligibility of the qualifying allottees to avail the housing facilities Rule 7 I to VI relates to payment schedule, escalation cost, interest, cooperative society charges stamp duty, reserve found, statutory levies etc., The said project has been commenced with an intention to provide the housing facilities to the allottees on the basis of no profit no loss. That means what ever the amount to be received from the allottees has to be invested in the project by taking only administrative and overhead expenses.
9.That according to the eligibility of the sources of income the allottees have been divided into A,B,C,D type flats. As per this provision the complainant has been allotted type B flat measuring an extent of 950 sq. ft. for a total sale consideration of Rs.9,90,000/-. The said amount has been paid on the basis of the installment scheme from the date of allotment until the date of completion of entire flat.
10. That they originally intended to go for the open foundation in the above
said place for the construction of flats to the allottees and subsequently after the inspection made by the IIT of Madras Engineers the proposal of open foundation has been changed and these opposite parties had gone for the pile foundation in respect of the apartments as stated supra. During that time more than 2800 piles have ben erected in the above said place before the commencement of the basement for various apartments. Delay in according approval from statutory bodies CMDA, Municipality, Soil testing, foundation, details from IIT Madras, non availabilities of materials and severe monsoon had caused a considerable delay from the commencement date to completion of the project. The project commenced only during the year 2007 and completed in the year 2012. It is pertinent to mention that the opposite parties original intention is to go for isolated footing also being considered a safe, though subsequently these opposite parties came to know that the location of the property reclassified from seismic zone 2 to 3 and hence IIT of Madras recommended to go for the pile foundation instead of isolated footing. The above process has forced these opposite parties being spent for considerable time and hence there occurs a delay.
11. At the time of allotment, these opposite parties uniformly collected 30%
as 1st installment on the allotment depends upon the category of flat in the year 2006. 2nd installment was collected during June 2007 on commencements of construction activities and subsequent installments have been collected from the allottees at interval of one year of 4/6 months interval as mentioned in rules books and brochure while launching the project. It is pertinent to note that based on the construction work only these opposite parties had been collecting the amount from the allottees by passing the benefit in remittance of installments due to delay in construction activities. As per the original allotment the allotted area to the complainant was 950 sq.ft., and subsequently as per the revision plan it has been enhanced to 1055 sq.ft. The increased area is not the escalation and it is forming part of the area increased and accordingly the total cost has been increased from Rs.9,90,000/- to Rs.11,00,000/- which in terms of 11% increased in cost.
12. According to the broacher the cost of flat has been increased to 3.24 lakhs at the time of completion of the flats due to delay in execution for according statutory approval from CMDA, Municipality, pile foundation labour and material escalation as per whole sale price index etc., Accordingly the complainant has to pay the total price of 14.24 lakhs to his flat for taking an area of 1055sq.ft. instead of 950 sq.ft. which comes to Rs.1,350/- per sq.ft. including the cost of the erection of pile in the above said project. During the same period from the date of commencement to date of completion cost per flat has been charged to Rs.3,000/- per sq.ft. by the private builders and even the construction cost itself comes to Rs.1,500/- per sq.ft. During that period the building materials especially sand have been increased considerably, in addition lorry owners strike and heavy rain subsequent flooding at site and that the reason these opposite parties could not comply with the target as mentioned in their letters.
13. Regarding the various repair works, these opposite parties has been duly complied with even after the maintenance period of one year as per the terms of the opposite parties to this complaint. Though the opposite party have issued a call letter on 16.01.2012 to call for the final payment after the completion of the final work by these opposite parties but the complainant has made the final payment only on 28.12.2012 on some pretext pending disposal of the minor works. These opposite parties have not been responsible for delay in taking the flat due to the above said reasons. Even after the final payment made by the complainant he took the possession only on 28.12.2012 after lapse of 10 months from the opposite parties final call up with an intention to grab money by way of compensation through this Forum. In the same block there are 16 dwelling units and one of the allottee took the possession on 26.03.2012 itself.
