Tamil Nadu

South Chennai

14/2012

V.Satyanarayanan - Complainant(s)

Versus

M/s.Sterling Estates and properties Ltd - Opp.Party(s)

M/s.P.Babu

19 Sep 2016

ORDER

   Date of Filing :   09.01.2012

                                                                      Date of Order :   19.09.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM,CHENNAI(SOUTH)

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

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

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

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

            

C.C.NO.14/2012

MONDAY THIS  19^TH DAY OF SEPTEMBER 2016

 

V. Satyanarayanan,

S/o. M.A. Venkataraman,

Flat No.44, D-Block,

Sterling Little Flowers,

Urapakkam,

Chennai 603 208.                                                       ..Complainant

 

                                              ..Vs..

 

M/s. Sterling Estates and Properties Limited,

Rep. by its Managing Director,

Sterling Point,

No.124, G.N. Chetty Road,

T.Nagar,

Chennai 600 017.                                               ..Opposite party.    

 

 

For the Complainant         :   M/s. P. Babu & another         

For the opposite party      :   M/s. A.P.R. Associates.

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to pay a sum of Rs.72,500/- towards the cost for  rectifying the defective constructions and also to pay a sum of  Rs.24,000/-  towards  the   cost incurred  by  the  complainant  to  complete   the      un completed of the flooring work of the flat (Bed room and balcony)  and Rs.5,00,000/- as compensation for deficiency in service and to pay cost of the complaint.   

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that he has purchased the complaint mentioned flat constructed by the opposite party for the total cost of Rs.10,06,800/- as per the Memorandum of agreement.    Accordingly the complainant has taken delivery of the said flat from the opposite party on 01.03.2010.   The complainant further submit that the construction of the said flat was found defective and in complete such as  follows:

1. There is a was continuous seepage / water leakage from at roof of Balcony
2. Waste water pipeline through the sink in the kitchen is leaking.  Septic tank gas is flowing.
3. The Kadapa slap in the kitchen was constructed in such a way that the gas cylinder could not be accommodated under the slab.
4. The wash basin in the kitchen was constructed in such a way that the used water is not draining.
5. Windows were not properly erected.  All the windows has gap in between the wall and the aluminium frame. (Mospuito’s entering easily through the gaps)
6. During raining season there is a water leakage in pooja room and the hall.
7. There are cracks in the wall in Pooja room and the hall.
8. There are cracks in the warranda, wall pillar and windows sunshade.
9. Outer side wall plastering was not done properly.
10. Electrical switches are damaged.
11. Tap in the bath room is defective.

Therefore the complainant has made several complaints to the opposite party  by sending emails and legal notice, though the opposite party have no response to the demand made by the complainant had sent their staff and attended some preliminary work towards the  repair of leakages in the floor in kitchen as well as bathrooms and without completing the same had left the work in complete.   As such the complainant was compelled to complete the some of the said works by spending his own money and other major defects mentioned above were kept unattended by the opposite party which amounts to deficiency of service on the part of the opposite party which caused sufferings and hardship to the complainant.   As such the complainant has sought for a sum of Rs.72,500/- towards the cost of the rectifying the defects of constructions, a sum of Rs.24,000/- towards the cost incurred by the complainant to complete the un completed of the flooring work of the flat (Bed room and balcony)  and Rs.5,00,000/- towards compensation and to pay cost of the complaint.  Hence the complaint.

Written Version of opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The defects mentioned in the complaint are because of the improper maintenance of flat.   The complainant having failed to maintain the sink and kitchen wash basin waste pipelines in a proper way by removing the waste and slugs and thus has resulted in the leakage.  However when the opposite party  explained the same to the complainant tried to attend the said repair work on the cost of the complainant, the complainant and his family members have not allowed to do the same and not cooperated.    The opposite party further submitted that at the time of handing over the said flat of the complainant, was fully furnished and good for accommodation and living.  It is well settled principle that after the handing over of the flat the liability to maintain the flat is upon the purchaser of the flat.  The said defect as stated in the complaint are all only due to the improper and mishandle of the flat.   Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A20 were marked on the side of the complainant.   Proof affidavit of opposite party not filed and no document was marked on  the side of the  opposite party.  

4.      The points that arise for consideration are as follows:-

1.   Whether the opposite party had committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

5.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite party and the proof affidavit filed by complainant and documents Ex.A1 to Ex.A20 filed on the side of the complainant, and the Commissioner Report and considered the arguments of the both side counsels.

6.     There is no dispute  between the parties that the complainant has purchased the complaint mentioned flat constructed by the opposite party builder for the total cost of Rs.10,06,800/-  as per the Memorandum of agreement Ex.A1, dated 22.12.2009, Sale deed for UDS for land Ex.A2, dated 25.01.2010 and allotment letter Ex.A4, dated 01.04.2010 and the complainant has taken delivery of the said flat from the opposite party on 01.03.2010. 

        Whereas complainant has raised grievance that the construction of the said flat was found defective and in complete such as 

• There is a was continuous seepage / water leakage from at roof of Balcony
• Waste water pipeline through the sink in the kitchen is leaking.  Septic tank gas is flowing.
• The Kadapa slap in the kitchen was constructed in such a way that the gas cylinder could not be accommodated under the slab.
• The wash basin in the kitchen was constructed in such a way that the used water is not draining.
• Windows were not properly erected.  All the windows has gap in between the wall and the aluminium frame. (Mospuito’s entering easily through the gaps)
• During raining season there is a water leakage in pooja room and the hall.
• There are cracks in the wall in Pooja room and the hall.
• There are cracks in the warranda, wall pillar and windows sunshade.
• Outer side wall plastering was not done properly.
• Electrical switches are damaged.
• Tap in the bath room is defective.

The complainant has made several time complaint to the opposite party  by sending emails and legal notice, though the opposite party have also in response to the demand made by the complainant had sent their staff and attended some preliminary work towards the  repair of leakages in the floor in kitchen as well as bathrooms and without completing the same had left the work in complete, as such the complainant was compelled to complete the some of the said works by spending his own money and other major defects mentioned above were kept unattended by the opposite party which amounts to deficiency of service on the part of the opposite party and also caused sufferings and hardship to the complainant, as such the complainant has filed this complaint claiming Rs.72,500/- towards the cost of  rectifying the defects of constructions, a sum of Rs.24,000/- towards the cost incurred by the complainant to complete the un completed of the flooring work of the flat (Bed room and balcony)  and also claiming a sum of Rs.5,00,000/- towards compensation.

7.     Whereas the opposite party in his written version denied the complainant allegations of defective constructions of the flat mentioned in the complaint and also stated that no staff of the opposite party were sent to attend the alleged partial repair work which were left incomplete and further stated that the defects mentioned in the flat were happened due to improper maintenance of the complainant and the opposite party is not liable to repair the same. However when the opposite party  explained the same to the complainant tried to attend the said repair work on the cost of the complainant, the complainant and his family members have not allowed to do the same and not cooperated, the opposite party has contended that the complaint filed by the complainant is to be dismissed.

8.     However the opposite party in support of the contention made in the above  written version no proof affidavit or evidence  are filed and produced on the side of opposite party and there is no proper explanation on their side.

9.     On the other hand the complainant has filed proof affidavit and the documents relating to email communications and legal notices and photographs  between the complainant and the opposite party such as Ex.A3, Ex.A5 to Ex.A20  in support of the complaint mentioned allegations of the defective constructions and the demands made by the complainant to the opposite party to rectify the same.   Further in this proceedings,  on the instance of the complainant an advocate commissioner was also appointed and on the direction of the forum, the said advocate commissioner inspected the complaint mentioned flat   and note down the physical features with the help of a qualified civil engineer and had filed a report with the Civil Engineer report  with estimation of already attended repair work and  remaining repair work to be done regarding the defective construction found in the flat as Ex.C1.  On careful perusal of the   exchange of communication by email and legal notice between the parties which were filed Ex.A3 to A19, the defect said to have been found in the construction of the flat were found out and were intimated to the opposite party by the complainant by the 1^st letter dated 20.03.2010 which is marked as Ex.A3 within 17 days from the date of taking delivery of the flat and the other exchange of email and legal notice are subsequent to the said dates.  Further considering the nature of the defects found in the construction of the said flat and which were found out within 17 days from the taking delivery of the flat by the complainant itself proves that the said defects are due to the defective constructions made by the opposite party and opposite party is to liable to rectify the same.

