Tamil Nadu

South Chennai

CC/64/2019

R Savithri - Complainant(s)

Versus

M/s madhav Assts - Opp.Party(s)

J James

25 Jul 2022

ORDER

                                                    Date of Complaint Filed : 25.02.2019

                                                    Date of Reservation      : 06.07.2022

                                                    Date of Order               : 25.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                             : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,            :  MEMBER  I 

                         THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

 

CONSUMER COMPLAINT No. 64/2019

MONDAY, THE 25^th DAY OF JULY 2022

R.Savithri,                                                                                     ... W/o S. Raghuraman (late),

Ramyam Flats,

Old No.144, New No.92,

Vellala Street, Purasaiwakkam,

Chennai – 600 084.                                                          …Complainant                          

 

..Vs..

Mr. S.V.S Kannan, Proprietor,

M/s Madhav Associates,

S/o S.V.Sampath,

No.21/9, Bakthavatchalam Street,

West Mambalam,

Chennai – 600 033.                                                   ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. J. James

Counsel for the Opposite Party       : Exparte

 

        On perusal of records and after having heard the oral arguments of the Complainant, we delivered the following:

 

ORDER

Pronounced by the President, Thiru. T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to  pay compensation of Rs.10,00,000/- to the Complainant for the mental agony and physical sufferings caused by the Opposite Party for the Deficiency of service in the construction of building.

2.     The averments of Complaint in brief are as follows:-

The Complainant submit that the Opposite party is a builder and proprietor and has engaged in the business of construction and working under the name and style of Ms Madhav Associates. The Husband of the Complainant and the Opposite party executed an agreement dated 27.12.2013 for Joint Development. In pursuance of the above Joint Development Agreement dated 27.12.2013 the Opposite Party agreed to develop the property into Residential Flat systems as per the Building Plan approval obtained from the authorities concerned. By virtue of the agreement, the husband of the Complainant that is the owner of the property undertakes to transfer 30% or 1077 sqft of undivided share in the land in favour of the opposite party that is to the builder or its nominees and the opposite party the builder to construct and complete in all respects and deliver to the owner or their nominees, self contained flat with an aggregate super built up area of 70% with proportionate undivided share of 70% in the land of property to be retained by the owner that is the complainant's husband. As per clause 5 of the Joint Development Agreement the opposite party has agreed to construct and complete in all respects and deliver to the Owner or their nominees, self contained flat with an aggregate super built up area of 70% in the property along with the proportionate undivided share for any consideration and terms and conditions to be determined by the builder and authorities is to receive and appropriate for itself all such consideration or money from the buyers of such flats. As per clause 10 of the Joint Development Agreement the Opposite Party agrees to construct a building consisting of residential units in the property exclusively at his own cost as per Approved Building Plan sanctioned by the Appropriate Authority any other competent utilizing the maximum FSI permitted according to Law for the time being in force.  As per the clause 13 of the agreement the Opposite Party agrees to complete the construction in all respects and hand over possession of the Residential Flats to the owner that is the Complainant within 10 months from the date of obtaining the approval from CMDA and the CMDA approval was granted on 14.03.2014. The opposite party agrees to spend entire cost of the building constructed on the property and the finishing of the same shall be borne by the Builder and the Owner shall not be required to contribute towards the cost and expenses of the said construction. The opposite party that is the Builder will indemnify the owner that is the Complainant in all respects regarding the construction of the building or any part thereof on account of any act on the part of the Builder. The husband of the Complainant acted according to the agreement and fulfill the each and every terms and conditions of it. The husband of the complainant executed a deed of General Power of Attorney on 27/12/2013 and authorized the opposite party as the lawful power of Attorney Agent to negotiate sale of the 30% that is 1077 sq ft out of 3590 sq ft undivided share of land in favour of the opposite party. The opposite party had started the construction of the building and during the construction he allotted 1077 sq.ft to himself in the second floor of the building containing total 30% of share in the UDS for the consideration of the remaining construction of the building. During the construction of the building, the opposite party sold his share of 1077 sq ft of UDS and 2197 sq ft of flat area in 2 flats to third parties and received payments from them of the respective flats and he executed sale deed to the purchasers on 05/05//2014 and 21/10/2014 In this way he enjoyed  the benefit and received consideration for the construction of the building, but he failed to comply the agreement in favour of the complainant and left out the construction of the building in a incomplete shape. The opposite party delayed the delivery of the building and neglected to complete further facilities. Contrary to the above said agreement clauses the opposite party has neglected and have not completed the following amenities in the construction of building as detailed below.

