Tamil Nadu

South Chennai

218/2011

K.Rajkumar - Complainant(s)

Versus

M/s.Kampala Homes - Opp.Party(s)

M/s. S.D.S.Phillip & Others

04 Oct 2018

ORDER

                                                                        Date of Filing  : 03.08.2011

                                                                          Date of Order : 04.10.2018

 

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

 

C.C. No.218/2011

DATED THIS THURSDAY THE 04^TH DAY OF OCTOBER 2018

                                 

Mr. K. Rajkumar

Rep. by his Power Agent

Mr. K. Chidambaram,

No.A1, Kampala Hoomes,

No.68, C.L. Mehta Salai,

Thoraipakkam,

Chennai – 600 097.                                                      .. Complainant.                                                 

 

         ..Versus..

M/s. Kampala Homes,

Rep. by its Sole Proprietor

Mr. K. Devendran,

First Floor, Ranga Complex,

No.72, Thyagaraya Road,

T. Nagar,

Chennai – 600 017.                                                   ..  Opposite party.

          

Counsel for complainant       :  M/s. S.D.S. Phillip & others

Counsel for opposite party   :  M/s. P.B. Ramanujam & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 praying to construct individual overhead water tanks, bore well, Reverse Osmosis Water Purification System, in the complainant’s Kampala Homes Apartment, to direct the opposite party to provide Gym facility and children playing area and to pay a sum of Rs.5,00,000/- towards compensation for mental agony, loss and suffering with cost of Rs.10,000/- to the complainant.

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

The complainant submits that he entered into a Construction Agreement dated:23.05.2008 for  constructing the plinth area of 1810 sq. ft.   According to the opposite party, the sanctioned plan had total of 18 flats with 6 flats in each floor viz. ground, first and second when he described about the construction to the complainant.   The complainant submits that the flat constructed for him viz. A1 in the first floor does not have a plinth area of 1810 sq ft. including common area and only by proper measurement of the said flat by the CMDA or Government Engineer will bring out the true measurement.  The complainant submits that he has been allocated undivided share of land of 799.1346 out of 10274 sq ft for a flat area of 1810 sq ft which roughly works out to total constructed area of 23270 sq. ft, which is more than the total floor area of 14485.58 sq. ft mentioned in the approved plan. Further the complainant submits that the opposite party sent a mail dated:20.01.2009 confirming that the R.O. installation will be completed at the end of March 2009.   The complainant submits that there was an inordinate delay of 6 months in handing over the possession of the flat since the possession was given only on 24.02.2009.   At that time also, the RO water Purification plant was not installed.   The complainant submits that the opposite party collected the maintenance amount for 18 months as advance.  In the letter dated:04.06.2010, the opposite party sought for ‘No Objection Affidavit’ from the flat owners  including the complainant.   The opposite party miserably failed to give necessary amenities including water and drainage and refused to provide the same.   Hence, the complainant and other flat owners sent a letter dated:01.03.2011 demanding the amenities.  The opposite party sent reply dated:04.03.2011.   The complainant submits that the opposite party is attempting to construct 3^rd floor without proper approval.   There is a deficiency of 298 sq. ft. also.   The act of the opposite party caused great mental agony.  Hence the complaint is filed.

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

The opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The opposite party states that the possession of flat was handed over on 24.02.2009.  As per the agreement for construction the Flat No. A1 in the first floor is having a plinth area of 1810 sq. ft. including common area.  After taking possession of the property, the complainant filed this case only on 03.08.2011 i.e. after the expiry of 2 years period of limitation under Consumer Protection Act, 1986.   The opposite party states that it is the duty of the complainant and other flat owners that they should form an Association and take care of the building and its maintenance.  But the residents including the complainant failed to form such Association and undertake the maintenance for which, this opposite party cannot be blamed.  The opposite party states that the allegation of deficit area has not been proved.   The opposite party states that the installation of the Reverse Osmosis water Purification System plant requires continuous maintenance and it consumes large quantity of water for effective discharge of tilted water.  The waste contamination water has to be drained through the septic system and its should be removed.   The opposite party has accepted to provide individual water treatment plant for resolving the water problem.   The opposite party also had provided necessary provision of Metro water and has paid due charges for the same without collecting any amount from the flat owners including the complainant.  As per the agreement, the RO System could not be installed by the opposite party.   In order to bring down the harmony between the opposite party and the flat owners and for effective and alternative remedy, the RO system was initiated.  

3.     The opposite party states that the whole complex was constructed with the sanctioned plan and according to the construction agreement entered between party individually.  The opposite party states that the complainant has signed the agreement for certificate of possession which reads as follows:

“The Purchaser henceforth admits that there would not be any claim in regards to the said flat in future, has he satisfies himself in all respects of the construction and amenities provided as per agreement schedule”.

4.     The opposite party states that the complainant and his wife indulged in unethical and unwarranted publication of messages and posts in the website showing the opposite party in poor light, suppressing the real facts and circumstances which are well within the knowledge of the complainant and his wife.  There is no violation of any construction in the building.  The opposite party states that for Reverse Osmosis Water Purification System, the cost of expenditure is Rs.1,44,000/-.  The opposite party is ready to pay the said sum of Rs.1,44,000/- towards the Reverse Osmosis Water Purification System.  Therefore, there is no deficiency in service on the part of the opposite party.   Hence the complaint is liable to be dismissed.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A14 are marked.  Proof affidavit of the opposite party filed and documents Ex.B1 to Ex.B30 are filed and marked on the side of the opposite party. 

6.      The points for consideration is:-

1. Whether the complainant entitled individual overhead water tanks, bore well, Reverse Osmosis water Purification System as prayed for?
2. Whether the opposite party failed to provide GYM facility, Children Playing Area, covering the manholes, removing debris, rectifying front doors and locks, leaking walls and ceilings etc as prayed for?
3. Whether the complainant entitled to a sum of Rs.5,00,000/- towards compensation for mental agony and cost of Rs.10,000/- as prayed for?

7.      On point:-

Both parties filed their respective written arguments.  Perused the records namely the complaint, written version, proof affidavits, documents  etc.  Admittedly, the complainant entered into a Construction Agreement dated:23.05.2008 as per Ex.A1 for  constructing the plinth area of 1810 sq. ft.   The approved plan is marked as Ex.A2.   As per Ex.A1, the opposite party shall provide Reverse Osmosis Water Purification System, Children’s play area joggers trail etc. The opposite party also sent a mail dated:20.01.2009 as per Ex.A3 confirming that the R.O. installation will be completed at the end of March 2009.   Further the contention of the complainant is that there was an inordinate delay of 6 months in handing over the possession of the flat since the possession was given only on 24.02.2009 as per Ex.A4.   At that time also, the RO water Purification plant was not installed.   The email correspondence vide Ex.A5 shows the poor quality of construction of the flat.  But the complainant has not taken any steps to appoint Advocate Commissioner to find out such deficiencies including the quality of construction.  Further the contention of the complainant is that the opposite party collected the maintenance amount for 18 months as advance.   As per Ex.A9, letter dated:04.06.2010, the opposite party sought for ‘No Objection Affidavit’ from the flat owners  including the complainant.   The opposite party miserably failed to give necessary amenities including water and drainage and refused to provide the same as per Ex.A10.    Hence the complainant and other flat owners sent a letter dated:01.03.2011 demanding the amenities as per Ex.A11.  The opposite party sent reply dated:04.03.2011 as per Ex.A12.   Since the complainant is living in abroad, he issued Power of Attorney as per Ex.A14 to his father for taking appropriate action.   Further the contention of the complainant is that the opposite party is attempting to construct 3^rd floor without proper approval.  There is a deficiency of 298 sq. ft. also.   But the complainant has not taken any steps to prove the deficiency in area, deficiency in amenities etc.   On the other hand, the opposite party admitted only incomplete nature of RO system.    The complainant is constrained to file this case claiming individual overhead water tanks, bore well, Reverse Osmosis Water Purification System and gym facility etc and a compensation of Rs.5,00,000/- with cost of Rs.10,000/-.

8.     The learned Counsel for the opposite party would contend admittedly, the possession of flat was handed over on 24.02.2009 as per Ex.A4.  As per Ex.A1, the agreement is for construction of 1810 sq. ft. flat including common area.  After taking possession of the property, the complainant filed this case only on 03.08.2011 i.e. after the expiry of 2 years period of limitation under Consumer Protection Act, 1986.   The complainant has not preferred to file any applicaiton to condone the delay u/s 24 of the Consumer Protection Act.   Further the contention of the opposite party is that it is the duty of the complainant and other flat owners should form an Association and take care of the building and its maintenance.  But the residents including the complainant failed to form such Association and undertake the maintenance for which, this opposite party cannot be blamed.  Further the contention of the opposite party is that the allegation of deficit area has not been proved by the complainant by way of appointing Advocate Commissioner.   Mere submitting unilateral report of the Engineer without the knowledge of the opposite party is not acceptable.    

9.     Further the contention of the opposite party is that the installation of the Reverse Osmosis water Purification System plant requires continuous maintenance and it consumes large quantity of water for effective discharge of tilted water.  The waste contamination water has to be drained through the septic system and its should be removed.   The opposite party has accepted to provide individual water treatment plant for resolving the water problem.   The opposite party also had provided necessary provision of Metro water and has paid due charges for the same without collecting any amount from the flat owners including the complainant.   As per the agreement the RO System could not be installed by the opposite party.   In order to bring down the harmony between the opposite party and the flat owners and for effective and  alternative remedy, the RO system was initiated.   Further the contention of the opposite party is that the whole complex was constructed with the sanctioned plan as per Ex.B1 and according to the construction agreement entered between party individually.  As per Ex.A4 Copy of letter of Possession reads as follows:

“The Purchaser henceforth admits that there would not be any claim in regards to the said flat in future, as he satisfies himself in all respects of the construction and amenities provided as per agreement schedule”.

10.    Further the contention of the opposite party is that the complainant and his wife indulged in unethical and unwarranted publication of messages and posts in the website showing the opposite party in poor light, suppressing the real facts and circumstances which are well within the knowledge of the complainant and his wife.  There is no violation of any construction in the building.  Equally, all amenities except RO facility alone is under process.   Even at the time of handing over possession as per Ex.A4 Series,

“The Purchaser doth hereby acknowledge of having taken vacant possession with all the amenities of the referred to flat as per land cum construction agreement dated:23^rd day of May 2008 except RO water plant for which vendor agrees to complete in the due course on completion of outer elevation of the building”. 

 proves the RO system was not completed.   For Reverse Osmosis Water Purification System, the cost of expenditure is Rs.1,44,000/- is not disputed.  The opposite party is ready to pay the said sum of Rs.1,44,000/- towards the Reverse Osmosis Water Purification System.  Considering the facts and circumstances of the case this Forum is of the considered view that the complainant took possession of the property as per Ex.A4 except the completion of RO system.  Hence the opposite party is directed to install the said RO system within one month, failing which, a sum of Rs.1,44,000/- shall be paid to the complainant with a compensation of Rs.40,000/-  and cost of Rs.5,000/-.

  In the result, this complaint is allowed in part.   The opposite party is directed to install the Reverse Osmosis Water Purification System within one month, failing which, to pay a sum of Rs.1,44,000/- (Rupees One lakh and forty four thousand only) and to pay a sum of Rs.40,000/- (Rupees Forty thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

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 04^th day of October 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

		Copy of land cum Construction Agreement
		Copy of approved building plan No.75
		Copy of email correspondence from the complainant to opposite party and reply from opposite party
		Copy of letter with copy of certificate of possession
	19.06.2009 to 05.07.2009	Copy of email correspondence between the complainant and opposite party
		Copy of letter from Mr. Balu to the opposite party
		Copy of letter from the opposite party to complainant
	22.08.2009 to 18.11.2009	Copy of discussion in the Indian Real Estate Forum between the complainant and opposite party
		Copy of the letter from the opposite party to the complainant enclosing draft affidavit
		Copy of letter from the opposite party to the complainant pushing to handover all the maintenance cost without completing the basic amenities in the apartment
		Copy of registered letter with pictures sent to the opposite party by flat owners
		Copy of notice from the opposite party’s Counsel to the complainant and his wife
		Copy of reply notice from the complainant’s Counsel to the counsel for the opposite party
		Copy of Power of Attorney given by the complainant to his father

 

OPPOSITE  PARTY SIDE DOCUMENTS: 

		Copy of planning permit given by the CMDA for construction of 18 flats
		Copy of deposit receipt issued by the water distribution by Village Administration
		Copy of affidavit given by the owner of Flat bearing No. A (ground floor)
		Copy of affidavit given by the owner of Flat bearing No. B (ground floor)
		Copy of affidavit given by the owner of Flat bearing No. C (ground floor)
		Copy of affidavit given by the owner of Flat bearing No. D (ground floor)
		Copy of affidavit given by the owner of Flat bearing No. E (ground floor)
		Copy of affidavit given by the owner of Flat bearing No. B 1 (first floor)
		Copy of affidavit given by the owner of Flat bearing No. C 1 (first floor)
		Copy of affidavit given by the owner of Flat bearing No. D 1 (first floor)
		Copy of affidavit given by the owner of Flat bearing No. E 1 (first floor)
		Copy of affidavit given by the owner of Flat bearing No. A2 (second floor)
		Copy of affidavit given by the owner of Flat bearing No. B2 (second floor)
		Copy of affidavit given by the owner of Flat bearing No. C2 (second floor)
		Copy of affidavit given by the owner of Flat bearing No. D2 (second floor)
		Copy of affidavit given by the owner of Flat bearing No. E2 (second floor)
		Copy of quotation given by companies on Reverse Osmosis System
		Copy of brief on R O – MORF
		Copy of various reports on failure of R O system
		Copy of flat owners Association’s Draft Minutes
		Copy of E mail correspondence between by one of the members
		Copy of flat owners meet – Email
		Copy of email from flat owners to the opposite party
		Copy of emails on non payment of maintenance by the Builder / Co owner and other related issues of flats
		Copy of maintenance chart of flat owners Association from June 11 – December 11 and Summary
		Copy of various email between members of flat owners on day to day activities
		Copy of flat Owners’ Association Maintenance charges chart for the year 2012
		Copy of email by one of the flat owners on cracks caused due to construction of flats by the neighbouring builder and various correspondences
		Copy of flat owners Association Maintenance charges charts July – December 2012
		Copy of catalogue of main door

 

 

MEMBER –I                                                                      PRESIDENT