Date of Filing:31/10/2015

Date of Order:06/10/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:06^TH DAY OF OCTOBER 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B.Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1811/2015

V/s

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT

1.  This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (hereinafter referred to as O.Ps ) alleging deficiency in service and to pay Rs.5,00,000/- towards rectification of defects in the above flat and Rs.2,40,000/- towards completing the pending works in the common area to the complainant, Rs.10,000/- towards litigation expenses and to pass such other order as this Forum deems fit.

2.     The brief facts of the complainant’s case are that, he purchased a flat bearing No.SA, Block III, Second Floor, Situated at “EGPI – SAAATHVIC”, 1^st Main Road, Nanjappa Layout, Dodda Bommasandra, Vidyaranyapura Post, Bangalore 560 097, from O.p.No.1 vide Sale Deed dated 13.10.2014, registered as Document  No.MLS-1-02117-2014-15, stored in C.D. No.MLSD92, in the office of Sub-Registrar, Gandi Nagar (Malleshwaram), Bangalore.  O.P.No.2 is the son of O.P.No.1 and he only interacted and facilitated for the sale transaction. After the purchase, the complainant was under utter shock to see that O.p.No.1 and 2 have failed in rectifying the defects found in the common area in the apartment. They abandoned the incomplete work even though complainant has paid the full amount towards the sale consideration.  O.P. No. l and 2 have not at all used quality material for the construction of the flats.  All the flat owners gave representation to O.p.No.1 and 2 to complete and rectify the defect in the apartment. Inspite of it, O.P.No.1 and 2 are very careless insensitive, audacious, and have failed in the responsibility. Even they did not maintain the apartment building even for six months and left the building to the flat owners for maintenance.   In view of the same, the BESCOM authorities disconnected the power supply for non-payment of the bills for common area and made the life miserable and pathetic of the flat owners and they had to live in dark.  Complainant with other flat owners appointed a structural engineer to know the quality of the construction of the flats.  It was found as per the report that the materials used are sub-standard even though huge amount was collected from them.  The person who was incharge of the construction of the flat Mr.V. Gopalakrishanan has admitted having used sub-standard material for the construction.  A legal notice has been issued to O.P.no.1 and 2 to set right the defects on 04.08.2015.  Inspite of it, O.p.No.1 and 2 neither replied the notice nor complied with the demands.  There was also short circuit in the meter board in the basement due to faulty wiring. Even though the same was brought to the notice of the O.P.No.1 and 2, they never bothered to set it right. The attitude of O.P.No.1 and 2 are recalcitrant, unfathomable towards their obligations as a seller of the flat.  They are totally negligent which has caused the complainant tremendous mental stress.  He is a consumer under the provisions of C.P. Act and that there is deficiency in service and unfair trade practice and hence the complaint.

3.      Upon service of notice, O.P No.1 and 2 appeared before the Forum through their advocate. O.p.No.1 and 2 only have filed their version. O.P.No.3, 4 and 5 were later impleaded to the complaint and notice was also served on them they remained   absent and hence placed exparte.

4.     O.P.No.1 through its representative Ravichandra Babu has contended that it is a developer contracted by  one  Goutham  Parthasarathy and two others (O.p.No.3 to 5) persons for the construction of the flats.   The 1^st O.P Ravichandra Babu after developing the properties acting under General Power of Attorney executed by O.P.No.3 to 5 sold the apartments to several persons including this complainant by executing and registering the sale deed. Hence the complaint against O.P.No.1 is not maintainable. It is further contended that O.P.No.2  is no way  related to the transaction and he is a total stranger  to the developmental activities and sale of the apartments and hence he is not a necessary party to the complaint. 

5.     It is further contended that, the complainant purchased the flat which was fully constructed after satisfying himself regarding the construction, amenities provided and none of the owners have made any complaint with regard to the nature of construction, the amenities provided. There is no contract between him and the complainant to make good the alleged deficiency.  The allegation of not providing the amenities regarding the defects in the construction, disconnection of electricity supply, short circuit in the meter board in the basement are all invented and concocted and created for the purpose of this complaint in order to harass them and to bring them down their reputation.

6.     The alleged report by M/s Ideal construction are all concocted and created for the purpose of this complaint to prejudice the mind of the forum. One V.Gopalakrishnan was appointed by original owners on their behalf to look after the construction activities. The alleged affidavit filed by him is also at the instigation of the original owners since their exists dispute between them regarding payment of the balance of amount and in order to avoid the payment the original owners have instigated him to file the false affidavit.

7.     It is further contended that after satisfying as to the construction and amenities by the purchaser and the original owners the apartment owners have leased the flats to various tenants.  O.P.No.1 has produced the various photographs to contradict the report and photos filed by the complainant.  The defects mentioned in letter dated 17.01.2015 are all imaginary and created for the purpose of this case.   The defects mentioned in the complaint are all against to the existing facts.  There is no contract to fit and agreement to fix the post box, name boards and marking of car parking area. 

8.     Further there is no agreement to install the fire extinguishers since the same is not applicable to the apartment in question and the transformer to be installed as per the KEB norms. The roof top transparent cover for the parking area cannot be done and all the flat owners have obtained khatha in their individual name from the authorities and as such production of occupancy certificate is not at all required .

9.     It is further submitted that after developing the property, the 1^st O P handed over the possession to the original owner who has to maintain the property and at the time to taking delivery of the possession of the flat, the owners have not at all pointed out any defects and if at all there was any defect exiting, the original owners are responsible. Hence they are not liable to pay any amount much less the claim made by the complainant. Complainant has dragged him for the litigation unnecessarily and liable to pay damages of not lesser than one lakh and hence prayed to dismiss the complaint.

10.   In order to prove the respective case, the complainant and O.Ps have filed their affidavit evidence reiterating the contents of the complaint and the version respectively.  Perused the documents produced by the complainant and O.Ps. Heard the arguments. The following points arise for our consideration:-

                        1)   Whether the complainant has proved

     deficiency in service on the part of the

     Opposite Parties?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT 1:         Affirmative.

POINT 2:         Partly in the affirmative   

                         as per the final order.

REASONS

ON POINT No.1:-

12.   The complainant has filed affidavit evidence mainly reiterating the facts as stated in the complaint. Besides he has also produced the sale deed in respect of purchasing the flat No.B-3, the photographs taken to prove the cracks in the wall, not covering the wires and cables to show low quality of work,  using low quality materials, not plastering properly, burning of the main panel, not covering the roof with water proof materials, not providing parapet walls, not maintaining the floors, common area, parking area, showing the debris and unwanted materials lying in the common area, copy of the notice, report from Ideal constructions regarding the defects noticed in the construction, as well as regarding the allegations made in the complaint, copy of the affidavit said to have been given by the work incahrge person, the broacher to invite attention of the would be purchasers highlighting the amenities that would be provided in the flats to be constructed along with plan. 

13.    To counter the same, the O.P No.1s has except filing the version and reiterating the same in the affidavit evidence has not produced any documents worth believing. 

14.     As stated above in the complaint, the complainant is a purchaser of the flat from O.Ps.  The sale deed produced clearly go to show that except O.P.No.2, all the other O.Ps i.e. O.P.No.1 the developer and O.P.No.3 to 5 who are the Vendors and owners have sold  the said flat to this Complainant. The sale deed is registered on 13.10.2014 and the complainant has paid a sum of Rs.20,06,000/-.  “A” Schedule property is the entire area of land on which the ‘B’ schedule is the undivided share out of ‘B’ schedule measuring 336 Sq. Ft, ‘C’ Schedule is the Flat SA in Block No.III Second floor in the apartment named as EGPI SATHVIK consisting of super built up area of 1003 sq. ft with proportionate share in common areas, lobbies, stair case, passages, ducks entrance foyer with water electricity, sanitary connection with the cover park in the stilt. The Schedule ‘D’ is mentions details of the property conveyed and the said sale deed it is mentioned as RCC roof with construction of blocks on cement, teak wood and sal-wood to be used, flooring of vitrified tiles, water, electricity and sanitation and other common facilities.

15.   The brochure for advertising and selling the flats constructed by the O.Ps includes,  elevator for four passengers capacity, attractive melamine polished Ghana Teak wood main entrance door, vitrified tile flooring for apartments and granite for staircase and common area, designed glazed tile on wall up to 7 feet height for bath rooms stainless steel sink and granite platform for kitchen, white coloured sanitary ware, (hind ware/parry ware) in all the toilets, premium acrylic emulsion paint over putty finished ceiling and walls modular electric switches of anchor (Roma make) electrical wiring using Anchor / Havells/V-Guard, spacious car Parking, over water tank and underground sump tank with required sumps (automatic pumps) automatic water level controller for overhead tank , bore well in addition to corporation water connection. These amenities have been assured for every purchaser in the brochure.

16.    It is the duty of the Vendor and Developer to provide the above amenities and facilities at the time of selling the flats to the purchasers and also to transfer the title of the said flats along with the title of the entire property.  Even the same has been mentioned in the sale deed under the heading the Vendor/Developer covenants with the purchaser. It has also mentioned the rights and obligations of the purchaser. 

17.    It is the contention of the complainant that the quality of the construction was very poor, plastering work not done properly, cracks in the walls, low quality and sub-standard sanitary materials used, sewerage water leaking in the common area, burning of panel board, cable hanging from generators, over head roof not properly made water proof and tiles not lied and common areas not finished properly and further the garbage, unwanted materials left as such in the common area rendering unsafe for using the same, leakage of water and sewage in the common area making life unhealthy , the photographs in that respect has been produced. 

18.    On perusing of the version. O.P No.1 has denied all the above contentions and it is his specific case that to bring a bad name to him and to his reputation, false allegations have been made and concocted photographs have been produced and due to differences between him and the owners of the property, one V. Goplala Krishnan was instigated and coerced to file an affidavit against him stating that, sub-standard and low quality materials have been used for the construction and also the report of the ideal construction as a false one.

19.   To substantiate the defense, O.P has not placed any counter evidence except reiterating the averments made in the version. If at all the photographs produced are created or marphed, he could have produced the photographs depicting the ground reality of the building.  There is no other report of expert to counter the contents of the report made by ideal constructions, who conducted the spot inspection at the behest of the complainant.   Though the said report was given on the request for the spot inspection, the same cannot be held that it has been done to favour the complainant.

20.    On going through the said report, it becomes clear that the ramps were made unscientifically and it has to be removed and should be provided with proper cement concrete flooring and the entrance beam has to be cleared for tall vehicles pass through, plastering of the ceiling of the stilt floor not done properly. Hence there is stagnation of water in all most all placed which has to be dismantled and redone with plate vibrator finished for concreting and automatic water controller to be provided for the over head tank.  Even it is in this report there is an external crack in the building in the apartment on many places due to the coating of primer only once. It is suggested that two or more exterior emulsion paint has to painted after fixing the air cracks filled with water proofing chemicals.  Even the cabling work from the generator to the meter is not done properly and it is hazardous and dangerous.  Submersible motor pump to be fixed in the stilt area, sanitary work to be provided to the owners flat in ground area , ground floor and second block has already started leaking and it has to be done urgently and there unhygienic atmosphere there is water stagnating on the stair case of first floor  Block III and there is likelihood of senior citizens falling as there is no protection of grill in the staircase area.  Water proofing on the terrace slab not done resulting in water seepage under the overhead tank and make stability of the building at a later date. Construction debris in the stilt area not removed obstructing the free passage and also infested with rodents and causing damage to the vehicles parked. The parking slots not marked, post box not installed, transformers dangerously placed, causing imminent danger to life of people living therein. There is no maintenance of the lift and lift is making so much of noise and the certification  for the lift and generator has not obtained and for all these work it required to about 20 to 25 lakhs.

