Date of filling:         25.01.2016

                                                                                                         Date of Disposal:     17.07.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

THIRUVALLUR -1

PRESENT: THIRU.S.PANDIAN.B.Sc., L.L.M.,                                     - PRESIDENT

THIRU:BASKARKUMARAVEL .B.Sc.,L.L.M., BPT., PGDCLP.,          - MEMBER

CC.NO.03/2016

TUESDAY, THE 17 DAY OF JULY 2018

R.Radhakrishnan,

Madura Garden,

Flat No.A-21

New No.15, Old No.491

Poonamallee High Road,

Maduravoyal

Chennai - 600 095.                                                           …….. Complainant.

                                              //Vs//

M/s.Shri Krisshna Builders

Rep.by its Managing Partner,

P. Nanda Kumar,

Old No.491, New No.15,

Poonamallee High Road,

Maduravoil

Chennai - 600 095.                                                                ….Opposite party.

This complaint is coming upon before us finally on 03.07.2018 in the presence of M/s.B.Harikrishnan, counsel for the complainant and M/s.K.Bhasker, counsel for the opposite party and upon hearing arguments, and having perused the documents and evidences and written arguments of both sides, this Forum delivered the following.

                                     ORDER

PRONONOUNCED BY THIRU.S. PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S of Consumer Protection Act 1986 against the opposite party for seeking direction to provide a suitable car parting space and to pay a sum of Rs.2,50,000/- towards damages for the hardship and loss caused to the complainant due to the deficiency in service with cost.

2.The brief facts of the complaint are as follows:-

The complainant is the present owner in possession and occupation of Maura Garden, Chennai -600 095 and having a build up area of 1515 sq.ft. in the 2^nd floor of A Block forming part of the building through the opposite party in terms of the agreement for sale and construction dated 22.08.2007.

3. That there is also a provision for covered car parking space in the allotment letter as also in the agreement for sale and construction dated. 22.08.2007.   The opposite party completed the construction of the flat and delivered possession thereof to the complainant’s wife R.Gajalakshmi in October2010 and in turn the complainant’s wife R.Gajalakshmi moved into the said flat in 2010 itself.  Unfortunately, the complainant’s wife died in February, 2012.  Consequently upon the demise of R.Gajalakshmi, the complainant has become the present owner of the said flat as the complainant and the said Mrs. Gajalakshmi did not have any issue.

4. That even while taking possession of the said flat, the complainant informed the opposite party that the car parking space allotted measuring 4.4 metres lengthx 3.6 metres breadth  which was ear marked/allotted for two car parking is not sufficient to park his cars and further required the opposite party to allot car parking space as per CREDAI standard which stipulates that the car parking area should 2.5 metres width x 5 metres length.  The opposite party has assured the complainant that it is only a temporary arrangement and that the complainant will be provided with another suitable car parking space shortly.

5. That since the complainant’s wife is ailing; the complainant could not contact the opposite party regarding his assurance of providing any alternate suitable car parking space.  In the meanwhile, two years have lapsed and the opposite party has not done anything about providing alternate car parking space in spite of complainant’s letters dated 02.04.2013, 14.06.2013, 02.07.2013 and 14.07.2013.  In fact, the opposite party had not responded either to the complainant’s letters nor did he choose to comply with the complainant’s letters.  Again he had sent a letter dated 14.11.2013 calling upon the opposite party to provide a suitable car parking space by letter dated 29.11.2013 the opposite party falsely claimed to have allotted car parking space to the complainant as per CMDA norms and that the Madura Garden Flat Owners Association is objecting the Tress work within the premises and require the complainant to get the nod from the Association to fulfill the complainant’s requirements.  Knowing fully well that it is a difficult and uphill task.  In short, the opposite party had not complied with the complainant’s request by placing the burden on the complainant to get the nod from the Association.  Since the opposite party has not provided adequate space for parking his car and the complainants car is projecting on the common pathway where there is frequent movement of vehicles and the children also using the common pathway in the area and the car is exposed to permanent rain which had caused the considerable damage to the vehicle.  That the opposite party had allotted this car parking slot in B Block to the person who is owning flat in B Block which is contrary to the norms and conventions.  The opposite party had made allotment according to his whimse and fancies

6. Under such circumstances, the complainant has issued the notice dated 04.06.2014 calling upon the opposite party to provide suitable covered  car parking space in A Block itself as per CARDAI standard.  The opposite party sent a reply to the complainants counsel dated 20.06.2014 denying the fact.  However, the opposite party expressed his preparedness to provide alternate car parking space once the issue is amicably settled with the Association.  Thus, the conduct of the opposite party has caused and continue to cause irreparable hardship and mental agony to the complainant the opposite party has committed deficiency in service by not providing a suitable car parking space.  Hence this complaint.

7.The contention of written version of the opposite party is briefly as follows:-

The complaint is devoid of merit and it is not maintainable ion facts or on law and it is therefore liable to be dismissed.  All allegations are denied as false except those that are specifically admitted therein.  The complainant was satisfied with the project developed by the opposite parties, and booked flat and to the effect a construction agreement was entered on 22.08.2007.  Further, the building was constructed as pet standard norms and specifications and covered car park was allotted in the stilt portion as indicated in the approved building plain and also as per the agreement.

8. The opposite party never assured covered car under the same block.  The apartment consists of Blocks A-H and totally there are 188 flats.  In big residential apartment providing parking area in the stilt area of the same block is not practically possible.  Further, in the construction agreement the opposite party never assured parking area under the same block where the flat was allotted.   And further never assured that alternate suitable car parking space will be allotted at later point of time and it was allotted on the basis of first come first serve basis as per the booking seniority.  The present car parking space was allotted as per the complainants turn of booking.  As per booking seniority parking was allotted and it is good enough to park any brand of car.  In this similar manner parking was allotted to all the occupants in the flat without any bias, partiality of discrimination.  Further, the opposite party is not bound to provide car parking as per CREDAI standard much the specification stated in the complaint.  Even then on humanitarian ground, the opposite party identified alternate parking space for which very strong objection was raised by the Madura Garden Flat Owners Association after.  Having completed the project and handed over the entire flats to the said association after its formation the opposite party is ceased of its authority to exercise any control over the common enjoyment areas.  Further, the opposite party is not responsible in any way for the improper parking and damage suffered due to his negligent driving.

9. The complainant narrating all the issues discussed above has replied in his notice dated 20.06.2014 and further assured to take his matter to the association for amicable solution.  Thereafter the complainant never approached the opposite party.  That the car parking allotted to the complainant is good enough to park a car sufficiently.  Further, the opposite party is not bound to provide car parking under CREDAI standard under any statue.   The complainant has no caused of action and the complaint suffers from all possible infirmity and devoid of merit. Hence, the complainant is not entitled to any of the relief as prayed.

10. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A4 were marked.  While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1 is marked on his side.

11. At this juncture, the point for consideration before the Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other relief, the complainant is entitled to?

12. Written arguments filed and oral arguments also adduced by both sides.

Point No:1:-

13. As per the averments of the complaint, it is learnt that when  a portion of the said flat purchased by the wife of the complainant  in the month of October 2010, the opposite party has not provided the car parking space as per the CREDAI standard  and as per the rules and regulation prescribed by the CMDA and thereby the complainant had suffered irreparable loss and hardship and mental agony in parking his car and in respect of repeated  demand and notice, the opposite party has not come forward to rectify the demand of the complainant and thereby the complainant has compelled to file this complaint.

14. On the other hand, it is averred by the opposite party in his written version that it is not correct to say that the car parking area not provided as per the CMDA rules and regulation and he never assured for a covered car parking under the same block and allotted the car parking to the complainant is good enough to park a car sufficiently and he  is not bound to provide car parking under CREDAI standard and even then, only on humanitarian ground the opposite party identified alternate car parking space, for which a very strong objection was raised by the flat owners welfare Association and thereby the opposite party is ceased of its authority to exercise any control over the common enjoyments areas and hence there is no cause of action in this complaint and thereby the complainant is not entitled to any of the relief.

15. At the outset, it is needless to say that it is bounden duty of the complainant to prove the allegations made against the opposite party by means of relevant evidence.   First of all, on careful perusal of the evidence produced through proof Affidavit by the complainant, it is stated that the alleged flat was purchased initially by the wife of the complainant herein who was died subsequently in February 2012 from the opposite party in terms of the agreement for sale and construction dated 22.08.2007 and in continuous,  on completing the construction of the alleged flat, the possession was delivered to the wife of the complainant in October 2010.  Therefore the complainant along with his wife moved into the said flat in 2010 itself.

16. It is further narratted that while taking portion of the said flat the provision of the car parking as per allotted measuring 4.4 metres length x3.6 metres breadth which is ear-marked for two cars is not sufficient to park their cars requested the opposite party to allot car parking space as per CREDAI standard and in turn the opposite party has assured that it is only temporary arrangement and that will be provided with another suitable car parking space shortly and therefore the complainant wrote a letter to the opposite party on different date, viz., 02.04.2013, 14.06.2013, 02.07.2013 (Ex.A2) to the opposite party and in turn the opposite party sent a reply notice (Ex.A3) dated 20.06.2014 with false facts and there after the opposite party has not come forward to comply the demand of the complainant.

17. While being so, it is further seen from the evidence of the opposite party the alleged property was developed strictly as per the approved building plan of CMDA dated 16.02.2007 and also obtained (Ex.B1 ) the building completion certificate issued by the CMDA and the said building has constructed as per the standard norms and specifications and the covered car park was allotted in the stilt portion as indicated in the approved building plan and also as per the agreement.  It is further deposed that as per the booking seniority car parking was allotted which is good enough to park any brand of car in the flat without any bias, partiality or discrimination and  in fact the opposite party is not bound to provide car parking as per CREDAI standard much the specification stated in the complaint and narrating all the issues discussed above in his reply notice Ex.A4 and for amicable solution, but per contra the complainant come forward this complaint  and hence there is no merit in the complaint.

