Tamil Nadu

South Chennai

453/2006

R.Sivachidambaram - Complainant(s)

Versus

M/s.G.K.Builders - Opp.Party(s)

k.Kumaran

28 Dec 2016

ORDER

                                                                        Date of Filing :   01.08.2006

                                                                        Date of Order :   28.12.2016

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

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

                 TMT. K.AMALA, M.A. L.L.B.,                                  : MEMBER I           

 

C.C.NO. 453/2006

WEDNESDAY THIS  28^th DAY OF DECEMBER 2016

 

R.Sivachidambaram,

Flat No.A-5,

G.K. Flats,

No.30, West Siven Koil Street,

Vadapalani,

Chennai 600 026.                                             ..Complainant

             

                                        ..Vs..

 

M/s. G.K. Builders,

Rep. by its Proprietrix,

G.Thenmozhi,

NO.72/3, Anand Flats,

Jawaharlal Nehru Road,

100 Feet Road, Vadapalani,

Chennai 600 020.                                            ..Opposite party

 

 

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

Counsel for the opposite party       : M/s. S. Ambalavanan

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party  under section 12 of the Consumer Protection Act 1986 seeking direction to provide hinder free common passage of 8 feet on the northern side and western side of the premises as per the sale deed and to complete the construction as per the agreement and failed to arrange to shift the transformer from the 8 feet common passage agreed to be provided to the complainant and to pay a sum of Rs.3,00,000/- as compensation for mental agony and hardship  and to pay cost  of the complaint.

 

1.  The averment of the complaint are brief as follows:

     The complainant approached the opposite party by means of advertisement for purchase of  a flat in a project started by the opposite party.   In this connection the complainant had purchased 150 sq ft. of undivided share of land in the land comprised in R.S.No.37/7, T.S.No.10, Block No.2, at Door No.30, West Sivan Koil Street, Vadapalani, Chennai and the same date was registered in the Sub Registrar’s office at Ashok Nagar vide document No.1903 of 2003.   The complainant had entered into a construction agreement dated 15.5.2003 for construction of flat having 450 sq. ft. of constructed area inclusive of common area in the second floor for a total construction cost of Rs.5,08,500/-.  

2.     After some delay the opposite party has handed over the flat only during January 2004 to the complainant that too without completing the common amenities and the following works.

1. Second coating of painting not done
2.  Bathroom and toilet and constructed in the terrance.
3. Name Board of all the flat owners in the each block of the apartment not done.
4. G.K. Flat Arch not done at the entrance near the road.
5. Lighting facilities not provided around the building near the compound.

 

6. Sewerage line man holes are converted only with damaged concrete slap which has to be replaced with Heavy Iron Manhole cover.

 

7. Approved plan for all the six blocks not provided.

 

8. Approval for construction of second floor not furnished.

 

9.   Parent document and all the necessary documents not

   furnished to each of the flat owners.

 

10. Common passage not properly provided as agreed and flooring of the common passage also not done.

 

3.     Though the opposite party  assured to complete the work within two months time, but failed to fulfill their promise.   Moreover, the quality of the construction is also very poor and several cracks have developed in the premises within one year of the construction.   Similarly there are also problems of water leakage and seepage.   Further the opposite party has not given proper set back around the flat and has given only very narrow and in most of the areas it is less than one feet which is against the approved plant of the CMDA.    The opposite party is now in the process of constructing additional flats in the same land without getting prior approval from the CMDA, which is an unauthorized construction is adding further to his woes.  

4.     As a result of improper construction made by the opposite party the complainant has been put to mental strain and hardship.   Though  repeated requests and the complainant caused a lawyer notice dated 16.10.2005 to the opposite party, the opposite party has failed to comply the demand which amounts to deficiency of service.  Hence this complaint is filed.       

5. Written Version of  opposite party is  in briefly as follows:

        It is true that the complainant purchased the second floor flat only after scrutinizing all the documents for a concessional rate and on the basis of the documents received from the opposite party only the complainant borrowed loan from LIC, HFL.   Hence the opposite party alone cannot be held liable for the allegation mentioned in para-1.   The opposite party with moral responsibility already applied for regularization plan and necessary detail was already furnished to the complainant.   Hence the claim of item (vii) and (viii) in para -2 in page-2 of the complaint is not maintainable.    The allegation  in para-3 in page 3 regarding erection of transformer cannot be questioned by the complainant sine the erection was done by the electricity board authorities.  No extension of construction was made in the eight feet passage in the ground floor as alleged by the complainant.      

6.     It is further submitted that the agreement between the opposite party and the flat owners association dated 21.6.2008 the complainant concealed the above facts and made the said claim which is not maintainable.   As per the said agreement dated 21.6.2008 necessary deposit of Rs.3,50,000/- was already given to the association by way of despite for total building maintenance.  Hence the claim for attending crack, attending maintenance work, painting etc. is not sustainable and also not maintainable.    After receiving the notice dated 16.10.2005 properly sent reply dated 30.10.2005 followed by a rejoinder dated 13.11.2005 by the complainant.    However all the claims have sorted out by the agreement dated 21.6.2008 between the flat owners association and the opposite party.     Therefore the opposite party has not rendered any deficiency of service as alleged in the complaint.  Hence this complaint.

7.      In order to prove the averments of the complaint, the complainant has filed proof affidavit along with his evidence and documents Ex.A1 to Ex.A9 marked. On the other hand, Ex.B1 to Ex.B3 marked on the side of the opposite party.

8.   At this juncture, the point for the 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.  Whether the complainant is entitled to any relief as prayed for?

9. Point No.1

        It is admitted fact that the complainant purchased  a flat  having 150 sq ft. with the UDS  and 230 sq. ft of undivided share of land in R.S.No.37/7, T.S.No.10, Block No.2, at Door No.30, West Sivan Koil Street, Vadapalani, Chennai  for total consideration cost of Rs.5,08,500/- and for which Ex.A1 agreement for construction and Ex.A2 Sale deed have been executed between the complainant and the opposite party in the relevant dates.  Similarly, the handing over of the flat with the complainant by the opposite party only during 2004.  It is also not disputed.  But only allegation made by the complainant is that at the same time of handing over of the flat by the opposite party, the common amenities as mentioned in para-2 as follows:

i) Second coating of painting not done.

ii) Bathroom and toilet not constructed to the Terrace.

iii) Name board of all the flat owners in each block of the apartment not done.

iv) G.K. Flat Arch not done at the entrance near the road.

v) Lighting facilities nor provided around the building near the compound.

vi) sewerage line man holes are covered only with damaged concrete slap which has to be replaced with Heavy Iron Manhole cover.

vii) Approved plan for all the six blocks not provided.

viii) Approval for construction of second floor not furnished.

ix) Parent document and all the necessary documents not furnished to each of the flat owners.

 

x) Common passage not properly provided as agreed and flooring of the common passage also not done

 

have not been fulfilled within a reasonable time as promised by the opposite party.   

10.    At the outset, on careful perusal of the evidence of complainant, it is seen for non compliance of the pending works, the complainant wrote a letter to CMDA, Chennai is marked as Ex.A3 and also letter  dated 6.6.2005 sent to the opposite party through the G.K. Flat Association which is marked as Ex.A4.  With regard to fulfill the incompletion works and in turn the opposite party has sent reply letter Ex.A5 along with resolution Ex.A6.  It is further learnt that the complainant again sent the legal notice Ex.A7 to the opposite party and for which Ex.A8 reply notice has been sent by the opposite party and in turn Ex.A9 rejoinder notice has been sent by the complainant to the opposite party.  The complainant further contended that the quality of the construction and the quality of materials used for the said construction are all very poor and also several cracks have developed in the premises within one year of the construction and in spite of repeated requests and reminders and legal notice sent, the opposite party did not come forward to rectify the demands of the complainant.