14. Even after taken the possession over the property, the complainant has not been occupies the house and he has leased out the property to the third party for commercial purpose and which against the rules and regulations of these opposite parties. The opposite party submit that the community hall facility will no way disturb the possession of the complainant as the community hall belongs to all the allottees and the above complaint has no way attracted the deficiency of service by the opposite parties from the utility point of view. Children play ground with Open Park is available for the usage of the complainant and therefore all the complainants made by the opposite party is flimsy, intentional, exploitation in nature and with an intention to get compensation from the opposite parties. Hence, this complaint is liable to be dismissed.
15. In order to prove the case of the complaint, the complainant filed his
proof affidavit as his evidence and Exhibit A1 to A14 are marked on the side of the complainant. Similarly, on the side of the opposite party proof affidavit is filed and Exhibit B1 to B4 are marked on his side.
16. At this juncture, the point for the consideration before this Forum is:
- Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
- To what other reliefs, the complainant entitled to?
17. Written Argument submitted by both sides and copy of the same has been
Furnished to either side. In addition to that, oral Arguments also adduced on both sides.
18. Point 1: Regarding this point, the duty cast upon the complainant
to prove the deficiency in service on the part of the opposite parties which is settled the law. In such circumstances, this Forum has to consider, as to whether the complainant has proved his case by means of relevant and acceptable evidence. At the outset, on careful perusal of proof affidavit filed on the side of the complainant, it is stated that the complainant was allotted the dwelling unit in type B, for the quoted price of Rs.9,90,000/- , which was mentioned in the Exhibit A1, brochure, the communication letter dated 29.10.2007 was issued by the opposite party to the complainant is marked as Exhibit A2, in which it is stated that the cost of the project was increased by 11% due to the increase in raw materials, etc., the letter dated 02.04.2008 is marked as Exhibit A3. Then the another communication dated 21.05.2009 sent by the opposite party and informed that the revised quote with regard to such increase in the cost of dwelling unit was increased Rs.14,24,250, is marked as Exhibit A4. It is further seen from the proof affidavit that the opposite party has sent another communication dated 01.02.2011 which is marked as Exhibit A5 with assurance that the project could be completed for the month of May 2011. Thereafter, another letter dated 29.07.2011 received by the complainant from the opposite party by stating that the project could not be completed only in the month of May 2011 is marked as Exhibit A6. Then the sale deed Exhibit A7, was executed by the opposite party in favour of the complainant on 30.11.2011.
19. Furthermore it is noted, that, on receiving the communication from the opposite party dated 16.01.2012, the complainant could not take possession since the construction of the flat was incompleted which is marked as Exhibit A8, Thereafter the opposite parties sent a possession cum occupation letter dated 01.10.2012 is marked as Exhibit A9. Then the complainant sent letters to the 1st opposite party which are marked as Exhibit A10, and A11 respectively, in which it is stated that the flat above mentioned (B8-120) was not occupied and was vacant till February for noticing certain defects. Again the complainant sent a letter dated 21.10.2013 is marked as Exhibit A12. Thereafter the notice dated 19.12.2013 sent by the complainant counsel it is marked as Exhibit A13 and Exhibit A14 is the photocopies among the defects found in the dwelling flat which was allotted to the complainant.
20. On the other hand, it is contended by the opposite parties in their evidence that the communication letter dated 29.10.2007 was issued by the opposite party to the complainant is marked as Exhibit B1, which contains the defects of increased in plinth area and the letter dated 06.08.2009, the revised costing defects which is marked as Exhibit B2. Furthermore, it is stated their evidence that the opposite parties issued final call letter dated 16.01.2012 which was marked as Exhibit B3, and Exhibit B4, is the agreement executed by the complainant. In fact, that on 03.12.2014 the net amount due is of Rs.2,250/-. It is further noticed from the proof affidavit of the opposite party, that since the complainant took the possession from the opposite party is belatedly i.e. after the period of nearly 10 months in spite of Exhibit B3 was issued even on 16.01.2012. Hence the claim of rent is not at all maintainable. It is furthermore the delay on the part of the opposite party is handing over the possession of the dwelling flat to the complainant has been clearly explained and further the defects mentioned in Exhibit A14, are all minor repair works, the opposite parties has been duly complied with even after the maintenance period of one year as per the terms.
21. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that the allotment of dwelling flats to the complainant and in connection with other facts except the delay in handing over and certain defects noted by the complainant, in the construction admitted facts and all other are no dispute at all.
22. First of all, regarding the allegation of escalation, the opposite party has clearly averred in their written version as well as in the proof affidavit that as per the rule 7 clause 1 to 6, the Central Government Employees Welfare Housing Organization, which is marked as Exhibit A1 herein, relates to the payment schedule, escalation cost, interest, co-operative society charges, stamp duty, reserve fund, statutory levies etc. At the outset, on careful perusal of the above said rule through naked eye in Exhibit A1, it is crystal clear that in respect of escalation cost has been mentioned. Furthermore, as per Exhibit B4 Acceptance and Undertaking given by the complainant, it has been clearly accepted, agreed, shall abide by all the rules and regulations, the terms and conditions that are set forth in the CGEWHO rules brochure as amended from time to time and the terms and conditions given in the CGEWHO allotment letter on the subject. So, it goes without saying that the complainant shall bind upon the CGEWHO rules-brochure.
23. Furthermore, it is pertinent to note that initially as per the allotment,
the allotted area to the complainant was 950 sq.ft and subsequently as per the revision plan enhanced to 1055 sq.ft. and the said increased area is not an escalation and it is forming part of the area increased and accordingly the total cost has been increased from 9,90,000/- to 11,00,000/- which in terms of 11% increased in cost. In such circumstances, the said fact has not been subsequently disputed in the proof affidavit of the complainant. Apart from that, as per the Exhibit A7, the undivided share of land sold to the complainant is 766.112sq.ft. on par with the enhanced the allotted area. Therefore, the allegation made by the complainant in respect of the escalation cost has lost its merits and the same has not been clearly enlightened before this Forum by the complainant. It is further noticed that the said fact of increase in the area allotment has convenient suppressed by the complainant in the complaint.
24. Next thing, is to be considered is, as to whether the delay alleged by the complainant is unreasonable, delay or deliberate one. In this regard, the complainant stated in his proof affidavit that by way of circular dated 01.02.2011(Ex.A5) had conveyed him that the proposed project would be completed by the month of May 2011 and again as per the Exhibit A6, it was stated that the project would be completed in the month of August 2011, but actually it was not completed even in the month of August 2011 and it was completed only in the year 2012 and thereby caused an inordinate delay and committed the deficiency in service and untrade practice.
25. At the outset, the opposite party would contend that they originally intended to go for the open foundation in the said project for the construction of flats to the allottees and subsequently after the inspection made by the IIT of Madras Engineers, the proposal of the open foundation has been changed and therefore the opposite parties had gone for the pile foundation and during the time more than 2800 piles have been erected, in the above said place before the commencement of the basement for various apartments. It is further narrated that the delay occurred in respect of obtaining approval for the statutory bodies i.e. CDMA Municipality, soil testing, foundation, details from IIT Madras, non availabilities of materials and severe monsoon had caused a considerable delay from the commencement date to completion of the project. Furthermore, it is clearly stated that the delay occurred in collecting the installments from the allottees for passing the benefit in remittance of installments, the lorry owner strike and heavy rain subsequent flooded at site and caused delay in the completion of construction of the flats. From the foregoing facts, the opposite parties though admitted the causing of delay in the completion of construction of the flats but it has been clearly explained and the same has to be acceptable one. Moreover, there is nothing on record to show that the delay was deliberate and intentional. It is further to enlighten that no doubt the cost is very competitive and cheaper than the private builders and the same has to be kept in mind. Similarly, it is pertinent to note that the opposite parties is one of the unit of Central Government Employees Welfare Housing Organization an autonomous body under Ministry of Housing and Urban Poverty Alleviation, Government of India, which is not acted for any profit motive or for wrongful gain. It is fairly seen, that the opposite parties are having good intention to provide the residential flats to the Central Government Employees with cheaper cost and they have acted only for the welfare of the above said employees. More so, in fact even after the opposite parties have issued a call letter on 16.01.2012, to call for the final payment and paid and has taken possession by the complainant after a delay of nearly 10 months has to be looked into it. Therefore, from the foregoing facts and circumstances of this case, the plea taken by the complainant in respect of inordinate delay caused in handing over the flats to him has not been proved and thereby the such plea is hereby rejected.
