KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
OP.32/2002
JUDGMENT DATED:22.12.2011
PRESENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
1. NFG Flat Owners Welfare Association,
Reg.No.ER.499/2000,
North Fort Garden,
Thripunithura-682301,
Repd. by its President Valsaraj.M.
: COMPLAINANT
2. Valsaraj.M.
Flat no.701, North Fort Garden,
Tripunithura.
(By Adv:Sri.Kayalattu Kuttykrishnan & Sri.P.Santhalingam)
Vs.
1. M/s Royal Projects,
Statue Junction, Thripunithura,
Repd. by its Managing Partner.
2. M.D.Unnikrishnan,
Vysak, Mundakkal,
Near Convent,
Thripunithura-682 301.
: OPPOSITE PARTIES
3. M.Nandakumar,
Mundakkal house,
Near Convent,
Thripunithura-682 301.
4. Mrs. Mini Nandakumar,
W/o Nandakumar,
Mundakkal house,
Near Convent,
Thripunithura-682 301.
(By Adv:Sri.B.Sajeevkumar)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Complaint filed under section 15 and 17 of the Consumer Protection Act, 1986.
2. The case of the complainants is as follows:-
1st complainant is the North Fort Garden (NFG) Flat Owners Welfare Association represented by its President and 2nd complainant is the present President of the 1st complainant association. 2nd complainant is also owner of one flat in North Fort Garden (NFG). The opposite parties are the promoters and builders of NFG, a multi storied building consisting of 32 flats. 1st respondent is the partnership firm by name M/s Royal Projects represented by its Managing Partner and opposite parties 2 to 5 are the partners of the 1st opposite party firm. The complaint is filed for and on behalf of NFG and for the benefit of the flat owners in NFG flats. The said 32 apartments in the building are situated on the land comprised in survey No.983/03 of Nadama village having an extent of 24.476 cents. The owners of the aforesaid 32 apartments have purchased 1/32 undivided share in the aforesaid property. The individual flat owners had entered into separate agreements with the opposite parties and have purchased the aforesaid undivided share in the land. They also entered into separate construction agreements for construction of the said apartments in North Fort Garden. The opposite parties had also given brochure and leaflets containing the terms and conditions regarding execution of the agreements and specifications of the flats with the facilities and amenities to be provided to the flat owners. Among other things, the opposite parties agreed for construction of sump tanks and overhead tanks for Municipal Water Supply and also for ring water supply. They also agreed to provide modern fire fighting systems and fire escape staircase for the aforesaid multi storied building in NFG. The amenities like common chute for garbage disposal and provision for septic tanks with sewage treatment system had been assured. The opposite parties had also collected Rs.10,000/- each from the flat owners for payment of sales tax, workers welfare fund, building charge, KSEB charges etc. They also collected Rs.5000/- each from three flat owners by way of association fund. But the same is not yet paid to the 1st complainant association. The opposite parties also failed to provide security cabin for security staff on duty. The opposite parties committed deficiency in service on their part in providing the assured amenities and facilities. The opposite parties failed to provide fire escape stair case and facilities for modern fire fighting system. The opposite parties have also reduced the plinth area and carpet area for the flats. They also failed to provide sump tank and over head tank for municipal water supply and thereby the 1st complainant/association constructed sump tank and over head tank by spending a sum of Rs.35,000/-. The opposite parties are bound to refund the said sum of Rs.35,000/-. The exhaust pipe provided for diesel generator has not been fixed properly and the same was rectified by the 1st complainant/ association by spending Rs.15,000/-. The opposite parties have not constructed fire escape staircase as stipulated in the Kerala Municipality Building Rules. A small staircase constructed inside the building and very close to the main staircase will not serve the purpose of fire escape stair way. There is no provision for passage of air at the common corridors of floors 1 to 7. In case of a fire incident, there is no way for the smoke to escape. For making the common corridors by providing openings a sum of Rs.30,000/- is required. The fire fighting installation is not complete and a further sum of Rs.1,75,000/- is required to provide fire extinguishers and other accessories. The chute for garbage diesel is not done till date for construction of the same a sum of Rs.1000/- is estimated. Plain water is entering in the lift cabin causing thread to the safety of the inmates. Rubber beadings have not been provided for glass panel of the lift. A sum of Rs.25,000/- is estimated for rectifying the said defects. Thus the complainants have requested to provide the assured amenities and to rectify the defects in the construction of the multi storied building in NFG flats. The complainants have also claimed an alternative relief for payment of Rs.19,94,000/- by the opposite parties.
