Date of Filing : 01.10.2019
Date of Disposal: 19.10.2022
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. ..… MEMBER-I
THIRU.P.MURUGAN,M.Com.ICWA (Inter)., B.L., ....MEMBER-II
CC. No.04/2020
THIS WEDNESDAY, THE 19th DAY OF OCTOBER 2022
Mr.P.N.Ravi, S/o.P.D.Nagarathinam,
Resiting at Plot No.36, Flat No.F3,
1st Floor, DSP Enclave,
lake View Garden, Kallikuppam,
Chennai 600 053, Thiruvallur District. ……Complainant.
//Vs//
M/s.DSP Builders,
Rep by its Proprietor Mr.N.Sekar,
S/o.Late S.N.Narayanasamy,
No.22, Padavattamman Koil Street,
Padi, Chennai -600 050,
Thiruvallur District. …..opposite party.
Counsel for the complainant : Mr.S.Logeshwaran, Advocate.
Counsel for the opposite party : M/s.Golden Law Associates.
This complaint is coming before us on various dates and finally on 06.10.2022 in the presence of Mr.S.Logeshwar, Advocate counsel for the complainant and M/s.Golden Law Associates counsel for the opposite party and upon perusing the documents and evidences produced by both parties 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 in making defective construction of the flat purchased by the complainant along with a prayer to direct the opposite party to pay a sum of Rs.10,00,000/- towards the loss, damage and repair expenses to be carried out in the complainant’s flat caused due to the deficiency in service and to direct the opposite party to allot car parking for each and every buyer, to build rain water sewage facility and steps to climb to the overhead tank along with cost of the proceedings to the complainant.
Sum and substance of the complaint:-
Alleging deficiency in service against the Builder/Opposite party the present complaint was filed by the complainant contending inter alia that the complainant booked a flat with the opposite party and paid an advance amount of Rs.50,000/- for a total consideration of Rs.32,49,800/-. The complainant made a part payment in 2016 i.e., Rs.22,20,000/- by way of cheque and on 21.10.2016 at the time of sale, the remaining amount of Rs.9,79,800/- was paid by the complainant. Till November 2016 the complainant waited for completion of the flat, in December 2017 the possession was given and in January 2017 the complainant occupied the flat Cracks were seen in the main beam which shows that the building was not strong and there was also leakage on the roof of the complainant’s flat. Immediately the complainant in January 2017 approached the opposite party and complained about the issues for which the opposite party promised that the issues would be resolved. The opposite party even tried to stop the leakage by putting some efforts but it was seen that the same problem started. The opposite party could not make the leakage problem resolved and leakage started frequently in the complainant’s roof area. Further the opposite party had also failed to allocate the following facilities at the time of handing over the possession of the flat
1. No proper car parking allotment,
2. No drainage Connection,
3. No Rain water sewage facility,
4. No steps were built for climbing the open terrace tank;
5. There persist cracks in the man beam;
6. There exists some leakage on the roof etc.
Thus the basic necessities were not satisfied by the opposite party. Even the opposite party failed to comply with the provisions made under Section 11(4) of the Real Estate (Regulation and Development) Act, 2016 as a promoter. Thus aggrieved by the act of the opposite party the present complaint was filed by the complainant for the following reliefs;
To direct the opposite party to pay a sum of Rs.10,00,000/- towards the loss, damage and repair expenses to be carried out to the complainant’s flat caused due to the deficiency in service;
To direct the opposite party to allot car parking for each and every buyer, to build rain water sewage facility and steps to climb to the overhead tank along with cost of the proceedings to the complainant.
Defence of the opposite party:
The opposite party disputed the complaint allegations stating that the complaint was liable to be dismissed for non joinder of necessary parties and had been filed by the complaint beyond the period of limitation. It was also contended that the complainant did not approach this commission with clean hands on merits. It was submitted that the complainant had made complaints of cracks and leakage in the roof in the month of January 2017, but actually there was no crack and leakage. It was submitted that the complainant had manipulated the complaint copy by written contents in the cause of action portion of the court bundle without the permission of the court. Further the jurisdiction and the cause of action was questioned alleging that after implementation of the Real Estate (Regulation and Development) Act, 2016 such complaint would not be adjudicated by the consumer commission. The complainant has paid Rs.30,00,000/-towards total sale consideration and Rs.90,000/- for the registration and miscellaneous charges. It was submitted that the complainant was a defaulter in payment of the entire sale consideration and a civil suit in O.S.No.197/2020 has been filed. Further it was also submitted that the construction was made out of best quality materials and the other allottes had not been given exclusive right or facilities in the said property and the facilities such as sewage drains, water course and amenities were installed in common with the other allottees. Further after thoroughly inspecting the property only the complainant took possession of the property and only to avoid paying maintenance charges the present complaint was filed by the complainant. Though the building was a residential property, the complainant was illegally doing commercial generator repair works and selling generator in the disputed property. A Police complaint was also lodged by the neighbours against the complainant for causing nuisance. Thus, alleging that the present complaint has been filed by the complainant with mala fide intention to extract illegal money had sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A12 were marked on their side. On the side of opposite party proof affidavit was filed and documents Ex.B1 to Ex.B4 were marked. Advocate Commissioner Report was filed and the same was marked as Court Document Ex.C1.
Points for consideration:-
Whether the consumer complaint is maintainable before this commission and whether the dispute could be entertained by this commission?
Whether the alleged deficiency in service on the part of the opposite party in making defective construction of the flat purchased by the complainant has been successfully proved by him?
If so to what relief the complainant is entitled?
Point No.1
On the side of the complainant following documents were filed in support of his allegations;
Construction agreement entered between the parties dated 19.09.2013 was marked as Ex.A1;
Agreement of Sale between the Mrs.S.Devaki and the complainant dated 19.09.2013 was marked as Ex.A2;
Deed of Sale dated 21.10.2016 was marked as Ex.A3;
Cash receipt issued by the opposite party to the complainant dated 19.09.2013 was marked as Ex.A4;
EC of the property was marked as Ex.A5;
Planning permission of the property was marked as Ex.A6;
Rough Sketch of the property was marked as Ex.A7;
EB card of the complainant was marked as Ex.A8;
Property Tax Receipt of the complainant was marked as Ex.A9;
Property Tax Demand Card of the complainant was marked as Ex.A10;
Legal notice sent by the complainant to the opposite party dated 02.09.2019 was marked as Ex.A11;
Proof of delivery of legal notice was marked as Ex.A12;
On the side of opposite party the following documents were filed in support of his defence;
Promissory notice executed by the complainant to the opposite party dated 09.11.2016 was marked as Ex.B1;
Legal notice issued by the opposite party to the complainant dated 04.12.2019 was marked as Ex.B2;
Reply notice issued by the complainant to the opposite party dated 15.12.2019 was marked as Ex.B3;
Plaint copy in O.S.No.197/2020 on the file of Hob’ble District Munsif Court, at Ambattur dated 12.10.2020 was marked as Ex.B4;
The opposite party specifically contended in their written version and also during arguments that the present consumer complaint is not maintainable for the reason that after implementation of the Real Estate (Regulation and Development) Act, 2016 such complaint could not be adjudicated by the Consumer Commission as the jurisdiction of the consumer omission was taken away for deciding disputes with regard to the construction of the flat. We intend to decide the maintainability of complaint as the preliminary issue.
As per Section 3 of the Consumer Protection Act 1986 which reads as follows;
“Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time in force.”
Thus we answer the point accordingly holding that the present complaint is maintainable and this commission has jurisdiction to try the present complaint as it is specifically pointed that the provision of Consumer Protection Act 1986 shall be in addition to any other law for the time being in force.
Point No.2:
The argument made by the complainant was that he purchased the flat in Survey No.805/3A1C, Covered under Patta No.5165 of Korattur Village, Ambattur taluk, Thiruvallur District from the opposite party by paying an advance amount of Rs.50,000/- and in 2016 a sum of Rs.22,20,000/- by way of cheque and Rs.9,79,800/- by way of cheque on the date of sale. It was the specific argument that even on the date of entering into flat for occupation in December 2016 the building had Cracks and leakage on the roof of his flat. Further it was contended that there was also no proper car parking allotment, no drainage connection, no rain water sewage facility and no steps to climb the open terrace tank etc which were the basic amenities promised by the opposite party. Thus the complainant alleges that the property was not suitable for residence and that the complainant had suffered mental harassment and monetary loss due to the poor construction made by the opposite party.
The complainant to prove the defective construction has filed an application before this commission for appointment of an Advocate Commissioner along with PWD Engineer to inspect the premises to find out the defects and to assess the charges for repairing the defects. The said petition has been allowed and an Advocate Commissioner was appointed along with PWD Engineer who filed a report which was marked as Ex.C1. When we perused the Advocate Commissioner’s Report and the charts and the approved valuer’s report, we could see that the defect has been clearly mentioned in the report as follows;
Cracks in the wall;
Cracks are developed the lintel level and switch board backside in the hall and to the below the roof beam in the outer side;
Cracks are developed below full height from floor level to roof ceiling in the both two sides (inner and outer);
Cracks are developed below the roof beam in outer side of bedroom;
Dampness in wall;
Cracks are developed in side of staircase, parapet well;
Hair cracks in entire building etc.,
It is also seen that the engineer has given a conclusion as follows;
“Found poor workmanship in (a) Masonry works- not packing the brick joints, groove cutting, and curing; (b) plastering work- not used mesh for RC and masonry member, poor curing and concrete surface hacking; (c) water proofing-Approved agency/materials not used for waterproofing in toilets, terrace and Overhead tank; (d) Plumbing works-poor jointing for lines and sealing of the joints; packing of plumbing outlets not done as per standard.
The flat has been constructed and handed over during 2016-17. Within a span of five year’ cracks and leaks has been developed, which is clear cut evidence of poor construction or he has not satisfied the agreement between the flat-owners and contractor.
The remedial measures are simply and can be completed in a month’s time. The rough cost works out to INR 7.50 lakhs to 8.00 lakhs. This rectification to be done under a supervision and presence of a qualified and approved Civil Engineer, Major work is only chipping the wall surface and filling with crack filling agents (from approved brand), which will happen in 20 to 25 days. Only additional work will be the provision of ladder to the terrace tank and demarcation of car park.
Finally, it has been certified that the route cause for the deficiency in the construction services provided to the flat owners by the builder.”
Thus when the defects has been explicitly found by the Engineer and his report has been referred by the Advocate Commissioner we are of the view that the defects as alleged in the complaint has been found to be proved supported by the Advocate Commissioner’s report wherein he has specifically mentioned that there arises cracks between the wall due to poor workmanship in plastering, curing not done properly, mesh not provided, cracks in lintel level and roof beam etc.
In the objections by the opposite party they have mentioned that the defects arise only due to poor maintenance by the complainant and co-owners and also due to several climatic changes. It was their further objection that the enmity and quarrel among the complainant and the other flat owners is the reason for not maintaining the property. The reply was given by the complainant to the objections that after appointment of Advocate Commissioner the opposite party had fixed the metal staircase to the over head tank and he denied the allegations that the defects occurred only to the poor maintenance of the flat by the complainant and other flat owner. In such facts and circumstances the contention of the opposite party that the defects occurred only due to the poor maintenance of the flat could not be accepted by this commission for the reason that the Engineer has clearly stated the building which was only 5 to 6 years old has suffered huge cracks and dampness due to the poor workmanship and poor plastering, if the building has been constructed properly there arises no reason for the cracks and dampness in the entire building causing leakage. The contention of the opposite party that the present complaint is an outburst for the suit for recovery of money of Rs.50,000/- filed by them against the complainant could not be accepted for the reason that the complaint has been filed as early as on 18.10.2019 but the suit for recovery by the opposite party has been filed only on 12.10.2020 around one year after filing of the complaint. In such circumstances we are of the view that the poor construction by the opposite party resulting in various defects in the flat has been successfully proved by the complainant. Thus we answer the point accordingly in favour of the complainant and as against the opposite party holding that the opposite part had committed deficiency in service.
Point No.3:
With regard to reliefs to be granted to the complainant as we have held above that the opposite party had committed deficiency in service in the construction of the flat in a defective manner resulting in various defects like cracks and dampness we are of the view that the opposite party should be directed to rectify the defects within a reasonable period and for constructing the flat in an improper manner, the complainant should be compensated as he was made to suffer with leakage and cracks and dampness. For the same we award a compensation of Rs.1,00,000/- which we thought would be appropriate in the facts and circumstances. We also award Rs.10,000/- towards cost of the proceedings to the complainant.
In the result, the complaint is partly allowed directing the opposite party
a) to allot the car parking for each and every buyer, to build Rain Water Sewage facility and steps to climb to the overhead tank within eight weeks from the date of receipt of copy of this order;
b) to carryout rectification of the defects found in the building within eight weeks from the date of receipt of copy of this order;
c) to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for mental agony caused due to the deficiency in service on the part of the opposite party;
d) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
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 19th day of October 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 19.09.2013 Construction agreement. Xerox
Ex.A2 19.09.2013 Agrement of sale between the Mrs.S.Devaki and the complainant. Xerox
Ex.A3 21.10.2016 Deed of sale. Xerox
Ex.A4 19.09.2013 Cash receipt issued by the opposite party. Xerox
Ex.A5 ............... EC of the property. Xerox
Ex.A6 ............. Planning permission of the property. Xerox
Ex.A7 .............. Rough sketch of the property. Xerox
Ex.A8 ............. EB card of the complainant. Xerox
Ex.A9 ............. Property Tax Receipt of the complainant. Xerox
Ex.A10 ............ Property Tax Demand Card of the complainant. Xerox
Ex.A11 02.09.2019 Legal notice sent to the opposite party. Xerox
Ex.A12 ............... Proof of delivery of legal notice. Xerox
List of documents filed by the opposite party:-
Ex.B1 09.11.2016 Promissory notice executed by the complainant to the opposite party. Xerox
Ex.B2 04.12.2019 Legal notice issued by the opposite party to the complainant. Xerox
Ex.B3 15.12.2019 Reply notice given by the complainant to the opposite party. Xerox
Ex.B4 12.10.2020 Plant copy in O.S.No.197/2020 on the file of Hon’ble District Munsif Court at Ambattur. Xerox
Court document:-
Ex.C1 01.06.2022 Advocate Commissioner’s Report. Original
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MEMBER-II MEMBER-I PRESIDENT
