Tamil Nadu

South Chennai

CC/11/2020

Gayathri Rajamanohar - Complainant(s)

Versus

M/S. Sri Abirami Builders, Rep. by ist Proprietor, K.Dhanapal - Opp.Party(s)

GANESAN K

12 Sep 2022

ORDER

Date of Complaint Filed : 27.12.2019

Date of Reservation      : 18.08.2022

Date of Order               : 12.09.2022

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.11/2020

MONDAY, THE 12^th DAY OF SEPTEMBER 2022

Gayathri Rajamanohar,

D/o. Rajamanohar,

Flat No.1, First Floor,

“Sri Abhirami/Sundaram Flats”,

New Door No.1,

Karneeswarar Koil Street 3^rd Lane,

Mylapore,

Chennai – 600 004.                                                       ... Complainant                

 

..Vs..

 

M/s. Sri Abirami Builders,

Represented by its Proprietor K.Dhanapal,

Old No.6, New No.13,

Loganathan Colony,

Mylapore,

Chennai – 600 004.                                                      ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. K.Ganesan

Counsel for the Opposite Party       : Exparte

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, 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 Party under section 12 of the Consumer Protection Act, 1986 and to refund a sum of Rs.32,000/- being the amounts collected by the Opposite Party from the Complainant under the guise of providing Chimney together with interest @18% and to pay a sum of Rs.5,00,000/- for the mental agony, pain sufferings and to pay a sum of Rs.5,00,000/- towards deficiency of service and unfair trade practice committed by the Opposite Party along with cost.

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

The Complainant had booked a flat in the 1^st floor of ‘A’ Block situated in Karaneeshawarar Koil Street, Mylapore, Chennai 600 004 along with a reserved car park. The consideration of Rs.70,40,000/- was paid to the Opposite Party by way of Housing Loan availed from the Bank of India and also from personal saving of the Complainant.  The Opposite Party had conveyed the Undivided share of land measuring to an extent of 300 sq.ft for a sale consideration of Rs.25,50,000/- by way of Registered Sale Deed dated 20.01.2016 bearing document No.152/2016, SRO, Mylapore, Chennai 600 004. The Opposite Party specifically agreed to provide a lift, covered car park and other basic amenities. The Opposite Party had specifically agreed in the Construction Agreement that they had a sanctioned plan for the Complainant’s flat, to complete the construction within 12 months i.e before December 2016. But the Opposite Party has miserably failed and neglected to complete the construction as agreed. The Opposite Party after much delay in constructing the flats and deviating from the approved plan finally made the flat ready in the month of December 2017. Without providing any amenities as agreed had handed over the flat to the Complainant during the last week of December 2017. The Opposite Party has left many works incomplete and used inferior quality of materials in construction of the flat. The Opposite Party did not provide chimney though collected a sum of Rs.32,000/-. The Opposite Party did not construct the compound wall as agreed. They did not provide waterproof treatment in the terrace and during the rains the terrace was leaking and there was seepage and dampness all over the wall within a short period of time causing damages for interiors of the flat. The Opposite Party has not even installed the lift as agreed in the Construction Agreement. The Complainant had made several requests to rectify the defects and provide the amenities as agreed by the Opposite Party and also issued legal notice dated 04.10.2019. On receipt of legal notice, the Opposite Party caused to issue a reply notice dated 11.11.2019 through his advocate demanding additional sum of Rs.5 lakhs from the Complainant towards the escalation of construction cost etc., which is an illegal and unlawful demand. The Complainant through her rejoinder dated 24.12.2019 denied any such payment that she is not liable to make any payment to the Opposite Party. The action on the part of the Opposite Party is a clear deficiency of service and unfair trade practice that has caused immense mental agony to the Complainant which needs to be compensated by the Opposite Party. Hence the Complaint.

3.   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-15. The Advocate Commissioner submitted his Report were marked as Ex.C1 to Ex.C4.

4.    The Opposite Parties did not appear before this Commission even after sufficient notice remained set exparte.

Points for Consideration

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

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled?

Point No.1:

        The Complainant contended that the Opposite Party was proposing to develop a project with 3 Blocks “A”,’B’,’C’ at Karaneeshwarar Koil Street, 3^rd Lane, Mylapore, Chennai-600 004 and that the Opposite Party had convinced the Complainant to buy a flat in the 1^st floor of “A” Block for a total sale consideration of Rs.70,40,000/-. As per Ex.A-1 the Opposite Party had entered in a Construction Agreement with the Complainant on 16.12.2015 registered as Document No.151/2016, SRO, Mylapore. Subsequently on 20.01.2016 a Sale Deed was entered between the Complainant and the Opposite Party whereby the Opposite Party had conveyed the Undivided share of land to a extent of 300 sq,ft for a sale consideration of Rs.25,50,000/- to the Complainant by way of registered Sale Deed bearing document No.152/2016, SRO, Mylapore as found in Ex.A-2. The Complainant had paid the entire sale consideration of Rs.70,40,000/- to the Opposite Party. The Opposite Party had agreed to complete the construction within 12 months from the date of construction that is  before December 2016.

        The contention of the Complainant is that there was deviation from the approved plan and there was delay in handing over the flat. The Opposite Party handed over the flat to the Complainant during the last week of December 2017.  The Opposite Party has left many works incomplete and used inferior quality material in the construction of the flat. The Opposite Party used inferior quality tiles in the Kitchen and in the bathrooms. The Opposite Party did not provide water proof treatment in the terrace of A Block and during rain the terrace was leaking and caused damages to the interior of the flat. The Opposite Party had not constructed the compound wall and not installed the lift as promised at the time of booking the flat. The Opposite Party miserably failed to provide reserved car park as agreed in the Construction Agreement, placing the Complainant in a awkard situation toface unscrupulous elements and others who park their vehicles in a haphazard manner in the absence of identification and marked reserved car park area for the residence.

        The advocate Commissioner appointed by this Commission to Inspect the premises in Flat No.1,1^st Floor, “Sri Abirami / Sundaram Flats” New DoorNo.1, Karaneeshwarar Koil Street, 3^rd Lane, Mylapore, Chennai-600 004 with the help of qualified Civil Engineer submitted his report, Ex.C1 and by arriving at a conclusion which is as follows.

1. The construction of the building has been largely deviated from the original approved plan
2. Set backs provided are very less through which no one can go and carry out any maintenance and repair works.
3. Outer main walls are provided with single brick wall(41/2”) which is unfair practice in construction. These walls easily develop cracks and allow rain water to easily seep through the walls thus causing weakness to the structure.
4. There are lots of cracks developed on the north and eastern walls causing seepage of water, dampness and peeling of paints and damaging window, wardrobes and furniture.
5. The lift is not provided. The lift well and lift door openings are not covered. The lift construction work is left incomplete.
6. Eastern side boundary wall is absent and construction of a compound wall in all floors has to be done to disconnect the subject property from adjacent property floors.
7. Toilet flooring are leaking and this will damage RCC roof and beam. This has to be rectified immediately.
8. West side compound gate is encroaching the Road(lane) and should be realigned in line with the adjacent property boundary line.
9. The car parking reserved for the Complainant as not been ear marked in the parking area.

                  During the pendency of the complaint owing to deviation and violations committed by the Opposite Party in construction of the building the Greater Chennai Corporation, Zone IX had issued a notice dated 04.02.2021, Ex.A-13 bearing No.ZONE-IX/DN-125/TPENF/024/2021 under section 56 and 57 of Town and Country plan Act 1971, and Locking and Sealing and Demolition Notice dated 16.04.2021, Ex.A-14 Vide notice No. Z-IX/TPENF/DN-125/024/2021,  stating that the premises owned by the Complainant has been examined on 16.03.2021 and found that there was deviation and unauthorised construction in the said construction and thereby called upon the Complainant to secure  compliance with sanctioned plan within 30 days from the date of receipt of notice failing which action will be taken under the Town and Country Planning Act by locking and sealing the premises and carrying out demolition of the deviated and unauthorised portion of the building at the cost of the Complainant without any further notice to the Complainant. The Complainant had submitted an appeal against the above notices before the Appellate Authority, Secretary to the Government of Tamil Nadu, Housing and Urban Development, Chennai.