3. The opposite parties entered appearance and filed joint written version contending as follows:-
The complaint is highly barred by limitation. The complainants have not locus-standi to file the present complaint. The 1st opposite constructed 32 apartments comprised in survey No.983/3 of Nadama village. The extent of the land shown as 24.476 cents in the complaint is not correct. It is true that sale deeds and construction agreements have been executed between the purchasers and the 1st opposite party/M/s Royal Projects. The 1st opposite party constructed 32 flats according to the approved plan issued by the competent authority. The Tripunithura Municipality has also issued completion certificate. The construction of the apartments was according to the brochure and the approved plan. Fire force department inspected the apartments and issued no objection certificate. Fire escape stair case and garbage chute had been constructed as provided in the building plan and the same have been approved by the authorities. The local authority had also conducted inspection and issued occupancy certificate etc. The flat owners have been paying property tax for their respective apartments for the last 4 years. Sanction has also been obtained from the Electrical Inspectorate certifying the provisions provided for electricity. The building is constructed in accordance with the provisions of the Kerala Building Rules. Open ventilation has been provided for the stair case landing. The fixtures and fittings are installed as directed by the Fire Force Department. The 1st opposite party provided 2 lifts for the said building and the same have been working properly. There was no provision for security cabin; but the 1st opposite party has provided a security cabin in the said building. The 1st opposite party constructed sump tank and over head tank. But the 1st complainant association constructed an additional tank above the building against the provisions contained in the approved plans. The 1st opposite party has also constructed septic tank, sock pits, sewage treatment system for the said building. Exhaust pipe and diesel generator have been installed and fixed properly. The amounts collected from the flat owners have been properly accounted. In fact amounts were due to the 1st opposite party from the flat owners and the same have been settled. The 1st complainant association have allotted car park to 2 flats owners viz; Sri.Paul Kuriakose and Sri.Saratchandran and that in fact the said car parks were provided for the 2nd and 4th opposite parties who are having 2 flats in the said building. The 1st complainant association apprehended legal action for their unauthorized construction and thereby the 1st complainant association filed a caveat petition against the opposite parties before the Munsiff Court, Ernakulam. There was no deficiency in service on the part of the opposite parties. Thus, the opposite parties prayed for dismissal of the complaint with exemplary costs.
4. The points that arise for consideration in this complaint are as follows:-
1. Whether the complaint in OP.32/02 is barred by limitation?
2. Whether there was any deficiency in service on the part of the opposite parties in constructing the multi storied building known as NFG flats?
3. Whether the opposite parties have failed to provide the assured and agreed amenities and facilities to the flat owners of NFG flats?
4. Reliefs and costs?
5. Evidence adduced in this case consists of the oral testimony of PW1, DW1 and CW1; Exts.A1 to A6 were marked on the side of the complainants and B1 to B10 on the side of the opposite parties. Ext.C1 expert commission report was marked through CW1, the expert commissioner.
6. After closure of the evidence both the parties were heard in detail. The counsel for the complainants has also filed argument note in support of his oral submission.
7. Point No.1:-
The opposite parties have raised the contention that the complaint in OP.32/02 is barred by limitation. The counsel for the opposite parties has also argued for the position that the complaint is barred by limitation as provided under section 24-A of the Consumer Protection Act, 1986. There can be no doubt about the fact that a consumer complaint has to be filed within 2 years from the date of the cause of action. The complaint in OP.32/02 was filed on 26th April 2002.
8. Then, the next question for consideration is whether the complaint filed on 26.4.2002 was filed within 2 years from the date of cause of action for the complaint. Ext.B1 is copy of the sale deed dated:11th January 1999 executed between the purchasers of the flats in NFG and the 1st opposite party M/s Royal Projects (the builder). As per B1 the land measuring 30.676 cents was transferred to the flat owners with respect to their 1/32 undivided share each in the said land. Ext.B2 is the construction agreement dated:2nd February 1998 executed between the purchasers of the apartments with the 1st opposite party, the registered partnership firm represented by its managing partner and other partners. As per B2 construction agreement, the 1st opposite party agreed to complete the construction of the aforesaid 32 apartments on or before 31st day of May 1998. It is rather admitted that the 1st opposite party failed to complete construction of the apartments on or before 31st May 1998. Ext.B2 sale deed would show that the 1st opposite party and its partners could transfer right on the land to the purchasers only on 11.1.1999. It is further to be noted that the stipulations in B2 construction agreement would make it clear that it was the bounden duty of the 1st opposite party to inform the purchasers about completion of construction of the apartments. But there is nothing on record to show that any such notice was given to the flat owners as stipulated in B2 agreement.
9. It is further to be noted that the 1st opposite party was bound to maintain the said multi storied building in NFG till the formation of flat owners association. As per B3 occupancy certificate, the date of completion of the said building was on 25.2.1999. But there is nothing on record to show that the date on which the said apartment was handed over to the flat owners. Ext.B5 certificate issued by the Director, (Technical) Fire Services would show that no objection was issued by the fire force department only on 21.7.1999. Ext.B8 minutes of the annual general meeting of the NFG flat owners’ welfare association would show that the welfare association was formed only in the year 2000.
10. Ext.B9 letter dated:18th June 2001 would give a clear indication that there was dispute between the flat owners and the 1st opposite party, Royal Projects regarding the amounts due to the parties. Ext.A3, memorandum of association of NFG flat owners’ welfare association would show that the said association was registered only in the year 2000 by convening a meeting of the flat owners held on 27.5.2000. So, the 1st complainant had the cause of action to file the present complaint only after its formation on 27.5.2000. It could be seen that the 1st complainant association filed the complaint in OP.32/02 within 2 years of its formation. It is to be noted that prior to the formation of the NFG Flat Owners Welfare Association, the maintenance of the multi storied building in NFG was carried out by the opposite parties themselves. The 1st complainant association got the cause of action only on 27.5.2000. Ext.B8 minutes of the annual general meeting would also make it clear that the 1st opposite party failed to complete the construction of the apartments, especially regarding the amenities for the said flats like fire fighting facilities etc. So, the complaint filed on 26th April 2002 can be considered as one filed within the period of limitation. Ext.B8 minutes of the annual general meeting would also indicate that the alleged deficiency in providing the amenities is a continuing cause of action and that the flat owners were requesting the opposite parties for providing the assured and agreed amenities and facilities. Thus, in all respects it can safely be concluded that the complaint in OP.32/02 is not barred by limitation and the same is maintainable before this Sate Consumer Commission. This point is answered accordingly.
11. Point No.2 and 3:-
The case of the complainants is that the opposite parties failed to construct fire escape stair case as required under the Kerala Building Rules; that the opposite parties failed to make provision for passage of air at the common corridors of floors 1 to 7, that the opposite parties neglected to provide fire fighting equipments completely; that they also failed to construct the chute for garbage disposal, that the lift provided for the NFG flats is defective for want of rubber beadings and thereby water is entering into the lift cabin; that the opposite parties failed to provide security cabin for the security staff; that the opposite parties failed to provide 2 septic tanks with sewage treatment system and chlorinisation unit; that the flat owners suffered financial loss of Rs.3,84,000/- on account of reduction in the plinth area and carpet area of the aforesaid 32 apartments; that the opposite parties failed to provide sump tank and over head tank for drinking water; that they also failed to erect diesel generator pipe line properly and that the opposite parties have also failed to submit account for the amounts collected from the flat owners.
12. The opposite parties in their written version totally denied the aforesaid allegations regarding deficiency in service for providing amenities and facilities to the flat owners. It is the definite case of the opposite parties that they constructed the apartments in the aforesaid multi storied building known as NFG flats, according to the approved plan and in accordance with the provisions of the Kerala Building Rules.