1. Providing JOHNSON LIFT for carrying 6 persons, at the already constructed work space area for 2" lift (for identification now called as 'B' block)
2. Providing wooden box coverage for the existing open Electricity Board Meter Box and wire arrangements.
3. Marking of separate car parking for each owner of the flat.
4. Providing two doom lights on either side of the front compound wall 
5. Merging of rain water harvesting pipe line of the 'B' block with the already existing rain water harvesting tank constructed in the ground floor.   
6. Constructing 8x8 ft Rest Room (One western type toilet with bath room) at the South Western side corner of the ground floor of the building.
7. Providing teak wood for all main doors to the 8 flats by replacing the existing country wood door.
8. Repairing the Leakage which is finding many parts inside the two water tanks provided at the roof top Terrace of the building. 

The opposite party had constructed a structure of arrangement in the building for providing second lift according to the approved building plan, but he failed to provide the second lift immediately after construction, he had left out the second lift area with an open space, neither providing lift nor closing it by a door in the ground floor, first floor and second floor. His act of negligence and irresponsibility create an endanger to life of children, old and aged persons who frequently cross the stairs from ground floor to first floor and second floor The complainant demanded the opposite party to provide lift and complete the construction of lift area. Instead of repeated request made by the complainant, the opposite party failed to provide second lift and failed to complete the construction of the building. The opposite party left out openly without properly covering by wooden box both on the Electricity Board meter box and wire arrangements at both side of the buildings which is now called as A and B Blocks, which may cause fire accidents and danger to life during rainy season. Instead of repeated request made by the complainant the opposite party neglecting to provide the wooden box cover for the EB meter box.  The complainant called upon the opposite party through a legal notice dated 12.11.2018 that the Opposite party as a builder has all the responsibility and liability to complete the above mentioned works to the buildings as per terms of agreement and as per the approved building plan. But he neglected and has not completed essential and agreed amenities in the building even after receiving and acknowledged the said notice. In response to complainant's legal notice the opposite party has now completed only the following works on the date noted against it as follows:

(a) Provided box coverage for the existing two open Electricity Board Meter Box and wire arrangements (both existing at "A" and "B" block of the building) on 25th and 26th of November 2018. But the following major items are not yet completed by the opposite party and are still pending.

i) Providing JOHNSON LIFT for carrying 6 persons, at the already constructed work space area for 2nd lift (for identification now called as'B' block).

ii) Marking of separate car parking for each owner of the flat.

iii) Providing two doom lights on either side of the front compound wall Merging of rain water harvesting pipe line with the already existing rain water harvesting tank constructed in the ground floor.

 iv) Merging of rain water harvesting pipe line with the already existing rain water harvesting tank constructed in the ground floor.

v) Constructing 8x8ft Rest Room (One western type toilet with bath room) at the South Western side corner of the ground floor of the building.

vi) Providing teak wood for all main doors to the 8 flats by replacing the

existing country wood door.

vii) Repairing the Leakage which is finding many parts inside the two water tanks provided at the roof top of the building.

Commitments made to the complainant by carrying on with the master plan and delay in delivery of buildings. The Complainant cannot wait further and trust the Opposite Party anymore and claims to complete the structure of the building and hand over to the complainant. The complainant already handed over the possession of two flats in 2nd floor to the opposite party as his share as per the agreement and he received consideration and appropriated the same for himself, but failed to complete the portion of the complainant. Hence the complaint.

3.    The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-15  were marked.  

4.     The Opposite Party did not appear before this Commission even after sufficient notice served on them, was called absent and set exparte. The Advocate Commissioner Report is marked as Ex.C1.

5.     Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

 

Point No.1:-

On perusal of Ex.A-1 the Joint Development Agreement dated 27.12.2013, as per clause 16 it is agreed between the husband of the Complainant and the Opposite Party Builder that “ The Builder shall construct the Building with all internal and external services, amenities, facilities, compound walls and common areas like lobby, staircase and passages. The Construction shall be of first class quality in accordance with the specifications as agreed to between the parties which specification described in the Schedule ‘F’. As per Ex. A- 3 the Building Plan Approval obtained from Corporation of Chennai, provisions for lift area has been sanctioned. But there is no mentioning about the Lift, agreed to be provided by the Builder at his cost or any mentioning about the costs to be shared between the Parties. Further on careful reading of Schedule ‘F’ no mentioning was made about the Lift or any brand of Lift. Though the Advocate Commissioner appointed by this Commission, reported that provision for lift was made no lift has been installed and the said space was kept open, unsafe and endangering to the life of the residents, as found in Ex.C-1. Further, from Ex.C-1, the Advocate Commissioner’s report along with valuation certificate, it is clear that the Opposite Party had failed to demark the car parking area to each flat owners, failed to replace teak wood for main doors, Doom lights in the main gate, failed to attend the Leakage works in the overhead tank, failed to merge the rain water harvest pipeline with the existing rain water harvest tank constructed in the ground floor, which is in clear violation of Joint Development Agreement dated 27.12.2013, Ex.A-1, and also the Opposite Party had failed to complete the above said works in spite of receipt of Ex.A-11 and A-13 being the legal notice dated 12.11.2018 and 05.02.2019, but it is seen from the Complaint that the Opposite Party had provided PVC coverage for the Electricity Board Meter in Block A & B on 25^th and 26^th of November 2018, which was after receipt of Ex.A-11 and also from the Advocate Commissioner’s report marked as Ex.C-1 it is noted that the Opposite Party had constructed  8 x 8 feet rest room work.

On discussions made above and on considering the facts and circumstances as well as based on the Advocate Commissioner’s report along with valuation report, marked as Ex.C-1, this Commission holds that the Opposite Party had not completed the works of demarking the car parking area to each flat owners, replacing teak wood for all the main doors, providing Doom lights in the main gate, failing to attend the Leakage works in the overhead tank, failing to merge the rain water harvest pipeline with the existing rain water harvest tank constructed in the ground floor, which is clear violation of the Joint Development Agreement, which clearly amounts to deficiency of service and thereby caused serious mental agony, physical suffering and financial loss to the Complainant. Hence this Commission is of the considered view that the Opposite Party had committed deficiency of service.

Point Nos.2 and 3:-

As discussed and decided in point no.1 against the Opposite Party, the Opposite Party is liable to pay a sum of Rs.3,00,000/- towards compensation for the mental agony, physical sufferings caused to the Complainant due to the deficiency of service committed. And the Complainant is not entitled for any other relief. The Judgement reported in I(2016) CPJ 118 (TN) relied upon by the Complainant passed by our Hon’ble State Commission in S. Malathy Vs-Metro City Foundation & Others, does not apply to the case in hand.

In the result the Complaint is allowed in part. The Opposite Party is directed to pay a sum of Rs.3,00,000/-(Rupees Three Lakh Only) towards compensation for the mental agony, physical sufferings caused to the Complainant due to the deficiency of service committed, within 8 weeks from the date of this order, failing compliance, the Complainant is entitled to recover the above said amounts together with interest at the rate of 9% per annum from the date of the order till the date of realisation.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on  25^th of July 2022.  

 

 

S. NANDAGOPALAN                                                 T.R. SIVAKUMHAR                                                           B.JIJAA

         MEMBER II                                                               MEMBER I                                                                PRESIDENT

 

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	27.12.2013	Joint Development Agreement made between the Husband of the Complainant and Opposite party
Ex.A2	27.12.2013	General Power of Attorney executed by the Husband of the complainant I in favour of the opposite party
Ex.A3	14.03.2014	Approved Building Plan issued by the authorities of the Corporation of Chennai
Ex.A4	09.02.2014	Sale agreement executed by the Builder Opposite Party to the Allottee.
Ex.A5	16.03.2017	Sale deed executed by the Complainant's Husband to the Purchaser.
Ex.A6	27.04.2018	Death Certificate of Raghuraman on 10/04/2018
Ex.A7	22.06.2018	Legal Heir Certificate of Savithri R
Ex.A8	-	Photos for the incomplete and dangerous structure of the lift space.
Ex.A9	-	Photos for the two leakage water tanks
Ex.A10	09.02.2019	Cash Receipt for the photography taken by the New Pearl Colour Print Systems & Digital Photo Studio, Purasaiwakkam, Chennai- 84.
Ex.A11	12.11.2018	Legal Notice
Ex.A12	15.11.2018	Acknowledgement Receipt by Opposite Party
Ex.A13	05.02.2019	Legal Notice-Reminder
Ex.A14	11.02.2019	Acknowledgement Receipt by Opposite Party
Ex.A15	-	Aadhaar No.5467 3352 9843 of Savithri

 

List of documents filed on the side of the Opposite Party:-

 

NIL

 

Documents filed by the Advocate Commissioner:-

 

Ex.C1

-

Advocate Commissioner Report

 

 

 

S. NANDAGOPALAN                                                                 T.R. SIVAKUMHAR                                                     B.JIJAA

         MEMBER II                                                                                 MEMBER I                                                      PRESIDENT