Complaint presented on  :  11.11.2011

                                                                  Order pronounced on  :  23.03.2016

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

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

WEDNESDAY THE  23^rd  DAY OF MARCH 2016

C.C.NO.210/2011

Mr.S.Manoj,

S/O. R.Surendar,

Rep. by his Power of Attorney,

Smt. S.Nirmala,

W/O. R.Surendar,

No.99, South Jaganatha Nagar,

4^th Cross, Chennai – 49.

                                                                                   ..... Complainant

..Vs..

Date of complaint                                  09.12.2011

Counsel for Complainant                      :M/S. J.Ranjani Devi

Counsel for  Opposite party                     :Mr.R.Ponnusamy

O R D E R

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

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Opposite Party constructed residential flats consisting of 3 flats in the 1^st floor and another 3 flats in the 2^nd floor and car parking in the ground floor at No.73,2^nd Main Road, South Jaganatha Nagar, Villivakkam, Chennai – 49.  The Complainant agreed to purchase a flat measuring 750 sq.ft including common area.   The Opposite Party executed sale deed in respect of 390 sq.ft undivided share of land for a sum of Rs.3,93,900/- in favour of the Complainant on 13.03.2010.  They also entered a construction agreement to construct the flat at the cost of Rs.26,31,100/- and the Opposite Party agreed to complete the construction within a period of 12 months. The Complainant paid an advance of Rs.2,50,000/- by way of cash. The Complainant paid entire sale consideration and also construction charges by availing a loan a sum of Rs.25,00,000/- from the LIC.  The sanctioned plan does not have the provision for the duct in the kitchen of the Complainant flat. Having a duct in the kitchen will also proportionately reduce the space in the kitchen. The Complainant planed to install a modular kitchen which cost Rs.3,00,000/- Hence the Complainant wanted the Opposite Party to remove the drain pipe and water pipe line from the kitchen enabling  him to put up the modular kitchen. Further the Opposite Party agreed to construct the flat measuring 750sq.ft, however including the carpet area only 725sq.ft is available. Such act of the Opposite Party is nothing but an unfair trade practice. The Complainant requested the Opposite Party to rectify the above defects and he has not turned up to do the same. The Complainant unable to occupy the flat due to the above defects and the Complainant suffered with mental agony. Hence the Complainant filed this Complaint for compensation for repairing the defects and also compensation for mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The entire bore, drainage pipe line from the top floor are coming through the O.T.S. only. The water lines that meant for the kitchen for the 1^st and 2^nd floors of the middle flats are coming with corner of the first and 2^nd floor kitchen of F2 and S2 flats, and the same lines are concealed in the wall to avoid visibility. Also it does not affect the proposed construction of the Modular Kitchen.  The measurements are as follows.

From North to South

(0.9”+11’.0”+0’4. ½ “ + 11’-3” + 0’-9”) = 24’ – 1 ½ “

From West to East

(0.9”+5’.0”+0’41/2 “ + 11’ – 0” + 0’ – 4 ½ ) = 25’ – 3”

24’. 1 ½ “  X 25.3                                                  = 609.15 sq.ft.

Bath extn 9’.0’ X 19”                                 = 15.75 sq.ft.

                                                                        624.90 sq.ft.

Add 20 % for common area                          124.98 sq.ft.

                                                                        749.88 say 750 sq.ft.

One hole was provided in the roof at the time of costing the roof slab concrete, for inserting 2 nos, of waterline and it has been grooved with rich mix of concrete after inserting the 1 ½ pipe line to avoid water seepage from the roof and there is no water seepage now. The Opposite Party states that the Complainant has suppressed the civil suit viz., O.S.No. 7070/2011 filed by the Opposite Party against the Complainant for the belated property and due for the cost of flat, which is pending on the file of XII Asst. Judge City Civil Court for a claim of Rs.3,16,227/- The Complainant has not come with clean hands and on the other hand he had filed this Complaint with malafide intention to escape from the civil suit filed by him. Hence the Complaint is liable to be dismissed.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

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

4. POINT:1

          The  admitted facts are that  the Opposite Party  developed  residential flats  consisting of 3 flats in the 1^st floor and another 3 flats in the 2^nd floor and car parking in the ground floor at No.73, 2^nd Main Road, South Jaganatha Nagar, Villivakkam, Chennai – 49 and  the Complainant agreed to purchase  a flat F2, in  the 2^nd  floor  measuring 750 sq.ft. including common area and the Opposite Party executed a sale deed in respect of 390 sq.ft undivided share of land for a sum of Rs.3,93,900/- in favour of the Complainant on 13.03.2010 and they also entered a construction agreement  to construct the flat at the cost of Rs.26,31,100/- and the Opposite Party agreed to complete the construction within a period of 12 months, as per Ex.A1 construction agreement.