11.    On the other hand, on going through the evidence of the opposite party, it is seen that the opposite party was already furnished the necessary details regarding regulation of completion even at the time of purchase of the flat by the complainant and all the flat owners were already settled by the agreement Ex.B3 dated 21.6.2006 executed in between the opposite party and the G.K. Flat Owners Association.  Regarding the erection of transformer by the complainant, it cannot be questioned since  erection was done by the Electricity Board authorities in the appropriate place after witnessed by all the occupants including this complainant who occupied the flat even prior to the erection of the transformer as rightly pointed out by the opposite party.    It is further noticed from the evidence of opposite party, that yet another agreement dated 3.2.2005 which is marked as Ex.B2 entered between the opposite party and the G.K. Flat owners association, in which the complainant is one of the signatory for starting out all the issuance and claims and therefore any subsequent crime after Ex.B1 and ExB3 are all willful and only for unlawful gain.  Furthermore, in order to prove that all the incompletion and pending works already have been complied by the opposite party and to that effect, all the flat owners are fully satisfied with additional works done by the opposite party the Ex.B2 has been produced by the opposite party which cannot be easily thrown out.

12.    In the light of the above evidence adduced on both parties, it is crystal clear that though it is true that there are some incompletion of works by providing common amenities and also some deviation in the construction as well as to common of passage all of them have been rectified and   complied  by the opposite party subsequently will full co-operation and assistant of  `the  G.K. Flat Owners association  by means  of subsequent agreement Ex.B1 and Ex.B3 made between them and Ex.B2 clearly establishes that the G.K. Flat Owners Associations have fully satisfied.  Therefore, as rightly pointed out by the learned counsel for the opposite party that the allegation made in the complaint is all not maintainable.  Since they are fulfilled by the opposite party.

13.    In such circumstances, if the complainant is personally having any grievance of non completion of certain work and damages caused to him  ought to have put forth before this forum by means of relevant and acceptable evidence.   In fact, except the letter and the legal notice, no other documents placed before this forum on the side of complainant.  At the outset it is pertinent to say that the complainant has not produced any Civil Engineer’s report as expert opinion, regarding the damages of the incompletion of works as pointed out the complainant which is essential to prove the complainant’s case.   Not only that, the complainant has not taken any steps to obtain the said civil engineer’s opinion through this forum.  Therefore, the complainant has not at all proved the deficiency of service on the part of the opposite party.  Thus the point No.1 is answered accordingly.  

14.    POINT No.2

        In view of the findings arrived in point No.1 the complainant is not entitled for any relief as prayed for in the complaint.   Thus the point No.2 is answered accordingly.

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

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 28^th  day of  December  2016.

 

MEMBER-I                                                                     PRESIDENT.

Complainant’s side documents:

Ex.A1- 15.5.2003  - Copy  of Agreement for sale.

Ex.A2- 11.8.2003  - Copy of Sale deed.

Ex.A3-         -       - Copy of letter sent by the complainant to the CMDA.

Ex.A4- 6.6.2005    - Copy of letter sent by the Flat Owners Association to the

                              Opposite party.

Ex.A5- 18.6.2005  - Copy of reply letter sent by the opposite party.

Ex.A6- 10.9.2005  - Copy of letter sent by the opposite party

Ex.A7- 16.10.2005         - Copy of lawyer notice sent by the complainant.

Ex.A8- 30.10.2005         - Copy of reply notice sent by the opposite party.

Ex.A9- 13.11.2005 - Copy of rejoinder notice sent by the complainant.

 

Opposite party’s side documents :

 

Ex.B1- 3.2.2005    - Copy of Memorandum of understanding between

                              G.K.Flat Owners Association and G.K. Builders.

Ex.B2- 23.10.2005         - Copy of letter by G.K. Flat owners association.

Ex.B3- 21.6.2006  - Copy of agreement between G.K. Flat Association and the

                               Opposite party.

 

 

 

MEMBER-I                                                                     PRESIDENT.