Tamil Nadu

North Chennai

38/2013

T.PMadhavan, Vasanthy Madhavan - Complainant(s)

Versus

M/s.Square Housing Development Pvt Ltd,rep. by Director, Aashish Kumar Surana, - Opp.Party(s)

R.Parthasarathy

14 Jul 2016

ORDER

 

                                                           Complaint presented on:  31.01.2013

                                                              Order pronounced on:  14.07.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

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

 

THURSDAY THE 14^th   DAY OF JULY 2016

 

C.C.NO.38/2013

 

1. T.P.Madhavan,

2. Vasanthy Madhavan

 

Both Residing at:

A-3, ‘Sai Raghuvir Apts’,

No:120 (Old: 118) Habibullah Road,

(Opp Karnataka Sangha),

T.Nagar, Chennai – 600 017.

                                                                                    ..... Complainants

 

..Vs..

 

	M/s.A Square Housing Development P.Ltd., Represented by Director, Mr.Aashish Kumar Surana, “Suraj Kunj” No.8, Rutland Gate, 5th Street, Nungambakkam, Chennai – 600 006.
	...Opposite Party

Date of complaint                                  19.02.2013

Counsel for Complainant                      : R.Parthasarathy

Counsel for   opposite party                     : M/s. Stalwart Law Firms

O R D E R

 

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

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

1. THE COMPLAINT IN BRIEF:

          The Opposite Party is a flat promoter who developed  a project at Chemmancheri Village, Sholinganallur Taluk, Kanchipuram District  in the name of “Ambrosia “. The Complainants entered into a development agreement dated 23.11.2010 with the Opposite Party to purchase a Flat Number HS2, measuring       1088 sq.ft in the second floor in the above said project.  The total consideration for the said flat was  fixed at Rs.27,19,067/- The undivided share land of 661 sq.ft was registered in favour of the Complainant by a sale deed dated 19.01.2011 for  a sale consideration of Rs.7,93,200/-. It was agreed to construct the flat in terms of  the sanctioned plan of the building as issued by the CMDA. The said flat was supposed to be handed over by the Opposite Party in November 2011. However, the Opposite Party sent an e-mail dated 11.02.2011 that the project would be delayed and the flat would be handed over only March 2012. During March 2012 the first Complainant inspected the construction and noted certain discrepancies and sent an e-mail on 13.03.2012 and a reminder e-mail was sent on 20.03.2012 to the Opposite Party. The Opposite Party replied that all the defects would be rectified before handing over the flat.  The first Complainant again visited the flat in June 2012 and noticed several deficiencies in the civil work and also sent an e-mail dated 30.06.2012 to the Opposite Party to rectify the same. The possession of the flat was handed over to the Complainant on 10.07.2012. After taking possession the Complainant noticed several departures from the approved plan and the said deviations are as follows:

1. The study room in the apartment should have a window on the eastern side, which was not provided. Further, a ventilator has been fixed on the northern wall out looking the common passage, ruling out the possibility or fixing a window Air Conditioner and also posing a security threat to the flat.

 

2. The second bed room ought to have two windows, one on the southern side and the other on the western side but only one window on the western side has been provided and there was no window on the southern side.

 

3. The length of the  balcony on the southern side of the flat, next to the wash area was to be 10 feet as per the sanctioned plan but it is only 7 feet i.e., 3 feet short.

 

4. The toilet vent pipe has to run all the way to the terrace, in order to discharge all the foul smell into the open. However, the toilet vent is terminating in the balcony of the cots flat itself, thereby pushing all the foul smell directly into the flat of the Complainants.

The above said deviations are clearly in violation of the sanctioned plan and also the development agreement entered between the parties.  Such deviations also caused inconvenience to the Complainants. Hence the Complainants issued legal notice dated 01.11.2012 to the Opposite Party to rectify the above defects. However, the Opposite Party did not reply. Hence the Complainant filed this Complaint to direct the Opposite Party to rectify all the defects and also to pay compensation with cost of the Complaint.