13. An expert commissioner was appointed at the instance of the complainants. The complainants filed I.A.263/03 for appointment of an expert commissioner to report about the alleged deficiency in service for providing the amenities and facilities to the flat owners. This State Commission was pleased to appoint Mr. T.V.John retired Assistant Engineer, Kerala Water Authority as the expert commissioner. He filed his report dated:15.6.2004. The expert commissioner inspected the aforesaid NFG flats at Tripunithura on 20th May 2004. At the time of his inspection, the representatives of the 1st complainant association and the opposite parties 2 and 4 were present.
14. The aforesaid expert commission report has been marked in this case as C1. The expert commissioner was examined before this commission as CW1. He deposed in support of Ext.C1 expert report.
15. The expert commissioner has reported that the fire escape stair case provided for the NFG flats is not in accordance with the Kerala Municipality Building Rules, 1999. But at the same time, CW1 has admitted the fact that the said staircase is constructed as per the approved plan issued by the local authority. It is also admitted by CW1 that the fire force department has issued NOC approving the aforesaid fire escape stair case. He categorically deposed that for issuing NOC by the Fire Department there may be fire escape stair case. Thus, the testimony of CW1 would make it abundantly clear that the opposite parties constructed the fire escape stair case in accordance with the approved plan.
16. Ext.A6 is the approved plan issued by the local authority viz, Tripunithura Municipality. There is no case for the complainants that the fire escape stair case constructed for the said apartments is not according to the approved plan. The expert commissioner has also categorically admitted the fact that the fire escape stair case has been constructed by the opposite parties as stipulated in the approved plan issued by the concerned local authority.
17. Another important aspect to be noted at this juncture is Ext.B5 certificate issued by Director, (Technical) Fire Service Headquarters, Thiruvananthapuram. B5 is dated 21.7.1999, B5 certificate would make it abundantly clear that the multi storied building constructed in Survey No.983/03 of Nadama Village, Tripunithura Municipality was Inspected by Divisional Officer, Fire Force, Ernakulam on 23.6.1999 and is recommended for the issue of ‘no objection certificate’ for the said building from the fire point of view. It is on the basis of the said recommendation B5 ‘no objection certificate’ is issued for the said multi storied building. Thus, it can be seen that the concerned authority of the fire force department approved the fire escape stair case constructed for the aforesaid multi storied building.
18. CW1, the expert commissioner has also deposed that the NOC has been obtained from the fire force department for the said multi storied building. It is also deposed by CW1 that without fire escape stair case, the fire department would not issue ‘no objection certificate’. Thus, it can be concluded that the fire escape stair case provided for the said building has been approved by the concerned authorities. It is also to be noted that the complainants have not challenged the correctness of Ext.A6 approved plan or issuance of B5 certificate issued by the fire force department. Thus, the alleged deficiency in service regarding construction of fire escape stair case cannot be upheld.
19. The complainants have also got a case that the building is not provided with the required fire fighting equipments. The expert commissioner has deposed about the failure to provide fire fighting equipments and its accessories. The opposite parties have no case that they provided those equipments for the fire fighting system. Ext.C1 expert report would show that the opposite parties failed to provide fire fighting installations to the building. It is categorically reported that the electric motor pump set kept in the pump room is not provided with electric connection. It is also reported that the connection table, panel board, starter etc are not available in the pump room. The expert commissioner has given a list of the equipments to be provided for the fire fighting system. It is categorically reported that fire extinguishers, fire alarm, pipe line with electric cable, cable gland, cable socket etc and other accessories for the fire pipe line are required. So, the opposite parties are bound to provide those fire fighting equipments with the necessary accessories for having a safe and comfortable stay in the aforesaid multi storied building. So, the opposite parties are to be found deficient in rendering service as they failed to install the fire fighting equipments with the necessary accessories as enumerated in C1 report.
20. The expert commissioner has estimated the cost for the supply and installation of the fire fighting equipments at Rs.3,20,000/- The expert commissioner as CW1 has also deposed that he consulted an expert in the field of fire fighting to assess the cost of the fire fighting equipments. But, according to the complainants, the cost of the fire fighting equipments would come to Rs.1,75,000/- only. So, the opposite parties are directed to provide the fire fighting equipments with the necessary accessories as noted in C1 expert report or in the alternative they have to pay a sum of Rs.1,75,000/- to the 1st complainant NFG flat owners welfare association.
21. The complainants have got a case that the opposite parties failed to provide provision for passage of air at the common corridors of floors 1 to 7 of the NFG flats. The expert commissioner in his C1 report has also reported about the absence of air passage to the common passage on landing side of the stair case. It is also reported that there is provision in the approved plan for providing air passage. But the opposite parties fixed windows and thereby prevented entry of air to the landing areas of the stair case. So, the case of the opposite parties that they provided air passage to the common passage on the landing side of the stair case cannot be believed or accepted. So, the opposite parties are directed to make provision for passage of air at the common corridors of floors 1 to 7. The aforesaid deficiency in service is to be upheld. Hence we do so.
22. The expert commissioner estimated the cost for supplying and fixing air passage windows at Rs.60,000/-. But, the complainants estimated the aforesaid cost at Rs.50,000/-. So, the opposite parties are directed to make provision for passage of air at the common corridors of floors 1 to 7 or in the alternative they are directed to pay a compensation of Rs.50,000/- to the 1st complainant.
23. The 1st complainant has also alleged that the opposite parties failed to provide a chute for the garbage disposal. It is the case of the opposite parties that they have provided chute for garbage disposal. But the opposite parties could not substantiate their case regarding construction of chute for garbage disposal. The expert commissioner has also noted the aforesaid allegation regarding failure to provide chute for garbage disposal. In Ext.C1 report it is categorically reported that construction of garbage disposal, chute is not completed. It is also reported that plastering the walls inside the chute, fixing doors to the chute openings at all floors, providing vent pipe to the chute and collection arrangements of garbage at the bottom of chute in the ground floor etc have to be completed for functioning the chute. So, the aforesaid allegation regarding deficiency in service in providing chute for garbage disposal is to be accepted.
24. The complainants estimated the cost for providing chute for garbage disposal at Rs.1.lakh. But, the expert commissioner estimated the cost at Rs.80,000/-. So, this commission is pleased to accept the estimated cost for providing chute for garbage disposal at Rs.80,000/-. The opposite parties are directed to provide the complete and perfect chute for garbage disposal or to pay Rs.80,000/- to the 1st complainant by way of compensation under this head.
25. The complainants have alleged that the lift provided for the said multi storied building are defective and there is no rubber beading provided to prevent entry of water into the lift cabin. On the other hand, the opposite parties vehemently contended that they provided two lifts for the said building and those lifts were defect free. It is further contended that even if there occurred any subsequent defects, the flat owners have to approach the manufacturers of the lifts. The expert commissioner has not reported anything about the absence of rubber beading for the said lifts. According to the expert commissioner, the entry of water in the lift cabin is due to the defective finishing works. So, the aforesaid defect is to be cured. The complainants estimated the cost for rectification of the aforesaid defects at Rs.25,000/-. The expert commissioner estimated the cost at Rs.20,000/-. So, the opposite parties are directed to rectify the said defect so as to prevent entry of water into the lift cabin or in the alternative to pay Rs.20,000/- as compensation to the 1st complainant, for rectification of the aforesaid defect.
26. The complainants have got a case that the 1st opposite party failed to provide the assured plinth area and carpet area in respect of the aforesaid 32 flats. But the complainants have not adduced any evidence to substantiate the aforesaid allegation that the opposite party reduced the plinth area as well as the carpet area in respect of the aforesaid 32 flats. On the other hand, the expert commissioner in his C1 report has categorically reported that the complaint regarding the actual floor area is negligible. The aforesaid finding was entered into by the expert commissioner after measuring the rooms in one floor and compared with the measurements given in the approved plan. It is also found that the variation regarding measurements is only negligible. So, the aforesaid case of the complainants that the plinth areas as well as the carpet area of the flats have been reduced by the opposite party/builder cannot be accepted. If that be so, the claim preferred by the complainants for a sum of Rs.3,84,000/- under the said head cannot be allowed and thereby the aforesaid claim is negatived.
27. The complainants have also got a case that the opposite parties agreed to provide 2 septic tanks with sock pit filter chambers sewage treatment system and chlorinisation unit and that the opposite parties failed to construct 2 septic tanks with the aforesaid accessories or amenities. The opposite parties in their written version categorically denied the aforesaid deficiency in service on their part. They contended that the septic tank, sock pits, sewage treatment system have been constructed as provided for in the building plan. DW1, the 2nd opposite party deposed during his cross-examination on 10.10.2011 that 2 septic tanks are constructed as agreed. It is to be noted that DW1 is also the Managing Partner of the 1st opposite party firm. He was also present at the time of inspection of the flats by the expert commissioner. DW1 in his cross-examination on 10.10.2011 categorically denied the suggestion that there is only one septic tank. On the other hand, DW1 asserted in his cross-examination on that day that 2 septic tanks were constructed and that the 1st opposite party/builder had agreed to provide 2 septic tanks and on the basis of the said assurance they constructed 2 septic tanks in the premises of NFG flats.
28. On the basis of the aforesaid assertion made by DW1, the complainants moved this commission by filing I.A.1238/11 for issuance of an expert commission and to ascertain as to whether there are 2 septic tanks constructed in the premises of NFG flats. The very purpose of filing the aforesaid I.A.1238/11 was to establish the falsehood in the testimony of DW1 regarding construction of 2 septic tanks. On getting the said I.A.1238/11, notice was given to the counsel for the opposite parties and the matter was posted for filing counter affidavit by DW1. Thereby the interlocutory application was posted to 13.10.11.
29. On 13.10.2011, DW1was not prepared to file a counter affidavit to deny the averments in the affidavit filed in support of the said I.A.1238/11. On the other hand, the counsel for the opposite parties submitted that DW1 went to the premises of NFG flat after 10.10.2011 and got it ascertained about the existence of septic tank and it was found that there is only one septic tank in existence at the premises of NFG flats. On the basis of the aforesaid submission made on 13.10.2011 by the learned counsel for the opposite parties, this commission was pleased to close the aforesaid I.A.1238/11. There after cross-examination of DW1 continued on 13.10.2011.
30. DW1 during his further cross examination on 13.10.2011 admitted the fact that only one septic tank was constructed by the 1st opposite party/builder and there was lapse on the part of the 1st opposite party to provide 2 septic tanks for NFG flats. The aforesaid admission made by DW1 would speak volumes about the nature and character of that witness. It can be seen that DW1 has no hesitation or reluctancy to utter falsehood before a legally constituted authority like the State Commission. It is pertinent to note at this juncture, that DW1 is also an owner of one of the flats in NFG flats. He admitted the fact that he has let out his apartment on rent to somebody else. Thus, DW1 was very much familiar with the amenities provided for the aforesaid NFG flats. The manner in which DW1 deposed during his cross-examination on 10.10.2011 would make it crystal clear that he deliberately deposed falsehood before this commission regarding construction of 2 septic tanks. It is to be noted that DW1 has also admitted the fact that the 1st opposite party builder was bound to construct 2 septic tanks for the flats at NFG. Thus, it can be concluded that there was deficiency in service on the part of the opposite parties in constructing septic tanks and the required filtration chambers, chlorine dozers, sock pits etc.
31. The expert commissioner in C1 report has categorically reported that, as per approved drawing, 2 septic tanks one each on eastern and western sides of the building with 2 filtration chambers and 2 chlorine dozers are to be constructed. It is also reported that during inspection it is found that only one septic tank with soak pit is constructed. It is categorically reported that one more septic tank, 2 filter chambers, 2 chlorine dozers installation, 2 half HP motors with pump sets and its connections have to be constructed for the satisfactory completion of the work. The commissioner calculated the total cost for the aforesaid works at Rs.2,20,000/-.
32. The complainants have claimed a compensation of Rs.2.5lakhs for construction of the septic tank with sock pit, filter chambers, treatment system and chlorinisation unit. This commission is of the view that the cost estimated by the expert commissioner can be taken as the real cost required for construction of the aforesaid septic tank and accessories. So, the opposite parties are directed to construct one more septic tank with sock pit and 2 filter chambers, 2 chlorine dozers, 2 half HP motor with pump sets and its connections as referred to in Ext.C1 report or in the alternative to pay to the 1st complainant Rs.2,20,000/- as compensation under the head septic tank and its accessories.
33. The complainants have claimed Rs.15,000/- by way of the expenses incurred by the complainants for proper fixation of the diesel generator pipe line. But, there is nothing on record to substantiate the aforesaid claim for Rs.15,000/-. It is contended by the opposite parties that they installed diesel generator with proper pipe line and the same was functioning properly. It is to be noted that the 1st complainant association is bound to maintain those accessories attached to NFG flats. It may be correct to say that some maintenance work was done for rectification of the diesel generator pipe line. The aforesaid rectification work ought to have been done as part of maintenance work. It is not just or fair on the part of the complainants to get the said maintenance expense reimbursed by the opposite parties. So, the sum of Rs.15,000/- said to have been incurred by the complainants can only be treated as the expense towards maintenance works. So, the aforesaid claim for Rs.15,000/- is negative.
34. Complainants have claimed reimbursement of Rs.35,000/- spent by them for construction of sump tank and overhead tank etc for drinking water. The expert commissioner in Ext.C1 report has reported that already existing sump tank was divided by constructing brick wall and a portion of the sump tank is being used for collecting drinking water. This would give an indication that the allegation of the complainants that they constructed a new sump tank by spending amount from their pockets cannot be believed or accepted. It is also come out in evidence that the opposite parties had also constructed over head tank as per the plan. It is the further contention of the opposite parties that the complainants constructed another over head tank in violation of the approved plan. It is also to be noted that the aforesaid construction of the over head tank by the complainants was done without the prior consent or knowledge of the opposite parties. There is nothing on record to show that the complainants requested the opposite parties for construction of any such over head tank. So, the aforesaid claim for reimbursement of Rs.35,000/- cannot be allowed. Thus, the aforesaid claim for Rs.35,000/- is disallowed.
35.The complainants have got a case that the opposite parties failed to provide spacious security cabin and so the complainants constructed another security cabin by spending Rs.25,000/-. PW1 has also deposed to that effect. On the other hand, the opposite parties contended that they constructed a security cabin and the complainants are not satisfied with the space provided for the security cabin. It is also come out in evidence that there is no provision in the approved plan for construction of security cabin. It is come out in evidence that the opposite parties constructed a security cabin suitable for one security staff. So, the case of the complainants that there occurred deficiency in service on the part of the opposite parties in constructing security cabin cannot be upheld. It may be correct to say that the complainants might have constructed another spacious security cabin at their own cost. So, the opposite parties cannot be made liable to reimburse the aforesaid amount spent by the complainants for constructing a spacious security cabin. So, this Commission is pleased to hold that there was no deficiency in service on the part of opposite parties in providing security cabin. Therefore, the claim for reimbursement of Rs.25,000/- is disallowed.
36. The complainants have also alleged that the opposite parties failed to submit accounts with respect to the amounts collected by the 1st opposite party from the flat owners. Thereby, the complainants claimed refund of Rs.3.2 lakhs on that account. It is to be noted that the aforesaid claim is in the nature of a suit for accounting. More over, the complainants have not adduced any evidence to show the amounts they paid to the opposite parties towards payment of sales tax workers welfare fund, building tax, KSEB charge etc. The aforesaid claim for refund of the amounts collected by the opposite parties cannot be entertained in the present complaint filed for deficiency in service. If any such amounts are due to the complainants, they have to approach Civil Court by filing a suit for accounting. So, the aforesaid claim for Rs.3.2 lakhs and another sum of Rs.15,000/- cannot be entertained in the present complaint in OP.32/02. The aforesaid dispute is left open and the parties are relegated to Civil Court. Hence these issues are found accordingly.
37. Point No.4:-
The foregoing discussions and the findings thereon would make it clear that there was deficiency in service on the part of opposite parties in providing some of the assured amenities and facilities to the flat owners of NFG flats. The aforesaid deficiencies are with respect to providing provision for passage of air at the common corridors of floors 1 to 7, in installing fire fighting equipments, in constructing chute for garbage disposal, in providing 2 defect free lifts and in constructing septic tank with sock pit, filter chambers, sewage treatment system with chlorinisation unit. So, the opposite parties are directed to provide the aforesaid assured amenities and facilities as pointed out in this order or in the alternative to pay the compensation as specified in this order. The opposite parties are also directed to provide the aforesaid assured amenities and facilities within 2 months from the date of receipt of copy of this order, failing which the 1st complainant will be at liberty to proceed against the opposite parties for realization of the compensation amounts specified in this order. The opposite parties are also made liable to pay cost of Rs.5000/- to the 1st complainant, NFG Flat Owners Welfare Association represented by its present president. This point is answered accordingly.
In the result the complaint is allowed partly with cost of Rs.5000/-. Thereby, the opposite parties are directed to provide necessary fire fighting equipments with its accessories as reported in C1 expert commission report or in the alternative to pay Rs.1,75,000/- to the 1st complainant, NFG Flat Owners Welfare Association; that the opposite parties are also directed to provide air passage to the common corridors of floors 1 to 7 or in the alternative to pay Rs.50,000/- to the 1st complainant association; that the opposite parties are further directed to provide chute for garbage disposal as specified in C1 expert report or in the alternative to pay Rs.80,000/- to the 1st complainant by way of compensation; that the opposite parties are bound to rectify the defects in the lifts so as to prevent entry of water to the lift cabin or in the alternative to pay compensation of Rs.20,000/- to the 1st complainant; that the opposite parties are also bound to construct one more septic tank with sock pit and 2 filter chambers, 2 chlorine dozers, 2 half HP motor with pump sets and its connections as referred to in Ext.C1 report or in the alternative to pay Rs.2,20,000/- to the 1st complainant. The opposite parties are made jointly and severally liable to comply with the aforesaid directions and in the alternative to pay the compensation as indicated above under various heads. They are directed to comply with the aforesaid directions or to pay the respective compensation within 2 months from the date of receipt of copy of this order, failing which the compensation amounts will carry interest at the rate of 9% per annum from the date of this complaint till realization.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
APPENDIX
COMPLAINANT’S EXHIBITS
Ext.A1 : Authorisation letter by the President of NFG dtd:7.7.10.
Ext.A2 : Copy of the resolution of the special General
Body meeting held on 3.5.2010.
Ext.A3 : True copy of the Memorandum of Association & Bye
Laws of NFG.
Ext.A4 : True copy of certificate of registration issued by
Thripunithura Muncipality.
Ext.A5 : Copy of Registration form, terms and conditions and
specification of North Fort Garden, Thripunithura.
Ext.A6 : Sketch & Plan of NFG.
COMPLAINANT’S WITNESS
PW1 : Sri. R.Satheesan.
OPPOSITE PARTIES EXHIBITS
Ext.B1 : True copy of sale deed executed in favour of the 2nd
Complainant.
Ext.B2 : True copy of agreement executed between the 1st OP
and one of the purchasers.
Ext.B3 : True copy of occupancy/completion certificate.
Ext.B4 : True copy of the brochure (building plan and
construction agreement).
Ext.B5 : True copy of No Objection Certificate issued by the Fire
Force Department.
Ext.B6 : True copy of the sanction obtained from the Electrical
Inspectorate.
Ext.B7 : True copy of the approval issued by the Electrical
Inspectorate.
Ext.B8 : True copy of the Annual General Meeting held on
27.5.2000 at NFG premises.
Ext.B9 : True copy of the letter dated:18.6.2001 sent by regd
Post.
Ext.B10 : Caveat Petition filed by the petitioner before the Hon’ble
Munsiff Court, Ernakulam.
OPPOSITE PARTIES WITNESS
DW1 : M.D. Unnikrishnan
COURT WITNESS
CW1 : T.V.John
C1 : Commission Report
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
