Tamil Nadu

StateCommission

A/273/2019

Mr.M.Hari Raj, 2/1, Hunters Lane, Choolai, Chennai 600 112. - Complainant(s)

Versus

M/s.Color Homes and Project Pvt Ltd, New No.19, W Block, 7th street, Anna Nagar, Chennai 600 040.Rep - Opp.Party(s)

M/s.M.Hari Raj

15 Dec 2021

ORDER

IN THE TAIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                   ::     PRESIDENT                       

                  Tmt.Dr.S.M.LATHA MAHESWARI                            ::      MEMBER

 

F.A. No. 273/2019

  (Against the order in C.C. No.118/2015 on the file of the D.C.D.R.C., Chennai (North))

                         DATED THE 15^th  DAY OF DECEMBER 2021

 

Mr. M. Hariraj,

No.2/1, Hunters Lane,

Choolai,

Chennai – 600 112.                                                            .. Appellant / Complainant

 

- Versus -

M/s. Color Homes and Project Pvt. Ltd.,

Rep. by its Managing Director,

New No.19, ‘W’ Block, 7^th Street,

Anna Nagar,

Chennai – 600 040.                                                         .. Respondent / Opposite party.

 

Counsel for Appellant / Complainant                             : M/s. R. Sathiya Kumar

Respondent / Opposite party                                             : Served called absent

 

This appeal coming before us for final hearing today, on 01.12.2021 and on hearing the arguments of Appellant and on perusing the material records, this Commission made the following order in open court :-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

            This appeal has been filed by the appellant / complainant under section 15  of the Consumer Protection Act 1986 against the order of the District Consumer Disputes Redressal Commission, Chennai (North).

 

 

1.         The factual background culminating  in to  appeal is as follows:-

The complaint was filed alleging deficiency in service by the opposite party and to pay a compensation of Rs.6,40,000/- for loss of area, shelter and rental arrears along with compensation of Rs.10,00,000/- for mental agony .

2.         The complainant submitted that during February 2012 on seeing the advertisement given by the opposite party in newspapers inviting for Joint Venture construction projects approached the opposite party.  After discussion between the complainant and the representatives of the opposite party company Joint Venture Agreement was entered to develop the property belonging to the complainant situated at 35/44, 2^nd Street, Vyasar Nagar, Vyasarpadi, Chennai – 600 039.  Pursuant to the Joint Venture Agreement, the General Power of Attorney dated:12.03.2012 was executed in favour of the Director of the opposite party company .   As per the Joint  Venture Agreement, it was agreed that the flats are to be handed over by July 2013 after construction along with the completion certificate.  In February 2014, the complainant received a registered post from one M/s. Oyester Homes Pvt. Ltd which contained keys for 3 flats along with a letter attached to it stating that as per the Joint Venture Agreement the construction work was completed.   When the complainant approached the opposite party, and enquired about the change in name of the Builder they were shocked to hear that Mr. Balasundaram who was the Director of opposite party M/s. Color Homes and Projects Pvt. Ltd. had left the company and started the new company M/s. Oyester Homes Chennai Pvt. Ltd. and that their interest was not defeated and no financial loss was caused to them.  The complainant submitted that the newly constructed flats had 25% lesser area than the original agreed area for each flat and when enquired  Mr. Balasundaram replied that the area was covered within the common area.  Completion Certificate was also not issued.  Thus, the complaint was filed alleging deficiency in service for non-furnishing of completion certificate and committing breach of contract and also causing delay in handing over the possession of the constructed premises.   The opposite party filed version disputing that the complainant  was not a consumer and hence the complaint was not maintainable.  He submitted that the Joint Venture Agreement was entered only between one Ms. Sarala and the Color Homes Ltd but, the complaint was filed by her husband.  He denied all the allegations made in the complaint and stated that the construction was completed as per the agreement as early as on 15.09.2013 and the proportionate share of the company as per the Joint Venture Agreement was sold and occupied by the purchasers.  Further stated that the complainants did not receive the keys as per the agreement but started threatening the company and the purchasers.  It was also submitted that even as per the admissions made in the complaint, the common area as provided in the agreement was 25% and the same was within the admissible area as provided by all the builders.  A police complaint was filed when the complainant abused the opposite party and the same was enquired by the Assistant Commissioner, K4 Police Station.  A counter complaint was also filed before the Assistant Commissioner, N.K.P. Nagar, Chennai by the complainant but the complainant himself did not turn up for enquiry.  Thus, the opposite party contended that they were put to huge hardship and mental agony and sought for dismissal of the complaint.  The complainant filed proof affidavit and marked documents Ex.A1 to Ex.A4.  The opposite party filed proof affidavit but no documents were marked on their side.  The District Commission framed 2 points for consideration and after analysing the pleadings and documents partly allowed the complaint holding that the opposite party had committed deficiency in service in handing over the flats with a delay of 7 months and ordered to pay a sum of Rs.2,70,000/- towards rental arrears and also to pay a sum of Rs.1,00,000/- towards compensation for mental agony and Rs.5,000/- towards litigation expenses.   Dissatisfied by the said order, the complainant had preferred the present appeal for enhancement of compensation.  The opposite party did not prefer any appeal and hence, the finding of the District Commission that the opposite party had committed deficiency in service had attained finality and needs no further discussion. 

