Date of Filling:      22.03.2019

                                                                                                                       Date of Disposal:  06.11.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.                                  .…. PRESIDENT

                   TMT.      K. PRAMEELA. , M.Com.,                                         ….. MEMBER-I

CC No.18/2019

THIS WEDNESDAY THE 06^th DAY OF NOVEMBER 2019

Mr.V.Ravindran,

Flat No.F-2, Jovee Builders,

First Floor, Plot No.105,

Brindavan Nagar Main Road,

Valasaravakkam, Chennai - 600 087.                                                ….. Complainant. 

                                                                        //Vs//

1.M/s.Jovee Builders,

   Rep. by its Partners,

   No.1, Balavinayagar Street,

   Periyar Nagar, Alwarthirunagar, Chennai -600 087.

2.Mr.V.Kamalakannan, Partner,

   M/s.Jovee Builders,

   Rep. by its Partners,

   No.1, Balavinayagar Street,

   Periyar Nagar, Alwarthirunagar,Chennai -600 087.

3.Mr.V.Parthasarathy, Partner,

   M/s.Jovee Builders,

   Rep. by its Partners,

   No.1, Balavinayagar Street,

   Periyar Nagar, Alwarthirunagar,Chennai -600 087.              …Opposite parties.

This Complaint is coming on for final hearing before us on 23.10.2019 in the presence of M/s.N.Nandakumar, counsel for complainant, on behalf of the 1^st,  2^nd  and 3^rd opposite parties Mr.Selthil Advocate initially appeared and  they have not filed any written version and proof affidavit.  Therefore the opposite parties were set ex-parte on 20.06.2019 and after perusal of complainant’s side documents, and hearing the arguments on the side of the complainant, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite parties for seeking direction to demarcate the complainant’s car parking slots out of the available 3 slots in the subject flat’s building and pay a sum of Rs.5,00,000/-towards compensation for mental agony due to the deficiency in service and cost.

2.The brief  facts of the complaint are as follows:-

The 1^st opposite party is a partnership firm represented by the 2^nd and 3^rd opposite parties and engaging in the field of construction and development of the flats. The opposite parties had developed a residential apartment in the name and style of “Jovee Builders” at plot No.105, Brindavan Nagar Main Road, Valasaravakkam, Chennai -600 087.  Initially the complainant had approached the 1^st opposite party to know the project details of subject property in person during the month of November 2016 and the 2^nd opposite party explained the details of the project, shown the building approval and other permit details to the complainant.  Thereafter as the complainant intended to buy one of the flats in the subject property, collected the paper from the 2^nd opposite party and sought legal opinion from his advocate.  After being convinced that the title of the property is clear, he had taken steps to purchase one of the flats in the subject property. The complainant had enquired about other facilities provided by the opposite parties, especially car parking as they had obtained permission only for 3 car parks even though obtained permission for construction of 5 units and the 2^nd and 3^rd opposite parties had informed that only three flat owners who are going to purchase and Register the documents first, would alone be entitled to park the car in the ground area where the car parking is earmarked in the plan and the other two flat owner who are yet to do the Registration would be allotted only two wheeler parking slots. Based on the opposite parties repeated assurances, the complainant along with his brothers and entered into an agreement for construction dated 23.01.2017 with them to the tune of Rs.72,50,000/- towards the cost of construction of “Flat No.F-2” measuring 1396 square feet super built up area in the first floor along with one car park on the ground.  The above said agreement for the construction has been registered as document No.234/2017 along with the sale deed dated 23.01.2017 executed by the 2^nd and 3^rd opposite parties being the power agent of the land owners in respect of the undivided share of land, registered as document No.235/2017 both in the office of the Sub-Registrar, Virugambakkam. After due completion of the construction works, the opposite parties had handed over the flat to the complainant during February 2017 and thereafter the complainant along with family members have been residing in the subject flat along with uninterrupted possession over the car park some time.  Later in the month of September 2017 problem began to crop in, when all the flat owners who purchased the flat later than the complainant also began to park the car earmarked for the complainant.  This has lead to unnecessary skirmishes among flat owners and unnecessary disturbances over each other as all were constrained to take out the vehicle, sometimes in the midnight disturbing each others sleep.  Over the period of time this has become a very big menace and had lead to simmering anger among all occupants of the flat and even lead to a verbal duel among the occupants of the flats.  All the opposite parties unduly enriched themselves by allotting/selling the car park to the owners who registered later point of time than the complainant’s registration.  This is clearly against the 3 approved car parking sanctioned in the plan dated 05.08.2016 and the opposite parties act is nothing but unfair trade practice, breach of trust and amount to cheating. The complainant has been suffering mental agony due to the opposite parties callous attitude by allotting the 3 car parks to the 5 flat owners by suppressing the earlier allotments to the later allottees.  Under these circumstances, the complainant was constrained to issue the legal notice dated 01.12.2018 to the opposite party.  The said notice was received by the 3^rd opposite party on 03.12.2018 and the notice sent to the 1^st and 2^nd opposite parties were returned as unserved with the postal endorsement of “Not Claimed”.  The opposite parties sent a reply dated 17.12.2018 through their advocate, clearly admitting the fact that a car park has been exclusively allotted to the complainant but failed to redress the other issue of desisting the other flat owners who have been allotted the flat later point of time than the complainant from parking their car in the space allotted to the complainant.  Thereby the opposite parties have deliberately and wantonly allotted the 3car parking slots to the 5 flat owners for their beneficial interest and causing mental agony to the occupants of the flat.  Due to the callous attitude of the opposite parties, the complainant had to bear the mental agony and harassment in day to day basis, which is nothing but unethical behavior and unfair trade practice of the opposite parties.  Therefore the complainant ought to be compensated for his mental agony, deficiency of service and grave negligence on the part of opposite parties herein. Hence this complaint.

