Date of Filling : 22.10.2013.
Date of Disposal : 06.02.2017.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
Consumer Complaint no.53/2013
(Dated this Monday the 06th day of February 2017)
Mr. M. Sathian,
S/o. Mr. Muthuraj,
Plot No.26 and 27, Sri Vijaya Nagar,
Mel Ayanambakkam,
Chennai - 600 095. … Complainant.
/ Versus /
M/s. R.R.S. Constructions,
Rep. by its Sole Proprietor
Mr. K. Raju,
No.63, Vellalar Street,
Mogappair West,
Chennai - 600 037. … Opposite party.
This complaint is coming upon before us finally on 06.01.2017 in the presence of M/s. K. Bhasker, Counsel for the Complainant and M/s. J. Franklin, Counsel, initially appeared for the opposite party and filed the written version but subsequently set Exparte for non filing of Proof affidavit and upon hearing arguments, having perused the documents, evidences and written arguments of the complainant, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party seeking relief to direct the opposite party to pay a sum of Rs.2,50,000/- towards damages for not conveying the correct UDS in proportion to the total built up area, to pay a sum of Rs.3,00,000/- for constructing unauthorized flat in the ground floor stilt parking area and causing immense hardship like depriving car parking area, running construction business, risk of damage in the event of demolition by CMDA and hardship caused to the complainant, to pay a sum of Rs.3,50,000/- towards substandard construction and damages caused to the apartment, to refund the sum of Rs.1,25,000/- collected with 24% interest collected illegally towards providing car parking space to pay Rs.2,00,000/- towards damages and hardship for not providing sufficient drainage storage sump, to pay a sum of Rs.15,000/- towards construction of additional drainage sump, to pay Rs.10,000/- towards damages for not providing new motor pump, to pay Rs.2,00,000/- towards incomplete works left by the opposite party and to pay a sum of Rs.2,50,000/- towards compensation for mental agony and hardship caused to the complainant due to the deficiency of service on their part with cost.
2. The brief averments of the complaint as follows:-
The complainant and the opposite party entered into construction agreement on 20.09.2012, to construct a residential apartment bearing flat no. F-1, measuring 853 sq.ft. in the first floor at plot nos.26 & 27, Sri Vijaya Nagar, comprised in Survey no.449, Ayanambakkam Village, Chennai 95. According to the approved building plan permit no.516/2010-11 dated:25.03.2011 by CMDA, the total construction cost fixed as Rs.25,38,400/- towards the cost of UDS, cost of super built up area, cost of car parking and cost of E.B. deposit. The overall rate per sq. ft. is Rs.2,975/-. The opposite party has executed the sale deed for UDS on 12.10.2012 vide Doc. No.10485/2012 duly registered at S.R.O., Ambattur, Chennai. As per the agreement, the opposite party has made several promises to construct residential apartment. The opposite party did not convey the proportionate undivided share of land (UDS). As per the agreement, the opposite party is supposed to construct and deliver 853 sq. ft. of super built up area and proportionate UDS is 488 sq. ft. Whereas, the opposite party has conveyed only 452 sq. ft. of UDS which is less by 36 sq. ft. and thereby, the opposite party has unlawfully retained 36 sq. ft. of the complainant’s land and in this manner, the opposite party has incurred loss to the tune of Rs.2,50,000/-.
3. As per the plan, the opposite party has required to construct these flats, i.e. 3 flats in the 1 & 2nd floors and only lumbar room is to an extent of 175 sq. ft. is permitted in the ground floor and rest of the place is shown as car parking area whereas, the opposite party has deliberately violated and constructed an extra apartment to the extent of 450 sq. ft. at the complainant’s cost with malafide intention to unlawfully enrich him. That is why, the opposite party did not conveyed the full UDS proportionately to the complainant. Thus, the opposite party is squatting over the complainant’s right and causing irreparable loss. Having received huge money towards parking and still encroaching upon it adds fuel to fire. By putting up this unlawful construction, the complainant is subjected to unnecessary hardship and further causing mental inconvenience and nuisance by running his construction office. For the above act, the opposite party is liable to pay a sum of Rs.3,00,000/- as damages.
4. After occupation of the alleged building by the complainant, it has started multiple cracks throughout the walls and roofs which clearly reveals that the substandard materials like cement, steel, mud poor quality of workmanship etc. have been used by the opposite party which is contrary to the assurance given and thereby caused hardship and financial loss to the complainant. Hence, the opposite party has to pay compensation for a sum of Rs.3,50,000/- towards the said defects.
