Complaint Filed on - 02.06.2010

Disposed on – 14.08.2015

BEFORE THE DISTRICT CONSUME DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

       14^th DAY OF AUGUST 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainants have filed this complaint U/s.12 of the C.P Act, 1986 against the OPs claiming compensation for deficiency of services and cost of the proceedings.

2. The brief averments made in the complaint are as under:

The deceased complainant No.2 Mrs.Radha Murlidhar and complainant No.1 Madhumitha Murlidhar daughter of R.Murlidhar together were searching for a ready apartment during which time they came across the residential apartments being put up by the OPs under the name of “Nandhini Lakeview Apartments”.  The brochure provided by the OPs contained particulars which described the said apartments as a promise of good living, with all needs fully addressed together with layout plan, floor plan, parking provisions, and specifications.  Being impressed thereby, the complainants decided to purchase one apartment and they entered into an agreement of sale with OPs on 06.03.2009.  Whereby the OPs agreed to sell undivided share in land together with 2 BHK residential apartment No.105 in “Nandhini Lakeview Apartments” ready for occupation with super built area of 1177 Sq.ft., and one car parking facility to the complainants, free from any encumbrances for a total price of Rs.28,77,224/- and the complainants paid an advance of Rs.3,00,000/- to the OPs.  The same included advance payment of 12 months maintenance charges of Rs.12,000/- and a sum of Rs.28,000/- as deposits for BWSSB and BESCOM connections.

The complainant having obtained housing loan from CITI BANK, called upon OPs to execute the sale deed.  Accordingly, the OPs executed the sale deed in respect of the above mentioned apartment on 24.06.2009 and delivered the possession of the said apartment.  The complainants very soon realized that in the construction of the apartment as well as provisions of amenities and facilities there were serious deficiencies.  In the apartment, Aluminum door locking facility not working/provided, utility door lock not functioning, water seepage from side walls at skirting levels at various places in dining hall, living room, toilet areas resulting in flooding of the floors and defects in lighting points.  Although these deficiencies were brought to the notice of the OPs orally as well as in writing the OPs did not pay any attention to set right the same.

   In view of indifferent attitude of the OPs, the complainants were forced to set right the deficiencies on their own and at their cost, which aggregated to Rs.59,827/-.  Until the completion of the repairs on 31.01.2010, the complainants suffered mental agony and inconveniences.  The OPs over looked to provide the amenities/facilities in common areas.  Instead of two lifts promised only one lift was provided and even the capacity of the lift is smaller and was unable to carry any articles.  The D.G.Room size has been reduced and converted into paid parking lots.  The size of each parking lot has been reduced so as to increase total number of parking lots.  The number of apartments constructed are more than what has been sanctioned.  The OPs failed to secure Occupation Certificate as a result of which the complainants are not able to obtain Katha in their name as is evident from letter issued by the BBMP on 20.05.2009.  Cauvery water provision has not been made.  Intercom facility has not been provided at all.

Terrace area has been unauthorizedly applied for purposes not sanctioned.   Back up DG power of 2 KW not been provided.  Deposits paid to BWSSB and BESCOM have not been accounted for and the connections are not certified by concerned authorities.  External finish has been left incomplete.  Security and cleaning staff have not been adequately provided for, although maintenance charges have been paid in advance.  All these deviations, omissions in the provision of common amenities and facilities have resulted in deficiency of services to all the apartment owners even when full payments have been made by Owners.  Consequently the rental value of the property deteriorated to the extent of Rs.2,000/- per month.  In other words the deficiencies have been put the complainants to a continuing notional loss of Rs.2,000/- per month which works out to Rs.22,000/- as on 31^st May 2010 which the OPs are bound to compensate to the complainants.  The complainants not only suffered financially but the complainants and their family members have undergone mental agony which is attributable to deficiency of service by the OPs.  The OPs are jointly and severally shall make good the same.

For the aforesaid reasons, the complainants prays for reimbursement of the cost of repairs and replacements amounting to Rs.59,827/-, Rs.1,09,000/- for mental agony and inconvenience suffered by them due to deficiency of services for a period of 218 days valued at the rate of Rs.500/- per day and Rs.22,000/- for continued inconveniences and losses suffered due to deficiency in provision of common amenities and facilities in all amounting to Rs.1,90,827/- together with interest and costs of the proceedings.