26. Then, In respect of failure to provide the community hall and children play area, it has been clearly explained by the opposite parties that such facilities will no way disturb the possession of the complainant as the community hall belongs to all the allottees. Similarly the play ground with Open Park is available for the usage of the complainant and therefore their complainant has no way attracted the deficiency of service and against is flimsy, intentional, exploitation in nature. In such situation the complainant has not come forward to prove the same by means of relevant and consistent evidence and thereby failed in his duty. At the same time, in respect of defects in the construction of the flats which is allotted to the complainant has been proved through Exhibit A14 and the same also been admitted by the opposite parties in the written arguments and it has been duly in comply with even after maintenance period of one year as per the terms of the opposite parties. At the outset, it is seen from the complaint that the complainant has spent almost Rs.1,00,000/- for rectifying the defect. But actually no document produced on the side of the complainant in order to prove the same.
27. In the light of the above facts and circumstances and observation made above, this Forum has concluded that with regard to certain defects in the construction of the flats shown in the complaint only, the deficiency of service on the part of the opposite parties has been established and proved. Regarding other allegations the complainant failed to prove the same. Thus the point no.1 is answered accordingly.
28. Point 2: As per the conclusion arrived in point no.1, the complainant is entitled for relief towards deficiency in service on the part of the opposite parties with regard to the defects in the flat as averred in the complaint and to that effect he is entitled for reasonable compensation with cost. Thus the point no.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite parties are jointly or severally directed to rectify the minor defects in the construction of the flat as mentioned in the complaint within a month and also directed to pay a compensation for a sum of Rs.5,000/- (Rupees five thousand only) for causing mental agony due to the deficiency in service and with cost of Rs.2,000/-(Rupees two thousand only). Total Rs.7,000/-(Rupees seven thousand only)
The above amount shall be payable within one month from the date of
receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9% P.A. till the date of payment.
Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 6th November 2015.
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MEMBER I PRESIDENT
List of Documents filed by the complainant
Ex.A1/Dt. : Xerox copy of the CGEWHO – Rules – Brochure.
Ex.A2/Dt.29.10.2007: Xerox copy of the letter sent by the 1st opposite party
to the complainant.
Ex.A3/Dt.02.04.2008: Xerox copy of the communication letter sent by the 1st opposite
Party.
Ex.A4/Dt.21.05.2009: Xerox copy of the communication letter sent by the 1st opposite
Party.
Ex.A5/Dt.01.02.2011: Xerox copy of the communication letter sent by the 1st opposite
Party.
Ex.A6/Dt.29.07.2011: Xerox copy of the letter sent by the 1st opposite party to the
complainant.
Ex.A7/Dt.30.11.2011: Xerox copy of the Sale Deed.
Ex.A8/Dt.16.01.2012: Xerox copy of the letter sent by the 1st opposite party to the
complainant.
Ex.A9/Dt.01.10.2012 : Xerox copy of the letter sent by the 1st opposite party to the
complainant.
Ex.A10/Dt.12.03.2013: Xerox copy of the letter sent by complainant to the 1st opposite
party.
Ex.A11/Dt.07.06.2013 : Xerox copy of the letter sent by complainant to the 1st
opposite party.
Ex.A12/Dt.21.10.2013 :Xerox copy of the letter sent by complainant to the 1st
opposite party.
Ex.A13/Dt.19.12.2013: Xerox copy of the Legal notice sent by the complainant’s
counsel to the opposite parties.
Ex.A14/Dt. : The photographs showing the said building’s some parts.
List of documents of the opposite parties:
Ex.B1/Dt.29.10.2007: Xerox copy of the letter sent by the 1st opposite party to the
complainant.
Ex.B2/Dt. : Xerox copy of the revised costing details.
Ex.B3/Dt.16.01.2012: Xerox copy of the final call up letter sent by the opposite party to
the complainant.
Ex.B4/Dt.23.05.2012: Xerox copy of the agreement executed by the complainant.
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MEMBER I PRESIDENT