21.   To counter the same the O.P has not produced any evidence worth believing. In view of this, we are of the opinion that the O.Ps have failed to provide the amenities which they offered to the complainant, poor quality of construction work by using low quality and substandard materials and further not demarking the car parking area, not providing post boxes, not keeping the common area cleaning and free of debris. In our opinion that this is total deficiency in service. Hence, we answer Point No.l in the affirmative.

POINT No.2:

22.   In view of our answer to Point No.1 in the affirmative, there is deficiency in service on the part of O.Ps and hence they are entitle to get the same rectified.  In the complaint it is prayed that the O.Ps are directed to pay Rs.5,00,000/- towards rectification of defects in the above flat and Rs.2,40,000/- towards completing the pending works in the common area and Rs.10,000/- towards litigation expenses. There is no proper plan and estimate regarding the works to be done and the amount to be incurred.  Though the ideal constructions has inspected the flat/apartment and has reported that a sum of Rs.25,00,000/- is required to set right the defects, to get the premises cleaned and do all the acts complained, in our view it is a very vague estimate without there being actualities. In the absence of proof it is not possible to direct the O.p.No.1,3 to 5 to deposit the said amount. At the same time O.P.No.1 and 3 to 5 cannot escape their liability in setting the matter right and get it corrected and provide all the amenities assured by them at the time of selling the flats. The acts of the O.Ps made the complainant to suffer mentally, physically and financially for which we are of the opinion that if a sum of Rs.50,000/- as compensation and Rs.5,000/- towards litigation expenses if order  to be paid by O.P. NO.1 and 3 to 5 would meet the ends of justice. Hence Point No.2 Partly in the Affirmative and pass the following:-

ORDER

1. The Complaint is partly allowed with cost.

2. The OP 1 and 3 to 5 are hereby directed to provide all the amenities assured by them in the brochure and to rectify the defects raised in the complaint and also as pointed out by M/s Ideal Construction in its report dated 21.07.2015. The said report shall be part and parcel of this order. The said work has to be carried out by O.P.No.1 and 3 to 5 WITHIN THREE MONTHS, failing which they are directed to deposit Rs.10,00,000/- before this Forum in order to get the said works done by the complainant to which a scheme to be worked-out at a later date.

3. Further O.P No.1 and 3 to 5  are hereby directed to pay Rs.50,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses to the complainant.

4. Complaint against O.P.No.2 is hereby dismissed as he has not played any role in the construction of the flats/apartment, its sale and any kind of transaction with the complainant.

5.  The O.Ps are hereby directed to comply the above order at Sl.No.3 within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

6. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 06^th    of OCTOBER 2018)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

PW-1: Govindappa - Complainant. 

Copies of Documents produced on behalf of Complainant/s:

Doc:No.1: A copy of the Sale Deed dated 13.10.2014.

Doc.No.2: the original photographs.

Doc.No.3:  A copy of the representation vide letter dated 17.01.2015.

Doc.No.4:  Original copy of the report of M/s Ideal construction dated 21.07.2015.

Doc.No.5:  A copy of the affidavit sworn by said Mr.V.Gopalal Krishnan.

Doc.No.6: A copy of the legal notice dated 04.08.2015.

Doc.No.7. Postal receipt and endorsement for having receive the legal notice.

Doc.No.8: A copy o of the brochure of the O.P.No.1.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Mr. Ravichandra Babu , Proprietor of O.P. No.1

Copies of Documents produced on behalf of Opposite Party/s:

-Nil-

MEMBER                               PRESIDENT