 

 

2. WITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:       

          The Opposite Party admits that he had developed and constructed a building project named Ambrosia in Chemmancheri Village. The Complainants purchased 1088 sq.ft, flat HS2 in the project for a consideration of Rs.27, 19,067/-. A sale deed was executed in respect of UDS land of 661sq.ft. The Opposite Party completed the construction in the year 2012 and handed over the flats to the Complainant in March 2012. The Opposite Party has carried out all the defects as pointed out by the Complainant in his e-mail dated 13.03.2012. Even after rectification, the Complainants alleged the defects only to make out a case.  The buildings are constructed by the Opposite Party as per the approved plan and there were no departures. If the Complainants are not satisfied with the construction should not have accepted the possession of the flat without recording their grievances.  The Complainant is not entitled for compensation, as there are no defects in the flat of the Complainant and the Opposite Party prays to dismiss the Complaint.

3. POINTS FOR CONSIDERATION:

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

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

4. POINT:1

          The admitted facts are that the Opposite Party is a flat promoter and developed a project at Chemmancheri Village, Sholinganallur Taluk, Kanchipuram District  in the name of “Ambrosia”and  the Complainants entered into Ex.A1  development agreement dated 23.11.2010 with the Opposite Party to purchase a Flat  Number HS2, measuring 1088 sq.ft. on the second floor in the  above said project and  the total consideration for the said flat is fixed at Rs.27,19,067/-and  the  undivided share land of 661 sq.ft was registered in favour of the Complainant under Ex.A2  sale deed dated 19.01.2011 for  a sale consideration of Rs.7,93,200/- and the Complainant also paid the entire sale consideration to the Opposite Party and after construction the Opposite Party handed over the flat to the 1^st Complainant under Ex.A17 and they also took possession of the same.

          5. The Complainant pleaded the following deficiencies in his Complaint that he found the same after taking possession of the flat on 10.07.2012 from the Opposite Party:

1. The study room in the apartment should have a window on the eastern side, which was not provided. Further, a ventilator has been fixed on the northern wall out looking the common passage, ruling out the possibility or fixing a window Air Conditioner and also posing a security threat to the flat.

 

2. The second bed room ought to have two windows, one on the southern side and the other on the western side but only one window on the western side has been provided and there was no window on the southern side.

 

3. The length of the  balcony on the southern side of the flat, next to the wash area was to be 10 feet as per the sanctioned plan but it is only 7 feet i.e., 3 feet short.

 

4. The toilet vent pipe has to run all the way to the terrace, in order to discharge all the foul smell into the open. However, the toilet vent is terminating in the balcony of the cots flat itself, thereby pushing all the foul smell directly into the flat of the Complainants.

The Complainant further contended that the Opposite Party did not construct the flat as per Ex.A3 sanctioned plan and the above said defects still persists when it compared with the sanctioned plan and therefore the Opposite Party has committed the Deficiency in Service.

          6. The Opposite Party replied that the Complainant took possession of the flat under Ex.A17 after satisfaction and also received the key and the deficiencies alleged by the Complainant will occur only in the normal course of usage of the flat and not at the time of handing over the flat and further the Ex.A20 Engineer Report could not be accepted in view of that there is no supporting evidence for the same.

          7. Though Ex.A20 report marked as a document, there is no additional proof affidavit filed to support the Engineers Report.  However, the said report contains the deficiencies pleaded in the Complaint as well as other deficiencies. Therefore the Ex.A20 report has been taken up for consideration only in respect of the deficiencies extracted above based on the pleading in the Complaint and in other respect the report will not be considered.

          8. Though the Complainant alleged several deficiencies before taking possession of the flat they did not specifically plead in the Complaint that those deficiencies were also not rectified at the time of handing over the flat. Therefore the above extracted four deficiencies only exists at the time of handing over of the flat are taken up for consideration to decide in this Complaint.

          9. Ex.A3 is the sanctioned plan by the concerned authority in respect of the Complainant flat.  In the said plan in the study room a provision was made near OTS to construct a window and in the second bedroom provision was made to provide two windows, one on the southern side and the other on the western side. As per the plan, window in the study room and window on the southern side of the second bedroom was not provided by the Opposite Party. This was supported by Ex.A20 report.

          10. The other deficiencies in the balcony on the southern side of the flat the measurement available is 7 feet length instead of 10 feet as per the plan and toilet vent pipe has not run up to the terrace and the toilet vent terminated in the flat itself and thereby pushing the entire foul smell inside the flat. In Ex.A3 plan provision was given to the balcony is 10’ X 3’. The engineer also stated in his  report that the balcony measures  only 7 feet length and the toilet vent pipe on western side, ends with near north – west corner bedroom and does not go up to the terrace and this delivers foul smell to the bedroom. However there is no contra evidence on behalf of the Opposite Party that the above said windows and balcony measuring 10 feet length was constructed and the toilet vent pipe was available up to the terrace.

          11. The next contention of the Opposite Party is that, under Ex.A17 the Complainant took possession of the flat with full satisfaction and therefore there are no deficiencies in the flat. Ex.A17 is the typed form as prepared in the letter head of the Opposite Party. The Complainant after taken possession of the flat on 10.07.2012 and after verifying the flat he has  issued Ex.A18 legal notice dated 06.09.2012 narrating the above deficiencies  . Therefore merely because the Complainant took possession of the flat under Ex.A17, does not mean that the Opposite Party  had constructed the flat in accordance with the plan. Even during the construction the Complainant made periodical visits and during that time also he had shown several defects in the flat. Therefore, it is crystal clear that even from the beginning of the construction the Complainant constructed the flat with deficiencies and therefore we hold that the Opposite Party had not constructed the Complainant flat in accordance with Ex.A3 sanctioned plan and therefore we further hold that the Opposite Party has committed the Deficiency in Service.

12. POINT NO: 2

          The Complainant sought relief in the Complaint to direct the Opposite Party to rectify all the defects or alternatively permit the Complainant to rectify all the defects at the cost of the Opposite Party.   The Complainant has not estimated the cost by a way of evidence that what could be the amount would be spent on to rectify the above defects. The Opposite Party omitted to put up two windows as per the plan. Further as per the plan the balcony measurement would be 10’ x 3’= 30 sq.ft. The available measurement of the balcony is 7’x 3’=21 sq.ft. Therefore the Opposite Party has not provided 7 sq.ft area in the balcony and also toilet vent pipe was not provided till the terrace.  At the length of this time after taking possession of the flat,  and considering the escalation of market price of the construction materials and cost of construction, it would be appropriate to order the Opposite Party to pay a sum of Rs.1,50,000/-  to rectify the above defects. Due to the defects in the flat the Complainant suffered with mental agony is accepted and for the same, it would be proper to order a sum of Rs.50,000/- towards compensation, besides a sum of Rs.5,000/- towards litigation expenses. The Complainant is entitled for relief as indicated above.   

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand  only) to remove the deficiencies to the Complainant and also to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. 

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 14^th   day of July 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANTS:

Ex.A1 dated         23.11.2010                   Development agreement         

Ex.A2 dated 19.01.2011                   Sale Deed

Ex.A3 dated NIL                     Building Plan Sketch              

Ex.A4 dated 29.09.2010                   Planning permission                        

Ex.A5 dated 29.09.2010                   Planning permit Rs.5,000/-    

Ex.A6 dated 12.10.2010                   Building Approval Rs.4650/-          

Ex.A7 dated 11.02.2011                   Letter from Opposite Party to customers  

Ex.A8 dated 13.03.2012                   complainant’s mail to Opposite Party                

Ex.A9 dated 13.03.2012                   Reply mail from Opposite Party      

Ex.A10 dated 20.03.2012                 complainant’s e-mail to Opposite Party    

Ex.A11 dated 20.03.2012                 Reply mail from Opposite Party               

Ex.A12 dated 21.04.2012                 complainant’s letter to Opposite Party               

Ex.A13 dated 24.04.2012                 Letter from Opposite Party to clients                           

Ex.A14 dated 04.05.2012                 E-mail Opposite Party to clients      

Ex.A15 dated 23.06.2012                 E-mail Opposite Party to clients

Ex.A16 dated 30.06.2012                 Complainant’s e-mail to Opposite Party

Ex.A17 dated 10.07.2012                 Key handed over letter to Complainant

Ex.A18 dated 06.09.2012                 Legal notice to Opposite Party       

 

 

Ex.A19 dated NIL                   Receipt issued by the Opposite Party  

Ex.A20 dated 25.04.2015                 Inspection Report

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

Ex.B1 dated 12.03.2015                   Latter of Authorization

 

Ex.B2 dated 23.11.2010                   Construction Agreement

 

Ex.B3 dated 23.11.2010                   Agreement for sale

 

Ex.B4 dated 19.01.2011                   Sale Deed

 

Ex.B5 dated 02.09.2010                   Planning permit

 

Ex.B6 dated 25.09.2010                   Approval plan

                                               

 

MEMBER – II                                                               PRESIDENT