18. At this juncture, on careful perusal of the rival submissions put forth on either side, it is an admitted fact that the alleged flat was purchased by the wife of the complainant from the opposite party as per the sale deed and construction agreement and the same was delivered to the complainant wife in the month of October 2010 and immediately the complainant and his wife moved to the flat. Further, it is learnt that while delivering the alleged flat the opposite party had provided the car parking space as per the approved building plan and the agreement.  By this time, it is seen from Ex.B1, the CMDA issued completing certificate on satisfaction that the alleged building was constructed as per the approved building plan Ex.A4.  In respect of the same, there is no serious objection raised by the complainant.

19. In such circumstances, the contention raised by the complainant is that though the complainant was allotted a flat A block but the car park area was allotted in some other block and as per CREDAI standard stipulates that the car parking area should be 2.5 metres width with a 5 metres length  which is not sufficient  to park his cars while delivering the flat to the complainant in the month of October 2010 and also the opposite party failed to fulfill his assurance that the complainant will be provided with the another suitable car parking space shortly.

20. Such being so it is crystal clear that there is no dispute of the car parking allotted to the complainant during delivery of the alleged flat.  But the only fact before this Forum is whether the opposite party provided the car parking area as per the terms of agreement.  At this juncture the sale agreement and sale deed has not been produced by the complainant in order to prove the above facts though it is duty of the complainant to prove the same by means of documents. Except filing the letter addressed to the opposite party on different dates Ex.A1(s) and legal notice Ex.A2, no other documents placed before this Forum on the side of the complainant.

21. At this point of time, it is pertinent to note that the alleged flat was handed over to the complainant’s wife and the complainant herein, in the month of October 2010 and it is seen from the Ex.A1(s) letters the complainant approached the opposite party in respect of the deficit area of car parking provided by the opposite party during the April 2013 only, that is after the lapse of Two and half years. In the mean time, there is no document to show that whether the complainant had approached the opposite party for the said lapses in providing a deficit area of the car parking in the interim period and thereby it is noticed that there is much delay in approach of the complainant.  From the delayed approach, it is pertinent to say that till Ex.A1(s), it can be easily presumed that the complainant had satisfied the portion of the car parking space provided as per the approved building plan without any default.  So, as rightly pointed out by the opposite party that for the reasons best known to the complainant, the complainant has now come forward to this complaint before this Forum.

22. More so, it is learnt from the evidence adduced on both sides that on humanitarian ground the opposite party identified alternate parking space but it could not be fulfilled because of the serious objection were raised by the Madura Garden flat owners welfare Association since he completed the project and issuance  the completion certificate by the CMDA, the entire flat was handed over to the above said Association after its formation, the opposite party is ceased of its authority to exercise any control over the common enjoyment areas. Regarding this fact, the complainant is not disputed and it is therefore inevitable for not providing the alternate car park by the opposite party.  Moreover, as per the sale and construction agreement also the complainant is not entitled for the same and therefore as alleged by the complainant there is no proof to say that the opposite party has failed to comply the terms and conditions of the sale and construction agreements.

23. At this point of time, the sketch showing the area of the car parking provided by the opposite party cannot be acted upon since it is a self creating document and not proved by proper evidence.  Similarly, the annexure XVI regarding car parking requirements as per the CMDA rules produced by the complainant during the arguments cannot be looked into it since the alleged car parking was allotted three years earlier and at the time of allotment and handed over the flat no  document shown about the objection is any raised by the complainant.  Not only that, the complainant has failed to find out whether this space provided is good enough to park a car immediately on taking over the same and not come forward to take any relevant steps for the appointment of Advocate Commissioner in order to arrive correct decision of the case.  Furthermore, this Forum wants to state that as per the Ex.B1 the opposite party has completed the building as per the approved building plan and the car parking space for all the apartments were provided in time and in this regard there is no other objection arose from any owners of the said apartment except this complaint herein that too after lapse of nearly Two and half hears.  The reason mentioned for the delay by the complainant cannot be accepted. From this facts, this Forum can easily presumed that the complainant has failed to prove the allegations made in the complaint.

24. In the light of the above other facts and circumstances the complainant has not proved the deficiency of service on the part of the opposite party beyond any reasonable doubt.  Thus the point no.1 is answered accordingly.

Point No:2:-

25. As per the decisions arrived in the point no.1, the complainant is not entitled for any relief as prayed in the complaint.  Thus, the point no.2 is answered accordingly.

In the Result, this complaint is dismissed.  No cost.

Dictated by the president to the steno-Typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 17^th July 2018.

  -Sd-                                                                                  -Sd-

 MEMBER                                                                     PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER                                                                                   PRESIDENT