10.    Therefore the defects in the construction mentioned in the  complaint cannot be said they were happened due to improper maintenance of the complainant and the opposite party cannot be said not responsible for rectifying the same.  The documents filed by the complainant and the commissioner’s report Ex.C1 are also proves that the complainant has done some repair work by spending his own money regarding the leakage of sewerage water  in the floor of bath room and there were remaining other defects of the construction are to be attended.  The Commissioner’s report Ex.C1, on the basis of the civil engineer report, the repair work already carried out by the complainant was estimated as Rs.17,990/- and the repair works which has to be carried out remaining unattended was estimated as Rs.59,300/- and also mentioned that replacement of door and rectifying of tiles will cost a sum of Rs.5000/-.   Therefore as per the commissioner’s report Ex.C1 the total cost for the rectification  of defective constructions in the flat is estimated as Rs.82,290/- It is also pertinent to mention that though the opposite party has contested the case in this proceedings by engaging their counsel filing written version and  submitted arguments no objection for the Commissioner’s Report is filed by the opposite party.  Therefore we are of the considered view that the complainant has proved  that the total value of the defects  in the construction of the said flat is Rs.82,290/- for  which the opposite party is liable to compensate the same to the complainant.  Further due to the said defective construction, the said flat being the residential flat occupied by the complainant’s family would have suffered much hardship which caused the  mental agony to the complainant is also acceptable.  Therefore the opposite party is also liable to pay a sum of Rs.50,000/- as just and reasonable compensation to the complainant.  Further the complainant has also spent a sum of Rs.10,000/- towards appointment of advocate commissioner to inspect the complaint mentioned flat regarding the defects of the construction with the help of qualified civil engineer.  The said amount of Rs.10,000/- also to be paid by the opposite party to the complainant with the litigation charges of Rs.5000/-.  Accordingly  the points 1 and 2 are answered.

In the result, this complaint is partly allowed.  the opposite party is directed to pay a sum of Rs.82,290/- (Rupees Eighty two thousand two hundred and ninety only) towards the rectification of the defects in the construction of flat, a sum of Rs.50,000/- (Rupees fifty thousand only) as compensation, a sum of Rs.10,000/- (Rupees ten thousand only) towards  advocate commissioner’s fee and  also to pay a sum of Rs.5000/ (Rupees Five thousand only) as cost to the complainant, within six weeks from the date of this order, failing which the above said amounts i.e Rs.82290/ + Rs.50,000/ + Rs.10,000/ = Rs.1,42,290/- will carry  interest at the rate of 12% p.a.  from the date of this order to till the date of payment.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  19^th    day  of  September   2016.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

Ex.A1- 22.12.2009     - Copy of Memorandum of agreement.

Ex.A2- 25.1.2010      - Copy of Sale deed.

Ex.A3- 20.3.2010      - Copy of letter from the complainant to the opposite party

                               Regarding the defects.

 

Ex.A4- 1.4.2010        - Copy of allotment letter from opposite party.

Ex.A5- 27.7.2011      - Copy of Legal notice from complainant.

Ex.A6- 29.8.2011      - Copy of legal notice from complainant.

Ex.A7- 19.9.2011      - Copy of reply legal notice from opposite party.

Ex.A8- 23.9.2011      - Copy of email from opposite party.

Ex.A9- 3.10.2011      - Copy of email with attachment from complainant.

Ex.A10- 3.10.2011     - Copy of email from opposite party and reply mail dt. 5.10.2011.

Ex.A11- 13.10.2011   - Copy of email from opposite party and reply mail

                               dated. 14.10.2011.

Ex.A12- 18.10.2011   - Copy of email from opposite party and reply mail

                               dated 18.10.2011.

Ex.A13- 23.10.2011   - Copy of email from complainant and reply mail dated 10.11.2011

                               from the opposite party.

 

Ex.A14- 19.11.2011   - Copy of letter from complainant.

Ex.A15- 21.11.2011   - Copy of reply from opposite party.

Ex.A16- 22.11.2011   - Copy of email from complainant.

Ex.A17- 23.11.2011   - Copy of email from opposite party.

Ex.A18- 29.11.2011   - Copy of receipt for Rs.24,000/-

Ex.A19- 11.7.2011     - Copy of estimation for the cost

Ex.A20 -        -        - Copy of photographs.             

Opposite parties’ side documents: - 

 

.. Nil ..

 

Court’s Exhibits: -

Ex.C1- Advocate Commissioner’s report.

 

MEMBER-I                    MEMBER-II                             PRESIDENT