O R D E R Paul Gomez, Member. The complaint is pertaining to the defects in the construction of an apartment under the name of M/s. K.B. Plaza Apartment situated at Edappally village in Ernakulam. The grievance is espoused by M/s. Plaza Apartment owners Association represented by its President Lt. Col(Retd) C.S. Ravindranadhan. The apartment has been constructed by opposite parties. The complainant set out a detailed catalogue of defects which are required to be set right by the opposite parties. Apart from that, the complainant is urging us to direct the opposite parties to hand over a host of documents in relation to the said apartment. According to the complainant the association has made several requests for the rectification of the defects. But all of them fell on deaf ears. Therefore it approaches us with this complaint to cure the defects and delivering the documents to it. In the alternative, the association is requesting for a compensation of Rs. 9,90,000/-. Also they are in demand of additional compensation in lieu of documents in question. 2.The opposite parties choose to deny the allegations in toto and claim that there is absolutely no deficiency in service in the construction of the apartment. The opposite parties allege that the complaint is old wine in new bottle in as much as the same matter has been agitated earlier in this Forum in O.P. 504/2000 filed by three of the members of the complainant association. The said complaint has eventually culminated in an order by the Forum which was complied with by the opposite parties. Hence the complaint, according to opposite parties is liable to be dismissed on the ground of res-judicata. The version also deals with the grievances set out in the complaint one by one. They conclude by maintaining that there is neither negligence nor deficiency in service on the part of the opposite parties. Hence the complaint deserves only dismissal with costs. 3.The complainant was examined as PW1 and 5 documents were marked in evidence on its appearance promptly the evidence on their part was skeletal. 4. Points to be addressed by us: i. Whether the complaint is vitiated by res-judicata? ii. Whether the complainant is entitled to secure the reliefs sought? iii. Compensation and costs. 4. Point No. i. The question of res-judicata is out of place in this proceedings as the parties are different. The complainant in the present proceeding is K.B. Plaza apartment association, whereas in O.P. 504/2000 the parties were three separate residents of the said apartment. In view of the above finding we need not further delve deep into the matter. 5. Point No. ii. It is an indisputable fact that the builder who promises to construct a structure according to an approved plan has an obligation to accomplish the task without any deviation from the plan. This general rule is applicable in the instant case also. Here also there was an approved plan but deviation has been allegedly effected by the constructors. In order to ascertain the veracity of the allegation the Forum has appointed an expert commissioner, a retired Superintending Engineer to look into the matter. He was also asked to quantify the cost involved in rectifying the defects. He has filed a detailed report. The same has been marked as Ext. A3. By and large, he has found that the construction is defective in several respects. Generally we uphold the finding of the commissioner except in some cases were we are compelled to overlook his recommendations which will be stated later as and when the matter is dealt with in detail. Of course in that process we have also taken into account the objections raised by the opposite parties against the recommendations. Now we think that it is advisable to analyse the short falls set out in the complaint in the light of the recommendations made by the commissioner in respect of each defect one by one. A. The storage of water is attached with the septic tank in violation of original sanctioned plan. (clause 3(a) of the complaint The recommendations of the commissioner in this regard is as follows: The non drinking water used in wash basins and in bathrooms is stored in the firewater tank adjacent to the septic tank. This construction is unhygenic and in violation of approved plan. Hence alternate arrangement for storage of water has to be provided. The approximate cost for 10000 litre capacity tank would be approximately Rs. 30,000-/- We accept the recommendation as the objection raised against it by the opposite parties appears to be untenable. B. The pipe shafts are provided on all the 4 wings of the building. The inadequate space for the duct causes poor accessibility for the maintenance of the pipes. Further the side walls of the shafts have not been plastered causing seepage of water through the walls of the flats. Hence it is necessary to lay new pipes through out side of the wall. (clause 3 (b) of the complaint) The recommendations of the commissioner in this regard is as follows: The vertical air shafts used for plumbing lines are only partly plastered at top and bottom. Since the construction is with hallow bricks and since it is un plastered it causes seepage ofwater into the flats as seen by me in flat nos. 3A, 6C, 7A, 9C and at the entrance of the lobby. Hence it is necessary to plaster the entire air shaft which would incur approximately an amount of Rs. 25,000/-. Here also the finding of the commissioner has to be upheld as the objection raised by the opposite party is devoid of merit. C. There is no provision for separate fire escape stair case outside the building as provided in rule 39 of the Building Rules. (Clause (3) of the complaint) Against this, 40,000/- rupees has been recommended for separate fire escape stair case in each of the 8 floors as provided below in the report: There must be an exit in each floor with protective grill giving assess for fire escape. The cost for such exit in 8 floors would come to Rs. 40,000/- approximately. The objection raised by opposite parties to this finding also is to be rejected because the finding has a bearing on the safety of the residents. D. Inadequacy of soil