KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM OP.49/2002 JUDGMENT DATED: 18..10.2008 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V. VISWANATHAN : JUDICIAL MEMBER SHRI.S. CHANDRAMOHAN NAIR : MEMBER 1.Meera.R.Nair, D/o Late Mrs.Lakshmi.R.Nair, Sree Vardhana, Near Pathalam Ferry, Kuttikkattukara, Udyogamandal. : COMPLAINANTS 2.Minor repd. by Legal Guardian B.V.Kumar, Sree Vardhana, Near Pathalam Ferry, Kuttikkattukara, Udyogamandal. (By Adv: M/S V.V.Sidharthan) V. 1.M/S Vilas Construction, Pushpanjali, L.M.Pylee Road, Vyttila, Cochin-682 019, Repd. by its Partner Mrs.Sukumari Muraleedharan. : OPPOSITE PARTIES 2.Mrs.Sukumari Muraleedharan. Partner of M/S Vilas Construction, Pushpanjali, L.M.Pylee Road, Vyttila, Cochin-682 019. (By Adv: Sri.Tom Jose) JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER Complaint under Sec.17 a(i) read with Sec.12 of the Consumer Protection Act, 1986. 2 The case of the complainant is as follows:- The complainant’s mother Mrs.Lekshmy.R.Nair entered into an agreement with the opposite parties on 26..5..1995 for getting an apartment, constructed by the opposite parties, more particularly described as apartment No:4 D on the fourth floor of the building. She paid the entire price of the apartment including the cost of the undivided share in the land. Thereby Rs.5,40,000/- was paid to the opposite parties on the date of the said agreement itself. As per the said agreement the opposite parties agreed for completion of the construction of the apartment and handing over the same to the complainant’s mother Mrs.Lekshmy.R.Nair within 18 months from the date of the agreement. Opposite parties failed to complete the construction and entrustment of the apartment as agreed. Thereafter both the parties to this agreement agreed to extend the period to 8..12..2001 and the same was incorporated in the original agreement itself. But even after the expiry of the extended period opposite parties failed to hand over the apartment. Meanwhile the complainant’s mother Mrs.Lekshmy.R.Nair expired and so the complainant through her legal guardian filed the present complaint for getting refund of the said sum of Rs.5,40,000/- with 24% interest from 26..5..1995 till the date of payment with compensation of Rs.5,00,000/-. 3. The opposite parties filed joint version contending as follows:- The complaint is not maintainale either in law or on facts. There is no cause of action for the complainant to file the present complaint. The complaint is highly belated and barred by limitation. There is no consumer relationship between the complainant and the opposite parties. This commission has no jurisdiction to entertain the complaint as the complainant has to approach the competent Civil Court. The amount claimed is highly exaggerated. The construction of the building was kept stagnant for some days due to the severe problems faced by the construction industry as a whole and also due to non payment of instalments by some allottees. The undivided interest in the property was given to the complainant and it is the predecessor of the complainant who undertook the construction of the flat according to their requirement. Thus, the opposite parties requested for dismissal of the complaint. 4. Points that arise for consideration are:- 1. Whether the complainant can be treated as a consumer coming within the ambit of the Consumer Protection Act, 1986? 2. Whether the claim put forward by the complainant is barred by limitation? 3. Is there occurred any deficiency of service on the part of the opposite parties in constructing and allotting the apartment to the predecessor of the complainant as agreed by the agreement entered into between the parties? 4. Reliefs and costs? 5. Evidence in this case consists of the oral testimony of PW1 and Exts.A1 to A8 and that of the oral testimony of DWs 1 and 2 and B1 to B3. 6. POINT NOS:1 AND 2:- Execution of B1 agreement between the predecessor of the complainant namely Mrs.Lekshmy.R.Nair and the opposite parties is not in dispute. As per Ext.B1 agreement the opposite parties agreed for construction of a building and allotment of an apartment in the 4th floor of the said building. The B1 agreement was entered into between the complainant’s mother Lekshmy.R.Nair and the opposite parties. The floor plan of the apartment is also attached to the B1 agreement. There is no dispute that the complainant is the only daughter of Mrs.Lekshmy.R.Nair. Admittedly the aforesaid Mrs.Lekshmy.RNair is no more and the complainant is the legal heir and legal representative of Mrs.Lekshmy.R.Nair. So, the complainant can be treated as a beneficiary. The present complaint is filed to get the amount paid by her predecessor to the opposite parties. It is alleged that there occurred deficiency of service on the part of the opposite party in constructing the apartment as agreed. There is no case for the opposite parties that the apartment as agreed had been handed over to the complainant or her predecessor Mrs.Lekshmy.R.Nair. So, the complainant can be treated as a consumer and the present complaint filed can be treated as legally maintainable. 7. It is an admitted fact that the period stipulated for construction of the apartment and handing over the same was 18 months from the date of the agreement ie 26..5..1995. It is also an admitted fact that the opposite parties could not complete the construction of the apartment within the stipulated time of 18 months and so the parties to the B1 agreement consented for extension of time. Thereby the time was extended up to 8..12..2001 and that fact is also been incorporated on the reverse side of B1 agreement and signed by the legal guardian of the complainant and the opposite parties. The present complaint was filed on 22..6..2002 within 6 months from the date of expiry of the extended period of 8..12..2001. So the present complaint is not barred by limitation. These points are answered in favour of the complainant. 8. POINT NO:3 AND 4:- There is no dispute that the predecessor of the complainant paid the total consideration of the apartment with individual share in the landed property. The B1 agreement would make it abundantly clear that the said consideration of Rs.5,40,000/- was received by the opposite parties on the date of agreement itself. Thus, there was no sort of fault or omission on the part of the predecessor of the complainant. Admittedly the opposite parties totally failed to complete the construction of the building and allotment of the apartment as agreed by them. It is to be noted that the opposite parties had also failed in completing the construction of the apartment and handing over the same within the extended period. So, the failure on the part of the opposite parties in completing the construction of the apartment and handing over the same would amount to deficiency of service. 9. The case of the opposite parties that there was a subsequent agreement entered into between the Flat Owner’s Association and the opposite parties and thereby the present complaint is not maintainable. But there is no whisper in B2 agreement about the B1 agreement entered into between the complainant’s Predecessor Mrs.Lekshmy.R.Nair and the opposite parties. Moreover, the complainant or her predecessor are not parties to the B2 agreement. It is also to be noted that B2 was executed in the year 2007 during the pendency of the present complaint. But nothing is stated in B2 agreement about the present complaint pending before this commission. So, the execution of B2 agreement will not in any way took away the right of the complainant to approach this commission to get her grievances redressed. 10. The complainant has claimed refund of the said sum of Rs.5,40,000/- with interest at the rate of 24% from the date of agreement ie from 26..5..1995 till the date of payment. In B1 agreement there is stipulation regarding payment of interest at the rate of 18% per annum. Clause 24 of B1 agreement would make it clear that there was liability on the parties to pay interest at the rate of 18% in the event of default. So, we are of the view that the complainant is only entitled to get interest at the rate of 18% per annum on the said sum of Rs.5,40,000/-. Thereby the opposite parties are liable to refund the said sum of Rs.5,40,000/- with interest at the rate of 18% per annum from 26..5..1995 till the date of payment or realization. 11. The complainant has also claimed a sum of Rs.5,00,000/- as compensation for the monetary loss suffered. It is to be noted that the complainant has been awarded interest on the sum of Rs.5,40,000/-. Thereby the complainant is compensated for the monetary loss. It is true that the complainant’s predecessor Mrs.Lekshmy.R.Nair paid the total consideration of Rs.5,40,000/- as early as on 26..5..1995 with the expectation that she will get the finished apartment after 18 months. But the opposite parties failed to keep their assurance. It is also to be noted that the complainant’s legal guardian consented for extension of the period up to 8..12..2001. But the opposite parties could not complete the construction of the apartment and handing over the same within the extended time also. Thus, there occurred gross negligence and deficiency of service on the part of the opposite parties. No doubt that the complainant suffered monetary loss due to the failure on the part of the opposite parties in completing the construction of the apartment and handing over the same within the stipulated time. 12. The Floor plan of apartment ‘D’ would show that the mother of the complainant was entitled to get a 3 bed room apartment with modern amenities at a cost of Rs.5,40,000/-. It is a common knowledge that at present a 3 bed room apartment in Ernakulam would cost more than Rs.25,00,000/-. It is also to be noted that the parents of the minor complainant are not alive and that she is under the guardianship of her grandfather. Considering the hike in the price of apartment and also the fact that the complainant is not having her own residence, a compensation of Rs.1,00,000/- can be treated as just and reasonable. So, the opposite parties are directed to pay a further sum of Rs.1,00,000/- as compensation. The opposite parties 1 and 2 are jointly and severally liable to pay the amounts due to the complainant. The complainant is also entitled to get her cost in the proceedings. We fix the same at Rs.2,000/-. These points are answered accordingly. In the result the complaint is allowed. The opposite parties are directed to refund the sum of Rs.5,40,000/- with interest at the rate of 18% per annum from 26..5..1995 till the date of payment or realization with a further compensation of Rs.1,00,000/- with cost of Rs.2,000/-. The decreed amounts are to be paid within one month from the date of receipt of copy of the order. The opposite parties 1 and 2 are jointly and severally liable to pay the aforesaid amounts due to the complainant. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER S.CHANDRAMOHAN NAIR : MEMBER VL. APPENDIX COMPLAINANTS EXHIBITS Ext.A1 : Photocopy of Order in OP.NO:754/98 of the Family Court, Ernakulam,dtd:18..2..1999. Ext.A2 : Deed of Agreement. Ext.A2(a):Photocopy of extended period of agreement. (Reverse of Ext.A2). Ext.A3 : True copy of Lawyer notice dtd:12..1..2002 sent to the respondent. Ext.A4 : Postal receipt in sending Ext.A3. Ext.A5 : The unopened cover addressed to the first respondent returned by the postal authorities containing the lawyer notice dtd:12..1..2002. Ext.A6 : True copy of fresh lawyer notice dtd:21..5..2002. Ext.A7 : The postal receipts (2 Nos.) evidencing the dispatch of the notice dtd:21..5..2002. Ext.A8 : The postal acknowledgement card (2 Nos.) evidencing the acceptance of the above notice dtd:21..5..2002 by the opposite parties 1 and 2. COMPLAINANTS WITNESS PW1 : B.V.Kumar, Engineer (Rtd.) Udyogamandal, Ernakulam Dist. OPPOSITE PARTIES EXHIBITS Ext.B1 : Deed of agreement. Ext.B1(a) : Photocopy of extended period of agreement. (Reverse of Ext.B1). Ext.B2 : Details of remittance by the complainant and copy of I.A.4181/07 in WP(c) No:7170/07. Ext.B3 : Copy of the order of the High Court of Kerala in WP (C) 7170/07. OPPOSITE PARTIES WITNESS DW1 : Sukumary Muraleedharan. DW2 : T.P.Muraleedharan M.V. VISWANATHAN : JUDICIAL MEMBER SMT.VALSALA SARANGADHARAN : MEMBER S. CHANDRAMOHAN NAIR : MEMBER VL. | 
