Tamil Nadu

North Chennai

136/2014

Minor Prithiviraj,9 yeard minor,Rep by father and next friend Mr.Balakrishnan - Complainant(s)

Versus

M/s.Hari OM Buiders, a Partnership company Rep by one of the partner Mrs.Latha Nachiyappan,F/aged 44 - Opp.Party(s)

M/s.R.Vijayaraghavan

31 Oct 2017

ORDER

 

                                                            Complaint presented on:  25.06.2014

                                                                Order pronounced on:  31.10.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 31^st DAY OF OCTOBER 2017

 

C.C.NO.136/2014

 

 

1.Minor Prithiviraj,

M/aged 9 years, Minor,

Rep by Father and next friend Mr.Balakrishnan,

No.222, 4^th Street,

TNHB Colony,

Korattur,

Chennai – 600 080.

                                                                                ….. Complainant

 

..Vs..

1.M/s. Hari Om Builders, a Partnership

Company Rep. by one of the Partner

Mrs. Latha Nachiappan,

F/aged 44 years.

 

2.Mrs. Latha Nachiappan,

F/aged 44 years,

W/o Nachiappan.

 

3.Manickam, Builder.

All the three are residing at 2/27,

Mugappair East,

Chennai – 600 037.

.....Opposite Parties

Date of complaint                                 : 15.07.2014

Counsel for Complainants                    : M/s.R.Vijayaraghavan, S.Annakkodi,

                                                                    V.R.Ramesh

Counsel for Opposite Parties                   : M/s. S.S.Cheran, D.Satishkumar

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant claiming compensation of Rs.1,50,000/- towards mental agony and mental shock u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant with his father, mother and her sister Oviya was living at Flat No. B2, 1^st floor, Sri.Janakiram Nagar, Kolathur, Chennai – 99. On 18.02.2014 night hours, while they were sleeping in their house, around 3.00 a.m they heard a loud noise and before they could realize, the plaster in ceiling in the hall fell on the family members including this complainant. They all sustained injuries in the incident.  The complainant’s sister sustained injury on her left leg, his father sustained injuries on head, right leg and left shoulder. The neighbours who came rushed the complainant and others to nearby Sundaram Medical Foundation Hospital, Anna Nagar and Chennai. The complainant father gave a complaint to the police and a case was registered against the opposite parties 2 & 3 and later they came out on bail.

          2. The fall of roof purely due to poor quality of materials used for construction. They all took a house for rent for a sum of Rs.6000/- per month and stayed there for two months ie. March & April 2014. The complainant and his family members were yet to recover from the shock. Due to poor quality of construction the opposite parties have committed deficiency in service. Hence the complainant filed this complaint claiming compensation of Rs.1,50,000/- for mental agony and mental shock. Hence this complaint.           

3. WRITTEN VERSION OF THE   OPPOSITE PARTIES IN BRIEF:

          The 1^st opposite party is a builder company and the 2^nd & 3^rd opposite parties are the partners of the 1^st opposite party.  A sale agreement and construction agreement was entered between the complainant’s father and the opposite parties. A UDS of 302 sq ft. was allotted. The flat was handed over to the complainant father after completion on 12.11.2012 and he never pointed out any defects in the flat.  One Mrs.O.Brett has purchased the C-1 Flat which is opposite to the complainant’s flat. The complainant’s father has quarreled with O.Brett and another Mr.Pandurangan. The opposite parties used quality materials as per specifications to complete the construction.

          4.  The complainant’s father  used jumper to put holes in the ceiling for fixing decorative and fancy lights which resulting there was air crack and bubbles in the ceiling plastering and fell down and hence for the said incident the opposite party are not liable and also for compensation. The complainant’s father, his mother and his sister filed separate complaint for single incident and hence res-judicata will apply in the case. Therefore, the opposite parties have not committed any deficiency in service and pray to dismiss the complaint with costs.

 

5. POINTS FOR CONSIDERATION:

           1. Whether the complaint is within the period of limitation?

           2. Whether there is deficiency in service on the part of the opposite parties?

           3. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1

          The 1^st opposite party is a partnership firm and carrying on construction business in the name of M/s Hari Om Builders. The 2^nd & 3^rd opposite parties are the partners of the 1^st opposite party. They constructed residential apartments at plot No. 13, Sri.Janaki Ram Nagar, Puthagaram, Kolathur, Chennai – 99. The complainant father purchased the flat No.C-1 in the first floor for a total sale consideration of Rs.24,90,000/-  from the opposite parties  and the  construction of the flat was completed and handed over to the complainant’s  father  on 12.11.2012.  The complainant’s family performed Graha Pravesam and started to live in the flat from 07.04.2013.

          7. The opposite parties would contend that the complainant’s father took possession of the flat on 12.11.2012 and the complaint filed in this Forum on 25.06.2014 after a period of two years from the date of possession and hence the complaint is barred by limitation. It is not in dispute that on 18.02.2015 the plaster in the ceiling in the hall of the flat fallen and all the family members were sustained injuries. The complainant actually occupied the flat on 07.04.2013 after performing Graha Pravesam. Therefore, the complainant has cause of action on 07.04.2013 and the defect noticed on 18.02.2015. Hence we hold that the complaint is filed within the limitation period and the same is maintainable.   

 

8. POINT NO:2

It is the case of the complainant that on 18.02.2014 around 3.00 a.m the complainant and his family members while sleeping and  suddenly they heard a loud noise and before they could realize, the plaster in the ceiling in the hall collapsed and fell on the family members including the complainant  and they have sustained injuries and immediately rushed to the nearby Sundaram Medical Foundation Hospital at Anna Nagar, Chennai and after four days they got discharged and ceiling fan got twisted and fridge was also damaged due to fall of concrete pieces and this incident proves that the opposite parties have used substandard materials for construction and therefore the opposite parties have committed deficiency in service.

09. It is a fact that on 18.02.2014 at about 3.00 a.m the ceiling plastering of the hall was collapsed and fell down and the complainant and his other family members while sleeping sustained injuries due to fall of concrete pieces.  Immediately the complainant and others were admitted in a nearby Sundaram Medical Foundation Hospital. In respect of the incident the complainant father gave a compliant and based on that Ex.A1,FIR was registered.  The complainant father sustained injuries on his head and right arm.

10. The opposite parties specifically contended that the complainant put holes  in the ceiling by using jumper to put up decorative lamps and that is why the ceiling  plastering was fallen and not because of deficiency in the construction.  Even according to the opposite parties, jumper is used to put holes in the ceiling, the ceiling plastering is unable to withstand the vibrations at the time of  making hole itself proves that the construction and plastering is very weak.  Further, Ex.B2 stability certificate obtained during the pendency of the case in the year of 2017 was filed as a document cannot be accepted without supporting evidence on behalf of the opposite parties. 

11. According to the opposite parties, Ex.B1 is the satisfaction letter issued by the complainant’s father at the time of taking possession of the flat. Ex.B1 letter was issued by the complainant’s father for taking possession of the flat. Nowhere in the letter stated that the construction of his flat is good and materials used are not substandard. He only stated the builders’ have completed the construction of the flat and he is taking possession of the flat. Hence, Ex.B1 is no way useful to support the case of the opposite parties. Therefore we hold that the opposite parties 1 to 3 have constructed the flat with substandard materials and thereby committed deficiency in service to the complainant. 

12. POINT NO:3

          The complainant claimed compensation for mental agony and mental shock.  There is no evidence that the complainant was suffering from mental shock due to the incident. However, he was suffered with mental agony could be accepted, even though no proof filed to show that the complainant suffered injuries in the incident, since the incident occurred during odd hours at 3.00 a.m, the ceiling plastering was fallen while the family members sleeping. Therefore, it would be appropriate to order a sum of Rs.5,000/- towards compensation for mental agony would meet ends of justice. The complainant has not claimed any litigation expenses and hence he is not entitled to the same.

In the result the Complaint is partly allowed. The Opposite Parties 1 to 3 jointly or severally are ordered to pay a sum of Rs.5,000/- (Rupees five thousand  only) towards compensation for mental agony to the complainant. The complainant has not claimed any litigation expenses. So, he is not entitled to the same.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 31^st day of October 2017.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 18.02.2014                   F.I.R.

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

Ex.B1 dated 15.11.2012                   Satisfaction letter by the complainant

 

Ex.B2 dated 25.01.2017                   Structural Stability Certificate

 

 

MEMBER – I                                                               PRESIDENT