Tamil Nadu

South Chennai

CC/394/2015

M/s.G.Ananthakrishnan - Complainant(s)

Versus

M/s.Subhathra - Opp.Party(s)

M/s.Muthukumaran

21 Sep 2022

ORDER

Date of Complaint Filed:  09.10.2015

Date of Reservation     :  05.09.2022

Date of Order              :  21.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No.394/2015

WEDNESDAY, THE 21^st DAY OF SEPTEMBER 2022

1.Mr.G.Ananthakrishanan,

 Son of Mr.K.Gopalamani,

 

2.Mrs. A.Indhumathi,

Wife of Mr.G.Ananthakrishanan,

 

Both residing at

Door No.G1, Ground Floor,

"KARUNA SHINE", Plot No.4,

 Annai Sathya Nagar Extension,

Ramapuram,

Chennai-600089.                                                             ... Complainants

 

..Vs..

 

Mrs.Subhathra,

D/o.Mr.R.N.Meghanathan,

Proprietrix,” ISH FOUNDATIONS”

No.24, Varadarajpet Main Road,

Kodambakkam,

Chennai-600024.                                                           ...  Opposite Party

 

******

Counsel for the Complainants          : M/s. N. Muthukumaran

Counsel for the Opposite Party   : M/s. H. Kishore & Martin Arokiyaraj

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainants, and the Counsel for the Opposite Party,we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to rectify all the defects in the complainants apartments within a specific time and to pay a compensation of Rs.50,000/- along with cost of this complaint.

2.     The averments of Complaint in brief are as follows:-

 The case of Complainants is that they had intended to purchase a Residential Flat bearing Door No.G1, Ground Floor, "KARUNA SHINE", located at Plot No.4, Anna Sathya Nagar Extension, Ramapuram, Chennai-600089, measuring an extent of 1183 sq.ft built up area along with undivided share of land measuring 556 sq.ft. The opposite party being the owner of the land an also the Proprietrix of ISH Foundations, as a Developer, had offered to sell the 556 sq.ft of undivided share of land for a sum of Rs.15,56,800/- and agreed to construct the flat measuring built up area of 1183 sq.ft for a sum of Rs.55,95,200/- totaling to Rs.71,52,000/-.They had entered into a sale agreement with the opposite party in the capacity of owner of the land for the purchase of the undivided share of land measuring 556 sq.ft and also entered into a construction agreement dated 04.06.2014 with the opposite party as Developer and the same was registered as Document No.1587 of 2014 at SRO, Saidapet. They had applied for housing loan with Axis Bank and paid the agreed amount of Rs.15,56,800/- to the opposite party in her personal capacity, for the purchase of 556 sq.ft of undivided share of land and also paid a sum of Rs.55,95,200/- to the opposite party as a Developer for construction of the building measuring 1183 sq.ft.It was promised by the opposite party to assess the building in their names. It was also promised to do all paper works for proper transfer of right in respect of their property. In the construction agreement the opposite party had given a warranty of six months from the date of handing over of possession for any defects in the building and also agreed to rectify the defects and had also agreed to rectify any defects in workmanship, material, fixtures and fittings in the building. The opposite party had handed over possession of their flat on 4th November 2014. From the date of taking possession of the Flat there is a water leakage in the Kitchen Beam and also water leakage in Kitchen loft. There is also seepage of water through the walls beneath the Kitchen Sink. They also found water leakage from the top floor apartments to the outer walls of their flat. The condition of the wooden door of the Master Bed Room is not in good condition as it is affected by termites and wood has started to pour down within a span of four months. Some areas in the ceiling was also not properly packed and covered. Main entrance grill gate not yet fixed by the opposite party even after a delay of five months which is the time period till the legal notice. Now they have  strong suspicion that the building was built using low quality materials. The aforesaid defects are explained to the opposite party several times by the complainants in person and over telephone and also there was no reply for the emails sent by them and not heeded to rectify the defects. They had paid a huge sum to the opposite party towards construction of the flat, but the opposite party have not utilized the money properly for providing a good quality flat to them. Even as per Clause-7 of the construction agreement the opposite party need to rectify the structural defects and also the defects in the fixtures. The opposite party treated them as if they had got the flat free of cost and gave evasive answers whenever they complain regarding the rectification of the defects in their flat. The opposite party had also charged a sum of Rs.2,21,000/-towards tax and they had paid it to the opposite party in addition to the cost of construction of the building. Whenever the complainant asked the proof for payment of the service tax, the opposite party used to say that they had paid it to the concerned authorities, but failed to produce the proof, this causes severe mental agony to the complainants Their hard earned money was misused by the opposite party thereby caused severe monetary loss to them. They are facing severe mental agony by the act of the opposite party and also facing financial loss by purchasing a defective apartment. They are taking risk of their life by living in a defective building. The present condition of their apartment reminds of them the accident that happened at Madanandapuram, Porur for an high raised building because of the defective structure built by the builder. It was raised that if water continues to seep through the beam and walls, what would happened to the building within few years. Even before the EMI's are paid the building will come to the ground. As a Proprietrix the opposite party would be held responsible for whatever happened to the building. The act of the opposite party by making them to buy a defective apartment using false promises amounts to unfair trade practice and delivery of low quality building without giving proper service amounts to deficiency in service. A legal notice was sent on 07.04.2015 to the opposite party to rectify all the structural defects in their apartment constructed by the opposite party, also to compensate them a sum of Rs.5,00,000/- for the mental agony suffered and also for the deficiency in service and unfair trade practice done by the opposite party. They had also called upon the opposite party to produce the receipt for payment of the service tax of Rs 2.21,000/-, failing which asked for the refund the said sum along with interest at 24% per annum for the date of receipt of the amount by the opposite party.The opposite party did not received the notice sent by post but on seeing the notice sent by e-mail, the opposite party failed to repair the defects, instead sent a reply notice dated 15.05.2015 through her counsel raising false and frivolous allegations but admitted the defects. The payment receipt for payment of Service Tax clearly shows that the payment is made byAkshaya Catering Services which is no way connected to them, which proves that the opposite party is a person who defy rules and regulations. Hence the Complaint.