3. On the side of the complainant, the complainant filed proof Affidavit in order to substantiate their case and Exhibit A1 to A8 were marked on their side and  written arguments filed and also oral arguments adduced on the side of complainants.

4. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents put forth before this Forum though the opposite parties were set Ex-parte.

5. At this juncture, the points for determination before this Forum are as follows:-

1. Whether there is any deficiency in service on the part of the opposite parties as alleged in the complaint?

2. Whether the opposite parties are liable to demarcate the complainant’s car parking slot?

3. Whether the complainant is entitled for compensation and cost from the opposite parties?

4. To what other relief, the complainant is entitled?

6.Points No.1 to 3:-

The case of the complainant is that the complainant and his brothers purchased the undivided share of land from the 2^nd and 3^rd opposite parties by registered sale deed dated 23.01.2017 and also the complainant and his brothers entered into a construction agreement on 23.01.2017 with the 2^nd and 3^rd opposite parties and the 2^nd and 3^rd opposite parties agreed to construct a flat No.F-2 measuring 1396 square feet for Rs.72,50,000/- and also agreed to provide one car parking on the ground floor.  The opposite parties completed the construction work and handed over the flat to the complainant during February 2017.     When all the flats owners who purchased the flat, later than the complainant also began to park the car earmarked.  The complainant addressed the issue to the opposite parties and to solve the problem amicably but the opposite parties failed to solve the problem and allotted car parking to the other flat owners in violation of the approved plan and thereby the complainant suffered mental agony due to the deficiency in service on the part of the opposite parties.

7. The 1^st opposite party is a partnership firm represented by the 2^nd and 3^rd opposite parties.  The opposite parties are engaging in the field on construction and development of the flats.  The opposite parties developed a residential apartment in the name of M/s. JOVEE BUILDERS at Plot No.105, Brindavan Nagar main Road, Valasaravakkam Chennai 87.  The complainant and his two brothers purchased 550 square feet undivided share of land out of the total extent of 2660 square feet at plot No 105, Brindavan Nagar main Road, Valasaravakkam Chennai 87 from the 2^nd and 3^rd opposite party being the power agent of the one Mrs.K.Swayam Parbha, 2) Mrs.B.Geetha, 3) Smt.B.Meera,  4) Mr.B. Sathish Kumar, Mr.B. Krishnamoorthy  through registered sale deed dated 23.01.2017 and the above said document has been marked as Ex.A2.  The complainant and his two brothers also entered in to a construction agreement with the 2^nd and 3^rd opposite parties on 23.01.2017.  Ex.A1 is the copy of construction agreement dated 23.01.2017.  As per the construction agreement the opposite parties agreed to construct the flat at the cost of Rs.72,50,000/- including car park, Metro Water Charges, Sewerage charges, E.B., Property Tax, Registration Charges and Service Tax.  The opposite parties completed the construction and handed over the flat to the complainant and his two brothers during February 2017.  The complainant also paid the entire cost of construction to the opposite parties.  There is no dispute about the payment of entire cost of construction and handing over the flat to the complainant.

