DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 21^st day of March, 2024

Present      :   Sri. Vinay Menon V., President

                    :   Smt. Vidya A., Member                      

                      :  Sri. Krishnankutty N.K., Member                                      Date of Filing: 11/02/2019   

              CC/28/2019

1. Babu M.,

S/o.Madhavan,

             Chamaparambu House,

              Anicode, Chittur – Palakkad.

Presently residing at

Villa No.22, OMG Villa Park,

Tharekkad, Karingarappulli,

Palakkad.  

2. Sindhu C.,

             W/o.Babu,

             Chamaparambu House,

             Anicode, Chittur – Palakkad.

Presently residing at

Villa No.22, OMG Villa Park,

Tharekkad, Karingarappulli,

Palakkad.                                                                      -          Complainants

             (By Adv. Raghu Das S.G.)   

                                                                                                  Vs

1. O M G Properties,
   Regd. No. 1084/2015, Regd. Office SF No. 30,

C Block, R. R. Kaliru Appartment,

Nanjundapuram Coimbatore - 641 036,

Tamilnadu.

Branch Office : 2nd Floor,

Leela Arcade,Matha Kovil Street,

Sulthanpet, Palakkad - 678 001.

 2.        Krishna Sruthy S.,

Partner, OMG Properties, D/o. Surendran,

            Kakkad Madam, West Nada,

Guruvayur Post -680 101, Trichur Dist.

Presently residing at A- 102, Vedam Enclave,

Ondipudur, Coimbatore - 641 016, Tamilnadu.

3.         Divyanatha M.,

Partner, OMG Properties, D/o. N. Surendranath,

Residing at No. 30, C Block, R. R. Kaliru Appartment,

Nanjundapuram Coimbatore - 641 036, Tamilnadu.

4.        Rekha S.,
Partner, OMG Properties, D/o. Sudhakaran,

Residing at 2F/27, New Quarters, 6th Lane,

Mettur Dam, Salem District- 636 401.

5.        Suresh  V.,
Finance Manager, OMG Properties,

S/o. Narayanan Nair, Residing at 3/237,

Vanopadath Sree Vihar, Kalluvazhi,

Pookkottukavu-679514, Ottapalam Taluk, Palakkad.            -           Opposite parties  

(O.P.s by Adv. G. Jayachandran)

O R D E R

By Sri. Vinay Menon V., President

1. O.P.1 is a Firm engaged in construction of residential buildings. O.P.s 2 to 4 are the partners in the firm and O.P.5 is the finance manager. Complainants, husband and wife, purchased a villa having an area of 900 sq. ft. of super built-up area.

Grievances quintessentially are that the construction was defective and that there was deficit in area to an extent of 245.77 sq. ft. At the time of handing over they found that the construction was in an incomplete stage. The materials used are substandard, the structure is defective and as developed cracks and crevices, seepage in the first-floor bath room, lack of water supply and weak boundary wall without proper foundation.  It is aggrieved by the aforesaid grievances as well as availing of financial assistance based on the influence exerted by OPs that this complaint is filed.  The complainants seek Rs.15,86,581/- together with past and future interest @12% per annum along with incidental and ancillary reliefs.

2. OPs filed joint version repudiating complaint pleadings. Complainants had verified every aspect and possession was taken over after being satisfied of the completion and condition of the villa. The allegation of reduction of area is not correct as built-up area has to include the entire built-up area as well as super built-up area. The complaint is filed after taking possession of the villa and living there for over two and half years. Super built-up area includes car porch, covered roof, utility area and 50% of the unprotected balcony. These calculation are arrived at from the BIS Code 38.61 : 2002. Electricity connection to the villa is in the name of the complainants. With regard to common connection for the borewell motor connection, it can be changed only to the name of the Residents’ Association. The residents had not formed an association till date. Opposite parties will transfer the connection once the association is formed. The opposite parties had not collected any amounts in excess. The entire transactions were made through bank accounts. They sought for dismissal of the complaint.
3.  The following issues arise for consideration:

1. Whether there is illegal reduction of area in the villa?
2. Whether the construction is of sub-standard quality?
3. Whether construction of compound wall is defective?
4. Whether there is water supply?
5. Whether the electricity connection is still in commercial tariff?
6. Whether there is any other negligence/deficiency in service/unfair trade practice on the part of the OPs?
7. Whether the complainants are entitled to the reliefs sought for?
8. Any other reliefs?   

