Tamil Nadu

South Chennai

781/2009

D.Ramesh - Complainant(s)

Versus

M/s.K.J.Developers, - Opp.Party(s)

Premalatha

12 Dec 2018

ORDER

                                                                        Date of Filing  : 29.06.2009

                                                                          Date of Order : 12.12.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

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

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP., : MEMBER-II

 

C.C. No.781/2009

DATED THIS WEDNESDAY THE 12^TH DAY OF DECEMBER 2018

                                 

1. D. Ramesh,

S/o. S. Durairajan,

No.275-B, Type III, Block-5,

Neyveli. 

 

2. S. Vijaya,

W/o. Mr. D. Ramesh,

B-6, LIC Officers’ Quarters,

III Main Road,

United India Nagar,

Ayanavaram,

Chennai – 600 023.                                                    .. Complainants.                                                   

 

       ..Versus..

 

1. M/s. K.J. Developers,

No.11, Somasundaram Street,

T. Nagar,

Chennai – 600 027.

 

2. Mr. P. Vijayakumar,

Partner & Authorised Signatory,

M/s. K.J. Developers,

No.11, Somasundaram Street,

T. Nagar,

Chennai – 600 027.

 

3. Mr. Narasa Reddy,

Managing Director,

M/s. K.J. Developers,

No.11, Somasundaram Street,

T. Nagar,

Chennai – 600 027.

4.  Mr. Bharath Ram,

TG Block No.2, 3^rd Floor,

Jain Kences Retreat,

Reddy Street,

Virugambakkam,

Chennai – 600 092.                                                 ..  Opposite parties.

          

Counsel for complainants                 :  M/s. S. Premalatha

Counsel for 2^nd opposite party         :  Exparte

Counsel for opposite parties 1 & 3  :  M/s. K. Kumaran

Counsel for 4^th opposite party         :  M/s. R. Murari & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties 1 to 4 under section 12 of the Consumer Protection Act, 1986 praying to restrain the opposite parties 1 & 2 in any way from allotting the car parking slot No.21, Block No.2, ‘D’ schedule property to anybody or to the 4^th opposite party and not to disturb the peaceful enjoyment of car parking by himself, to set right the complaint mentioned defects and to pay a sum of Rs.3,50,000/- towards compensation for mental agony, hardship and deficiency in service with cost of Rs.5,000/- to the complainants.

1.    The averments of the complaint in brief are as follows:-

The complainants submit that on 14.03.2006, they booked a flat bearing No.FB, First Floor, Block II of Jains Kences Retreat, Virugambakkam, Chennai with M/s. K.J. Developers for the value of Rs.24,29,625/-.   The complainants submit that a sum of Rs.1,00,000/- towards car parking Slot No.21 in Block II also paid by the complainants along with sale consideration.   The complainants submit that after 3 long years (i.e.) during the month of March 2009, the officials of the opposite parties 1 & 2 informed that the car parking slot No.21 in Block II was allotted to 4^th opposite party and instructed the complainant to vacate the car parking slot No.21 in Block II to slot No.4 in Block III which is for away from Block No. II.  The complainants submit that the allotment of apartment dated:12.03.2009 and the fact of change of allotment is informed to 4^th opposite party.   The complainants submit that in the agreement related to 4^th opposite party in D schedule CCP-21 is written on hand.  The complainant submit that on 11.09.2008, due housewarming function was conducted.   At that time, the following defects were noticed:

1. The common toilet exhaust provision was not made properly.
2. In the toilet attached to the rear bedroom, health faucet was not proved even after payment.
3. There are crack found in the wash basin.
4. Drain water outlet in kitchen were leaking.
5. Water supply fittings, valves etc in the toilet were leaking.
6. No proper inverter switch provided even after payment.

Even after repeated requests and demands and as per letters dated:12.03.2009 and 25.03.2009, the opposite parties has not rectified the defects.  The act of the opposite parties caused great mental agony.  Hence, the complaint is filed.

2.     In spite of receipt of the notice, the 2^nd opposite party has not chosen to appear before this Forum and hence the 2^nd opposite party was set Exparte for non appearance.

3.      The brief averments in the written version filed by the  opposite parties 1 & 3 is as follows:

     The opposite parties 1 & 3 specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.    The opposite parties 1 & 3 state that this Forum is having no Jurisdiction to entertain this case.   The opposite parties 1 & 3 state that the 1^st relief in the complaint reads as follows: “Restraining the opposite parties 1 & 2 in any way from allotting the car parking slot No.21, Block II, D Schedule Property to anybody or to the 4^th opposite party and not to disturb the peaceful enjoyment of car parking by them”, such relief cannot be claimed before this Consumer Forum.   The opposite parties 1 & 3 state that the car parking slot No.21 in Block II was allotted to the 4^th opposite party on 04.03.2009.  The opposite parties 1 & 3 state that the complainant’s tenant is in occupation of the Flat purchased by the complainants.   In such an event, assuming without conceding, it could only be the tenant, who could be in some disturbance in using the car par slot, it could have occasioned only to the Tenant and not to the complainants.  The opposite parties 1 & 3 state that there was no person / Site Engineer by name Mr. Raju employed with the opposite parties’ organisation.  The opposite parties 1 & 3 state that the allegation of defects mentioned in the complaint are imaginary and there is no proof.  The compensation claimed is imaginary and exorbitant.   Therefore, there is no deficiency in service on the part of the opposite parties 1 & 3 and hence the complaint is liable to be dismissed.

4.      The brief averments in the written version filed by the 4^th  opposite party is as follows:

       The 4^th opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 4^th opposite party states that the statements and allegations made by the complainants which are not specifically dealt with and or denied by the 4^th opposite party herein should not be treated a admissions or deemed admissions on the part of the 4^th opposite party.   The present complaint is clearly not maintainable against the 4^th opposite party and required to be rejected in limine.  The 4^th opposite party states that the complainant entered into the Sale Agreement with the 1^st opposite party for the purchase of flat bearing Flat No.F-B, Block 2 at Jains Kences Retreat, whereby Slot No.21, Block II car parking was allotted to the complainants.  But in March 2009, the complainant was forced to vacate the said car parking slot 21, block 2.  The complainant was forced to take a car parking Slot No.4 in block 3.  The present complaint has been filed to restrain opposite parties 1 & 2 from allotting car parking slot No.21 Block 2 to anybody or the 4^th opposite party.  The complainant further alleges that due to the deficiency of service by the opposite parties they have suffered loss and claims compensation for the same.  Therefore, there is no deficiency in service on the part of the 4^th opposite party and hence the complaint is liable to be dismissed.

5.    To prove the averments in the complaint, the complainants has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A8 are marked.  Proof affidavit of the 4^th opposite party is filed and documents Ex.B1 to Ex.B3 are marked on the side of the 4^th opposite party. 

6.      The points for consideration is:-

1. Whether the car parking slot No.21, Block II, “D”- schedule property as per agreement clause (6) allotted to the complainants by the opposite parties 1 & 2 and thereafter, tampered the allotment in favour of the 4^th opposite party thereby, causing deficiency in service as prayed for?

2. Whether the complainants entitled to a compensation of Rs.3,50,000/- towards mental agony and deficiency in service related to the infrastructure with  cost of Rs.5,000/- as prayed for?

7.      On point:-

The 2^nd opposite party remained Exparte.  The complainant, opposite parties 1, 3 & 4 filed their respective written arguments.  Heard their respective Counsels also.   Perused the records namely the complaint, written version, proof affidavits and documents etc.  The complainants pleaded and contended that on 14.03.2006, they booked a flat bearing No.FB, First Floor, Block II of Jains Kences Retreat, Virugambakkam, Chennai with M/s. K.J. Developers for the value of Rs.24,29,625/- (Rupees Twenty four lakhs twenty nine thousand six hundred and twenty five only).   Further the contention of the complainants is that a sum of Rs.1,00,000/- (Rupees One lakh only) towards car parking Slot No.21 in Block II also paid by the complainants.    Ex.A1 is the Memorandum of Agreement in which, schedule D is typed very clearly that “Covered Car parking slot bearing No.21”.   Further the contention of the complainants is that after 3 long years (i.e.) during the month of March 2009, the officials of the opposite parties 1 & 2 informed that the car parking slot No.21 in Block II was allotted to 4^th opposite party and instructed the complainant to vacate the car parking slot No.21 in Block II to slot No.4 in Block III which is for away from Block No. II amounts to unfair trade practice.   

8.     Further the contention of the complainants is that the allotment of apartment in Ex.B3, dated:12.03.2009 that the fact of change of allotment is informed to 4^th opposite party.   But admittedly, the complainant was allotted flat in 1^st floor, Block II  and the car parking also in Block II.  Further the contention of the complainant is that in Ex.B1, agreement related to 4^th opposite party in D schedule CCP-21 is written on hand.  The reason for such inclusion by hand writing has not been explained by the opposite parties.   After duly allotting, car parking slot No.21 in Block II to the complainant and making attempt by way of Ex.B3 and by way of inclusion by handwriting in Ex.B1, Memorandum of Agreement and reallotted to the 4^th opposite party; thereby, the opposite parties committed deficiency in service.  

9.     Further the contention of the complainant is that on 11.09.2008, due housewarming function was conducted.   At that time, the following defects were noticed:

7. The common toilet exhaust provision was not made properly.
8. In the toilet attached to the rear bedroom, health faucet was not proved even after payment.
9. There are crack found in the wash basin.
10. Drain water outlet in kitchen were leaking.
11. Water supply fittings, valves etc in the toilet were leaking.
12. No proper inverter switch provided even after payment.

Even after repeated requests and demands and as per Ex.A4 & Ex.A5,  letters, the opposite parties has not rectified the defects.  But the complainant has not taken any appropriate steps to prove such defects.  The complainant is claiming the relief of restraining the allotment of car parking slot No.21 in Block II D- schedule to the 4^th opposite party and a compensation of Rs.3,50,000/- with cost of Rs.5,000/-.

11.    The learned Counsel for the opposite parties 1, 3 & 4 would contend that this Forum is having no Jurisdiction to entertain this case.  Since admittedly, the value of the property is more than 24 lakhs and the apartment is let out to tenants and for using commercial purpose etc.  But the relief claimed is related to defect in infrastructure and allotment of car parking.  There is no proof for the alleged commercial usage.   As per consumer case No.3741 of 2017 N.C. this Forum have jurisdiction.  Further the contention of the opposite parties 1, 3 & 4 is that the 1^st relief in the complaint reads as follows: “Restraining the opposite parties 1 & 2 in any way allotting the car parking slot No.21, Block II, D Schedule Property to anybody or to the 4^th opposite party and not to disturb the peaceful enjoyment of car parking by myself” such relief cannot be claimed before this Consumer Forum.   But on a careful perusal of the records, as per Ex.A1 the complainant was allotted car parking slot No.21 in Block II by the opposite parities.  On the other hand, as per Ex.B3 dated:12.03.2009 which was allotted to the 4^th opposite party by way of inclusion by handwriting which amounts to unfair trade practice.  In Ex.B1, Memorandum of Agreement related to the 4^th opposite party such car parking slot is included by hand writing.  The opposite parties has not pleaded the reason for such inclusion of car parking by hand writing and issuance of Ex.B3.   

12.    Further the contention of the opposite parties 1, 3 & 4  is that on 04.03.2009 as per Ex.B1, car parking slot No.21 in Block II was allotted to the 4^th opposite party.   But the opposite parties has not produced any document to prove the payment related to the car parking slot No.21 in Block II by the 4^th opposite party.  On the other hand, for the 1^st time, the opposite parties 1 & 2 issued letter dated:12.03.2009 as per Ex.B3 allotting the car parking slot No.21 in Block No.2 to the 4^th opposite party which was already allotted to the complainant is apparently proved and incorporated by way of hand writing in Ex.B1, taking advantage of the unregistered agreement proves the deficiency in service.   Further the contention of the opposite parties 1, 3 & 4 is that the allegation of defects mentioned in the complaint are imaginary and there is no proof.  The compensation claimed is imaginary and exorbitant.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 to 3 is not entitled to change the allotment of car parking Slot No.21 in Block II by way of Ex.B3, letter and inclusion by hand writing to the 4^th opposite party which was already allotted to the complainant.  The opposite parties 1 to 3 shall pay a compensation of Rs.30,000/- for deficiency in service and mental agony with cost of Rs.5,000/-.  The complaint against the 4^th opposite party is hereby dismissed.

In the result, this complaint is allowed in part.   The  opposite parties 1 to 3 are not entitled to change the allotment of car parking Slot No.21 in Block No.2 by way of Ex.B3, letter and inclusion by hand writing to the 4^th opposite party which was already allotted to the complainants. The opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.30,000/- (Rupees Thirty thousand only) towards compensation for deficiency in service and mental agony and cost of Rs.5,000/- (Rupees Five thousand only) to the complainants.   The complaint as against the 4^th opposite party is hereby dismissed.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 12^th day of December 2018. 

 

MEMBER-I                           MEMBER-II                     PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:

		Copy of Memorandum of Agreement
		Copy of cash flow chart and funding details
		Copy of Sale Deed
		Copy of complaint letter to the 1st opposite party
		Copy of complaint to the General Secretary Consumer Organisation and Human rights
		Copy of Consumer Organisation letter to the 3rd opposite party
		Copy of acknowledgement
		CD and photos

 

OPPOSITE  PARTIES 1 & 3 SIDE DOCUMENTS:- NIL

4^TH OPPOSITE  PARTY SIDE DOCUMENTS:-

Ex.B1	04.03.2006	Copy of Memorandum of Agreement
Ex.B2	04.03.2006	Copy of Cash Flow chart and funding details
Ex.B3	12.03.2009	Copy of letter of the 1st opposite party

 

 

MEMBER-I                           MEMBER-II                     PRESIDENT