According to the Complainant there are two deficiencies in his flat that

a. The total area of his flat is available including carpet area only 725  

     sq.ft instead of 750sq.ft as agreed by the Opposite Party  and

b. The drain pipe and water pipe line are passing through his kitchen      

     and that causes inconvenience for the usage of the kitchen and also to  

     erect modular kitchen.

5. The Opposite Party would reply that the actual area available for the Complainant is 749.88 rounded to 750 sq.ft and further the drain and water pipe lines passing through the kitchen providing a one hole in the roof and the  lines were grooved in the wall and there is no seepage of water on those line and therefore the Opposite Party has not committed any Deficiency in Service.

          6. The advocate commissioner and Civil Engineer inspected the Complainant flat and filed their reports as Ex.C1 & C2 respectively. In Ex.C2 the Civil Engineer stated that the defects that waste water drain pipe and metro water line running through the Complainant kitchen, F2 flat is required immediately.  It should be rectified by passing the pipe line outside to the F2 flat kitchen wall. He also stated that in respect of constructed area on measurement it comes to 592.sq.ft and adding 158 sq.ft as common area the flat area comes to 750 sq.ft.  The common area 158sq.ft is worked out to be 26.6% which is higher than normal practice. Whereas the Opposite Party stated in his written version that he calculated 20% common area  is 124.98sq.ft  and the flat area available is 624.90 sq.ft. The measurements given in the written version is higher than the report filed by the engineer appointed by this Forum. Therefore the measurement given in the written version is not acceptable and on the other hand the measurement referred in Ex.C2 report is accepted and therefore as alleged by the Complainant the Opposite Party constructed only lesser area to him. Further the pipe line passing through the kitchen as admitted by the Opposite Party in his written version and also in Ex.C2 report proves that the Opposite Party committed defect in erecting pipe line through the kitchen of the Complainant. Therefore the Complainant proved that the deficiencies alleged by him as above committed by the Opposite Party and accordingly these point are answered.

7. POINT:2

           Due to the deficiencies committed by the Opposite Party caused mental agony to the Complainant is accepted and for the same he is entitled for compensation. Further it is an admitted fact that excepting the Complainant all others occupied their flats in the said projects. The Complainant has not occupied the flat due to the above deficiencies is reasonable and acceptable. Further the Complainant was also   occupying rented premises and for which he had paid the rent for ten months to an extent of Rs.1,00,000/- and wanted  to be paid to him by the Opposite Party. Though the Complainant had not produced any receipts for payment of rents, when the other flat owner’s occupied their flats and this Complainant admittedly has not occupied and paid rent is accepted and for the same his claim of Rs.1,00,000/- is entitled. The engineer stated in his report that the defects should be rectified immediately and filed his report as early as on 20.08.2013. Though the Complainant claimed Rs.5,00,000/- to rectify the defects, no estimate from an engineer filed to show that his claim for rectification is justifiable. Therefore in the circumstances, in view of engineer report the defect should be immediately rectified and hence it would be appropriate to order a sum of Rs.2,00,000/- to rectify the defects. Since the Complainant suffered with mental agony a sum of Rs.50,000/- could be ordered for the same, besides a sum of Rs.5,000/- towards litigation charges.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.2,00,000/- (Rupees two laks only) to the Complainant to rectify the defects mentioned in Ex.C2 report,  also pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards rental charges and also pay a sum of Rs.50,000/- (Rupees fifty thousand only)towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation charges. 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 23^rd day of March 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

Ex.B1 dated 13.03.2010                   Agreement for construction

Ex.B2 dated  23.07.2010                  Deed of Absolute sale

Ex.B3 dated 29.07.2011                   Jeayam Vasuki Villa

Ex.B4 dated  30.08.2013                  Judgment

Ex.B5 dated  NIL                    Photo copy

Ex.B6 dated  10.12.2013                  shanmuga Digital Studio CD  

LIST OF COURT DOCUMENTS:

Ex.C1 dated         NIL                      Report filed by the Advocate Commissioner

Ex.C2 dated  NIL                    Advocate Commissioner Letter

Ex.C3 dated  NIL                    Area Statement (COC) Project Detail

Ex.C4 dated NIL                     Photo copy & CD                                      

MEMBER – II                                                               PRESIDENT