Tamil Nadu

South Chennai

CC/321/2014

E.Shanbagavalli - Complainant(s)

Versus

M/s.T.Karthick - Opp.Party(s)

V.Srikanth

24 May 2019

ORDER

                                                                        Date of Filing  : 07.07.2014

                                                                          Date of Order : 24.05.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.321/2014

DATED THIS FRIDAY THE 24^TH DAY OF MAY 2019

                                 

Mrs. E. Shanbagavalli,

W/o. Mr. K. Elangoo,

“Kamalalayam”, Ground Floor, Door No.46,

No.820, Jeevanandam Salai,

K.K. Nagar,

Chennai – 600 078.                                                         .. Complainant.                                           

                ..Versus..

Mr. T. Karthick,

No.23/39, Satya Gardens,

Saligramam,

Chennai – 600 093.                                                    ..  Opposite party.

          

Counsel for the complainant  :  M/s. V. Srikanth & others

Opposite party                        :  Exparte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.5,00,000/- towards the damages for her flat and in the common area, Rs.5,00,000/- for the resultant mental agony and paid caused by such defects and deficiency in service, to pay a sum of Rs.45,000/- for the legal expenses for getting electricity service connection for the complainant’s flat and for white washing the outer building of the entire apartment and the stair case, to handover the documents and records to the complainant within the specified time and with cost of Rs.20,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that  she is the owner of the property flat No.G-1, Ground Floor, Kamalalayam situated Door No.46, Plot No.820, Jeevanandam Salai, K.K. Nagar, Chennai – 600 078.  The opposite party, builder approached the complainant through Mrs. A. Usha Devi who is the sister in law of the complainant’s husband Mr. K. Elango who develop the entire property situated measuring 1 ground and 850 sq. ft.  The opposite party is a builder known to the family of Mrs. A. Usha Devi.  Therefore, left without any option the complainant and his family members agreed to assign the work to the opposite party for the due development.  The opposite party agreed to construct 5 flats in the above said premises and the balance 20% of UDS and the super built-up area and its sale proceeds shall be utilized for construction for the entire apartment.  Initially, the opposite party was taking advantage of the friendship with Usha evaded execution of Joint Venture Agreement.  The opposite party with an ulterior motive to cheat the complainant and other owners came up with a request to proceed with the process of applying permission for demolition and planning before the appropriate authority.  Believing the words of the opposite party, the complainant  issued all the necessary papers in the month of June 2011 before execution of Joint Venture Agreement.  During the month of September 2011, the opposite party and his wife came to the complainant’s house and said that the demolition order has been granted by the local body and they are pressurizing the planning permission and demolish the building in the month of October 2011.  But the opposite party neglected to dig the foundation.  While questioning the construction work, the opposite party in a vague manner stated that he has to modify the plan relating to the 2^nd floor and entered into a construction agreement on 17.08.2012.  

2.     The complainant submits that on 08.11.2012, her first daughter Sri Krisha Priya owning 1/5 undivided share of the property settled the said flat in favour of the complainant by way of settlement deed.  Thereby, the complainant is the owner of flat No.4 in the second floor measuring super build up area with undivided share of 20% of 1470 sq. ft registered as Document No.2380/2012 of SRO, Ashok Nagar, Chennai.  Thereby, the complainant is entitled 2 apartments.  The complainant submits that as per the Construction Agreement, the opposite party shall complete the project with 11 months from the date of agreement or from the date of approval of building plan or commencement of construction whichever is later.   But the opposite party in order to delay the construction alleged to have applied for permission for demolishing additional permission for second floor etc.  Thereby, delayed the execution of civil work at every stage.  During the month of May 2013, the opposite party has completed certain major works and allowed the complainant to occupy the flats even without necessary basic amenities like electricity supply, water connection, sewerage connection etc.  At the time of handing over the possession of the property, the following deficiency and defects were noted which reads as follows:-

1. The tiles in the front main door has been laid down with two different types and the colour looking awkward.
2. Bottom of the main door frame damaged.
3. The Telephone line, Cable TV line not provided.
4. The washbasin  was located on the opposite side of the kitchen without ‘dado’ work.
5. Tiles are damaged in the hall.
6. Not put the counter tops in the Master Bedroom and toilet has not properly arranged.
7. The telephone and T.V. Socket in the Bed rooms with wiring for the Master Bedroom are not provided .

There were several defects and damages in the common are also.  

3.     The complainant submits that even after repeated requests and demands, the opposite party has not come forward to rectify the defects and damages in the complainant’s flat.  Thereby, the complainant was constrained to file a Writ Petition No.23825/2013 for directing the opposite party to provide electricity connection for which, the complainant has expended a sum of Rs.20,000/-.  Since the opposite party has not rectified the damages, the complainant expended a sum of Rs.5,00,000/- towards rectification of damages.  The complainant submits that the opposite party has not furnished the working sketch related to pipelines, concealed electricity wire lines, structural plan for construction and the materials applied for Anti - Termite treatment in the premises.  The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.   Hence, the complaint is filed.

4.     The opposite party after service of notice, entered appearance through an Advocate Mr. S. Natarajan and miserably has failed to file written version.  The Counsel also has filed a Memo stating that he has ‘No Instruction’.  Hence, the opposite party was set exparte.

5.     Though the opposite party remained Exparte, this Forum is to dispose this compliant fully on merits with available materials before this Forum. 

6.     In such circumstances, in order to prove the allegations made in the complaint the proof affidavit is filed by the complainant as her evidence, and also documents Ex.A1 to Ex.A7 are marked.

7.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards damages for her flat and the common area as prayed for?
2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony and deficiency in service with legal expenses of Rs.45,000/- as prayed for?
3. Whether the complainant is entitled to have the documents like sketch relating to pipe lines, concealed electrical wiring lines, structural plan with specifications with cost of Rs.20,000/- as prayed for?

8.      On point:-

The opposite party after service of notice, entered appearance through an Advocate Mr. S. Natarajan and miserably has failed to file written version.  The Counsel also has filed a Memo stating that he has ‘no instruction’.  Hence, the opposite party was set exparte.  The complainant has filed his proof affidavit, written arguments etc.  Perused the documents namely; the complaint, written version, proof affidavit and documents.  The complainant pleaded and contended that  she is the owner of the property flat No.G-1, Ground Floor, Kamalalayam situated Door No.46, Plot No.820, Jeevanandam Salai, K.K. Nagar, Chennai – 600 078.  The opposite party, builder approached the complainant through Mrs. A. Usha Devi who is the sister in law of the complainant’s husband Mr. K. Elango who develop the entire property situated measuring 1 ground and 850 sq. ft.  The opposite party is a builder known to the family of Mrs. A. Usha Devi.  Therefore, left without any option the complainant and his family members agreed to assign the work to the opposite party for the due development. 

9.     The opposite party agreed to construct 5 flats in the above said premises of 1 ground and 850 sq. ft. each one for the owners and one flat to the opposite party builder measuring of 1535 sq. ft. super built-up area for Flat No.1 in the ground floor, 1500 sq. ft. in the 1^st floor towards flat No.3 in the first floor, 1,470 sq. ft. super built-up area in the second floor towards flat No.4, 1,561 sq. ft. super built-up area in the 2^nd floor towards Flat No.5 having undivided share of 256 sq. ft., 250, sq. ft., 245 sq. ft. & 260 sq. ft. totaling of 80%.  The balance 20% of UDS and the super built-up area and its sale proceeds shall be utilized for construction for the entire apartment.  Initially, the opposite party was taking advantage of the friendship with Usha evaded execution of Joint Venture Agreement.  The opposite party with an ulterior motive to cheat the complainant and other owners came up with a request to proceed with the process of applying permission for demolition and planning before the appropriate authority.  Believing the words of the opposite party, the complainant  issued all the necessary papers in the month of June 2011 before execution of Joint Venture Agreement.  During the month of September 2011, the opposite party and his wife came to the complainant’s house and said that the demolition order has been granted by the local body and they are pressurizing the planning permission and demolish the building in the month of October 2011.  But the opposite party neglected to dig the foundation.  While questioning the construction work, the opposite party in a vague manner stated that he has to modify the plan relating to the 2^nd floor and entered into a construction agreement Ex.A1 on 17.08.2012.  On a careful perusal of Ex.A1, Construction Agreement, it is apparently clear that the date of execution of construction agreement is not mentioned the Stamp paper for the agreement was purchased on 17.08.2012. 