On careful consideration of the documents and contentions made by the Learned counsel this Commission is of the considered view that the Complainant had not constructed the flat as agreed in the Construction Agreement, there are deviations from the Approved Plan. There is no reserved car par ear marked to the Complainant. There are lots of cracks on the walls, lift was not provided. The Advocate Commissioner’s report Ex.C1, the Civil Engineer’s Report, Ex.C3 would reveal that the Opposite Party had committed various deviations and irregularities. Ex.A-13 and Ex.A-14 would clearly establish the deviations made by the Opposite Party in construction of the flat.The act of the Opposite Party in  not adhering to the terms and conditions of the Construction Agreement and depriving the Complainant from providing the amenities as promised by the Opposite Party amounts to clear deficiency of service, which would have definitely caused mental agony to the Complainant. Accordingly Point No.1 is answered.

Point Nos.2 and 3:-

        As discussed and decided in Point No.1 that the Opposite Party has committed deficiency in service, the Opposite party is liable to ear mark and provide  covered car park to the Complainant, to pay a sum of Rs.3,00,000/- towards the deficiency in service and also for  mental agony, pain and suffering under gone by the Complainant along with cost of Rs.3000/-. Accordingly, Point Nos. 2 and 3 are answered.

In the result the complaint is allowed in part. The Opposite Party is directed  to ear mark and provide  covered car park to the Complainant, to pay a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) towards the deficiency in service and also for  mental agony pain and suffering under gone by the Complainant along with cost of Rs.3000/- (Rupees Three Thousand Only) to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of receipt of this order till the date of payment.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 12^th of 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	16.12.2015	Copy of Construction agreement entered into between the Complainant and Opposite Party
Ex.A2	20.01.2016	Copy of Sale Deed entered into between the Complainant and Opposite Party
Ex.A3	19.10.2015 to 22.03.2017	Copy of Receipts issued by the Opposite Party to the Complainant
Ex.A4	Jan 2018 to April 2019	Copy of Flat Maintenance paid to the Opposite Party by the Complainant
Ex.A5	01.11.2015 to 31.01.2016	Copy of Complainant’s HDFC Bank Statement
Ex.A6	15.05.2016 to 23.11.2019	Copy of Email conversation between the Opposite Party to the Complainant
Ex.A7	04.10.2019	Copy of Legal notice sent by the complainant to the Opposite Party by Speed Post
Ex.A8	11.11.2019	Copy of Interim reply
Ex.A9	24.12.2019	Copy of Rejoinder notice sent by the complainant
Ex.A10	26.12.2019	Copy of Acknowledgement card
Ex.A11	-	Copy of Photos
Ex.A12	-	Copy of Approved Plan
Ex.A13	04.02.2021	Copy of Pre notice issued by the Corporation of Chennai under section 56 & 57 of Town & Country planning Act, 1971.
Ex.A14	16.04.2021	Copy of Locking & Sealing and Demolition notice issued by the Corporation of Chennai
Ex.A15	12.07.2021	Copy of Appeal filed before the Government of Tamil Nadu, Housing and Urban Development, Chennai.

 

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

 

NIL

 

 

List of documents filed on the side of Advocate Commissioner:-

 

 

Ex.C1	22.04.2022	Copy of Advocate Commissioner Report
Ex.C2	-	Copy of Photos corresponding the Report
Ex.C3	19.04.2022	Copy of Enginee Report (Original)
Ex.C4	12.02.2022	Copy of Minutes Recorded On The Day of Inspection

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT