BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day of 31st day of March 2012.
Filed on : 16/02/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. Nos. 92/2009, 147/2009, 148/2009 . 149/2009, 150/2009, 151/2009, 412/2009, 413/2009, 414/2009
CC/92/2009
Between,
Dr. R. Ramesh Kumar, :: Complainant
S/o. Ramachandran Nair, (By Adv. M.R. Hariraj,
Doctor, 'Indeevaram', 14th Cross Road, Samatha Law Chambers,
Maveli Nagar, Thrikkakara, Power House Extension
Cochin University. P.O., road, Kochi-18)
Rep. by Power of Attorney,
K.R. Ramachandran Nair,
S/o. Raman Pillai, “Indeevaram”,
-- do --.
And
M/s. Pukalakkat Properties :: opposite party
Pvt. Ltd., Regd. Office at 34/1784, (By Adv. George Cherian
D7, Edappally High School Jn., Karippaparambil, HB-48,
Rep. by its Managing Director, Panampilly Nagar, Kochi-36)
P.B. Gopalakrishnan.
CC. No. 147/2009
Between
1. Rajesh.K. S/o.P Surendranathan, :: Complainant
'Darsanam', 5th Cross Road,
Maveli Nagar, CUSAT. P.O.,
Thrikkakara, Kochi – 22.
2. Nayana. S., W/o. Rajesh,
-- do --.
And
M/s. Pukalakkat Properties :: opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 148/2009
Between
V. Sivadasa Menon, :: Complainant
S/o. Late Sri. K.K. Menon,
'Jaladarshini', Kuttankulam East Road,
Iringalakkuda – 680 121.
And
M/s. Pukalakkat Properties ::Opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 149/2009
Between
Parvathy Unnithan, W/o. Hari. C., :: Complainant
IC, Pukalakkat Narmada Enclave,
V.P. Marakkar Road, Edappally,
Through her Power of Attorney Holder,
S. Ravikumaran Unnithan,
S/o. K. Sankaran Unnithan,
-- do --
And
M/s. Pukalakkat Properties :: opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 150/2009
Between
John Berchjumans, S/o. C.U. Paily, :: Complainant
Thekkanathu House,
Pazhanangad Kara, Kizhakkambalam,
Ernakulam – 683 562, through his
Power of Attorney Paul. K.G.,
House No. IV/1003, Kaitharath House,
Kochi – 682 024.
And
M/s. Pukalakkat Properties :: opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 151/2009
Between
Commandar S. Balasai, ::Complainant
S/o. Late S. Sahadevan,
'Sai Sadan', Jadadha Nagar,
Puthur Desom, Palakkad – 3.
And
M/s. Pukalakkat Properties ::opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 412/2009
Between
Thresiamma George, :: Complainant
W/o. Mr. George, Pallippadan House,
Melur. P.O., Chalakkudy,
Trissur – 680 311, Rep. by her Power
of Attorney Mr. K.G. Paul,
S/o. Late Sri. K.I. George,
Kaitharath House,
Edappally. P.O., Kochi – 24.
And
M/s. Pukalakkat Properties ::opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 413/2009
Between
Joji Jacob, S/o. V.S. Jacob, :: Complainant
B12, Plaza apartments, No. 75,
Church Road, Perungudi,
Chennai – 600 096, Rep. by his
Power of Attorney, K. Varghese,
S/o. N.V. John. 32/2179,
Naranath House, Cross P.J Antony Road,
Palarivattom, Edappally South Village,
Ernakulam.
And
M/s. Pukalakkat Properties :: opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
C.C. No. 414/2009
Between
John Berchjumans, S/o. C.U. Paily, :: Complainant
Thekkanathu House,
Pazhanangad Kara, Kizhakkambalam,
Ernakulam – 683 562, through his
Power of Attorney Paul. K.G.,
House No. IV/1003, Kaitharath House,
Kochi – 682 024.
And
M/s. Pukalakkat Properties :: opposite party
Pvt. Ltd., Regd. Office at 34/1784,
D7, Edappally High School Jn.,
Rep. by its Managing Director,
P.B. Gopalakrishnan.
COMMON ORDER
A Rajesh, President.
As per order in I.A. No. 425/2009 dated 07-09-2009 this Forum allowed joint trial of the above cases treating CC 92/2009 as the leading case. Since the matter involved in the above complaints are similar and the opposite party is the same we are disposing off the above complaints by this common order.
2. The case of the complainant in CC 92/2009 is as follows.
The complainant purchased Apartment No. 4A in the apartment complex of the opposite party called “Pukalakkat Narmada Enclave” with super built up area of 1431 sq.ft. for a total sale consideration of Rs. 19,30,000/-. The opposite party offered the following amenities in the apartment complex.
“Posh entrance lobby-One lift with generator backup- vitrified flooring in drawing and dining room and good quality Ceramic tiles other area, granite top for kitchen platform, stainless steel sink with drain board, provision for exhaust fan, glazed tiles for bathroom walls, high quality colored sanitary ware and CP fittings-hot and cold mixed tap shower, provision for geyser – PVC shutter door for toilet , provision for washing machine, concealed plumbing, concealed wiring in PVC conduits, 5 and 15 A quality switches, ample light and fan points, provision for concealed telephone line and to / cable tv / internet, corporation water supply through sump, high level tank, dual system for corporation water and well water for kitchen, car parking facility (optional), modern fire fighting systems front door of teak wood other door of MDF panel windows of aluminum/hard wood, provision for wardrobes, storage shelves”
Apart from the total building cost of Rs. 17,17,200/- a sum of Rs.40,000/- towards common maintenance fund, Rs. 50,000/- for electricity connection, Rs. 30,000/- for Generator Charges, and Rs. 1,89,010/- towards various statutory charges including one time building tax, and Rs. 1,25,000/- towards covered car parking area was collected from the complainant. From the total amount due, the complainant was offered a discount since he paid the money in lump sum to the tune of Rs. 19,30,000/-. The opposite party agreed to hand over the possession of the apartment by January 2007. The sale deed transferring the title over the undivided share was executed by the opposite party in favour of the complainant on 29-03-2007. The completion certificate of the apartment complex was issued by the Kalamassery Municipality only on 12-04-2007. The complainant took over the possession of the apartment in April – May 2008, and carried out the finishing works of his flat on his own. The opposite party gave individual electrical connections to the apartments only a few months after May 2008. The apartment owners formed an association by name “Pukalakkat Narmada Enclave Flat Owners Association”. under Cochin Literary Scientific and Charitable Societies Registration Act, No maintenance work was ever carried out by the opposite party in the apartment. The construction of a lot of common amenities are still incomplete including the covered car parking. The total damages for not providing the car parking is computed and quantified at Rs. 7,15,500/- In the plan approved by the Kalamassery Municipality, a portion of the ground floor is indicated as recreation area-A, this along with recreation area B and recreation area C in ground and 5th floors constitutes a total of 91.15 sq.mt. This is indicated in the completed apartment plan, completed site plan and plan submitted for fire and safety clearance, approved by the Municipality. The Association of Owners applied for and obtained the plans and other documents under the right to information act after the completion certificate was issued by the Kalamassery Municipality. The recreation area C shown in the approved plan is converted into another apartment by the opposite party. Opposite party is now trying to sell the said area also to third parties. The opposite party has no right to convert the recreation space into an apartment area. Any construction he has made in that area is unauthorized and so is only to be demolished. Apart from the above deficiencies a lot of work which ought to have been completed by the opposite party remain undone. Despite repeated requests the clearances for the building, the diesel generator set and passenger lift from the Electrical Inspectorate, which are mandatory, are not handed over to the Owners’ Association by the opposite party. It is reliably learnt that such clearances are not obtained till date. It cannot be obtained because a lot of work demanded for such clearance are not completed by the opposite party. It is pertinent to note that clearance from the Directorate of Fire and Rescue Services is not provided to the owners’ association. The dry chemical powder fire extinguishers are not provided in the building as demanded under the rules. Doors for the fire escape stairs, as indicated in the plan are not provided. The fire alarm control panel of the building is not completed. There is an opening on the western side of the building which is in reality used as an electrical duct. That opening permits ingress to the building and causes a security threat. This ought to have been enclosed with a gate or shutter to ensure security. The telecom cable ducts are not covered, causing security threat to the children of the apartment. There is no security cabin at the entrance of the building. In many places on the outer wall of the building painting is not completed. The electrical room, lift room and terrace are not painted. The front lobby is not completed as per the plan as no door is provided to Recreation Area B in the plan and the area is not properly finished. The flooring/tiling in the terrace room and landing space are not done. Plastering is not done inside the service ducts. No ladder facility is given inside the ducts for maintenance. No permanent safety ladder is provided for over head water tank. Though an elaborate rain water harvesting system is indicated in the plans it does not exist in the building. At the location of the rain water tank a pit is there in which one plastic tank is kept. That tank is used as sump for Kerala Water Authority Supply. There is an open tank in the south eastern corner of the property which is also a serious threat to safety of the residents. The amount collected as corpus fund towards common maintenance for owners association, collected from each apartment owner is not handed over to the owners association till date. A total sum of Rs. 4,70,000/- is collected from the inmates towards the common maintenance fund by the opposite party. The said amount of Rs. 4,70,000/- ought to be paid with interest @ 18% p.a. to the Owners Association from the date of formation of the association till the date of actual payment. The KWA water connection and the common KSEB connection of the building are not transferred to the association though they are paying the charges. The sketches of electrical, plumbing and sewage lines are also not handed over to the association. The Original Title Deed by which the opposite party purchased the property is also not given to the Association of Owners. The said deed is liable to be given to the association without any kind of encumbrance. The fourteenth apartment i.e. Apartment no. 1A was sold by the opposite party on 14-08-2008. The one time building tax was collected from the complainant’s end and other owners, The opposite party has not satisfied payment of the same to the complainant or the association of owners. Apart from the deficiencies in common area the individual apartments also suffer from deficiencies. The dual system for well water and Kerala Water Authority water promised initially is not given in the kitchen of the complainant. Both these lines of water are mixed at the terrace itself and only one line is given to the kitchens of the apartments. There is no provision for separate drinking water inside the kitchen. In the bedroom of flat owned by the complainant a half wall is constructed just outside the window with absolutely no facility for draining water. There is no access to that area at all. This caused threat to the integrity of the building itself by causing water logging. The delay in completing the entire apartment building as agreed has caused irreparable damage to the complainant. The damage due to this is computed and limited to Rs. 2,00,000/-. Thus the complainant is before us seeking the following reliefs against the opposite party.
i. To restrain the opposite party from alienating recreation area specified in schedule and to direct the opposite party to; hand over the said area as common recreation space to the owners of the apartments in the building ‘Narmada Enclave’;
ii. To direct the opposite party to provide the complainant covered car parking area in the building meeting the standards demanded under the Kerala Municipal Building Rules or in the alternative to pay back the amount of Rs. 1,25,000/- collected from him towards covered car parking area with interest @ 18% per annum from 18-11-2005 till the date of payment and also pay damages of Rs. 7,15,500/- to the complainant.
iii. To direct the opposite party to undertake all the necessary works for obtaining clearance from the Electrical Inspectorate, for the building, Diesel Generator set and passenger lift and to hand over evidence of the same to Pukalakkat Narmada Enclave Flat Owners Association
iv. To direct the opposite party to undertake all the necessary works for obtaining clearance from the Directorate of Fire and Rescue Services for the building, and to hand over the same to the association.
v. To direct the opposite party to complete all the remaining work relating to painting, plastering and tiling of the ducts, landing areas, stairs, terrace, terrace room, lift room electrical room and outer walls of the building Narmada Enclave;
vi. To direct the opposite party to provide dual system for well and Kerala Water Authority water in kitchen of the complainant and to provide adequate water draining facility for the area outside the bedroom windows of the complainant;
vii. To direct the opposite party to complete the rain water harvesting system in the building Narmada Enclave;
viii. To direct the opposite party to enclose the opening on the western side of the building with a gate / shutter to ensure safety for the building Narmada Enclave
ix. To direct the opposite party to provide appropriate and adequate cover to the telecom cable/cable TV/internet duct in the building Narmada Enclave
x. To direct the opposite party to complete the front lobby of the building Narmada Enclave as per the approved plan;
xi. To direct the opposite party to provide ladders in the service ducts for maintenance and also permanent safety ladder to access the overhead water tank in the building Narmada enclave;
xii. To direct the opposite party to hand over the sketches of electric and other cable, plumbing and sewage lay out of the building Narmada Enclave to the Pukalakkat Narmada Enclave Flat Owners Association.
xiii. To direct the opposite party to provide security cabin at the entrance of the building Narmada Enclave
xiv. To direct the opposite party to pay the common maintenance fund of Rs. 4,70,000/- for maintenance collected from the Pukalakkat Narmada Enclave Flat Owners to the Association.
xv. To direct the opposite party to provide RCC Slab Covering for the open tanks on the property of building Narmada Enclave to ensure safety of the residents;
xvi. To direct the opposite party to transfer the Kerala Water Authority Water connection and KSEB Electrical Connection to Common Areas and Common Facilities of the building Narmada Enclave to Pukalakkat Narmada Enclave Flat Owners Association
xvii. To direct the opposite party to hand over the original receipt of one time building tax of building Narmada Enclave paid to the authorities to Pukalakkat Narmada enclave flat owners Association
xviii. To direct the opposite party to hand over the original prior title deed of the property to the Pukalakkat Narmada Enclave Flat Owners Association
xix. To direct the opposite party to pay damages of Rs. 2,00,000/- to the complainant for the delayed completion of construction of the building Narmada Enclave;
xx. To grant costs of the complaint.
3. The complainants in the other complaints raise the very same allegations against the opposite party.
4. The version of the opposite party in CC No. 92/2009 is as follows:
The matter under dispute is one based on a contract which is to be adjudicated by a Civil Court and same will not come under the jurisdiction of this Forum. The complainant engaged the opposite party for the construction of the apartment and as per the agreement and directions of the complainant the opposite party constructed the apartment and handed over the same to the complainant. There is no deficiency of service or non-performance on the part of the opposite party. The amenities to be provided and date of completion of the apartment are subject to the terms and conditions of the agreement. The amenities provided are as per the request of the complainant. If any changes done in the amenities it was as per the request of the complainant. The alleged brochure is only a proposal it is not a concluded contract. It is subject to the terms and conditions of construction agreement. The allegation that the complainant purchased the apartment based on an express representation that there is a covered car parking etc. are false. The opposite party has not sold the apartment or covered car parking as alleged. The opposite party was only a contractor. At any point of time the opposite party has not offered covered car parking as alleged. The opposite party has not collected any amount for covered car parking as alleged. The complainant has not paid all the amounts as stipulated in the agreement. There is sufficient space to park car for all apartment owners who opted car parking. If any delay is caused in competing the apartment complex it is due to the defaults of payments and non-performance of the agreement on the part of the complainant. Actually without considering the non-performance on the part of the complainant the opposite party constructed and handed over the apartment to the complainant. In the approved plan certain area is shown as car parking area but it is not limited to six car parking as alleged. There is sufficient space to park car in the apartment building as well as in the property in and around the building. No car parking is specifically marked for the complainant, the consideration being received only relating to the right given for parking and for the construction of the apartment. The opposite party is not liable to complete construction on the date of the execution of sale deed. The electrical connections were given as agreed and it is separate to each and every flat. The registration of owners association is something which is totally within the knowledge of the complainant and the opposite party has nothing to do with the same. The opposite party constructed the apartment as per the plan and permit and as per the directions and changes given by the complainant.. Subsequently after the completion the authority gave completion certificate. The allegation that the opposite party converted the recreation area without any right etc.. are false. There is no deficiency as alleged in the complaint. Amenities like generator, passenger lift etc. are already provided. All papers regarding the amenities demanded by the association were already handed over. Required clearance has been obtained from various departments. All the works liable to be completed by the opposite party as per the agreement is already completed. If anything is pending it is only due to the non co-operation on the part of the apartment owners. The opposite party is not liable to provide anything described in the complainant which are not with in the scope of the construction agreement. Painting and flooring are finished and other facilities are provided as per the construction agreement. Sufficient rain harvesting facility is provided in the building. The opposite party does not have any liability for any maintenance subsequent to the handing over of the flats to the owners and the information of the owners association. The water connection and KSEB connection are not transferred only on account of the default on the part of the flat owners. The transfer has been made to the respective flat owners free of all encumbrance and after satisfying them about all the documentary and the other aspects. For the past more than one year, the opposite party does not have any information regarding the usage of apartment by the respective owners and any wear and tear or other damages that have occurred to the flat due to rough use of the same are things which no liability can be fastened upon the opposite party. The building tax has already been paid and the opposite party cannot be held responsible. The complainant and other apartment owners take possession of the completed apartment after full satisfaction of all the matters on the part of the opposite party. They are now enjoying the apartments with all facilities. The opposite party spend lot of amounts from his own pocket for the maintenance and other works of the apartment owners are liable to pay the same. Duel system for well water and KWA water is provided. There is no deficiencies in common area or in the area of individual apartments. Sufficient drainage facilities are provided in the property as well as in the apartment building. There is no question of water logging as alleged. Even due to the default on the part of the opposite party there was no delay in the completion of apartment or building. There is no deficient works on the part of the opposite party, hence the complainant has no right to get any direction from this Forum.
5. The opposite party filed separate versions in all the complaints raising similar contentions.
6. The complainant in CC No. 147/2009 was examined as PW1 and Exts. A1 to A21 were marked. The power of Attorney of the complainants in CC 150/2009 and in CC 414/2009 was examined as PW2 and Exts. A22 to A26 were marked. Power of Attorney of the complainant in CC 92/2009 was examined as PW3 and Exts. A27 to A31 were marked. The complainant in CC 151/2009 was examined as PW4 and Exts.A32 to A34 were marked. The power of Attorney of the complainant in CC 413/2009 was examined as PW5 and Exts. A35 to A38 were marked. The complainant in CC148/2009 was examined as PW6 and Exts. A39 to A43 were marked. The power of Attorney of the complainant in CC 149/2009 was examined as PW7 and Exts. A44 to A46 were marked. The witness for the opposite party was examined as DW1. The expert commissioner’s report was marked as Ext. C1. Complainants filed argument notes. Heard the learned counsel for the parties.
7. The points that came up for consideration are as follows:
i. Whether the complaints are maintainable in this Forum?
ii. Whether the opposite party is entitled to alienate the
recreation area specified in the schedule or whether the
opposite party is liable to retain the said area as
common recreation space. ?
iii. Whether the complainants are entitled to get covered car
parking area or to get refund of Rs. 1,25,000/- with interest
from the opposite party being its cost together with damages
of Rs. 7.15,500/-?
iv. Whether the opposite party is liable to complete all
necessary works for obtaining clearance from Electrical
inspectorate for the building, diesel generator set passenger
lift etc. ?
v. Whether the opposite party is liable to complete necessary
works for obtaining clearance from the Directorate of Fire
and Rescue Services for the building?
vi. Whether the opposite party is liable to complete all the
remaining work relating to painting, plastering and tiling of
the ducts, landing areas, stairs terrace, terrace room, lift
room¸ electrical room and outer walls of the building.?
vii. Whether the opposite party is liable to provide duel system
for well and Kerala Water Authority Water in Kitchens of the
Complainants and to provide adequate water drainage
facility for the area outside the bed room windows of the
complainants.
viii. Whether the opposite party is liable to complete the rain
water harvesting system in the building?
ix. Whether the opposite party is liable to enclose the opening
on the western side of the building with a gate/shelter to
ensure safety for the building?
x. Whether the opposite party is liable to provide cover to
telecom cable/cable TV/Internet duct in the building?
Xi Whether the opposite party is liable to complete the front
lobby of the building as per the approved plan?
xii. Whether the opposite party is liable to provide ladders in the
service ducts for maintenance and permanent safety ladder
for access to the overhead water tank in the building?
xiii. Whether the opposite party is liable to hand over the
sketches of electric and other cable, plumbing and sewage
lay out of the building to the flat owners association.
xiv. Whether the opposite party is liable to provide security
cabin at the entrance of the building?
xv. Whether the opposite party is liable to pay the common
maintenance fund of Rs. 4,70,000/- collected from the flat
owners association. ?
xvi. Whether the opposite party is liable to provide RCC slab
covering for the open tanks at the premises?
xvii. Whether the opposite party is liable to transfer the Kerala
Water Authority Water connection and KSEB Electrical
connection to common area and common facilities of the
building to the flat owners association?
xviii. Whether the opposite party is liable to handover the
original receipt of one time building tax of the building to
the flat owners association?
xix Whether the opposite party is liable to handover the prior
title deeds of the property to the flat owners association?
xx. Whether the complainants are entitled to get a
compensation of Rs. 2 lakhs each for the delayed
completion of the building.?
Xxi. Whether the complainants are entitled to get costs of the
proceedings from the opposite party?
7. Point No. i. At the threshold the opposite party in his version took a contention that the dispute between the complainant and the opposite party is one based on a contract which is to be adjudicated by a civil court and this Forum has no jurisdiction to entertain the complaints. The learned counsel for the complainant vehemently refuted the above averment of the opposite party and contented that a land owner entering into an agreement with a builder for construction of an apartment or for sharing construction area is a consumer within the meaning under S(2) (1) d of the Consumer Protection Act. The counsel relied on the decision rendered by the Hon’ble Appex Court in Faqir Chand Gulati V. Uppul Agencies Pvt. Ltd. And Anr. (2008) 10 SCC 345.
8. The contention of the opposite party that the complainants are not consumers within the purview of the C.P. Act is not sustainable since the Hon’ble Supreme Court has held in Lucknow Development Authority Vs. M.K. Gupta III (1994) CPJ 7 (SC) and in Ghaziabad Development Authority Vs. Balbir Singh II (2004) CPJ 12 (SC) that ‘housing construction’ is a service within the purview of S 2(1) (o) of the Consumer Protection Act. Which the opposite party is aware of and has not controverted. There is no room for doubt that the present dispute is a consumer dispute between a consumer and a service provider and there is no law which for closes thus. The contention rejected hence.
9. Point No. ii. Admittedly the complainants entered into Exts. A4, A23, A25, A29, A33, A36, A41 and A 45 construction agreements with the opposite party and later the opposite party executed Ext. A5, A23, A26, A30, A34, A37, A43 and A46 sale deeds in favour of the complainants (The complainant in CC No. 412/2009 has not produced the agreement and the sale deed).
10. At the instance of the complainants in the above cases vide order in I.A. No. 72/2009 dated 16-02-2009 this Forum directed the opposite party to refrain from alienating recreation space/marked as ‘recreation area C’ in the approved plan measuring 59.66 sq. meters on the 5th floor of the building called Pukalakkattu Narmada Enclave and numbered as XXXIII/165 by the Kalamassery Municipality until further orders. During the proceeding in this complaint the Kalamassery Municipality directed the opposite party to demolish the construction in the recreation area vide order No. T.P AP 10-6835/10 dated 22-06-2010. The opposite party filed I.A. No. 27/2011 in this Forum and vide order dated 22/01/2011 the Municipality was called upon not to take further action in the notice. In the meantime the opposite party approached the High Court of Kerala against the above notice of the Kalamassery Municipality, the Hon’ble High Court vide order in WP( c ) No. 2368/2011 (u) dated 24/01/2011 directed the Municipality to maintain Status quo. Since the matter involved at this point is before the Hon’ble High Court of Kerala in adjudication, we are not to pass any direction or order with regard to recreation area ”C” in the approved plan of the apartment complex which would even amount to the principles of subjudice .
11. At the request of the complainants in the above cases an expert commissioner was deputed by this Forum vide order in I.A. No. 547/2009 dated 03-02-2010 The expert commissioner filed a detailed report in this Forum. The opposite party filed objection against the report of the expert commissioner but they have not taken steps to establish the same in this Forum. The expert commissioner’s report was marked as Ext. C1 without demur on either side. In Ext. C1 the observation of the expert commissioner reads as follows:
i. The current situation of the recreation area A,B and C marked in plan produced as document no. 9. Whether recreation area ‘C’ has been converted into another apartment or nor?
Recretion Area ‘A’
The recreation area marked as “A” in Document NO. 9 is open and located on south west corner of the ground floor under the roof slab without any enclosure and present status remains the same (Ext. 1)
Recreation Area ‘B’
The recreation area marked as ‘B’ in the Document No. 9 is an enclosed area with two aluminum glazed windows (on eastern and southern side)but without door D1 as shown in Doc NO. 9. The inside walls are painted white but looks shabby and flooring is found done with vitrified tiles. Four PVC pipes carrying twenty five numbers of PVC insulated wires are found on the eastern wall of the room in an entangled way without any terminal box. A fire alarm panel and a post office red colour box are also found on the western and northern wall respectively of the said area. (Ext 2 & Ext. 3).
The opposite party is contractually and legally liable to provide the recreation area ear marked as ‘A’ and ‘B’ to the complainants as per Ext. A8, A9 and A10 plan of the building which they have failed to do.
12. Point No. iii. According to the complainants they have paid a sum of Rs. 1,25,000/- each to the opposite party towards cost of covered car parking area. Per contra the opposite party contended that he had agreed to provide only car parking facility and he has duly provided the same to the complainants. PWs 1 to 7 categorically deposed in this Forum that neither in Ext. A1 brochure nor in the construction agreement or in the sale deeds the opposite party agreed to provide covered car parking area to the complainants. In view of the above we are of the view that the complainants are entitled to get car parking facility as per the contract between the parties which the opposite party has complied with however the request of the complainants for covered car parking has to be considered necessarily which is good in law and natural justice at the expenses of the complainants if they decide so. The claim of the complainants for damages of Rs. 7,15,500/- is too tall to be climbable legally.
13. Point No. iv. Indisputably the opposite party builder is liable to undertake all necessary works for obtaining clearance from the Electrical Inspectorate, for the building, Diesel Generator set and passenger lift. Exts. A11 and A18 letters issued by the Deputy Chief Electrical Inspector would show that completion report of installation of diesel generator passenger lift and electrification of the building has not been submitted for obtaining clearance from the concerned Department. As per Ext. C1 the following works are yet to be completed.
“vi. The current situation of the installation of Diesel Generator, whether the exhaust is taken to the roof top as indicated in plan Doc No. 13?
The exhaust of the Diesel generator set is not taken to the roof top as indicated in Doc No. 13, presently the exhaust pipe extends to approximately 1.50 m only above the Diesel Generator set (Ext. 11 & Ext. 12)”
vii. whether chequered plates are provided covering the cable trenches, whether any lightning protection or earthing is given to the building, whether chain link fencing with gate around the transformer double pole structure is provided, whether ducts provided for power cables and other services are provided with fire barriers at each floor crossings as indicated in plan doc No. 13, whether the panels in the electrical room are labeled”
Chequred plate are not provided to cover the cable trenches in the electrical room (Ext. 13 & Ext. 14)
On western side of the building lightning protection down conductor ends 2.70 metre above the ground level (Ext. 15). On the southern side, the lightning protection down conductor is found extended below the ground level.
No chainlink fencing with gate is provided around the transformer double pole structure (Ext. 16)
No fire barriers are provided at each floor crossing for the ducts provided for power cable and other services ( Ext. 17)
The electrical panels are not labeled (Ext. 13 & Ext. 14)
The opposite party is liable to comply with the above observation legally and to submit necessary directions to accord sanction from the Electrical Inspectorate.
14. Point No. V. It is the duty of the opposite party builder to undertake all the necessary works for obtaining clearance from the Directorate of Fire and Rescue Services for the building and to inform of the receipt of the same to the flat owners association.
In Ext.C1the following works are to be complied.
“viii. Whether dry chemical powder fire extinguishers are provided in the building, whether doors for the fire escape stairs as indicated in the plan are provided, whether the fire alarm control panel of the building is completed?
Dry chemical powder fire extinguisher of capacity 2 kg are found provided in the cabinet provided on the side wall of the passage leading to the fire escape stairs. No fire extinguisher was found in the electrical room or any where in the ground floor of the building.
The passage leading to the fire escape stairs are not provided with any doors as indicated in the plan (Ext.19). An opening is also found on the terrace floor without any door leading to the fire escape stairs (Ext. 18).
In the recreation area ‘B’. I have seen a fire alarm panel and another box in post office red colour without any labeling. Two wires were found coming from the fire alarm panel in the entangled way (Ext. 20). Sri. C.S. Narayankuatty, representative of opposite party, said that the red coloured box is for the controlling of fire pump kept at the terrace floor. (Ext. 21). When enquired, he said that he is not conversant with the operation of both the systems.
(xii) Whether the outer wall of the building is fully painted and whether the electrical room, lift room and terrace are painted?
The outer wall of the building is not fully painted. The electrical room, lift room are not painted (Ext. A14 Ext.26 & Ext. 28).
The opposite party has to compensate the above deficiencies and get sanction from the Fire and Rescue department.
15. Point No. vi. The opposite party ought to have completed all the works of the building before handing over the possession of the flats to the occupants as per the agreement in which they failed evidently as evidenced by Ext. C1 which reads as follows:
(xiii) Whether the flooring/tiling in the terrace room and landing space are done?
The flooring/tiling in the terrace room and landing space are not done.(Ext. A7 & Ext. A8)”-
All these deficiencies could lead to a disastrous result of an unfortunate event could happen necessary precautions have to be taken totally. There is no point in crying over spilt milk. The primary right of the consumer’s protection has to be upheld at all costs. This is a no go against that.
16. Point No. vii. In Ext. A1 brochure regarding water supply the opposite party offered to provide the following
“Corporation water supply through sump. High level tank. Dual system for corporation water and well water for kitchen”.
In Ext. C1 the commissioner has reported as follows:
“v) Whether there is dual system of water supply giving KWA water and well water in the kitchens of the various apartments. Whether the well & KWA water are mixed at the terrace itself and one connection alone given to the apartments?
No dual system of water supply (KWA water & well water) is provided in the kitchen of the complainants. Only one tap is seen provided in the kitchen (Ext. 10)
As per Doc No. 9 (P1 refer stair cabin floor) a fire fighting overhead tank of capacity 2,000 ltrs is shown above the landing of main stair case and domestic water tank of capacity 7000 ltrs is shown above the landing of fire escape stairs. But no domestic water tank as shown in the plan is seen at the site. A GI pipe temporary ladder is provided from the stair cabin floor to get access to the overhead water tank above the landing of main stair case. The ladder was found steep & without any proper foundation and support and hence considering my age 1 could not go up to inspect the status of the overhead tank. I deputed the driver of the taxi cab in which I came to the site to accompany the Counsel for Petitioners who was ready to go up (Ext. 31 & Ext. 32). The driver reported that the tank is completely covered except for two man holes which are visible at the top. From this it can neither be ascertained whether there is any partition inside the tank nor any mixing of well water and KWA water at the terrace.
From which it can be come to a conclusion that the opposite party has failed to provide dual water supply as provided by them which amounts to deficiency.
(xvii)Whether in bedroom of flat A type and B type a half wall is constructed just out side the window with no facility for draining water whether this causes threat to the integrity of the building itself by causing water logging?
I have seen a half wall construction just outside the window of flat A & B type in all floors. It is not provided with any draining facility. Presently it is found covered with aluminum sheet.”
The opposite party is liable to adequate drainage facility instead
17. Point No. viii. In Ext. C1 it is stated that rain harvesting system has not been provided in the building. As per Ext. A8 completed apartment plan there is a rain water harvesting tank with 45375 ltr capacity. The opposite party is liable to construct rain water harvesting system in a full fledged manner as per the agreement and approved plan.
18. Point No. ix. In Ext. C1 it is reported that there is an opening on the western side of the building it reads as under
(ix) Whether there is an opening on the western side of the building used as an electrical duct permitting unauthorized ingress to the building and whether this is closed as indicated in plan Doc No. 13?
An opening (of size height -2.48 meters and width – 1.62 meters) is found on the ground floor on the western side of the building used as electrical duct. It is not provided with any shutter as indicated as in Doc No. 13(Ext.22).
In the same way opening of the electrical duct on other floors are also not provided with any shutters (Ext. 23)”
Photo No. 23 annexed to Ext. C1 goes to show that a gate/shutter is necessary to ensure the safety of the building as well as its inmates. The opposite party is liable to provide the same in each floor.
19. Point No. X. The complainants contend that appropriate and adequate cover to the telecom cable/cable TV/internet duck in the building are to be covered for the safety of the inmates not to menton children. In Ext. C1 it is reported as follows:
(x) Whether telecom cable ducts are not covered causing security threat to the small children of the apartment?
Telecom cable duct opening are provided on both sides of the passage leading to the fire escape stairs in each floor, Masonry work is done up to a height of 0.75 mts on one side and 0.65 mts on the opposite side leaving openings of sizes 0.75 mts x 1.66 mts and 0.48 mts x 1.78 mts respectively. (Ext. 24 & Ext. 25)
Annexure 24 and 25 photos in Ext. C1 go to show that the cables are drawn in an awkward manner. These cables are necessarily to be kept in a manner so as to prevent access to others to them.
20. Point No. xi. According to the complainants the works of the front lobby has not yet been completed. In Ext. C1 the expert commissioner reported as under
(ii).“Whether front lobby is completed as per the plan, whether door is provided to recreation area ‘B’ in the plan and whether the area is properly finished?
The front lobby is provided with vitrified tiles and the walls painted white however there is no separation between the lobby and recreation area ‘B’. Even though one door D1and separation wall are marked in the plan Doc No. 9, it is not seen provided (Ext. 2). Below the staircase landing lobby a trench is found connecting the electrical room and the electrical duct without any cover (Ext. 6).
iv. The current situation of the entrance lobby, staircase landings at the terrace, whether the work in this areas are complete or not?
No flooring is done at the stair case landing to the terrace and at the terrace. The walls are painted white but looks shabby. The stair case leading to the lift room is seen not painted (Ext. A7 & Ext. 8) A service duct opening is also seen behind the fire escape stairs without any covering (Ext. 9). An opening is also found on the terrace floor without any door leading to the fire escape stairs (Ext. A8)”
The opposite party is legally liable to complete the work of the front lobby of the building as per the approved plan in which so far the opposite party has failed.
21. Point No. xii. The complainants maintain that the opposite party failed to erect ladders in the service ducts for maintenance and also permanent safety ladder for access to the overhead water tank in the building. In Ext. C1 (point No. xiv) the commissioner reported that no ladder facility has been provided by the opposite party. Since the above ladders are essential for the proper maintenance of the service ducts and overhead water tank the opposite party is contractually liable to provide the same in which the opposite party has failed as per the contentions.
22. Point No. xiii. Since the apartments have already handed over to the complainants there is no point in keeping the electric sketches of cable, plumbing and sewage lay out of the building with the opposite party. The opposite party is only to hand over the above documents to the flat owners association. Any further requirement on this aspect can be met with further adjudication.
23. Point No. xiv. The complainants contended that security cabin is not provided at the entrance of the building though the approved by the Municipality. This defect has got to be legally rectified and in furtherance complied with. The observation of the expert commissioner is note worthy and appreciated significantly.
24. Point No. xv. According to the complainants the opposite party has not handed over the common maintenance fund collected by the opposite party from the complainants to the flat owners association. As per the agreement between the parties the opposite party agreed to handover the common maintenance fund to the owners association after deducting the amounts incurred by him for maintenance if at all. The opposite party failed to prove that they have incurred any amount on account of the same. Therefore the opposite party is to hand over the originally collected amount in full to the association
25. Point No. xvi. The complainants highlighted the necessity to provide RCC slab covering for the open tanks at the premises of the building for the safety of the inmates. In Ext. C1 it is reported as under.
xvi) The dimensions and conditions of the various ground (water storage tanks in the property, whether such tanks are covered so as to ensure safety of the residents?
On the north western corner of the plot, I have seen a masonry tank of size (2.15 mts x 2.20 mts x 2.25 mts) with one PVC tank black in colour (of approximate capacity 5000 ltrs ) kept inside on the north western corner of the plot. The tank is found covered with a concrete slab of thickness 6 cm.(Ext. 33 & Ext. 34). Adjacent to this tank there is a chamber to accommodate bore well (size of chamber-1.10mts x 0.78 mts 0.70mts) Ext. 35) I have also seen a ground level tank found exposed without any concrete slab covering at the south eastern corner of the building (Ext. 36)”
Annexure 35 & 36 photos go to show that 2 ground level tank at the premises of the building are exposed. This might cause not only health hazards but also physical accidents. The opposite party is to take steps to provide RCC covering in order to avoid any further exigencies
26. Point No. Xviii. It is well settled that the builder is liable to transfer the common amenities and facilities in favour of the apartment owners association as per Section 6 of the Apartment Ownership Act 1983. In the instant case registered association is formed by the occupants of the flats. Therefore the opposite party is legally bound to transfer the same in favour of the association.
27. Point No. Xviii. There are no disputes with regard to the payment of one time building tax by the opposite party. In this case as well the opposite party is liable to pay the amount and to hand over the receipt to the association especially since the opposite party has collected all statutory charges from the complainants.
28. Point No. Xix. Along with other documents pertaining to the apartment complex the opposite party is also bound to hand over the prior title deeds of the property to the association which would go to help them to solve any legal issues that might arise thereafter, therein they are free to proceed legally.
29. Point No. XX. In Ext. A4, A23, A25, A29, A33, A44, A45 the primary agreements the opposite party agreed to complete the construction of the apartments within 15 months from the date of starting of the construction and on making the payment by the complainants as per the payment schedule. Nothing is on record to show the actual date of starting of the construction of the apartments. Admittedly as per Ext. A7 completion certificate dated 12-04-2007 issued from Kalamassery Municipality the construction was completed on 09-04-2007 and the complainants took possession of their respective apartments in April 2007 itself. It is pertinent to note that none of the complainants did raise this issue before the opposite party at any point of time except in the above complaints. It seems that this is only a ruse pertinently to take advantage of the opposite party, with a façade of incompetence or deficiency of service substantially unqualified.
30. During evidence DW1 the witness for the opposite party took a contention that some of the complainants have not paid the full amount as per the agreement between them. Primarily the opposite party failed either to raise issue or to establish the same in this Forum before contention of the case. So necessarily the remedy of the opposite party lies elsewhere. They are to establish the same before the appropriate authority if so advised. The opposite party took another contention that at the instance of the complainants only had they rebuilt the recreation area in the terrace by spending Rs. 6 lakhs instead of one in the 5th floor. This does not form part of the contentions raised before this Forum. This has only to be adjudicated and adjusted between the parties if necessarily before a Judicial Forum. Further the opposite party contends that at the request of the complainants they had done additional works in the apartments. The goodwill has only to be much appreciated but however due to lack of evidence this Forum can not adjudicate on the same.
31. Point No. xxi. Now comes the question of costs. Though the construction of the building was completed in 2007 as per Ext. A7 certificate issued from the local authority however Ext. C1 Commission report goes to show that much of the amenities are yet to be completed in spite of the agreement said to have been completed. Instead of doing the works the opposite party had been taking untenable contentions to escape from their onus which alone prompted the complainants to knock at the doors of this Forum for no other abatement which calls for costs of the proceedings we fix it at Rs. 5,000/- each to the complainants.
32. In the result, we partly allow the complaint and pass the following order:
i. The opposite party shall hand over the recreation space marked as ‘A and B’ to the owners of the apartments in the building ‘Narmada Enclave’.
ii. The opposite party shall provide the complainants with car parking area in the building as per the respective agreements failing which the opposite party shall refund Rs. 1,25,000/- each collected from the complainants towards car parking area with interest @ 12% per annum from the date of receipt till the date of payment.
iii. The opposite party shall complete all the necessary works for obtaining clearance from the Electrical Inspectorate, for the building, Diesel Generator set and passenger lift and hand over evidence of such clearance to the flat Owners Association.
iv. The opposite party shall complete all the necessary works for obtaining clearance from the Directorate of Fire and Rescue Services for the building, and hand over evidence of such clearance to the Flat Owners Association.
v. The opposite party shall complete all the remaining work relating to painting, plastering and tiling of the ducts, landing areas, stairs, terrace, lift room electrical room and outer walls of the building as per Ext. C1.
vi. The opposite party shall provide dual system for well and Kerala Water Authority water in kitchens of the complainants and provide adequate water draining facility for the area outside the bedroom windows of the complainants clogs if any
vii. The opposite party shall complete the rain water harvesting system in the building Narmada Enclave;
viii. The opposite party shall take steps to enclose the opening on the western side of the building with a gate / shutter to ensure safety for the building Narmada Enclave
ix. The opposite party shall provide appropriate and adequate cover to the telecom cable/cable TV/internet duct in the building Narmada Enclave
x. The opposite party shall complete the front lobby of the building Narmada Enclave as per the approved plan;
xi. The opposite party shall provide ladders in the service ducts for maintenance and also permanent safety ladder to access the overhead water tank in the building Narmada enclave;
xii. The opposite party shall hand over the sketches of electric and other cable, plumbing and sewage lay out of the building Narmada Enclave to the Flat Owners Association.
xiii. The opposite party shall provide security cabin at the entrance of the building Narmada Enclave
xiv. The opposite party shall pay the common maintenance fund of Rs. 4,70,000/- to the Flat Owners Association.
xv. The opposite party shall provide RCC Slab Covering for the open tanks on the property of building Narmada Enclave to ensure safety of the residents;
xvi. The opposite party shall take steps to transfer the Kerala Water Authority Water connection and KSEB Electrical Connection to Common Areas and Common Facilities of the building Narmada Enclave to the Flat Owners Association.
xvii. The opposite party shall hand over the original receipt of one time building tax of building Narmada Enclave paid to the authorities to the Flat Owners Association.
xviii. The opposite party shall hand over the original prior title deed of the property to the flat owners association.
xix. The opposite party shall pay Rs. 5,000/- each to the complainants towards costs of the proceedings for the reasons stated above.
The above said order shall be complied with within a period of 60 days from the date of receipt of a copy of this order, failing which the amounts stated above shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the 31st day of March 2012.
A Rajesh, President.
Paul Gomez, Member.
C.K. Lekhamma, Member.
Appendix
Complainant’s exhibits:
Ext. A1 : Copy of brochure
A2 : copy of statement
A3 : Copy of registration form
dt. 02-01-2006
A4 : Copy of agreement
A5 : Copy of deed dt. 07-05-2008
A6 : Completion certificate by the owner
A7 : Copy of Sketch
A8 : Copy of Sketch
A9 : Copy of Sketch
A10 : Copy of Sketch
A11 : Copy of letter dt. 03-04-2009
A12 : Copy of sketch
A13 : Copy of application for
permit/regularization
A14 : Copy of draft dt. 30-04-2007
A15 : Copy of letter dt. 14-09-2009
A16 : Copy of letter dt. 16-10-2009
A17 : Copy of letter dt. 02-2010
A18 : Copy of letter dt. 15-02-2010
A19 : Copy of letter dt. 23-06-2010
A20 : Copy of Audit note dt. 18-06-2010
A21 : Copy of land tax
A22 : copy of receipt dt. 31-10-2006
A23 : Copy of agreement
A24 : Copy of deed dt. 29-03-2007
A25 : Copy of construction agreement
A26 : Copy of Sale deed
A27 : Copy of recept dt. 20-01-2006
A28 : Copy of receipt dt. 09-03-2006
A29 : Copy of agreement
A30 : Copy of deed dt. 27-03-2007
A31 : Copy of power of attorney
A32 : Copy of receipt dt. 05-03-2011
A33 : Copy of agreement dt. 29-03-2007
A34 : Copy of deed
A35 : Copy of Statement
A36 : Copy of agreement dt. 09-03-2008
A37 : Copy of deed dt. 27-03-2007
A38 : Copy of deed dt. 14-03-2009
A39 : Copy of receipt dt. 18-11-2005
A40 : Copy of receipt dt. 25-02-2006
A41 : Copy of agreement dt. 20-09-2006
A42 : Copy of 26-12-2006
A43 : Copy of sale deed dt. 29-03-2007
A44 : Copy of power of attorney
A45 : Copy of agreement dt. 29-03-2007
A46 : Copy of agreement dt. 29-03-2007
C1 : Commission report
Opposite party’s exhibits: : Nil
Deposition :
PW1 : Rajesh K
PW2 : K.G. Paul
PW3 : K.R. Ramachandran Nair
PW4 : S. Balasai
PW5 : K. Varghese John
PW6 : V. Sivadasamenon
PW7 : S. Ravikumar Unnithan S
DW1 : Narayanankutty C.S.