4.        (i)        Complainants’ evidence comprised of proof affidavit and Exhibits A1 to A20.     

           (ii)     2^nd complainant was examined as PW1.

           (iii)    5^th O.P. filed proof affidavit for and on behalf of all other O.P.s. Exts. B1 to B3 were marked. Marking of Ext. B1 was objected to on the ground it is a part of a document and cannot be relied on.

                                    We do find merit in the objection raised by the complainant as marking of Ext. B1 is not proper. No effort was taken to produce the entire documents and show the nature of the document. Hence objection is sustained and  reliance will not be made on Ext. B1.  

(iv)    5^th O.P. was examined as DW1.

(v)     Report filed by the Expert Commissioner was marked as Ext. C1. Expert Commissioner was examined as CW1.

            Issue No.1

5.         A major grievance of the complainant is that they were assured a villa having a super built up area of 900 sq.ft.  But subsequent to handing over, they found that there was a reduction of 245.77 sq.ft and the building was having only 654.23 sq.ft. This allegation was contested by the OPs stating that built up area as well as super built up area has to be calculated so as to arrive at area of the apartment. Super built-up area includes car porch, covered roof, utility area, balcony and 50% of the unprotected balcony. They relied upon the IS code 38.61 : 2002 of Bureau of Indian Standard.

6.         We need only to go through Ext.A2 communication between the complainants and OPs alone to ascertain the extent of the villa. Said document shows that super built up area of the villa is 900 sq.ft.

7.         An expert Commissioner was taken out. His report was marked as Ext. C1. Even though the counsel for O.P.s cross examined the expert to disprove the contents of Ext. C1, we are of the opinion that his statements are reasonable enough to come to a solid conclusion as regard the ground realities. The factum that the commissioner has reported the materials based on what he has seen at the site will not dilute the validity of Ext. C1.

8.         Ext.C1, in serial no. 2 of answers to the work memo submitted by OP2, with regard to the query regarding super built up area, the measurements are as follows:

            1) Ground floor           :          376.37 sq.ft.

            2) First floor                  :          232.72 sq.ft

            3) Sit out                       :          18.07 sq.ft

4) Balcony                     :          18.07 sq.ft

5) Car porch                :          156.11 sq.ft

Total                            :          801.34 sq.ft

9.         As already stated, the documents show that the OPs had agreed to hand over property having an extent of 900 sq.ft. A measurement of the property shows that it is having only an extent of 801.34 sq.ft. There is a reduction of 98.66 sq.ft.

10.       Thus, we hold that there is reduction in area to a tune of 98.66 sq.ft.

             Issue No.2

11.       The expert commissioner, in reply to query item 3 in work memo submitted by complainants and item 4 in the work memo submitted by OPs, has stated that the materials used are seen to be of quality materials even though they are not premium materials. Therefore, we hold that there is no deficiency in service on that count. The expert commissioner has also stated that the cracks developed are not due to any defects in construction.

            Issue No. 3  

12.       In answer to query 5 in the work memo submitted by the complainants, the Expert Commissioner has stated that the compound wall is constructed using pre-cast concrete pillars and thin concrete slabs except front side. Foundation for compound wall is not provided. Only pillars are concreted to the soil below. The thin slabs are found due to deformed due to natural loading.

13.       The commissioner visited the premises on 20/12/2019, that is, nearly two years after handing over the residential building to the complainants.  We are of the opinion that the walls being a vital part of a building and the property in which the building stands, an inherent duty was cast on the opposite parties to lay a solid foundation around the boundary. The top portion may be pre-cast, but the foundation should have been solid.

14.       O.P. s having failed to provide a strong foundation for boundary wall, we find that there is deficiency in service on the part of OPs.  

Issue No. 4  

15.       Since the said issue does not form part of the matters that were sought to be ascertained by the expert commissioner, we presume that the complainants are not pursuing this complaint.

Issue No. 5  

16.       Since no evidence is adduced to prove this dispute, we are unable to come to a studied conclusion. We refrain from dealing with this issue.

Issue No. 6  

17.       Even though witnesses on both sides were cross examined in detail on various issues like the present nature of the properties, coercive impact of O.P.s on complainants to avail financial assistance from a specific financier and other matters that were sought to be assessed by the expert commissioner, we do not find any material, vital or forceful enough, to draw our attention to any further discussion on any further allegations, in the long-drawn testimonies of the witnesses.

Based on the findings in issue nos. 1 & 3, we hold that there is deficiency in service on the part of OPs 1 to 4.

Issue No. 7  

18.       The complainant has sought for an amount of Rs.15,86,581/- together with interest @12% both past and future. He has also sought for cost and incidental reliefs.

            Based on the findings above, we hold that the complainants are not entitled to receive the compensation or interest as sought for. But he is entitled to a reduced amount. He is also entitled to cost and incidental reliefs.

Issue No. 8  

19.       As per Ext.A2 the cost of construction of 900 sqft is Rs.23,90,000. Therefore the cost of construction of 1 sq.ft is approximately Rs.2656/-. So the cost of construction for 98.66 sq.ft. would be Rs.2,62,041/-.  Taking this value into consideration, we are resorting to granting of reliefs.

20.       The complainant is entitled to receive the following reliefs from the OPs 1 to 4 and their properties:  

1)         The complainant is entitled to receive Rs.2,62,041/- (being the cost of 98.66 sq.ft.)   

2)         The complainant is entitled to receive 12% interest on this amount from 24/1/2018, being the date handing over till  the date of payment.

3)         Complainant is entitled to a compensation of Rs.5 lakhs for deficiency in service in willfully reducing area of building.

4)         The opposite party 1 to 4 shall construct a granite foundation along the boundary of the complainant’s property @ O.P.’s cost.

5)         Complainant is entitled to a compensation of Rs.2 lakhs for deficiency in construction

             of the defective compound wall.

6)         The complainant is entitled to a cost of Rs.1 lakh.    

7)         The aforesaid orders shall be complied within 45 days of receipt of this Order, failing which, the OPs shall pay Rs.500/- to the complainants per month or part thereof by way of solatium from the date of this order till date of final payment.

8)         No liability is cast on the 5^th O.P. as he is an employee of the 1^st O.P.

                        Pronounced in open court on this the  21^st day of March, 2024.     

                             Sd/-                                                                                                                             

                                                                                                                                                  Vinay Menon V

                                                                                   President

                                                                                         Sd/-

                          Vidya.A

                                              Member         

                               Sd/-

                Krishnankutty N.K.

                                                                                                                                                   Member  

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1    -  Original brochure  

Ext.A2   –  Original communication dated 06/1/2017   

Ext.A3   -   Copy of agreement to sell and construct       

Ext.A4   -   Copy of sale deed dated 17/3/2017       

Ext.A5   –  Copy of receipt dated 5/1/2017   

Ext. A6  –  Original receipt dated 20/3/2017    

Ext.A7  -     Original receipt  dated  20/3/2017   

Ext.A8  -     Copy of  receipt  dated 4/4/2017   

Ext.A9  -     Original receipt  dated 6/4/2017   

Ext.A10  -   Original receipt  dated 21/4/2017   

Ext.A11  -   Original receipt  dated 24/4/2017   

Ext.A12  -   Copy of  receipt  dated 23/5/2017    

Ext.A13  -   Copy of receipt  dated 2/6/2017    

Ext.A14  -  Original receipt  dated 30/6/2017    

Ext.A15  -  Original receipt  dated 14/7/2017    

Ext.A16  -  Original receipt  dated 29/07/2017   

Ext.A17  -  Original receipt  dated  24/8/2017    

Ext.A18  -  Original receipt  dated 15/9/2017    

Ext.A19 -   Original receipt  dated  22/1/2018    

Ext.A20  -  Original of handing over letter dated 24/1/2018   

Exhibits marked on the side of the opposite party:

Ext.B1 – Copy of some pages showing method measurements as per Indian standards issued by

                BIS

Ext.B2 -  Copy of consultancy / lab test report dated  08/6/2017  

Ext.B3 – Copy of invoice dated 8/6/2017  

Court Exhibit:  

C1 – Commission report dated 26/12/2019

Third party documents:  Nil

 Witness examined on the side of the complainant :

 PW1 – Sindhu C (2^nd complainant)

Witness examined on the side of the opposite party:   

DW1 – Suresh V (OP5)

Court Witness:

CW1 – Mohandas K.A. Expert Commissioner.

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.