 

3. Written Version filed by the Opposite Party in brief is as follows:-

        It is admitted that the Complainants had agreed to purchase the Undivided share of Land measuring 556 sq.ft for Rs.15,56,800/- and had also entered into Sale Agreement and Development Agreement, the development agreement dated 04.06.2014, which was registered as Doc.No.1587/2014 to be treated as part and parcel of this counter statement of the opposite party. She is not aware of the averments made in para 5 of the complaint and put the Complainants to strict proof of the same. She had not promised to have the building assessed in the name of the complainants. Under Clause 7(i) of the development agreement had categorically stated that the opposite party, as a developer does not take responsibility in obtaining property tax assessment in respect of the building mentioned in Schedule "C" to the development agreement. It is for the complainants to have their property assessed in their name at their own cost. She had not promised to do all paper work for proper transfer of right in the property to the complainants. No such promise or undertaking was given by the opposite party to the complainants in the development agreement. The opposite party states that Clause 7 of the development agreement states as follows; 'Any defect in work or materials that results in the failure of the load bearing part of the said apartment's structure or materially and adversely affects its load bearing function for the period of 6 months from the date of completion of construction of the building, shall be covered by a warrantly by the developer so long as the defects, (if any) are not caused by any improper /negligent use/force or work by the co-purchasers or third parties. The construction of the flat was completed and on inspection by the complainants and on their satisfaction of the construction of the flat, possession was taken by the complainants on 04.11.2014. It was admitted that the complainants had complained about water leakage in the kitchen beam and kitchen sink and leakage of water from the top floor, over and above the flat belonging to the complainant. Shehad sent her personnel, who inspected the flat of the complainant and after verifying about their complaint, went to the flat situate over and above the flat occupied by the complainant, which was occupied by one Mr.Britto,the said person, refused permission to enter his flat to find out the source of leakage of water. As such, the personnel of the opposite party, could not do anything. The complainants were advised to talk to Mr.Britto and call back the opposite party, so as to enable the opposite party todo the needful. But there was no communication thereafter from thecomplainants. She had sent a notice to the said Britto. She denies that the master’s bed room was provided with a bad quality of door, as the same was provided with a quality teak wood frame with ready-made door. The complainants were now and then inspecting the construction and after satisfying themselves, about the condition,quality and workmanship, took possession of the flat. In all their correspondence with this opposite party, the complainants never complained about master's bed room and the same was made for the first time only in the notice, for which, a suitable reply was issued. The reply notice to be treated as part and parcel of her written version. Regarding fixing of main entrance grill date, was not in the specification of work under the development agreement. Even then, with a view to satisfy the illegal demands of the complainants, grill gate was made ready and she went to fix the grill gate at a convenient space, but the complainants were dictating to her to fix the gate at the northern side wherein there was no space. To fix a grill gate at the northern side, a major portion of the wall had to be demolished, which would not be feasible. The complainants wanted the grill gate to be left with them, stating that they will have the grill gate fixed. As such, though the provision of grill gate was not in the works specifications, the grill gate was made ready and left with them. As such, the complainants are estopped in law from complaining about the non-fixing of the grill gate. The complainants were inspecting the construction, now and then and after satisfying themselves, took possession of the flat. Now with a view to black mail this opposite party and with a view to make illegal gains, they had preferred the above complaint. The complainants have not read clause 7 of the development agreement properly. The challan for having paid the service tax was already given to them. A true Xerox copy of the payment voucher, evidencing payment of service tax was enclosed to the reply notice, addressed to their Counsel. The complaint with regard to non-supply of proof for payment of service tax is made even after receipt of the same by thecomplainants, only with a view to enrich themselves at her cost, under black mailing system. The first complaint was only on 01.04.2015 with a view to make illegal gains. The other averment that the accident happened at Madananadapam is only to add colour to the false claim of the complainants and get sympathy.She had constructed about 5 flats at this project site and none except the complainants have preferred the complaint. She denies that the complainants had suffered any damages, any agony much less mental agony. The complainants are only interestedin making illegal money by black mailing the opposite party, being a lady. She denies the averments made in para 11 of the complaint. Having taken possession of the flat, after satisfying themselves, the complainants are estopped in law from complaining about the quality of work etc. She is the proprietrix of Akshaya Catering Services. The service tax was payable to the Government and the same was paid and proof of payment, viz. challan and receipt-xerox copies- already given to the complainants.It is not for the complainants themselves to assume for themselves the duties of the on the government officials. It is for the opposite party to satisfy the officials as and when a demand is made or proof of payment is demanded. Hence prayed to dismiss the complaint.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-7  were marked. The Opposite Party submitted his Proof Affidavit, Written Arguments and Additional Written Arguments. On the side of the Complainant, documents Ex.B-1 to Ex.B-2 were marked. The Advocate Commissioner’s report is marked as Ex.C1 to Ex.C-3.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

It is an undisputed fact that the Complainants had purchased a Flat bearing Door No.G1, Ground Floor, "KARUNA SHINE", located at Plot No.4, Anna Sathya Nagar Extension, Ramapuram, Chennai-600089, measuring an extent of 1183 sq.ft built up area along with undivided share of land measuring 556 sq.ft., for a total sale consideration of Rs.71,52,000/-, from the Opposite Party.

It is not in dispute that in respect of the agreed undivided share of land measuring to an extent of 556 sq.ft., a Sale Deed dated 02.07.2014 had been executed by Mrs.Subhathra, as owner of the Land, to and in favour of the Complainants, and the same was registered as Document No.1588/2014 in SRO, Saidapet. 

It is also not in dispute that Mrs.Subhathra, as Proprietrix of the Opposite Party, namely, ISH Foundations, had entered into Construction Agreement dated 04.06.2014 with the Complainants and the same was registered as Document No. 1587/2014 in SRO, Saidapet and wherein the Opposite Party had agreed to construct the above said flat to the Complainant.

It is also not in dispute that the Possession of the said Flat has been delivered by the Opposite Party and taken by the Complainants on 04.11.2014.

The disputed facts are that in the Complainants flat there was water leakage in kitchen slab/loft and water leakage in the kitchen beam and column, there was water leakage through walls beneath the kitchen sink and also water leakage from the top floor apartments to the outer walls of the complainants flat, the wooden doors of the master bed room was affected by termites and the wood started to pour within a span of four months. Some areas in the Ceiling were not properly packed and covered and the main entrance grill gate was not fixed, the Opposite Party though had received huge amount towards construction cost, had used sub standard materials for the construction of their flat and the Complainants are living with risk after investing their hard earned money.

The Opposite Party had admitted the Complaints regarding water leakage in the Flat of the Complainants, as mentioned by the Complainants, but as the permission was denied by the Flat Owner of top floor, i.e, above the Complainants flat, the cause of leakage could not be identified and a notice was sent to the Flat Owner of top floor, i.e, above the Complainants flat, but had not produced any evidential proof to substantiate the same before this Commission. From Perusal of Ex.A-4, the mail communications exchanged between the Complainants and the Opposite Party, in page no.44, the issues regarding above said water leakage in the Complainants flat was found to be reported to the Opposite Party on 22.11.2014 itself, i.e., on 19^th day from the date of taking possession of the said Flat, and a reminder mail was sent on 09.12.2014 to the Opposite Party and another reminder mail was sent on 17.12.2014. The Opposite Party in response to the Mail dated 09.12.2014 had sent a reply mail dated 24.12.2014, Ex.A-4, the Opposite Party had responded to the water leakage as “ How this happened we don’t know. We handed over the apartment in good condition, any how we will send a person and rectify the same within 25 days”.  Even by mail dated 05.01.2014 as found in page no.46 of Ex.A-4, the Opposite Party had mentioned that Kitchen beam leakage would be attended soon. Since the defects were not rectified, the Complainants were constrained to send reminder mails on 15.01.2015, 25.01.2015 as found in page nos.47 and 48 of Ex.A-4 and also a legal notice dated 07.04.2015 sent to the Opposite Party as found in Ex.A-5, a reply dated 15.05.2015 was sent by the Opposite Party to the Complainants Advocate, marked as Ex.A-6, wherein the Opposite Party who is responsible to rectify the issue of water leakage reported by the Complainants, had given an evasive reply.

On application made by the Complainant in CMP No.122 of 2018 in the above CC, an Advocate Commissioner was appointed on 18.12.2018, to note down the physical features, to take photos of defects in the Complainants Flat, to assess the value of work done and to note down incomplete work with the help of a qualified Engineer. Advocate Commissioner filed a report on 10.05.2019 and the same was marked as Ex.C-1, wherein on both North and south side, there was a water drop through the hole from the bath room on the date of Inspection i.e., on 09.03.2019 was noted, in the beam of the hall there was small hole left open – not covered was shown and the same was noted, the toilet ceiling noted with dampness, Kitchen loft noted with Odour, in the ceiling of the Master Bed room Toilet dampness noted. In the Engineer’s report, which was marked as Ex.C-2, it was also noted that the Kitchen room there was a dried dampness mark due to upper floor toilet, in the Kitchen roof beam a small electric pipe hole was not properly concealed, it is reported that the above dry mark of dampness is due to seapage of stored water from the upper floor toilet only.The Opposite Party had filed her objections to the Advocate Commissioner’s report, wherein it was reiterated about the fixing of wicket gate and denied other reports noted by the Advocate Commissioner and the Engineer as new issues which were not mentioned in the Legal Notice dated 07.04.2015, Ex.A-5 or in the Complaint.

It is clear from Ex.C-1 and Ex.C-2 that there was dried dampness mark in the kitchen roof beam due to upper floor toilet, on both North and south side, there was a water drop through the hole from the bath room on the date of Inspection i.e., on 09.03.2019 was noted, in the beam of the hall there was small hole left open – not covered was noted, the toilet ceiling noted with dampness, Kitchen loft noted with Odour, in the ceiling of the Master Bed room Toilet dampness noted.

On discussions made above and on considering the facts and circumstances of the case, it is clear that the Opposite Party taking advantage of the prevention made by the top floor flat owner to find out the cause of the water leakage in the Kitchen beam roof of the Complainants flat, though had averred in her written version that a notice has been sent to the top floor flat owner but had not produced any evidence to prove the said contention, hence the said contention is not legally sustainable. Further nothing prevented the Opposite Party in rectifying the other defects in the Complainants Flat that has been reported by the Complainants as well as by the Advocate Commissioner, but had contended that the same were not mentioned in Ex.A-5, the legal notice or in the Complaint, in spite of receipt and exchanges through mail communications marked as Ex.A-4, would by itself clearly shows that the Opposite Party had acted in lethargic and negligent manner by not rectifying the defects in time, which resulted in dampness noted under Ex.C-1 to C-3. Hence, the lethargic and negligent act of the Opposite Party clearly amounts to deficiency of service and had caused serious mental agony to the Complainants. Therefore, we are of the considered view that the Opposite Party had committed deficiency of service. Accordingly Point No.1 is answered.     

Point Nos.2 and 3:

As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is directed to rectify the existing defects in the Complainants Apartments within 8 weeks from the date of receipt of this order and also to pay a sum of Rs.1,00,000/- towards deficiency of service and mental agony along with cost of Rs.3,000/-, to the Complainants. The Complainants are not entitled for any other relief/s. Accordingly Point Nos. 2 and 3 are answered. 

In the result the Complaint is allowed in part. The opposite party is directed to rectify existing defects in the Complainants apartments, within 8 weeks from the date of receipt of this order, and also to pay a sum of Rs.1,00,000/-(Rupees One Lakh Only) towards deficiency of service and mental agony along with cost of Rs.3,000/- (Rupees Three Thousand Only) failing which the above amounts shall carry interest at the rate of 6% p.a from the date of receipt of this order till the date of realisation.

 

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 21^st of September 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	04.06.2014	Construction agreement Document No.1587 of 2014 at SRO, Saidapet.
Ex.A2	04.06.2014	Sale Deed Document No.1588 of 2014 at SRO, Saidapet
Ex.A3	-	Payment cheque
Ex.A4	-	E-Mail Communications
Ex.A5	-	Legal Notice
Ex.A6	18.04.2015	Returned Cover
Ex.A7	15.05.2015	Reply Notice along with service tax receipt

 

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	-	Photo showing the position of Gates at the Complainants apartment
Ex.B2	-	Photo showing the windows with tower bolts both at the bottom and at the top level

 

List of documents filed on the side of the Advocate Commissioner:-

 

Ex.C1	-	Inspection Report filed by the Advocate Commissioner
Ex.C2	-	Site Inspection Report
Ex.C3	-	Photocopy of the Building

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT