Andhra Pradesh

East Godwari-II at Rajahmundry

CC/104/2010

Smt. Mudedla Seetharatnam - Complainant(s)

Versus

M/s Chakravarthy Builders And Constructions - Opp.Party(s)

D.Appa Rao

11 Jun 2015

ORDER

                                                                                       Date of filing:       11.10.2010

    Date of Disposal:  11.06.2015

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

   PRESENT: Sri B.Vinay Kumar, B.Sc.B.L.  PRESIDENT

                                 Sri A Madhusudana Rao, M.Com., B.L., MEMBER

  Smt H.V. Ramana, B.Com., L.L.M., MEMBER.

 

CONSUMER COMPLAINT No.104 /2010

        Thursday, the 11^th Day of June, 2015

Between:-

 

1)  Smt. Mudedla Seetaratnam, W/o. Venkateswara Rao,

     Aged about 65 years, Landlady, r/o.Prakashnagar,

     Dr.No.75-3-2, Rajahmundry.

 

2)  Mudedla Dananjaya Rao, S/o. Venkateswara Rao,

     Aged about 54 years, Contractor, r/o.Prakashnagar,

     Dr.No.75-3-2, Rajahmundry.

 

3)  Mudedla Venkateswara Rao, S/o. Bangarayya,

     Aged about 75 years, r/o.Prakashnagar,

     Dr.No.75-3-2, Rajahmundry.

 

4)  Marrapu Soumya, W/o.Suresh, aged 40 years,

     Housewife, r/o.Dr.No.75-3-2/1, Prakashnagar,

     Rajahmundry.

 

5)  Bakku Parvathi Prasanna, W/o.B. Nagaraju,

      aged 45 years, housewife, r/o.Dr.No.75-3-2/2,

      Prakashnagar, Rajahmundry.

 

6)  Mudedla Sridevi, W/o.Hari Bangaru Raju Naidu,

     Aged 30 years, housewife, r/o.Dr.No.75-3-2,

     Prakashnagar, Rajahmundry.

 

7)  Mudedla Nithin, S/o.Hari Bangaru Raju Naidu,

     Aged 14 years (being minor rep. by next friend and

     guardian mother).

     (Complainants 3 to 7 added as per orders in

      IA No.65 of 2011 dt.13.9.2011).                                                 ….   Complainants

 

                                    And

 

M/s. Chakravarthy Builders and Constructions,

Rep. by its Managing Partner, Akula Srinivasa Chakravarthy,

S/o. Posayya, Hindu, aged about 40 years, Builder,

R/o. Prakashnagar, Dr.No.75-6-7, Rajahmundry, E.G. Dist.             ….   Opposite parties

   

 

This case is coming on 22.05.2015 for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Sri D. Appa Rao, Advocate for the complainants and Sri Ch. Prabhakar Rao, Advocate for the opposite party and having stood over for consideration till this day, this Forum has pronounced the following.

 

 

O R D E R

 

(Per Sri B. Vinay Kumar, President)

 

This is a complaint filed by the complainants under section.12 of the Consumer Protection Act, 1986 to direct the opposite party to provide the remaining facilities which are not attended and not provided by the opposite party as per the terms of the construction agreement; to provide solar energy and electrical generator, new second lift with sufficient capacity to lift the maximum persons; to return the amount of Rs.2,66,850/- together with interest at 24% p.a. from the date of collection till repayment of that amount to the complainants since the opposite party paid only an amount of Rs.3,150/- to the electricity department for 7 connections out of the collected amount of Rs.2,70,000/-; to pay Rs.5,00,000/- towards damages for the mental agony and inconvenience suffered by him due to negligent act and deficiency of service and unfair trade practice done by the opposite party;  award Rs.10,000/- towards costs and such other reliefs.  

2.         The case of the complainants is as follows:-  It is submitted that the complainants are the absolute owners of the property situated at Prakash Nagar, Rajahmundry an extent of more than 700 sq. yards. The opposite party is the builder to approach them for development of the above said schedule property.  They executed an agreement on 6.5.2009 for constructions of flats.  As per terms and conditions 50% of the flats has to deliver to the complainants towards the share i.e. 7 ½ flats, the opposite party has taken the half flat and paid the consideration to the complainants. The opposite party has to allot 7 flats to the complainants, the opposite party failed to complete the work as per the terms and conditions, on several demands, the opposite party delivered the flats without completion of the works related to the above said flats. The opposite party failed to do several works as per the agreement. This amounts to deficiency in service on the part of the opposite party.  Hence, the complaint.

3.         The opposite party filed its counter and denied the allegations made by the complainants. This opposite party submits that the present dispute does not come within the purview of the consumer protection act. It is submitted that the opposite party delivered all the seven flats to the complainants in a satisfactory manner just like any other apartment in the complex and to the satisfaction of the complainants. As a matter of fact, the complainants acknowledged about the same in a delivery letter dt.12.10.2009 after having been satisfied with the nature of construction and amenities provided by the opposite party. As a matter of fact, the complainants after taking over possession of the seven flats completed them and have been utilizing the same to the best extent possible.  The opposite party completed the electrical work in the flats to the best extent and as agreed upon. The amount mentioned is only expended by all the owners of the flats in the complex to secure the power connection, establishment of transformer, cable charge, panel board charges, errection etc.  The construction is made in accordance with the approved plan. The complainants have been following the construction work from the beginning till the end and got satisfied about the performance. There is no delay in either commencement or in completion of the construction. There is no agreement to provide solar energy facility. This opposite party did not collect any separate amount for providing such facility. However, the opposite party on his own provided all required infrastructure by meeting the necessary expenditure enabling the purchasers and the complainants to have such facility in future if they choose, though there was no obligation on the part of the opposite party to provide such facility.  No such GPA was ever given to the opposite party in respect of the seven flats of the complainants. The construction was completed in accordance with the written agreement. This opposite party never refused to transfer electricity service to the name of the complainants so far as their seven flats are concerned and since the complainants are not co-operative the same could not be completed. This opposite party never promised or collected any amount to erect any generator and allegations are incorrect. This opposite party provided drinking water tap connection to all the apartments including the seven flats of the complainants. This opposite party and his family members are own more number of flats than the complainants and therefore, they are legitimately entitled to hold the original documents which were in fact released by the opposite party after discharging the bank debt due by the complainants which was not revealed at the time of the original transaction. It is submitted that the entire complaints are devoid of merit and without any substance.  Hence, there is no deficiency of service on the part of the opposite party and the complaint is liable to be dismissed with costs.

4.         Proof affidavits filed by the 2^nd complainant and the opposite party. Exs.A1 to A9 have been marked on behalf of the complainants. 

 

5.         Heard both sides.  

6.         The points that arise for consideration are:

      1) Whether there is any deficiency in service on the part of the opposite

     party?

            2) Whether the complainants are entitled for the reliefs asked for?

            3) To what relief?

 

7. POINT No.1 & 2:  As per the available record, this complaint is originally filed by the 1^st & 2^nd complainants under Section 12 of Consumer Protection Act. The 1^st complainant died during the pendency of this complaint and the complainants 3 to 7 were added as per orders in IA No.65/2011 dt.13.9.2011. 

            The 1^st complainant is the mother of the 2^nd complainant herein and they are the absolute owners of the property situated at Prakash Nagar, Rajahmundry.  The opposite party being the builder approached the complainants to provide the scheduled property for developing the same for construction of flats. Accordingly, they executed an agreement including general power of attorney on 17.3.2008 under Ex.A1 and further the complainants agreed to take 7/15^th share and agreed for G-1, G-2, G-3 flats in ground floor, S-1, S-2, S-3 flats in second floor and No.3 flat in the fourth floor to be given by the opposite party vide Ex.A3. The complainants handed over the scheduled site to the    1^st opposite party on 12.10.2009 under Ex.A2. We further observed that the 1^st & 2^nd complainants and the opposite party entered into a detailed agreement with certain terms and conditions vide Ex.A4 and Ex.A5 = A8 & A9 dt.5.5.2009 is the Development Agreement between the complainants and the opposite party.

As the opposite party builder violated the certain terms and conditions of their agreement, the complainants got issued legal notice dt.4.6.2010 under Ex.A6 to the opposite party. The building plan was appended herewith and marked as Ex.A7 was approved vide Roc.No.7675/07/G1. The opposite party did not start the construction of said flats immediately after the plan was approved on 4.4.2008.  The opposite party failed to provide drinking water tap, generator, electricity connections and further failed to construct the flats as per the specification mentioned in the brochure and approved plan and acted contrary to accepted terms and conditions in construction of the owners share of flats and the complainants further alleged that the opposite party builder collected separate amounts from them for providing the said facilities contrary to the agreement, but there is no evidence for the same.

 

            As per the Agreement under Ex.A5 between the opposite party builder and the complainants, the electrical deposits, municipal water supply deposits and service taxes, expenditure should be borne out by the 1^st party i.e. the late 1^st complainant and 2^nd complainant and the 2^nd party i.e. builder should bear the above expenditure for his share of property only vide para 4 of the said agreement. Further, we observed that there is no provision for establishment of generator or solar power to the said flats by the opposite party builder either in the brochure or in the agreement.  It is further observed that the Advocate commissioner did not mention anything about EPABX provision in the said flats and so, this Forum cannot consider the said allegation of non-providing of EPABX system.                   