5. That apart of collecting the cost of each sq. ft. at the rate of Rs.3,200/-, the opposite party further collected Rs.1,25,000/- towards car parking space in the stilt area which amounts to illegal bound and therefore, the opposite party is liable and bound to repay the said amount of Rs.1,25,000/-. Further, the complainant was forced to join the other occupants to engage private sewerage tanker service to empty and in the manner, the complainant is compelled to spent Rs.2,000/- every month is unwarranted and has made another drainage pit with 12,000 litre capacity by spending Rs.65,000/- in which, the complainant’s share is alone Rs.15,000/-are all against the share given by the opposite party. Similarly, the opposite party did not even provide new motor pump for the bore well and only used very old second hand ½ H.P. pump and therefore, the opposite party may be directed to give new 1 H.P. ISI motor pump or to pay a sum of Rs.10,000/- towards the cost of motor and hardship caused due to it.
6. That apart from the above said defects the following defects have also been noticed:-
- Not providing ladder and lid / cover for both the Sintex and concrete overhead tank.
- In the terrace many works were left incomplete.
- O.T.S. is left open without any safety mechanism.
- Common areas particularly in steps are not covered by antiskid tiles.
- He did not clear the electricity consumption charges that were used during construction much prior to occupation which were subsequently settled by the complainant.
- Left the building without completing the second coat of painting.
- The wood used is of very poor quality especially doors and window shutter wood.
- The ventilation window frame is fixed upside down thus the defeating the very object of the window.
The above said poor service rendered due to the misrepresentation and false promise has suffered severe mental agony, hardship and untold misery.
7. Further, the opposite party tried to dispose of the unauthorized constructed flat to enrich himself unlawfully which also caused hardship and financial loss, when the opposite party refused to convey the balance UDS. Therefore, the complainant had issued legal notice to the opposite party on 18.07.2013 and in turn the opposite party issued reply notice on 25.07.2013 with false factors and did not come forward to comply the demands of the complainant. Hence, this complaint is filed.
8. The contention of written version of the opposite party is briefly as follows:-
The opposite party denies all the averments as false except those that are specifically admitted herein. It is true that the complainant has engaged into construction agreement with the opposite party on 20.09.2012 which is averred in the complaint. Similarly, it is correct that the opposite party has assured to construct the building as per the plan with good workmanship using standard and approved materials. The opposite party had completed the building and delivered as per to the complainant as per his assertion. It is admitted that a sum of Rs.25,38,400/-was paid by the complainant to the opposite party which includes the cost of UDS, super build up area, car parking, E.B. deposits etc. The opposite party has executed the sale deed for UDS on 12.10.2012 is not at all disputed.
9. It is denied that the opposite party entered into the said agreement in the capacity of owner cum developer as narrated in para no.2 of the complaint. The opposite party denied that he has not kept up his promise as per the agreement and made the complainant to incur irreparable loss and hardship and there are number of defects in the construction agreement as put up by the opposite party. It is denied that the opposite party had cheated the complainant by 36 sq. ft. without properly conveyed the correct proportionate of UDS and the correct method to calculate the UDS in a flat system and thereby, the opposite party has incurred loss to the tune of Rs.2,50,000/-.
10. It is not admitted that the opposite party has deliberately violated the approved building plan and unauthorized constructed as extra apartments in the ground floor which the complainant is not legally bound to the same and thereby, the opposite party unlawfully occupied some portion of space in the ground floor with malafide intension to unlawfully enrich him which results in numerous hardship to the complainant.
11. The opposite party denies that it has started developing multiple cracks throughout the walls and roofs and the substandard materials like cement, steel, mud, poor quality of workmanship have been used for construction which is contrary to the assurance given and thereby, caused damaged to the complainant. It is not correct to say that the opposite party has collected Rs.1,25,000/- towards providing car parking space in the stilt area which is not illegal which the opposite party is not supposed to do so and therefore the above said amount to be refunded. Similarly, the averments made in the paragraph no.10-16 are denied.
12. While the construction was going on, several inspections made by the complainant and on every occasion, the complainant brought engineers and other persons and tested the entire materials and only after satisfying with the above construction, the complainant has come forward to settle the flats cost and accepted the sale deed executed by the opposite party in favour of the complainant. At that time, the complainant has not come forward to raise any defects or alleging unauthorized construction in the ground floor or alleging other defects alleged in the complaint. After lapse of several months, the complainant issued legal notice to the opposite party by demanding several lakhs of money i.e. 70% of the cost paid by the complainant which clearly shows that the only intention of the complainant is to extract money from the opposite party by giving false allegations is untenable.
13. The opposite party never occupying the Flat G-1 on the ground floor by unlawfully since the opposite party is entitled to retain the same for his own use only. Further, either in the agreement or in the sale deed it is not stated that the complainant is having rights over entire UDS area more than the UDS area for respective flat in the construction agreement and sale deed. Hence the complainant cannot questioned the other UDS area. Further, the complainant wantonly spread over rumors against the opposite party and his company among the public in order to spoil the reputation of the opposite party and thereby, the opposite party met with heavy loss in the construction business and also suffered severe mental agony and untold misery. It is further stated that when the opposite party handed over the building to the complainant by finishing all the works which were agreed in the agreement. Hence, this complaint is devoid of merits and therefore, it is liable to be dismissed with exemplary cost.
14. In order to prove the case of the complainant, the complainant has filed the proof affidavit as his evidence and the documents from Ex.A1 to Ex.A19 and Ex.F1 & Ex.F2 are marked on his side. Neither proof affidavit nor documents filed on the side of the opposite party as his evidence and so he was set Exparte.
15. At this juncture, the point for consideration before this Forum is:-
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
16. Written arguments filed and also oral arguments adduced on the side of the complainant. Though the opposite party remained Exparte, this Forum wants to dispose the case fully on merits.
17. Point no.1:-
Regarding this point, on perusal of the proof affidavit of the complainant, it is learnt that the complainant has entered into construction agreement with the opposite party on 20.09.2012 for purchase of a residential flat which were promoted by the opposite party at Mel Ayanambakkam Village, Thiruvallur District. The approved building plan for the said apartment are marked as Ex.A1. The construction agreement and the sale deed are marked as Ex.A2 & Ex.A3 respectively. The total cost of the flat is Rs.25,38,400/- and overall at the rate of Rs.2,975/- per sq. ft. As per the agreement, the measurement of the alleged flat of the complainant is of 853 sq. ft. of the super built up area. As per the sale deed Ex.A3, the UDS allotted to the complainant in respect of his flat purchased is 488 sq. ft.
18. It is further seen from the evidence of the complainant, as per undertaking of the opposite party through Ex.A2, Construction Agreement to construct the building with good workmanship using standard and approved material by appointing good Contractors, Engineers Supervisors etc. But per contra, the opposite party has constructed the building by using substandard materials with poor workmanship and thereby, developed number of defects in the construction agreement as put up by the opposite party which came to light immediately after taking possession of the flat. Further, the fixtures and fittings are of very poor quality which developed cracks, leaking roof, improper electrical wiring etc. Moreover, it is seen that the opposite party has collected car parking charges unlawfully though charged overall rate as Rs.2,975/- per sq. ft. including stilt area and also allotted lesser UDS and therefore, the complainant issued legal notice, Ex.A4 to the opposite party and the reply notice, Ex.A5 has been sent by the opposite party with false factors without complying the demands.
19. It is further narrated by the complainant that immediately after receipt of Ex.A4, legal notice, the opposite party hurriedly tried to dispose of the unauthorisedly constructed the ground floor flat in its UDS. Ex.A6 to Ex.A19 are the bills for expenses incurred for construction of sewage pit and other defective works.
20. At the outset, on considering the averments made in the complaint as well as the proof affidavit, it is learnt that though the complainant has narrated so many things including unauthorised construction in the UDS area in the ground floor etc. but in the proof affidavit the complainant has nothing stated anywhere for not allotting the agreed UDS area and some construction in the ground floor flat. In respect of the collection of extra cost towards car parking space and the expenses incurred for construction of drainage storage sump and other defective works have been proved by acceptable evidence and through relevant bills which are marked as Ex.A6 to Ex.A19.
21. In respect of car parking, as per the Development Control Rules for Chennai Metropolitan Area (as amended upto September 2004) issued by Chennai Metropolitan Development Authority and Rule 20 Annexure 13, it has been clearly enlightened about the allotment of car parking spaces depends upon the dwelling area and no separate cost will be collected and in order to strengthen the version of the complainant, the decision relied upon by the complainant viz. IV (2015) CPJ 249 (NC) CBS Property Development Pvt. Ltd. & another Versus P.V.S. Raghupathy & Others which is squarely applicable to the facts of this case on hand.
22. Therefore, the complainant is entitled for the refund of the additional cost already paid for car parking space. In respect of the defects pointed out by the Qualified Civil Engineer and the estimation cost for the same to the tune of Rs.63,100/- has been proved through Ex.F1, the Expert Report. Regarding the above aspects, as pointed out by the complainant have been proved. But at the same time, regarding the substandard construction and damages caused to the apartment as alleged by the complainant against the opposite party is not been properly proved by obtaining specific detailed Expert Report with estimation cost from the qualified Civil Engineer and hence to that aspect the complainant has not proved the said allegations.
23. In such circumstances, though the opposite party filed his written version and in order to substantiate the averments made in the written version he has not come forward to adduce any evidence by means of filling proof affidavit and even not appeared before this Forum and therefore, he was set Exparte. Therefore, it is quite clear that there is no contra evidence to the complainant’s evidence as pointed out above and hence with the documents and other aspects this Forum can easily be drawn an adverse inference against the opposite party. Thus, the deficiency of service on the part of the opposite party has been proved in certain aspects. Thus, the point no.1 is answered accordingly.
24. Point no.2:-
As per the conclusion arrived in point no.1, it is pertinent to note that since the complaint has been proved by means of relevant evidence. In respect of the unauthorized construction of flat in the ground floor stilt parking area and the collection of additional cost for car parking space, and the expenses incurred for the construction of drainage storage sump to rectify certain defective works, the complainant is entitled for relief for the above said defects along with reasonable compensation for causing mental agony and hardship due to deficiency of service on the part of the opposite party with cost.
In the result, this complaint is allowed in part. Accordingly, the opposite party is directed to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) for unauthorized construction of flat in the ground floor stilt parking area and caused hardship to the complainant, to refund a sum of Rs.1,25,000/- (Rupees one lakh twenty five thousand only) collected for car parking space along with interest of 12% p.a. from the date of filing of this complaint (i.e. 22.10.2013 till the date of this order (06.02.2017), to pay a sum of Rs.15,000/- (Rupees fifteen thousand only) towards the expenses incurred for construction of drainage storage sump, to pay a sum of Rs.63,100/- (Rupees sixty three thousand and one hundred only) to be spent for rectification of defective works and to pay a sum of Rs.1,00,000/- (Rupees one lakh only) in total towards compensation for causing mental agony, hardship and financial loss due to deficiency of service on the part of the opposite party with cost Rs.10,000/- (Rupees ten thousand only) towards litigation expenses. Regarding other reliefs, this complaint is dismissed.
The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% p.a. till the date of payment.
Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 06th February 2017.
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 25.03.2011 | Approved Building Plan | Xerox copy |
Ex.A2 | 20.09.2012 | Construction Agreement | Xerox copy |
Ex.A3 | 12.10.2012 | Sale Deed | Xerox copy |
Ex.A4 | 18.07.2013 | Legal notice issued by the complainant’s Counsel to the opposite party | Xerox copy |
Ex.A5 | 25.07.2013 | Reply notice issued by the Counsel of the opposite party to the complainant’s Counsel | Xerox copy |
Ex.A6 | 26.08.2013 | Labour expenses for sewerage pit construction details | Xerox copy |
Ex.A7 | 28.08.2013 | Materials expenses | Xerox copy |
Ex.A8 | 28.08.2013 | Invoice | Xerox copy |
Ex.A9 | 28.08.2013 | Bill of Sivasakthi Agencies | Xerox copy |
Ex.A10 | 28.08.2013 | Bill of Prema Hardwares and Electricals | Xerox copy |
Ex.A11 | 28.08.2013 | Bill of Rajaganapathy Cement Works | Xerox copy |
Ex.A12 | 29.08.2013 | Bill of Sivasakthi Agencies | Xerox copy |
Ex.A13 | 31.08.2013 | Bill of Sivasakthi Agencies | Xerox copy |
Ex.A14 | 31.08.2013 | Bill of Pream Hardware and Electricals | Xerox copy |
Ex.A15 | 31.08.2013 | Bill of Rajaganapathy Cement Works | Xerox copy |
Ex.A16 | 01.09.2013 | Bill of Pream Hardware and Electricals | Xerox copy |
Ex.A17 | 01.09.2013 | Bill of Sivasakthi Agencies | Xerox copy |
Ex.A18 | 03.09.2013 | Bill of Pushpa Agency | Xerox copy |
Ex.A19 | 04.09.2013 | Bill of Sri Murugan Depot | Xerox copy |
List of documents filed by this Forum:-
Ex.F1 | | Advocate Commissioner’s Report | Original |
Ex.F2 | 30.04.2015 | Engineer’s Report and Sketch | Original |
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