8. The only allegation of the complainant is that the opposite parties obtained permission for allotment of three car parking in the ground floor and on the other hand, the opposite parties allotted five car parking to the occupants of the flats.  Therefore this forum has to find out whether the opposite parties obtained permission for 5 car parking or 3 car parking. The complainant submitted a copy of approved plan at the time of argument, in which it is clearly stated that the opposite parties have obtained permission for allotment of 3 car parking.  The opposite parties also allotted one car parking to the complainant and his brothers.  Further the opposite parties constructed five flats as per the approved plan.  According to the complainant the opposite parties allotted the three car parking to three flat owners on first come first serve basis.  But later on the opposite parties allotted car parking to other flat owners in violation of the approved plan.  The opposite parties have no right to allot the car parking in violation of the approved plan which amounts to unfair trade practice.  The above act of the opposite parties amounts to unfair trade practice and deficiency in service. Therefore the complainant was also unable to use the car parking and thereby the complainant suffered mental agony.

9. This complaint has been filed by V.Ravindran but the undivided share of land was purchased by complainant and his brothers namely Mr.V.Giridharan and Mr.V.Muralidharan.  Further the construction agreement also entered between the complainant and his brothers with the 2^nd and 3^rd opposite parties.  Therefore the complainant’s brothers filed a memo on 23.10.2019 stating that the complainant is the Karta of the family and he has possession and enjoyment of the property and also stated they will not either jointly or individually make any further similar claim in respect of the complaint schedule property against the opposite parties.  The above said memo has been recorded on 23.10.2019 therefore the complaint is maintainable.

10. The complainant issued a legal notice dated 01.12.2018 to the opposite parties to solve the car parking issue which is marked as Ex.A5 and for which the 1^st opposite party sent a reply dated 17.12.2018 and the same has been marked as Ex.A7.  In spite of receipt of the legal notice the opposite party has not solved the problem and therefore the complainant filed this consumer complaint before this forum.  The opposite parties even after receipt of the notice from this forum failed to file written version and proof affidavit and therefore they were set ex-parte on 20.06.2019.  The complainant through orally and documentary evidence proved that the opposite parties allotted one car parking to the complainant out of 3 car carking and subsequently allotted more than three car parking to other flat owners in violation of the approved plan and committed deficiency in service.  Therefore there is deficiency in service on the part of the opposite parties, the opposite parties are liable to demarcate the complainant’s car parking and also to pay a sum of Rs.20,000/- towards compensation for causing mental agony due to deficiency in service on the part of the opposite parties and to pay a sum of Rs.5,000/- towards cost of this litigation to the complainant. Thus the point No1 to 3 are answered accordingly.

11. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly the 1^st to 3^rd opposite parties are jointly and severally hereby directed to demarcate the complainant’s car parking slot in the ground floor of residential flat at Jovee Builders, Plot No.105 Brindavan Nagar Main Road, Valasaravakkam Chennai – 87 within two months from the date of receipt of the copy of this order. Further the 1^st to 3^rd opposite parties are jointly and severally hereby directed to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite parties and also to pay sum of Rs.5,000/-(Rupees five thousand only) towards cost of litigation to the complainants. 

The above said amount shall be  payable by the 1^st to 3^rd opposite parties within two months from the date of receipt of the copy of this order failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist and transcribed and computerized by hi and corrected by the president and pronounced by us in the open forum on this 06^th November 2019.   

    Sd-                                                                                                                  Sd-

MEMBER-I                                                                                                    PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite parties:--Ex-parte-

Sd-                                                                                                                            Sd-

MEMBER-I                                                                                                           PRESIDENT