3. The OPs in response to the notice appeared and filed their version contending in brief as under:

The complainants have purchased the apartment in Nandhini Lake View Apartments constructed by this OPs only after satisfying the quality of construction.  The allegations of the complainant that the same price is inclusive of 12 months maintenance charges is false,  In terms of the agreement of sale dated 06.03.2009, the OPs executed a registered sale deed dated 24.06.2009 and the complainants in possession of the said 2 BHK Apartment bearing No.105, measuring 1177 Sq.Ft., with one covered car parking area.  The allegations made by the complainants regarding the alleged deficiency etc., are all false, fabricated.  The OPs were never informed either orally or in writing on 10.11.2009 and 21.11.2009 to rectify the alleged deficiency.  The OPs once noticed the fixing of Aluminum Bolt and utility bolt in proper manner and other minor defects were attended by the workers of the OPs.  The complainants have fabricated exorbitant bills for the work done by the OPs with a malafide intention to harass them.  The allegations of suffering any mental agony, inconvenience etc., are all false.  The OPs have constructed the said multistoried apartment as per the approved plan and for provided all the amenities as specified in the brochure.  There is no any deviation whatsoever as alleged.  Cauvery water was never promised and recently BWSSB assured to provide the water to the said area and as soon as the same is provided this apartment will also get cauvery water supply.  The father of the complainant No.1 and husband of complainant No.2 was present during the construction work and the said construction work was done under his supervision and only after his satisfaction the complainants have purchased the said apartment.

The father of complainant No.1 by name Muralidhara asked the OPs to provide extra electrical points and grills and other works to his apartment which were not assured and the OPs decline the same on the ground that if they provide such extra facility to his apartment everybody insist the same and the OPs incur heavy loss.  When OPs turn down the non-permissible demand of Sri.Muralidhara he started ill will against them and got filed this false complaint to harass the OPs.  All allegations made in the complaint are false, frivolous and the same are made with malafide intention to make wrongful gain as such the complainants are not entitled for any of the reliefs sought in the complaint.

For the aforesaid reasons, the OPs pray for dismissal of the complaint.

4. On the various contentions raised by both the parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate the allegations made in the complaint, filed affidavit evidence.  The OPs in support of their contention raised in their version also filed their affidavit evidence.  Both parties have filed certain documents in support of their respective contentions.  Written arguments were submitted by both the parties.

6. Perused the averments made in the complaint, version filed by OPs, documents relied upon by both the parties and the written submission.

7. Our answers to the above said points are as under:

REASONS

8. For the sake of brevity and to avoid repetitions, point Nos.1 & 2 have been taken up together for discussions.

During the pendency of the complaint, complainant No.2 Mrs.Radha Murlidhar W/o R.Murlidhar died and her legal representative have been brought on record.  The complainant No.1 as well as the legal representative of the deceased No.2 is prosecuting the present complaint.  Sri.R Murlidhar, the husband of deceased complainant No.2 as well as one of the legal heirs of deceased complainant No.2 has been authorized by the complainant No.1 as well as the said legal heirs of the complainant No.2 to prosecute this complaint.

9. Admittedly the OPs were putting up a multistoried residential apartment in the name and style “Nandhini Lakeview Apartment” at Ramappa Layout, Govt. School Road, Puttenahalli, J.P Nagar, Bangalore-78 and the complainants after looking into the brochure furnished by the OPs decided to purchase 2 BHK apartment with a super built up area of 1177 square feet bearing No.105 and entered into an agreement of sale with the OPs on 06.03.2009 by paying advance amount of Rs.3,00,000/-.  Subsequently after completion of the construction, the OPs executed a sale deed in respect of the said apartment in favour of complainants by way of registered sale deed dated 24.06.2009 by  receiving the balance consideration.

10. It is alleged by the complainants that within a short time from the date of occupation of the said apartment they noticed various deficiencies in the apartment as well as in the amenities/facilities provided for the common areas.  It is alleged by the complainant that in the apartment aluminum door locking facility was not working, utility door lock not functioning and seepage of water occurred from side walls at skirting levels at various places and defects in lighting points.  Though the OPs denied said deficiency in the apartment of the complainants but the photographs produced by the complainants discloses the seepage of water at various places in the said apartment.  The OPs did not deny that the said photographs are of the apartment in question.  It is evident that water seepage at various places at skirting level started in the apartment immediately after the complainants started making use of the apartment.

11. The OPs themselves in their version admits that they attended certain minor repair works in the apartment.  However, they did not specify as to what minor work they attended.  From this admission on the part of the OPs strengthens the allegations of the complainant that the deficiency as pointed out by them in the complaint were existing and the same were not attended by the OPs despite intimating them orally as well as in writing.

12. The complainants have produced the copies of two registered letters together with postal acknowledgements for having informed the OPs regarding deficiencies in the apartment.  The copies of the said letters one dated 10^th November 2009 and 21^st November 2009 coupled with postal acknowledgement go to establish that the complainants intimated the OPs at the earliest regarding the deficiencies noticed in their apartment.  If at all no such deficiencies were in the said apartment as contended by the OPs they ought to have replied to the said letters denying any such deficiency.  The conduct of OP in not replying to the said letters itself establishes that such deficiency existed in the said apartment and the same were not attended by the OPs despite both orally as well as written intimation.

13. When OPs have failed to attend the said deficiencies the complainant had no other choice but to get them repaired by spending money from their pocket.  The complainants have produced the copies of various receipts from the hardware shop for having purchased the requisite material and also the receipts issued by the electrician, mason and painter.  The total amount spent by the complainant from the above mentioned receipts comes to Rs.59,827/-.  The OPs having failed to rectify the deficiencies as pointed by the complainants in the said apartment are liable to reimburse the said amount to the complainants.  We don’t find any reason to suspect the genuineness of receipts produced by the complainants.  Absolutely there is no reason for the complainants to come up with false receipts and to make a false claim against the OPs.

14. The complainants have produced a report of opinion from the Government approved valuer regarding the deficiencies complained by them in the apartment as well as in the common areas.  The copy of the report of the Government approved valuer issued by the Rishikesh & Aakash Associates discloses that the deficiencies as pointed out by the complainant in their apartment have been rectified by the complainants at their own costs as per the bills provided to Government approved valuer.  This report of the Government approved valuer is not denied by the OPs.  We also no reasons to disbelieve the said opinion report dated 22.03.2013 produced by the complainant.

15. The brochure as well as the contents of agreement of sale and sale deed discloses that the OPs have promised 2 lifts to the said apartment.  In the said apartment complex however only one lift has been provided.  Certainly one lift is not sufficient to attend to the needs of occupants of 32 apartment owners.  No satisfactory explanation is provided by the OPs in failing their promise in providing 2 lifts to the said apartment building.  OPs in their version contended that the sale consideration does not include the advance maintenance charges of Rs.12,000/-.  However it has been categorically mentioned both in the agreement of sale as well as in the registered sale deed that one year maintenance of the apartment is included in the agreed sale consideration.  Despite this recital in the agreement of sale as well as in registered sale deed the OPs have the audacity of denying that the sale price does not include one year advance maintenance of the apartment.

16. Further the recital in agreement of sale as well as registered sale deed discloses that electricity and BWSSB sanitary deposits are included in the sale consideration.  Thus it is abundantly clear that the OPs have collected BWSSB sanitary deposits from the complainant and other apartment owners.  However as admitted by themselves the apartment is being supplied with bore well water instead of Cauvery Water by BWSSB.  The contention of the OPs that they could not provide Cauvery Water of BWSSB to the apartment since no Cauvery water was available in that area cannot be believed at all.  If at all BWSSB water supply was not available in the area the OPs would not have collected BWSSB deposits from the complainant and other apartment owners.

17. In annexure-1 appended to the agreement of sale as well as in the description provided to schedule-C property in the registered sale deed, it has been agreed by the OPs to provide 2 K.W power for each flat as well as power for common areas and lift from the generator.  Despite agreeing to provide backup power for common areas, lifts and 2 K.W power to each flat.  The OPs till today have not provided backup power as promised by them.  The OPs did not provide any satisfactory explanation for their failure to comply with the said promise made by them.

18. The opinion report dated 22.03.2013 submitted by the complainant also confirms that instead of 2 lifts as mentioned in the brochure only one lift has been provided.  It further discloses that though the builder has collected deposits of BWSSB and sanitary connection.  The same have not been provided and the builder has not even applied for BWSSB connection.  The said report also point out that occupancy certificate is not provided to the complainant.  The complainants have also produced the copy of the endorsement dated 20.05.2009 given by BBMP stating that the khatha of the apartment cannot be given in the name of the complainant for want of sanction letter, occupancy certificate and completion certificate to be provided by the builder i.e., OPs.  Admittedly till today the OPs have not furnished the above mentioned documents to the BBMP to enable the complainant to get the khatha of the apartment in their name.

19. The above mentioned short coming amounts to deficiency of service on the part of the OPs.  The OPs despite promising excellent amenities have miserably failed even to provide basic and reasonable amenities to the complainants.  It is alleged by the complainants that the OPs having obtained permission for 32 apartments, constructed 34 apartments.  The OPs have not denied this allegation made against them.  Thus it is apparent that there is a serious deficiency of service on the part of OPs thereby putting the complainants to great hardship, inconvenience and mental agony.

20. Not only deficiencies in the apartment there are deficiency of service in the common areas also.  Certainly the complainants must have been put to great hardship, inconvenience and mental agony as a result of deficiency in the apartment as well as in the common areas.  The OPs are certainly liable to compensate the complainants for the said deficiencies.

21. In view of the facts and circumstances of the case as stated above, we are of the opinion that OPs are liable to reimburse the expenses incurred by the complainants in rectifying the deficiency in the apartment and also liable to pay compensation as mentioned below for the hardship, inconvenience and mental agony undergone by the complainants.  In the result, we proceed to pass the following:           

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are jointly and severally directed to reimburse the complainants a sum of Rs.59,827/- together with interest at the rate of 9% p.a from June 2010 till the date of realization towards expenses incurred by them in rectifying the deficiencies of their apartment.  Further the OPs are directed to pay a compensation of Rs.50,000/- to the complainants for the hardship, inconvenience and mental agony suffered by them due to deficiency in service on the part of OPs together with Rs.5,000/- towards cost of this proceedings.

The OPs shall comply the order passed by this Forum within six weeks from today.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 14^th day of August 2015)

MEMBER                      MEMBER                             PRESIDENT

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