KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO. 241/09 JUDGMENT DATED : 25.01.2010 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT 1. Mrs.Annie Varghese, W/o.K.G.Varghese 44/2663, Link Gardens, Housing Colon, Sahitya Nilayam Road, Kaloor, Kochi. : APPELLANTS 2. Mrs.Lissy Mathew, W/o.K.G.Mathew, Kanakkanattu House, 35/2566, South Janatha Road, Palariattom, Kochi. (By Adv.M/s.Peter & Karunakar) Vs M/s.K.B.Plaza Apartment Owners Association, Room Nos.1 & 2, M/s.K.B.Plaza Apartment, Devankulangara Road, Edappally.P.O. : RESPONDENT Represented by C.S.Raveendranathan. (By Adv.Sri. George Cherian Karippaparambil & Adv.Sri.Rajesth Cherian Karippaparambil) JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellants are the opposite parties in C.C.214/06 in the file of CDRF, Ernakulam. The appellants are under orders to pay a sum of Rs.2,62,500/- to the complainant and also to deliver the documents specified in the complaint except the original title deed and tax receipt or else not pay a sum of Rs.3,000/- to secure certified copies of the above documents and also to pay cost of Rs.2,000/-. 2. The case of the complainant M/s.K.B.Plaza Apartment Owners Association represented by its President is that the opposite parties, the builders of the above multi storied building has failed to rectify the defects in the construction and also to provide the various drawings and documents of the building approved by the Corporation of Cochin. The complainants have estimated 11 items of the defects in the building namely, that the storage of water is attached with the septic tank in violation of the sanctioned plan; the pipe shafts provided are in such a manner that the maintenance of the pipes cannot be done and the side walls are not plastered resulting in seepage of water through the walls; fire escape stair case not provided, soil waste pipe is not adequately provided; bore well not provided; lightening arrester are not properly fixed ; water tank and septic tank are under the car park, large area of walls are left un painted; soak pit and sewage water disposal is not properly done; there is leakage of pipe joints inside pipe shafts and air craft warning is not provided. It is also alleged that the original documents pertaining to the civil works approved by the Corporation, the electrical wiring lay out; plumping lay out; fire fighting lay out; lift wiring diagram, aviation light installation document; telephone cable layout, cable T.V. layout; original title deed and tax payment details and certified copy of the completion certificate were not provided. In spite of repeated requests the above defects were not rectified or the documents provided. They have sought for a direction to rectify the defects and provide the documents or in the alternative to pay a sum of Rs.9,90,000/- for getting the defects rectified. 3. The opposite parties filed have version contending that the complaint is not maintainable and that with respect to the same matter O.P.504/2000 was filed by three members of the complainant association before the same Forum. The above O.P resulted in virtual rejection of the reliefs except to the limited extent of a relief Rs.3,000/- and interest at 18% as per order dated 30.06.2003. The said order was satisfied by the opposite parties. Hence it contended that the present complaint is noting but an abuse of law. With respect to the allegation that the storage of water is attached to the septic tank it is contended that there is no violation of the plan. The change in the plan was with the sanction of the authorities. The civic authorities have issued completion of certificates after due inspection. It is also contended that the members of Association of the complainant were satisfied after the verification of the plan and inspection of site during its various stages of construction. The allegation with respect to the pipe shafts is denied. It is impracticable to lay new pipes through the out side of the wall. The fire escape staircase out side the building was not envisaged under the then building rules. The allegation with respect to the soil waste pipe is denied. It is pointed out that there is already a bore-well in the premises. There is no obligation on the part of the opposite parties to maintain the lightening arrester. The same has been approved by the electrical Inspectorate. The car parking space is provided in accordance with the standard building practices. No area has been left unpainted. It is not correct that the disposal of the waste water is in an unhealthy manner. The allegation of leakage of pipe line is false and proper aircraft warning light has provided. The documents sought were provided to the then office bearers of the complainants as soon as the formation of the Association. The documents concerning telephone and cable T.V. layouts are not available with the opposite parties. The opposite parties are still retaining some unsold portion of the land and hence it is not possible to provide the original title deeds etc. 4. The evidence adduced consists of the testimony of PW1 and Exts.A1 to A5. 5. It is one of the contentions of the appellant that they were not provided with adequate opportunity to adduce evidence. We find that the above contention cannot be upheld. The complaint was filed on 04.05.06 and judgment was pronounced on 31.07.2008. The evidence of the complaint was closed on 16.10.2006. On a perusal of the proceedings paper we find that there was a number of postings for the evidence of the opposite parties after the evidence of the complaint were closed. Hence we find that there is no merit in the above contention. 6. It was also contended that the complainant filed version is not maintainable as complainant’s Association is not an entity recognized by the statute. We find that except the vague averment that the complaint is not maintainable the appellants have not perused the matter. No question as to the above aspect was put to PW1when he was cross-examined. Ext.A1 is the Resolution of the association as per which the President of the Association has been authorized to file the complaint etc. Evidently the matter was not raised before the Forum also as the judgment is silent on the above aspects. We find that there is no illegality in the President of the Association filing the complaint in the representative capacity on behalf of the apartment owners association. 7. Although not specifically contended the question of resjudicata was considered by the Forum. The plea was rejected as the parties are not the same in both the proceedings. Further the judgment in O.P.504/00 is not seen produced also. There is no illegality in the order of the Forum in this regard. 8. Ext.A3 is the report of the Commissioner appointed by the Forum. The Commissioner is a retired Superintending Engineer. The approved plan is attached to the report. The Commissioner has reported that the construction of the tank for the storage of non drinking water used in wash basins and in bathrooms adjacent to the septic tank is in violation of approved plan and is unhygienic. The approximate cost for making alternative arrangement is mentioned as Rs.30,000(PW1 has mentioned that there 32 flats in the building). Of course objection has been filed by the opposite parties to the C.R. But no steps were taken to get the commissioner examined or to get the report discredited. The Commissioner inspected the premises in the presence of both sides. The Forum has upheld the findings of the Commissioner with respect to the provision for storage of non drinking water. We find that nothing could be brought to our notice to discredit the findings of the commissioner in this regard. 9. With the respect the poor accessibility to the pipe shafts and the seepage of water, the Commissioner has noted that it is necessary to lay new pipe through out side wall. It is also noted that there is seepage at certain areas and it is necessary to plaster. The cost is noted as Rs.25,000/-. The above was also approved by the Forum. The cost for providing fire escape stair case is noted as Rs.40,000/-and that the fire escape stair case is mandatory as per Rule 39 of the Buildings Rules. The Forum has approved the above findings and the estimate of the Commissioner. With respect to the inadequacy of soil waste pipe the amount assessed for the works ie, Rs.1500/- was also approved by the Forum. It was found that the bore well is not provided although it is mentioned in the sanctioned plan. The Commissioner has estimated at Rs.40,000/- but the Forum has allowed only Rs.20,000/-. With respect the soak pit and the seepage of water the Commissioner has noted that the provision for the same is by way of a very unhealthy method and estimated the cost of rectification at Rs.30,000/- and the same has also been approved by the Forum. The Commissioner has also noted that proper aircraft warning light have not been provided and the cost of rectification worked out to Rs.12,000/-. The Commissioner has noted the light is provided but there is no wiring or switches. The amount specified by the Commissioner was upheld by the Forum. The Commissioner has also noted that the high tension switches provided in parking slots has to be shifted and the cost of Rs.4,000/- is suggested. It was also found that the four water tanks on terrace are leaking and there are bulgings on the walls of the tanks which are required to be plastered and leak proofing has to be done and the cost of Rs.1,00,000/- is recommended. The Forum has upheld the above recommendation. 10. The Forum has rejected the recommendations of the Commissioner with respect to the lightening arrester and regarding the water tanks and septic tank under the car parking area and with respect to the areas to be painted for the rectification of which a sum of Rs.2,23,000/- was allegedly spent by the Treasurer of the Association. The Commissioner has suggested Rs.2,23,000/- as the amount incurred by the Association for the painting. We find that the Commissioner has mentioned that lightening arrester is seen rusted. We find that the Forum has only allowed the reasonable amounts after examining report of the Commissioner in detail. In the circumstances we find that no interference is called for in the order of the Forum. Hence the appeal is dismissed. The office directed to forward the LCR to the Forum urgently. JUSTICE K.R.UDAYABHANU : PRESIDENT Kb. | 