10.    Further the contention of the complainant is that on 08.11.2012, her first daughter Sri Krisha Priya owning 1/5 undivided share of the property settled the said flat in favour of the complainant by a settlement deed.  Thereby, the complainant is the owner of flat No.4 in the second floor measuring super built-up area with undivided share of 20% of 1470 sq. ft registered as Document No.2380/2012 of SRO, Ashok Nagar, Chennai.  Thereby, the complainant is entitled 2 apartments.  But in this case, the complainant  pleaded the deficiency in service related to the ground floor alone.  Further the contention of the complainant is that as per the Construction Agreement Ex.A1, the opposite party shall complete the project with 11 months from the date of agreement or from the date of approval of building plan or commencement of construction whichever is later.   But the opposite party in order to delay the construction alleged to have applied for permission for demolishing additional permission for second floor etc.  Thereby, delayed the execution of civil work at every stage.  During the month of May 2013, the opposite party has completed certain major works and allowed the complainant to occupy the flats even without necessary basic amenities like electricity supply, water connection, sewerage connection etc.  At the time of handing over the possession of the property, the following deficiency and defects were noted which reads as follows:-

1. The tiles in the front main door has been laid down with two different types and the colour looking awkward.
2. Bottom of the main door frame damaged.
3. The Telephone line, Cable TV line not provided.
4. The washbasin  was located on the opposite side of the kitchen without ‘dado’ work.
5. Tiles are damaged in the hall.
6. Not put the counter tops in the Master Bedroom and toilet has not properly arranged.
7. The telephone and T.V. Socket in the Bed rooms with wiring for the Master Bedroom are not provided .

 

There were several defects and damages in the common area also. The Advocate Commissioner is appointed to inspect the apartment and the common area to find out the damages and deficiencies. The Advocate Commissioner with the help of a qualified Civil Engineer visited the property after issuing due notice to both the parties and their respective Counsels.At the time of inspection, the complainant and his Counsel were present. The opposite party and his Counsel were absent. The Advocate Commissioner also find out all the defects and damages and submitted his report in detail.Further the contention of the complainant is that even after repeated requests and demands, the opposite party has not come forward to rectify the defects and damages in the complainant’s flat.  Thereby, the complainant was constrained to file a Writ Petition No.23825/2013 as per Ex.A4 for directing the opposite party to provide electricity connection for which, the complainant has expended a sum of Rs.20,000/-.  Since the opposite party has not rectified the damages, the complainant is constrained to expend a sum of Rs.5,00,000/- towards rectification of damages.  But the complainant has filed only Ex.A7, copy of receipt of Contractor who carried white washing the outer building for a sum of Rs.35,000/- towards paint.   

11.  

In the result, this complaint is allowed in part.   The opposite party is directed to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) towards damages of her flat, to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for mental agony and another sum of Rs.35,000/- (Rupees Thirty five thousand only) towards legal expenses and cost to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 24^th day of May 2019. 

 

MEMBER                                                                  PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	Nov - 2011	Copy of Construction Agreement
Ex.A2	02.12.2011	Copy of extract of the Blue Print of Ground Floor
Ex.A3	07.01.2013	Copy of Property Tax Assessment for the Flat
Ex.A4	06.09.2013	Copy of Order passed in W.P. No.23825/2013
Ex.A5	16.12.2013	Copy of legal notice to the opposite party
Ex.A6	18.12.2013	Copy of Acknowledgment card
Ex.A7	10.03.2014	Copy of receipt of Contractor who carried white washing the outer building

 

 

 

MEMBER                                                                  PRESIDENT