BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 01/07/2010

Date of Order : 28/09/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 372/2010

Between

And

O R D E R

A. Rajesh, President.

1. To put it shortly, the case of the complainant is as follows :-

The complainant is an organization of the flat owners of the Apartment complex by name Ramalayam – Phase II. The apartment complex was constructed by the opposite parties. The delivery of the apartment was delayed by more than 18 months. As per the construction agreement each of the flat owners paid Rs. 20,000/- each to the opposite party for general maintenance of the building including generator and lift for the building. As per the agreement, the opposite parties agreed to hand over the maintenance deposit of Rs. 7,80,000/- to the association after deducting the expense, if any incurred. But only an amount of Rs. 1 lakh has been paid by the opposite parties to the complainant. The lifts provided by the opposite parties are found to be of sub-standard quality and are not working properly as per the report of an independent agency an amount of Rs. 4 lakhs is required to repair the lift. As per the brochure issued by the opposite party, they are bound to provide children's play area, office space, intercom, automatic water level control, granite lobby etc. the opposite party is liable either to provide the same or to pay Rs. 2 lakhs towards expenses for the same to the complainant. The opposite party has also not completed the sealing work of the windows inside the flats as well as the common area, paneling work for the electrical cable in the ground floor and duct in the common areas of all the blocks. An amount of Rs. 2 lakhs is required to complete the work. The opposite party has failed to provide fire safety measures in Block E and F. Other works which are left incomplete is exterior painting, connecting of drain pipe of toilet outlet in some of the blocks, car parking facilities, leak proof of roof top in E and F blocks. The complainant caused to issue a lawyer notice to the opposite parties on 25-02-2010 requesting to complete the work, but the same fell on deaf ears, despite receipt of notice. The opposite party collected Rs. Rs. 1,44,550/- from each of all 39 members towards H.T. Generator, service tax, sales tax etc., but they did not submit the accounts and the proof of expenditure. So, the complainant is before us seeking the following reliefs against the opposite parties :-

1. To repair/replace the lifts or pay Rs. 4 lakhs towards the same.

2. To refund Rs. 6,80,000/- with 18% interest collected by the opposite parties to provide common facilities.

3. To carry out the necessary works or to pay the amount for the same.

2. The version of the opposite parties is as follows :-

The reason for the delay in handing over possession of the apartments to the respective owners is due to the non-payment of amounts as per the payment schedule. The other reasons for the delay in construction was due to the scarcity of getting river sand. Two flat owners by name Rema G. Menon and Francis Manavalan had not paid the sale amount in full. They had to pay Rs. 1,25,000/- and Rs. 1,70,000/- respectively with interest together with Rs. 20,000/- each towards maintenance deposit. The opposite party handed over Rs. 1 lakh to the complainant. The demand for Rs. 6,80,000/- is untenable. The elevators erected by the opposite parties are manufactured by Infra India Elevators Pvt. Ltd., and they have been providing maintenance of the same. The defects if any of the lifts are due to improper handling. The opposite parties are unaware of the private surveyor appointed by the complainant, the report is not binding on the opposite party hence. The flat owners are entitled to get the facilities stated in the agreement and not in tune with the brochure published jointly for 10 projects of the opposite parties. The duct work cannot be done on certain areas where the cable has to be visible and cannot be closed. The opposite parties duly provided the safety measures in block E and F, the opposite parties obtained the completion certificate on completing the same. Exterior painting had been done already, the opposite party had provided car parking as agreed. There is no leakage as alleged by the complainant in any of the area as claimed by the complainant. The opposite parties duly replied to the letter as well as the lawyer notice. The opposite party collected Rs. 1,44,550/- from the flat owners as per the agreement. The opposite parties are not bound to hand over the amounts of the several additional works carried out to the inmates. The total maintenance charge collected by the opposite parties from 37 flat owners is Rs. 9,16,166/-. However, the opposite parties expended Rs. 12,64,000/-. The opposite party is legally entitled to realise the outstanding amount of Rs. 3,48,834/- from the complainant.

3. The complainant was examined as PW1 and Exts. A1 to A7 were marked. The advocate commissioner was examined as PW2 and her report was marked as Ext. C1. The 2^nd opposite party was examined as DW1 and Exts. B1 and B2 were marked on the side of the opposite parties. Heard the counsel for the parties.

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

1. Whether the opposite parties are liable to repair or replace the lifts or to bear the expenses for the same?

2. Whether the opposite parties are liable to refund Rs. 6,80,000/- to the complainant being the amount collected towards common facilities?

3. Whether the opposite parties are liable to carry out the remaining works or to pay the expenses for he same?

5. Point No. i. :- According to the complainant, the two lifts set up by the opposite parties are of sub-standard quality with very less carrying capacity and hazardous to human life. The complainant maintains that on report of a private surveyor an amount of Rs. 4 lakhs is required for proper modification and repairs of the same. The opposite party vehemently contended that the lifts manufactured by the 'infra India Elevators (P) Ltd. which is an ISO certified company. The opposite parties further contend that the said company has been maintaining the lifts as per annual maintenance contract entered into between them and the complainant. According to the opposite parties, the defects if any of the lifts were due to improper handling.

6. It is pertinent to note that the specifications or features of the lifts are not stated in Ext. A2 agreement between the purchasers of the flats and the opposite parties for reasons not substantiated which weighs vehemently on the manufacturer of lifts. The Advocate Commissioner who was examined as PW2, in Ext. C1 report stated as follows :

“Ramalayam Phase II Apartment Complex consists of ABCD and EF blocks. In ABCD block, there are 28 flats and a single lift is provided which is of the company Infra Elevators and its carrying capacity is 408 K.g. and six persons can use it at a time.

In EF block, which consists of 14 individual flats, a single smaller lift provided which is of the company Infra elevators and no carrying capacity is written on the lift. It will carry only 3 persons and 4 persons will make it congested and chocking (approximately 2½ * 4 feet). Both the lifts are with shutters and a closing door, though old, are in a working condition. ABCD and EF blocks do not have direct access and to reach another block, one has to use its own respective lift.”

7. Admittedly, both the lifts are maintained by the manufacturer of the lifts in furtherance of an Annual Maintenance Contract between them and the complainant without fault. No explanation is forthcoming on the part of the complainant as to the reasons why or what prevented them from approaching the agency who had contracted to maintain the lifts inexplicably. Instead the complainant as their own went to obtain Ext. A3 quotation to the tune of Rs. 4 lakhs for the renovation of the lifts which is untenable in law and unexplained either. According to the Hon'ble National Consumer Disputes Redressal Commission for proving fact of manufacturing defect, expert opinion is necessary. (Kumari Namrata Singh Vs. Manager, Indus-A Division of Electrotherm & Anr. 2012 (3) CPR 570 (NC) ). We rely on the same. In the above circumstances, the opposite parties are neither liable to replace the lifts nor to rectify the defects nor to pay the rectification charges for a unilateral decision taken by the complainant without concurrence.

8. Point No. ii. :- The complainant contends that the opposite parties had collected Rs. 20,000/- each from 39 purchasers of the flats and they are liable to hand over the amount to the complainant after deducting the actual expenses incurred by them towards maintenance till handing over the possession to the purchasers. The complainant stated that they have received only Rs. 1 lakh from the opposite parties totally. The opposite parties stated that they collected Rs. 20,000/- each only from 37 flat owners according to them, they have expended Rs. 31,500/- per month as per Ext. B2 from 01-01-2008 to 30-06-2009 totalling Rs. 5,67,000/- for he maintenance of the apartment complex till handing over possession to the purchasers. According to them, they have handed over the balance amount to the complainant.

9. Despite service of Ext. A5 letter dated 22-01-2010 and Ext. A7 lawyer notice dated 25-02-2010, the opposite parties did not care to furnish the split up data of expenses expended by them towards maintenance of the apartment complex for which they are squarely answerable. But on which they have kept mum. Neither is there anything before this Forum to substantiate or otherwise of their absence on account. It is worthwhile to note that admittedly there is a delay of 18 months in completing the construction of the apartment complex and handing over the same to the purchasers. According to the Hon'ble National Commission and the Hon'ble Supreme Court, the builder is liable to pay interest for the accepted amount from the agreed date of handing over of the possession of the flat to the actual date of handing over of the possession of the apartment to the purchaser. (GDA Vs. Alok Chandra Sharma 2011 (2) CPJ 389 (NC) and HP Housing Board Vs. Janak Gupta , Civil Appeal No. 6346/2002 decided on 26-03-2009). Not delving into the above aspect in detail unnecessarily called for.

10. To set things right, we are of the considered opinion that justice would be met if the opposite parties are directed to hand over the balance amount to the complainant ie. Rs. 7,40,000/- - Rs. 1,00,000/- = Rs. 6,40,000/-

11. Point No. iii. :- According to the complainant, the purchasers entered into the construction agreement on the basis of Ext. A4 brochure supplied by the opposite parties. The opposite parties contended that Ext. A4 pertains to the projects of the opposite parties not confined only to the disputed apartment complex. During evidence, DW1 deposed that they have attached all the specifications of the apartment complex in the construction agreement. But the complainant has produced Ext. A2 construction agreement without the specifications of the apartment complex. Since the specifications are attached with the agreement, the construction agreement is binding on the parties. It is to be noted that the complainant does not have a case that the opposite parties have constructed the apartment complex in deviation of the plan approved by the Local Authority. The complainant need to have taken steps to get an expert commissioner deputed by this Forum to ascertain whether the opposite parties have completed the apartment complex in tune with the construction agreement, to which they opted not. Hence, the complainant fails to prove that the specifications as per the agreement have not been completed by the opposite parties. For reasons explained above, we are but not to come with the conclusion that the complainant fails to establish their contentions against the opposite parties.

12. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally refund Rs. 6,40,000/- to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till realisation.

Pronounced in the open Forum on this the 28^th day of September 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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