Date of Filling     :  18.07.2016.

                                                                                           Date of Disposal :  03.03.2017.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

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

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.45/2016

(Dated this Friday the 03^rd day of March 2017)

A. Karunakaran,

S/o. Mr. V.P. Annamalai,

No.35, Second Street,

Rajiv Gandhi Nagar,

Villivakkam,

Chennai - 600 049.                                                                      … Complainant.

                                                          / Versus /

 M/s. V. Tech Builder,

Represented by its Managing Partner

Mr. A.C. Jothiprakash,

S/o. Mr. S. A. Chaveriappa,

No.440 A, Mambakkam Main Road,

Chennai - 600 126.                                                                    … Opposite party.

This complaint is coming upon before us finally on 17.02.2017 in the presence of M/s. S. Venkatesan, Counsel for the Complainant and the opposite party is set Exparte for non appearance and upon hearing arguments, having perused the documents, evidences and written arguments of the complainant, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking compensation for a sum of Rs.18,00,000/- towards compensation for causing mental agony and damages due to the deficiency of service on the part of the opposite party with cost.

   2.      The brief averments of the complaint as follows:-

                The complainant and the opposite party had entered into a Joint Venture Agreement on 24.11.2010.   As per the Joint Venture Agreement, the complainant is entitled 40% of land and constructed portion and the opposite party is entitled 60% of land and constructed area.  To enable the opposite party, the complainant had also executed a registered General Power of Attorney on 25.11.2010 for construction of a building.  The complainant is entitled to retain ground floor flat including car parking.  The opposite party agreed to complete the construction and handover the Flat to the complainant within ten months from the date of agreement.  The opposite party agreed to construct an extent of 1167 sq. ft. in the ground floor to the complainant.  But before entering into the agreement, the opposite party could construct only an extent of 990 sq. ft. in the ground including the common area.  So, the opposite party agreed to pay a sum of Rs.4,65,000/- to the complainant.  On the date of agreement, the opposite party paid a sum of Rs.2,00,000/- out of Rs.4,65,000/- and later paid balance of Rs.2,65,000/- in instalments.

3.       The opposite party could not complete the construction and handover the complainant’s flat within the stipulated period and wanted extension of time and agreed to pay Rs.10,000/- for each month’s delay as per his agreement dated: 04.10.2012.   The complainant after complained the opposite party to the police, paid Rs.1,30,000/- for 13 months delay from December 2012 to December 2013.  Thereafter, the opposite party has to pay Rs.10,000/- per month from January 2014 for the delay totally Rs.1,40,000/-.  Hence the complainant issued legal notice to the opposite party on 13.03.2015.  Immediately after receipt of the legal notice, the opposite party gave the key of the ground floor flat on 20.03.2015.  The complainant found the following defects in the flat:

1. The floors of the toilets were laid improperly.
2. Western toilet and closets were not fixed.
3. No shutters provided in the windows.
4. No provision for inlet and outlet of water in the kitchen.
5. Plumbing accessories and fittings were not fixed properly in the bathrooms.
6. Cracks appeared on the interior sides of the walls.
7. Holes made for the electrical connections and plumbing lines were not closed. 
8. Main door was made of ordinary wood instead of teakwood.
9. No provision for fixing heater and washing machine.

    10. Electrical connections and lines are not concealed.

     11. No glass closures for the bathroom.

     12. Floors are made of inferior quality of tiles and had been laid improperly.

     13. There were trails and cases which indicated the entire portion allotted was     used as a storage place for dumping of waste materials.

     14. There were damages and cracks on the floor due to dumping of waste materials.

     15. The plumbing and electrical fittings were of every poor quality which required replacement.

     16. Incomplete and improper plastering and painting on both interior and exterior sides of walls.

     17.  Facility for fitting AC was not provided.

     18.  Bathrooms are without doors.

        For the above defects the complainant estimates a cost of Rs.4,50,000/- for which the opposite party is liable.

4.       Further, the opposite party had to construct only 481 sq. ft. in the second floor but he had constructed 800 sq. ft. in the second floor i.e. excess construction of 319 sq. ft.  The complainant’s 40% entitlement works out to 128 sq. ft. and the value of 128 sq. ft. is Rs.4,00,000/- and the opposite party is liable to pay to the complainant.   As per the agreement, the complainant is entitled 40% of out of total extent of 1800 sq. ft. undivided share in the site i.e. he is entitled 720 sq. ft.  The opposite party is entitled 60% i.e. 1080 sq. ft.  But on the strength of Power of Attorney unilaterally, the opposite party sold total extent of 1219 sq. ft. i.e. more 139 sq. ft. above his entitlement of 1080 sq. ft. from and out of complainant’s portion.  Hence the complainant is entitled for the market value of 139 sq. ft. site which is valued at Rs.3,00,000/- to recover from the opposite party.

5.       The opposite party is liable to pay the complainant a sum of Rs.5,00,000/- as compensation for mental agony due to the attitude of the opposite party.   Hence the complainant issued legal notice dated: 22.05.2015 to the opposite party and till date he has not complied to the complainant’s demands.  Hence this complaint is filed by the complainant.

6.       In order to prove the case, the complainant has filed the proof affidavit as his evidence and documents from Ex.A1 to Ex.A8 are marked on his side. 

7.     At this juncture, the point for consideration before this 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 reliefs, the complainant is entitled to?

8.       Written arguments filed and also oral arguments adduced on the side of the complainant.  Though the opposite party remained Exparte, this Forum wants to dispose the case fully on merits.

9.       Point no.1:-

According to the case of the complainant, the opposite party had not constructed the complainant’s flat as per the Construction Agreement and not yet constructed as per the specification and had not handed over the possession of the flat in the specified time and also constructed excess construction in the second floor (40% of the excess construction) and also when the flat was handed over the flat to the complainant was incomplete stage and many of the specification stated in the agreement was not fulfilled and due to that the complainant has sustained acute mental agony and huge financial loss which leads to unfair trade practice and deficiency of service on the part of the opposite party.

10.     In such circumstances, the complainant is having bounden duty to prove the allegations made against the opposite party by means of reliable and consistent evidence.  At the outset, on careful perusal of the averments of the complaint as well as the proof affidavit submitted by the complainant and the opposite party had entered into a joint venture agreement on 24.11.2010 for construction of residential apartment, where the complainant is entitled to 40% of the land and constructed portion and the opposite party is entitled to 60% of the land and constructed portion.  The Joint Venture Agreement is marked as Ex.A1.  The Registered General Power of Attorney dated:25.11.2010 for construction of the building is marked as Ex.A2.  The builder specification is marked as Ex.A3 and as the opposite party has not completed the construction and handed over the flat in the stipulated period and wanted extension of time and agreed to pay Rs.10,000/- for each month’s delay an Extension Agreement was executed on 04.10.2012 and it has been marked as Ex.A4. 

11.     Further, it is seen that the opposite party has not obliged to the terms and conditions as per the Ex.A1 & Ex.A4 and the complainant made a police complaint on 24.11.2014 and the final police complaint is marked as Ex.A5.   The opposite party paid Rs.1,30,000/- for 13 months delay from December 2012 to December 2013 to the complainant after police complaint.  The complainant issued Advocate notices  for the further delay and non-payment of the amount on 13.03.2015 and 22.05.2015 and the Advocate Notice with acknowledgement card dated:13.03.2015 is marked as Ex.A6 and the Advocate notice with postal receipts dated:22.05.2015 is marked as Ex.A7.  It is further narrated that after receipt of Advocate notice the opposite party handed over the flat to the complainant on 20.03.2015 which is a delay of 14 months from January 2014 to February 2015 as per the Ex.A4.  Moreover, the opposite party has handed over the flat in the incomplete stage and many of the specifications stated in the agreement was not fulfilled and the opposite party has not specifically allotted the marked car parking to the complainant as per Ex.A1. 

12.     Further, it is narrated that the opposite party had to construct only 481 sq. ft. in the second floor but he had constructed 800 sq. ft. in the second floor an excess construction of 40% i.e. 102 sq. ft. of the complainant’s share as per the Ex.A1.  The attitude of the opposite party clearly amounts to deficiency of service and unfair trade practice due to that the complainant has sustained acute mental agony and huge financial loss.  Furthermore, the complainant had produced an Engineer Report in order to prove the defective works and the excess construction to the cost of Rs.3,07,550/- and Rs.3,18,750/- respectively and the Engineer’s Report is marked is marked as Ex.A8.

13.     In such circumstances, on careful perusal of the Proof affidavit and the documents produced on the side of the complainant, it is clear that the complainant has proved the allegations made against the opposite party.  While so, the opposite party has not come forward before this Forum to rebut the evidence of the complainant in order to disprove the allegations of the complainant.  Therefore, it is crystal clear that there is no contra evidence and thereby this Forum can easily presume to draw an adverse inference against the opposite party.  Thus point no.1 is answered accordingly.

14.     Point no.2:-

As per the decision arrived in point no.1, the complainant is entitled for rectifying the defects found in his flat, which is  to be done by the opposite party and for the excess construction constructed by the opposite party in the complainant’s share and for the payment of amount for delayed handing over of the possession and for reasonable compensation and cost.  But not entitled for other reliefs as prayed in the complaint in as total.  Thus point no.2 is answered  accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay a sum of Rs.3,07,550/- (Rupees three lakhs  seven thousand five hundred and fifty only)  towards the cost of estimation for rectifying the defects noted as per the Engineer’s Report (Ex. A8), to pay a sum of Rs.3,18,750/- (Rupees three lakhs eighteen thousand seven hundred and fifty only) towards the cost of excess construction in the second floor (40% of excess construction comes to 102 sq. ft. for complainant’s share), to pay a sum of Rs.1,40,000/- (Rupees one lakh forty thousand only) towards the delay of 14 months from January 2014 to February 2015 in handing over the possession of the flat and to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the opposite party with cost of Rs.5,000/- (Rupees five thousand only) towards litigation expenses, totally of Rs.8,71,300/- (Rupees eight lakhs seventy one thousand and three hundred only) to the complainant.  Regarding other reliefs, this complaint is dismissed.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% p.a.  till the date of payment.

Dictated by the President to the Steno-Typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this 03^rd March 2017.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

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MEMBER - I                                                                             PRESIDENT