Tamil Nadu

South Chennai

CC/433/2014

P.Varadarajan - Complainant(s)

Versus

M/s. Consolidated Construction Consortium Ltd., Yuga Home Ltd., - Opp.Party(s)

M/s.B.Ullasavelan

14 Sep 2022

ORDER

Date of Complaint Filed : 15.10.2014

Date of Reservation      : 27.08.2022

Date of Order               : 14.09.2022

 

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.433 /2014

WEDNESDAY, THE 14^th DAY OF SEPTEMBER 2022

P. Varadarajan,

S/o. Purushothaman,

Flat No: C-1, C.C.C. SundharaVighar,

No:5, Dr. Gurusamy Road,

Kilpauk, Chennai 600 031.                                                  ... Complainant     

 

..Vs..

1.Consolidated Construction Consortium Ltd,

   Yuga Homes Ltd,

   Represented By Its Managing Director,

   Old No: 3, New No: 5 Second Link Road,

   CIT Colony, Mylapore,

   Chennai 600 004.

 

2.V.G. Janarthanan,

   Director (Operations),

   Consolidated Construction Consortium Ltd,

   Yuga Homes Ltd,

   Old No: 3, New No: 5,

   Second Link Road,

   CIT Colony, Mylapore,

   Chennai 600 004.                                                     ...  Opposite Parties

******

Counsel for the Complainant         : M/s. B. Ullasavelan

Counsel for the Opposite Parties    : M/s. S.S.Rajesh

 

 

 

        On perusal of records and after having heard the oral arguments of the Counsel for the Opposite Parties, we delivered the following:

 

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to direct the 1^st and 2^nd Opposite Parties to rectify the various defects and omissions made in the construction and to replace the entire first floor granite tiles of the Complainant flat No-C in “C” Block and remove the unauthorized covered car shed and to shift the E.B Transformer and to clear the drive way  and direct the Opposite Party to pay a sum of Rs.2 lakhs as compensation towards repair work to the Complainant, Rs.2 lakhs as compensation for mental agony and sufferings and to replace the entire granite flooring of the Complainant or to pay a sum of Rs.10 lakhs towards cost.

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

The Complainant had entered into a Construction Agreement on 12.02.2003 with the 1^stOpposite Party for construction of the flat at Dr.Gurusamy Road, Kilpauk, Chennai in the first floor measuring 1394Sq.ft. On 21.03.2003 the Sale Deed was executed with the 2^nd Opposite Party in favour of the Complainant for 802 Sq.ft of undivided land and the same was registered as document No.621/2003 at SRO, Periamet. The flat was handed over to the Complainant in 2004 and the Complainant occupied the flat in the year 2004 and found a clear violation of CMDA approved plan for a drive way, a garden was formed blocking the drive way which paves way for zig zag and irregular parking. Since the drive way was blocked taking the car in and out becomes very difficult resulting in damages to the cars. The Opposite Party converted servant quarters in to car parking which is in violation of approved plan of CMDA. The total built up area permitted by CMDA and Chennai Corporation is 15750 sq.ft but the Opposite Party for their own enrichment constructed 18000 sq.ft. While the agreement clearly says 12 covered car parking in slilt level but actually provision is made only for 7 cars. The building complex was unofficially divided in to 3 blocks namely A,B,C violating the plan approval of CMDA. B Block is situated in the centre of the building complex which was extended on the southern side of the 1^st, 2^nd, 4^th floor violating the plan approval of CMDA. Due to the extension of the southern side in the B Block the entire kitchen sink pipe line of the 2^nd,3^rd, 4^th floor of C Block concealed in the Complainant’s 1^st floor service area sit out portion due to the blockage in the kitchen sink in the upper floor resulted in leak in the concealed pipe line causing damages to the Complainant’s flat inside walls and floors, due to which the colour of the floor grantite tiles has change fully due to dampness caused because of the leaking in the concealed pipelines. The B Block terrace unauthorized construction made by the Opposite Party and A Block terrace was completely stone walled and prevented other flat owners for using the terrace portion of the A Block inspite of all the flat owners are having right  over the common area. The portion ear marked for EB transformer in the front of the building has been converted in to unauthorized covered car shed. Due to this unauthorized car shed the Complainant could not open his windows because of the stinky smell from the metal roof of the unauthorized car park. The EB transformer erected near the ingate very near to C Block first floor, causes lot of nuisance at the time of fault repair work in EB transformer. Because of the faulty and substandard construction the Complainant is facing day to day problem causing mental agony and sufferings. Hence the complaint.

3. Written Version filed by the Opposite Parties in brief is as follows:-

The complaint is barred by limitation as it is nearly 10 years since the flat was handed over to the Complainant. The Opposite Parties had constructed the Residential Complex as per the approval and sanction of the CMDA and there is no deviation or violation of any statutory norms. In fact the CMDA had issued the completion certificate which will stand testimony that there is no violation or deviation. The Opposite Parties have constructed an apartment and the possession of the same handed over to the Complainant in the year 2003-2004. The Complainant kept silent for 10 years hence prayed to dismiss the complaint and has come out with all false allegations against the Opposite Parties. The construction of the flat is within the scope of the CMDA and the authorities of CMDA have also issued the completion certificate and there is no violation or deviation of flat as alleged by the Complainant. After handing over of the project the Opposite Parties have nothing to do with the project for any construction alteration or development are made after handing over the possession, the Opposite Parties cannot be blamed or mulcted for the same. The drive way also constructed as per plan. The leakage of water from the kitchen sink and for the rain water due to improper maintenance the Opposite Parties cannot be blamed. The Complainant was explained about the plumbing and electrical works in detail and has provided the completion certificate for all these works. There was no unauthorized construction being done in the B Block building. According to the plan there was no specific area reserved for EB. As per the instruction of the Tamil Nadu Electricity Board the EB was erected. None of the occupants of the flat has raised any allegations against the Opposite Parties. There is no bonafide intent in the Complainant’s approach and he is not entitled for any compensation hence the complaint is to be dismissed with exemplary costs.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-6. The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Parties, documents were marked as Ex.B-1 to Ex.B-2.

Points for Consideration

1. Whether the complaint is barred by limitation?

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

3. Whether the Complainant is entitled for reliefs claimed?

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

Point No.1

        The  Complainant had purchased a flat from theOpposite Parties after entering into a Construction Agreement dated 12.02.2003 with the 1^st Opposite Party and also a Sale Deed dated 21.03.2003  registered as document No.621/2003 at SRO Periamet and there after the Complainant had taken possession of the flat in the year 2004.  The contention of the Complainant was that after taking possession in the year 2004 he found that there was deficiency in construction services provided by the Opposite Parties. According to the Opposite Parties the Complainant had taken possession of the flat in the year 2004, CMDA has also issued completion certificate. The Complainant kept silent for 10 years and has filed the complaint in the year 2014. Hence the complaint is barred by limitation under sec 24 A of the Consumer Protection Act 1986, wherein sec. 24 A clearly states that the complaint has to be filed within 2 years from the date of which the cause of action has arisen. The complainant has contended that since the problem faced due to violation of approval from CMDA is still continuing one and also the seepage of drainage into the walls and floor of the flat of the Complainant is continuing to damage the entire flat rendering unworthy for living the complaint is well within the limitation.

Admittedly the Complainant had taken possession of the flat in the year 2004 and the completion certificate was issued by the CMDA. The Complainant has agreed that on occupying the flat in the year 2004 he had noticed about the violation of the CMDA approved plan. The contention of the Complainant that  garden was formed violating the CMDA plan blocking the drive way, provision was made only for 7 cars whereas the agreement clearly stipulates 12 covered car park, unauthorised construction on the terrace and other defects in the construction was within the knowledge of the Complainant when he had taken possession and occupied the flat in the year 2004. However the Complaint was filed on 15.10.2014 for the violation of the approved plan and defective construction nearly after 10 years from the date of taking possession of the flat.

The Complainant has placed reliance upon the Judgment of the Hon’ble State Commission, Chennai reported in CDJ 2014 TNSCDRC 190 in F.A.No.1108 of 2011, P.J.Prabaharan, Propreitor, M/s Sarathi Engineers Vs K.S.Gopalakrishnan, wherein it was held that having taken possession in 2001, during 2004 the falling of compound wall and several cracks developed was due to the poor construction, and on the basis of the Advocate Commissioner’s report, the Opposite parties had committed deficiency of service. The said Judgment is distinguishable on its own facts

Further the Complainant relied upon the Judgement of the Hon’ble State Commission, Chennai reported in CDJ 2014 TNSCDRC 002 in C.C.No.43 of 2008, Dr.V.J.Vikram and another Vs Usha Anandan, which facts are completely different where the Corporation of Chennai had issued demolition order  for violation of building rules and deviation of building constructed by the Opposite Parties and held that there was continuing wrong and injury and hence the Opposite Parties were made liable, which is not applicable to the case at hand.

Considering the facts and circumstances of the case, this Commission is of the considered view that the present case is barred by limitation as the cause of action arose in the year 2004 when the Complainant had taken possession of the flat and had knowledge about the alleged deviations and defective construction immediately after taking possession of the flat as admitted by the Complainant. After having taking possession and in enjoyment of the property for nearly 10 years had come out with the present complaint in the year 2014 alleging deficiency of service by the Opposite Parties which is clearly barred by limitation as the Consumer Protection Act, 1986 stipulates  2 years period of limitation from the date of cause of action, which arose as early as in the year 2004, when the Complainant had taken possession of the flat. Accordingly Point No.1 is answered against the Complainant.

Point Nos.2, 3 and 4:

As regards the allegations that the Opposite Parties had made deviation of the approved plan, it is pertinent to note that the CMDA has issued Completion Certificate on 04.07.2003. Though it was contended that the Completion Certificate issued is for the power supply subsequently the Completion Certificate was not cancelled by the CMDA for any deviation. The Advocate Commissioner appointed by this Commission had submitted his Report along with the Site Inspection Report by the Engineer which is marked as Exs.C-1 and C-2, the Site Inspection Report is made ready for the Complainant P.Varadarajan as could been seen from the docket of the Report. Certain deviations of the approved plan mentioned in the Report were objected by the Opposite Parties. The Advocate Commissioners Report enclosing the Engineer’s report is made rending to suit the case of the Complainant and which is without proper supporting documents cannot be trusted and relied upon.

The Complainant contended that he had replaced the entire granite tiles of 1^st Floor due to water seepage of kitchen sink from the upper floors of C Block at a cost of Rs.10 Lakhs which is to be compensated. There is neither mention of any dates as to when the granite tiles was replaced or documents to elucidate that the sum of Rs.10 Lakhs was expended in replacing the tiles of the 1st Floor of the Complainant’s flat. Thus this Commission is of the considered view that there is no deficiency on the part of the Opposite Parties. As the Opposite Parties had not committed deficiency in service the Complainant is not entitled for the reliefs sought for in the Complainant or for any other reliefs. Accordingly Point Nos. 2, 3 and 4 are answered against the Complainant.

In the result the complaint is dismissed. No costs.  

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 14^thof September 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	12.02.2003	Construction agreement entered between Complainant and first Opposite Party
Ex.A2	21.03.2003	Sale deed entered between Complainant and second Opposite Party
Ex.A3	10.04.2014	Legal Notice set to first Opposite Party
Ex.A4	29.04.2014	Reply notice sent by the first Opposite Party to the Complainant
Ex.A5	18.08.2014	Notice sent to member of secretary CMDA
Ex.A6	18.08.2014	Notice sent to Commissioner, Chennai Corporation and acknowledgement card.

 

 

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

 

 

Ex.B1	04.07.2003	Copy of completion certificate issued by the CMDA
Ex.B2	-	Copy of Plan

 

List of documents filed by the Advocate Commissioner:-

 

Ex.C1	-	Report filed by the Advocate Commissioner
Ex.C2	-	Site Inspection Report

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT