O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant is the owner in possession of flat bearing Cochin Corporation door No. 37/UA/3767/J which was constructed by the opposite parties. But the opposite parties have failed to complete the agreed infrastructure facilities as per the agreement dated 24-02-2000 such as lift, fire escape/fighting equipments, generator and the covered car park. The facts while so in July 2008, the complainant came to know from Cochin Corporation that her flat is an unauthorised construction. The complainant had to suffer inconveniences and mental agony due to the deficiency in service and unfair trade practice on the part of the opposite parties. Thus, the complainant is before us seeking direction against the opposite parties to pay Rs. 10,07,900/- being the cost to complete the construction of the lift, fire fighting equipment with NOC from fire fighting department, generator and covered car park together with compensation and costs of the proceedings.

2. Version of the opposite parties :

The complaint is barred by limitation. The complainant along with her husband inspected the flat on its completion and took possession of it and is residing therein by paying the property tax. As there is no negligence and deficiency in service on the part of the opposite parties, the complainant has not suffered any sort of loss and damage. Providing fire fighting equipments with NOC and back up generator was not necessary at the time of completion of the construction of the flat. The complainant is not entitled to get any of the reliefs as claimed in the complaint. The opposite parties request to dismiss the complaint hence.

3. The witness for the complainant was examined as PW1 and Exts. A1 to A18 were marked on the side of the complainant. The 2^nd opposite party was examined as DW1 and Ext. B1 was marked on the side of the opposite parties. Both sides filed argument notes. Heard the learned counsel for the parties.

4. The points that emanated for consideration are :-

1. Whether the complaint is barred by limitation?

2. Whether the opposite parties are liable to pay Rs. 10,07,900/- being the cost to complete the construction of the lift, fire fighting equipment with NOC from the fire fighting department and generator for the building with a covered car park?

3. Compensation and costs of the proceedings?

5. Point No. i. :- According to the opposite parties, this complaint is hopelessly barred by limitation, since the complainant had occupied the flat in January 2003. No complaints of whatsoever nature were raised by the complainant till the date of filing this complaint. The learned counsel for the opposite parties relied on the following decisions rendered by the Higher Judiciary :

1. Union of India & Anr. Vs. British India Corporation Ltd. & Ors. 2003 (9) SCC 505

2. V.M. Salgaocar Vs. Board of Trustees of Port of Mormugao & Anr. 2005 (4) SCC 613.

3. Gannamani Anasuya & Others Vs. Parvatini Amarendu Chowdhary & Ors. 2007 10 SCC 296.

4. State Bank of India Vs. B.S. Agricultural Industries II 2009 CPJ 29 (SC) .

5. HUDA Vs. Ushma Rani Dureja IV (2009) CPJ 304 (NC) .

6. Kerala Agro Machinery Corporation Ltd. Vs. Bijoy Kumar Roy & Ors. 2002 (3) SCC 165.

7. Kandimala Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr. III (2009) CPJ 75 (SC).

8. Sidramappa Vs. Rajashetty & Ors. 1970 (I) SCC 186).

6. The complainant specifically contended that on 31^st July 2008 when she received Ext. A6 property tax receipt came to notice that the Corporation of Cochin has written the door No. as 37/UA/3767/J indicating that the flat of the complainant is an unauthorised structure, since the mandatory requirements vice lift, fire fighting equipments and generator have not been provided by the opposite parties. Neither oral nor documentary evidence is before us to controvert the above averment of the complainant. Prima-facie, as per Ext. A1 agreement for development and sale of flat, the opposite parties are liable to provide the above facilities except the generator in the apartment in which evidently they failed. So the cause of action for this complaint began to run from the date when the complainant first came to know about the above anomalies. Thereafter, she filed this complaint within the time frame stipulated in Section 24 A of the Consumer Protection Act. On the above, we do not rely on the decisions submitted by the opposite parties.

7. Point No. ii. :- During the proceedings as per the direction of this Forum, the complainant produced the order of the Hon'ble Consumer Disputes Redressal Forum, Alappuzha in C.C. No. 349/2009 dated 26-10-2009, which had been filed by the inhabitants of the very same apartment against the opposite parties in this case. The Hon'ble Forum allowed the complaint and passed the following order :

“In the result, we hereby direct the opposite parties :

(1) To provide the mandatory lift, fire fighting equipments with NOC and diesel generator set are provided in Ext. A9, A10 and A11 quotations within 2 months form the date of receipt of this order and in case of any default on the part of the opposite parties, the opposite parties shall pay a sum of Rs. 9,71,400/- (Rupees nine lakh seventy one thousand and four hundred only) to the 1^st complainant

(2) and pay an amount of Rs. One lakh as compensation to the first complainant for his mental agony, pain, sufferings, physical strain, loss and inconvenience caused by the opposite parties willfully by way of their unfair trade practice, cheating, grossest deficiency in service, culpable negligence and for acceptance of Rs. 4 lakhs from the first complainant without any bonafides and

(3) we further direct the opposite parties to return Rs. 4 lakhs (rupees four lakhs) to the first complainant within one month from the date of receipt of this order and in case any default, the opposite parties shall pay interest at the rate of 12% till the date of realisation.

(4) we further direct the opposite parties to pay an amount of Rs. 5,000/- (Rupees five thousand only) as costs of this proceedings and further direct that the opposite parties shall comply the item No. 5 (2) to (4) within 30 days from the date of receipt of this order.”

8. The above equipments are part and parcel of the common amenities of the apartment. Since the Hon'ble Consumer Disputes Redressal Forum, Alappuzha has directed the opposite parties to erect the above common amenities no further order on this point is warranted. Further, during cross-examination the 2^nd opposite party who was examined as DW1 has deposed that he is ready to provide the facility for car parking to the complainant as well. Ext. A10 is the sketch and plan of the car porch. Exts. A11 to A15 receipts go to show that the opposite parties have received the cost of the car porch from the complainant. So it is incumbent on the part of the opposite parties to provide the car porch to the complainant.

9. Point No. iii. :- Even according to PW1, the complainant and her family are residing in Aluva and they have rented out the flat to a third party. They have visited the flat only once, that is at the time of performing puja of the flat. So as such no mental agony has necessarily been caused to the complainant, the claim for compensation holds no grand hence. Nevertheless, the complainant is entitled to get costs of the proceedings, we fix it at Rs. 1,000/-.

10. In view of the above, we partly allow the complaint and direct that,

1. the opposite parties shall jointly and severally provide the car porch facility as per the specification in Ext. A10 sketch of the car porch.

2. the opposite parties shall jointly and severally pay Rs. 1,000/- to the complainant by way of costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of July 2011.