            It is further observed that this Forum appointed an Advocate commissioner vide IA No.17/2014 to look into the allegations like leakage of building during rains and holes in the flooring, leakage of tiles etc., made by the complainants against the opposite party builder with the help of a civil engineer. The Advocate commissioner visited the apartments under the name and style of SRUTI MANOR under RS No.258/1 & 2, layout plot No.B35 in an extent of 663 sq. yards bearing Door No.75-1-1 and 75-3-2 of Rajahmundry and filed his report along with technical report issued by one N. Phani Kumar of Sasi Construction Engineers, Rajahmundry and the said commissioner filed report on 4.8.2014 along with photos. The technical person pointed out the following defects in his detailed report like yard flooring in 7 flats had big pot holes, master bedroom cupboard totally seepaged, crack in east wall of bedroom in the same flat, eastern balcony seepage in the same flat and gaps between wall and door frame. Water tank leakage and cracks were observed. Bathroom walls with water stains at two places marked No.FF1 flat and top of east wall also cracked. During the visit of the commissioner T-1 flat was locked. Doors and frame of the bathroom was damaged and the top side of bathroom was seepaged in S-3.  S-1 owner reported no issues during the visit of the commissioner and F-2 flat was locked during the commissioner’s visit.  The commissioner estimated an amount of Rs.12,93,100/- including generator and MS pipe for staircase. So, it is evident that there was some deficiency in service on the part of the opposite party builder towards constructing the flats belonged to the share of site owners i.e. the complainants.

            The complainants relied on the following decisions in (1) Balan Vs. Thulasi Bai Amma 1(2012) CPJ 265, Kerala State Consumer Disputes Redressal Commission, in which it was held that “leakage during the rainy season, cracks developed and the report of commissioner and engineer is on the basis of inspection conducted in the presence of both parties” and so, appeal allowed partly and (2) Rukmani Yamma & Ors., Vs. Kirloskar Investment and Finance Ltd., II(2010) CPJ 284 (NC) in which it was held that “cause of action continued even after delivery of possession since deficiency not rectified and the complaint is not barred by limitation and the local commissioner assessed the cost required to rectify the deficiencies, OP held liable. The above decisions are applicable to the facts and circumstances of the present case.  

            With the discussion held supra and on perusal of the above said two decisions filed by the complainants, we are in the considered opinion that the opposite party builder herein is liable to rectify the defects pointed out in the flats belonged to the site owners i.e. the complainants by the Advocate commissioner with the assistance of technical engineer. It is further observed that the opposite party did not rectify the defects in construction of the above said flats handed over to the site owners as their share despite receipt of demand legal notice under Ex.A6 dt.4.6.2010 and the complainants were forced to approach this Forum for damages for deficiency in service and unfair trade practice and so, the complainants are entitled for rectification of defects pointed out in the commissioner’s report except generator.       

 

8.  POINT No.3:  In the result, the complaint is partly allowed, directing the opposite party builder to rectify the defects in the flats owned by the site owners i.e. the complainants herein as their share pointed out in the commissioner’s report with the assistance of technical engineer within three months time or in the alternative the residents in the flats take up the repairs to rectify the above defects under the supervision of their flat owners and residents association and collect the total amount spent for the said repairs from the opposite party builder as the defects were occurred within two years of occupation. We further direct the opposite party builder to pay an amount of Rs.3,000/- towards costs of this complaint. 

 

      Typed to my dictation, corrected and pronounced by us on this the 11^th Day of June, 2015.

          Sd/-                                   Sd/-                                Sd/-

           MEMBER                                   MEMBER                            PRESIDENT

 

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANTS: None                                FOR OPPOSITE PARTY: None

 

DOCUMENTS MARKED

 

FOR COMPLAINANTS:

 

Ex.A1    Photocopy of GPA cum Sale agreement dt.15.3.2008.

Ex.A2    Photocopy of Possession letter dt.12.10.2009.

Ex.A3    Photocopy of consent letter dt. May, 2009.

Ex.A4    Photocopy of Agreement for construction of flats dt.6.5.2009.

Ex.A5    Photocopy of Development agreement dt. May, 2009.

Ex.A6    O/c of the notice dt.4.6.2010.

Ex.A7    Photocopy of Approved plan proceedings issued by municipal corporation in the

  name of M. Dhananjeya Rao and M. Sitaratnam.

Ex.A8    Photocopy of Agreement for construction of flats.

Ex.A9    Photocopy of Agreement for construction of flats.

 

FOR  OPPOSITE PARTY:         -Nil-

 

 

  Sd/-                                         Sd/-                                            Sd/-

MEMBER                            MEMBER                                  PRESIDENT