3.         Point for consideration:-

Whether appeal is to be allowed and the complainant is entitled for enhanced compensation?

4.         Point:-

The Counsel for appellant has filed written arguments and also has advanced oral arguments.  However, the respondent did not appear in person or represented by a Counsel.

5.         The Counsel for appellant argued that the respondent had agreed to construct and handover the flats measuring 2490 sq. ft. of built up area but handed over 25% less built up area as against the terms of agreement entered between them.   Further, he argued that the District Commission failed to hold that the opposite party had failed to prove that 25% less built up area was included in the common area as alleged by them.  He also argued that the compensation awarded Rs.1,00,000/- was very meagre when the complainant had  prayed for Rs.10,00,000/- for the mental agony and hardship he had undergone due to the act of the respondent company by engaging a third party for construction of flats.   Thus, he prayed for enhanced compensation.

6.         Heard the Counsel for appellant and perused the material records.  It is submitted by the Counsel for the appellant that the opposite party had committed deficiency in handing over 25% less built up area as against the agreed terms in the construction agreement. However, the complainant had not proved the same by taking assistance from a certified Engineer by measuring the property.  Thus, though the construction agreement was produced we are unable to assess and arrive at a finding as to what is the actual built up area that has been handed over to the complainant.  In the absence of any expert evidence we are left with no other option but to reject the contention of the appellant on that score.  The other ground raised in the memorandum of grounds of appeal that, the District Commission ought to have awarded Rs.70,000/- towards the cost of shutter also could not be entertained for lack of sufficient proof of evidence.  Further for the allegation that the opposite party though undertook to construct flats had let some other third party to construct the flats was also not sufficiently proved by the complainant.  For proof of such allegations, the Commission needs evidence to be produced by the complainant which he had miserably failed to do so.  In such circumstances the District Commission had come to a conclusion that there was a delay of 7 months in handing over the possession and had awarded Rs.2,70,000/- towards rental arrears to be paid by the opposite party to the complainant.  Further towards mental agony Rs.1,00,000/- awarded by the District Commission is justified when the fact remains that both parties had lodged police complaints against each other and the same still  pending for enquiry.  Thus, we hold that the findings rendered by the District Commission needs no interference and is proper in the facts and circumstances of the case.   Thus, point is answered against the appellant holding that he is not entitled for enhanced compensation.

In the result, we dismiss the appeal confirming the order passed by the District Commission.  No order as to cost.

 

S.M.LATHAMAHESWARI                                                                           R.SUBBIAH

         MEMBER                                                                                             PRESIDENT