BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1689/2008 AGAINST C.C.No.172/2007, DISTRICT FORUM-II, Hyderabad.
Between:
S.Suresh
H.No.4-6-84, IInd floor,
Pan Bazar,
Secunderabad-500 003. Appellant/
Complainant
And
M/s Shree Lakshmi Venkateswara
Constructions, rep. by its Prop:
Sri E.Venkateshwar, H.No.1-7-1002/2,
Ramnagar, Hyderabad. Respondent/ opp.party
For the Appellant: Mr.S.Suresh, Party in person
Counsel for the Respondent: Respondent served.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
.
WEDNESDAY, THE EIGHTH DAY OF DECEMBER,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.172/2007 on the file of District Forum-II, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant’s mother entered into a development agreement with the opposite party on 30-5-99 and as per the agreement she handed over the schedule property to the opposite party on 11-7-99. The owner and developer shall be entitled to the constructed area in the ratio of 50: 50 out of the total area of 255.41 sq. yds. The owner will be entitled to 50% of the area in each floor and in the parking area but the opposite party delivered an unfinished flat to the complainant and after several requests completed it but still some of the works were with defects and not confirming to the standard specifications. The defects were brought to the notice of the opposite party but there was no response. As per the family settlement among the brothers and sisters, the present portion in the second floor was allotted to the complainant and it was given with him with the following defects, which are as follows:
a) Roof slab of west portion occupied by the complainant is leaking.
b) Outer walls constructed are of 4” thick due to which the outer walls are always wet during rainy season and takes lot of time to get the walls dry and this causing an apprehension that walls may collapse at any time.
c) Electrical wiring done is not up to the prescribed standard in respect of workmanship as well as materials used on the work and the opposite party fails to provide eartening point due to which there is electrical shock which may cause damage to the life of the complainant’s family.
d) The doors and windows and window shutters provided are not standard quality and not fixed properly as such they tend to be chiseled every year
e) As per specification report, the opposite party have to provide separate RCC water tanks for each portion/flat but the opposite party provided two sintex water tanks of each 1000 ltrs. Was provided ¾ din single pipe line was run with several branch connections due to which it was causing great hardship to the complainant. The complainant’s flat is situated about 60ft distance and if the water taps are opened specifically in the morning hours in other portions i.e. ground and first floor due to gravitational force, water supply will automatically get stopped in complainant’s house.
Inspite of several requests, opposite party never responded, hence the complainant erected a separate tank for which other flat owners objected for the same and approached 1st Addl. Chief Judge, City Civil court and obtained an injunction order. Hence the complaint for a direction to the opposite party to rectify the defects to roof slab, to repair defective outer walls, to remove entire electrical wiring and make new wiring and switches, to remove all the defective doors and windows and replace with new one, to pay the costs incurred in providing separate water connection with separate tank totalling to Rs.1,45,000/- together with Rs.50,000/- for mental agony and costs of Rs.5,000/-.
Opposite party filed counter stating that the development agreement dated 30-5-1999 was executed by him with the complainant’s mother, who did not co-operate with him and raised several disputes and filed a civil suit for injunction instead of going for arbitration and obtained an exparte decree. The opposite party denies that he gave an unfinished flat and suppressed the fact of reference of the matter to arbitration in O.S.No.33/2002 on the file of 1st Junior Civil Judge, City Civil Court, Secunderabad and fraudulently obtained an exparte decree. This complaint has not been filed within the prescribed period of two years and is barred by limitation. At no point of time did the complainant or his mother approach the opposite party that there were incomplete works. The allegation of causing hardship to the complainant because of existence of a single over head tank on account of which the complainant had to erect his own tank is against Apartment’s Act and the complainant unilaterally took action in the guise of the interim orders of the Hon’ble court in IA 247/07 in CMA No.10/2007 on the file of I Addl.Chief Judge, City Civil court, Secunderabad. The complainant had already invoked arbitration under clause 33 and is also barred by limitation and therefore seeks dismissal of the complaint.
The District Forum based on the evidence adduced, dismissed the complaint on the ground that there is a case pending in the city civil court.
Aggrieved by the said order, the complainant preferred this appeal.
The appellant, party in person, is absent though the matter is posted under the caption of dismissal and hence the matter is being disposed of on merits.
It is the case of the party in person that the works mentioned below are still to be completed by the opposite party:
a) To arrest the leakage of Roof slab on the entire portion of the complainant due to this dwelling is so horrible and cannot be expressed in terms of words.
b) The entire outer walls are constructed are of 4” thick and during the rainy season, the walls are getting wet and taking lot of time to get dry and the household articles kept on the chajja and cupboard are getting spoiled/damaged to leaking of slab as well as wetting of outer walls and also due to white ants.
c) Electrical wiring done is not as per standards and earthing is not done to any of the 3 pin plug.
d) All the doors and window shutters and frames provided are sub standard and besides this, they are either getting bulged or ae getting damaged due to roof leaking in rainy season and also white ants are spreading in the door shutters and also beneath the roof slab.
e) The builder and Developer did not provide the water tank to each portion as agreed by him and also the pipe lines which are laid for fetching the water for common usage is technically defective as while laying the pipe lines, the builder and developer has not taken into consideration of gravitational force of water to the top floor.
The opposite party while stating that the complainant has clutched the jurisdiction of the arbitrator did not file any documentary evidence in proof of his contention. The District Forum has dismissed the case on the ground that there is a case pending in the civil court. We observe from the record that there is an interim order only with respect to tank and there is no pliant copy filed to substantiate if the prayer before the civil court and the District Forum is one and the same. Therefore, we are of the considered view that the District Forum this aspect once again should be looked into by the District Forum. Taking into consideration that there is no documentary evidence on behalf of the opposite party also to establish that he has completed the works, we are of the considered view that both sides be given an opportunity before the District Forum to adduce additional evidence to establish their case.
In the result this appeal is allowed and the order of the District Forum is set aside and we remand this case to the District Forum for denova enquiry and both parties shall appear before the District Forum on 29-12-2010 without insisting for fresh notice and the District Forum shall dispose of the matter within three months from that date.
Sd/-PRESIDENT.
Sd/-MEMBER.
.
JM Dt.08-12-2010