waste pipe provided hence additional pipe lines have to be provided to overcome the difficulties. (clause 3(d) of the complaint) The commissioner has provided Rs. 1,500/- approximately to cure the defect which deserves to be approved even though the opposite parties have described it as absolutely uncalled for and baseless. E. Though the bore well is provided in the sanctioned plan it is not provided in the premises. Hence a bore well has to be provided for catering the water demand. (clause 3 (e) of the complaint) The commissioner underlines the said grievance in the complaint and recommends the construction of a bore well. But he has calculated the cost as 40,000/- rupees including accessories for the same. We do not think that provision for anything other than bore well as such has to be allowed. Hence the cost according to recommendation in Para (e) of Ext. A3 is reduced to Rs. 20,000/-. It may be noticed that the opposite parties assert that there is already a bore well in the premises. We need not give much significance to the objection of the opposite parties in this regard. F. No soak pit is provided next to the septic tank and the sewage of water is disposed in an unhealthy method .(clause 3(i) of the complaint). The commissioner takes sides with the complainant and recommends Rs. 30,000/- approximately to make good the deficiency. The objection of the opposite parties has to be overlooked here also. G. The proper air craft warning light is not provided. (clause 3 (K) of the complaint.) In order to rectify the defect the commissioner has recommended for a cost of approximately Rs. 12,000/-. The same has to be approved by us as the objection is unsustainable. H. In addition to the above recommendations the commissioner has after inspection on the request of the complainant examined the following two points also and reported as follows: a) The high tension switches been provided in parking slots 3B and 3C. (Para m(a) of ext. A3). This has to be shifted to secured place. This would cost Rs. 4,000/- approximately. b)The four water tanks on terrace are seen leaking. The northern walls of two water tanks on the northern wing of terrace are not plastered ;and are bulging to show the weakness of the walls. This has to be immediately repaired, plastered and leak proofing has to be done. This would cost Rs. 1,00,000/- approximately. A total of Rs. 1,04,000/- has been recommended by the commissioner to address the above defects .The objection in this regard also appears to be baseless and hence untenable. The recommendations are upheld . The recommendation in Ext. A3 report with regard to defects set out under clause 3(f), 3(g), 3(h), 3(j) and 3(l) stands rejected as the objections raised in respect of respective recommendations appears to have some merit and have to be sustained. In this regard it is suffice to state that there are renovation works to be carried out by the occupants of the building periodically. Regular painting on intervals is such an instance. It is unfair and unjust to shift the burden in respect of such work to the original constructor. That is why we have rejected the recommendation of the commissioner under Para h in Ext. A3. Moreover, there is no reliable material on record to support the estimate of Rs. 2,23,000/- for painting. 6. The second limb of the complaint is regarding original documents pertaining to the building as specified from clause ( a) to (J) of paragraph 4. In the complaint. We shall deal with clause (i) pertaining to original title deed of the plot, first. In this regard it is significant to note the deposition of PW1. He has disclosed that the opposite parties own flat in the disputed building, still now. Moreover it is note worthy that the complainant association is not a registered entity. Hence it cannot claim separate legal personality, status, even though for the purpose of Consumer Protection Act, Association is a person. In view of the above two points, we think it is not advisable for us to allow the demand raised by the complainant for the transfer of original title deed. The claim under the following clauses in Para (4) of the complaint namely, a. Civil works approved by the Corporation b. Electrical works including wiring layout, transformer and generator c. Plumbing works including the lay out of the fresh water tanks, fire fighting water tanks, septic tank, sewage line etc. d. Fire fighting lay out and equipments e. Lift, wiring diagram f. Aviation light installation including the approval g. Telephone cable lay out h. Cable T.V lay out j. Certified copy of the completion certificate. are to be upheld. Hence the opposite parties are under the obligation to deliver the above documents to the complainant forthwith. If it is found to be impracticable, in the alternative, the opposite parties shall bear the cost for securing certified copy of the above documents by the complainant. 7. Point No. iii. In the facts and circumstances of the case we do not think compensation is feasible. But as the proceedings have been pending in the Forum for a long time and also taking into account the age of the office bears of the complainant association we allow the litigation costs of Rs. 2,000/- to the complainant. To sum up we partly allow the complaint and direct as follows: i. As we think it is not viable for the opposite parties to rectify the defects directly by them, the opposite parties shall pay to the complainant an amount of Rs. 2,62,500/- (the aggregate amount of costs calculated to rectify the defects pointed out in Ext. A3 report) (according to clause a,b,c,d,e,i ,k and m of the same. ii. The documents specified in the complaint except the original title deed and tax receipt, shall be delivered to the complainant forthwith. If it is found not feasible the opposite parties shall pay a cost of Rs. 3,000/- to secure the certified copies of the said documents. iii. The opposite parties shall pay litigation costs of Rs. 2000/- to the complainant. The time limit for compliance with the order is one month from the date of receipt of copy of order. Pronounced in the open Forum on this the 31st day of July 2008.
