A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 395/2007 against C.C. 879/2004, Dist. Forum-II, Visakapatnam

Between:

1. Sai Lakshmi Associates

Rep. by its Managing Partner

P. V. Rama Raju, D.No. 55-14-40/2,

APSEB Colony, Seethammadhara

Visakapatnam

2. G. Nalini,W/o. G. Venugopal Reddy

Sri Laxmi Assoicates, Flat No. 101

Godavari Apartments,

Lawsons’s Bay Colony

Visakapatnam

3. P.V.S.N. Durga Raju @ Ravi

Partner, Sai Lakshmi Associates

C/o. Sri Satyanarayana Rice &

General Stores. 50-82-9

Madhuranagar, Visakapatnam *** Appellants/Ops

And

1. P. Seshagiri Rao, S/o. Kamalakar Rao

Age: 53 years, Plot No. 198/4

MVP Colony, Visakapatnam-17

(Not a necessary party)

2. S. Venkata Ratnam

S/o. Satyanarayana Murthy

D.No. 7-8-27, Sea View Apartments

R.K. Beach, Visakapatnam

3. Lala Heera Ratan

D/o. Late Bhavani Ram

R/o. Sai Kunj Apartments

Seethammadhara, Visakapatnam

4. Varanasi Kanka Sundaram

R/o. Vanasthalipuram, Hyd.

C/o. K. V. Narayana Murthy

Advocate, 9-19-20, CBM Compound

Visakapatnam. *** Respondents/

Complainants.

Counsel for the Appellants: M/s. K. A. Narasimham.

Counsel for the Resps: M/s. K. Srinivasa Rao. (R2 & R3)

F.A. 311/2010 against C.C. 879/2004, Dist. Forum-II, Visakapatnam

Between:

1. P. Seshagiri Rao, S/o. Kamalakar Rao

Age: 53 years, Plot No. 198/4

MVP Colony, Visakapatnam-17

(Withdrawn - Not a necessary party)

2. S. Venkata Ratnam

S/o. Satyanarayana Murthy

D.No. 7-8-27, Sea View Apartments

R.K. Beach, Visakapatnam

3. Lala Heera Ratan

D/o. Late Bhavani Ram

R/o. Sai Kunj Apartments

Seethammadhara, Visakapatnam

4. Varanasi Kanka Sundaram

R/o. Vanasthalipuram, Hyd.

C/o. K. V. Narayana Murthy

Advocate, 9-19-20, CBM Compound

Visakapatnam. *** Appellants/

Complainants.

And

1. Sai Lakshmi Associates

Rep. by its Managing Partner

P. V. Rama Raju, D.No. 55-14-40/2,

APSEB Colony, Seethammadhara

Visakapatnam

2. G. Nalini,W/o. G. Venugopal Reddy

Sri Laxmi Assoicates, Flat No. 101

Godavari Apartments,

Lawsons’s Bay Colony

Visakapatnam

3. P.V.S.N. Durga Raju @ Ravi

Partner, Sai Lakshmi Associates

C/o. Sri Satyanarayana Rice &

General Stores. 50-82-9

Madhuranagar, Visakapatnam *** Appellants/Ops

Counsel for the Appellants: M/s. K. Srinivasa Rao.

Counsel for the Resps: M/s. K. A. Narasimham.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE TWENTY EIGTH DAY OF JUNE TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

*****

1) These are cross-appeals. F.A. 395/2007 is preferred by the complainants while F.A. No. 311/2010 is preferred by the opposite parties. Parties are described as arrayed in the complaint for felicity of expression and avoid confusion in describing the parties.

2) The case of the complainants in brief is that they had purchased flats from the opposite parties builders under the construction agreement between them and in their representation that they would make good quality construction besides supply three phase power supply, and erection of transformer and single phase power supply to the flats. There were frequent fluctuations due to which bulbs were fused several times. They had collected Rs. 22,000/- from the 1st complainant while Rs. 17,000/- from the other complainants. They have also agreed to provide teak wood doors. There was shortfall in the plinth area. Though they had informed that they would construct G+2 floors contrarily they constructed third floor and pent house without any approval from the municipal corporation. They agreed to provide motor to the bore well, however, they removed the motor though collected money separately. They had to return the motor. Since the construction was poor, several cracks were developed in the walls in the flats. The electrical fittings are of cheap quality, equally so with plumbing material. No car parking was provided to flats Nos. 102 & 103. Despite collecting money for providing car parking of 100 sft they had provided 60 sft. Mentioning various deficiencies which are required to be rectified by the opposite parties like kitchen sink leakage, non-functioning of water tap, defective plastering, inferior quality of doors, flooring etc., they sought various damages besides directing the opposite parties to attend to the deficiencies pointed out. Therefore they filed the complaint to attend to the complaints made besides damages of Rs. 5 lakhs each together with compensation and costs.

3) The opposite parties resisted the case. While denying each and every allegation made in the complaint they alleged that different cause of actions arise for each of the complainants, and a single complaint was not maintainable. Clause 35 provides reference to arbitration in case of dispute, and therefore the Dist. Forum has no jurisdiction. They had constructed 10 flats and delivered to the respective owners on 30.6.2003 within the stipulated period. No complaint was received from any quarter within the period of six months ended by December, 2003. The liability if any, by virtue of Section 25 has been over. The complainants had paid the amount as directed by the A.P. TRANSCO for providing service connection. There is no stipulation in the agreement to provide transformer. As per item No. IV of schedule-C of the contract decorative teak wood door was agreed to be provided for the main door at the entrance which they had provided. Equally they had provided all the door frames with teak wood. The allegation that there was shortfall in the plinth area is not true. Clause-16 of the agreement authorizes them to construct more number of floors keeping exclusive rights over terrace, stilt, and cellar floors. No unauthorized constructions were made by them. They had returned the motor after exchange of notices. The construction was neither defective nor the quality of construction was poor. It was made according to the specifications. The electrical fittings as well as plumbing material were of good quality with ISI certification. Car parking areas were clearly demarcated with flat numbers. The defects if any as complained were due to wear and tare and bad maintenance and that too after expiry of the period stipulated. Since the flats were delivered by due date they were not liable to pay any compensation. Therefore they prayed for dismissal of the complaint with costs.

4) The complainants in proof their case filed their affidavit evidence and got Exs. A1 to A18 marked while the opposite parties filed their affidavit evidence besides the affidavit evidence of owners of flat Nos. 201, 202, 203 and 301 and got Exs. B1 to B13 marked. A Commissioner/Engineer was appointed who on his visit filed his report marked as Ex. A15.

5) The Dist. Forum after considering the evidence placed on record directed the opposite parties to refund Rs. 35,000/- to complainant Nos. 2 to 4, as complainant No. 1 has withdrawn his complaint, with interest @ 12% p.a., from 30.6.2003 together with compensation and costs of Rs. 5,000/- each holding that the opposite parties had failed to provide take wood doors and that there were defects

6) Aggrieved by the said decision, the complainant preferred F.A. 311/2010 contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that Op1 had collected Rs. 17,000/- each from them for erection of transformer, however, failed to provide and was entitled to the said amount. So also an amount of Rs. 10,000/- for not providing teak wood doors as agreed upon. They were entitled to Rs. 5,000/- each for not providing quality material pertaining to electrical fittings and taps. The total area of 373.33 sy.yds of site was not proportionately divided as per the agreement for which they were entitled to Rs. 20,000/-. Due to development of cracks and other deficiencies they were entitled to Rs. 20,000/-While agreeing to provide 100 sft towards car parking they have provided 60 sft and therefore they were entitled to the difference of amount. There was a delay of three months in handing over the possession of the flat No. G2. It was delivered on 30.11.2003. Therefore they prayed that their claims as made in the complaint be allowed.

7) The opposite parties preferred F.A. 395/2007 equally contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought not to have awarded Rs. 35,000/- towards car parking since complainant 1 & 2 alone were entitled to as per the agreement. Complainant Nos. 3 & 4 never put forth the claim of car parking and therefore refund of Rs. 35,000/- to them will not arise. Ex. A1 is the agreement between them and complainant No. 2 and has nothing to do with complainant Nos. 3 & 4. Ordering compensation towards deficiencies does not hold good. Therefore they prayed that the appeal be allowed.

8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

9) The complainants four in number filed the complaint directing the opposite party builders to attend the complaints set out in para 2 of our order or in the alternative to pay damages of Rs. 1,25,000/- each viz., Rs. 5,00,000/- together with costs.

10) At the outset, we may state that the first complainant P. Seshagiri Rao withdrew his complaint and therefore the complaint was dismissed as far as his claim is concerned that led us to confine the case filed by complainant Nos. 2 to 4.

11) Complainant Nos. 2 to 4 purchased flat Nos. 102, GF-2, and 101 respectively on payment of consideration.

12) Complaint No. 2 claimed that despite the fact that Rs. 35,000/- was received car parking was not provided. Even otherwise under the A.P. Flat & Apartments Act he is entitled to it as of right being a common amenity without receiving any consideration. The opposite parties admit that they have received the money towards car parking from Op2 only. In fact in the appeal preferred by it in the grounds of appeal at para 3 & 4 it alleged that:

“The lower forum ought to have seen that the refund of money pertaining to car parking is allowable only to the 2nd respondent in view of its own observation that the 1st respondent had withdrawn his claim. The lower forum ought to have seen that the respondents 3 & 4 (complainants 3 & 4) never put forth any claim pertaining to car parking as such refund of Rs. 35,000/- to them does not arise.”

13) The complainants in their grounds of appeal at para 8 in regard to car parking area alleged that:

“The Dist. Forum failed to see that the builder has promised one car parking area of 100 sft but only 60 sft was provided, hence the Dist. Forum ought to have allowed the difference of amount.”

14) The Dist. Forum in the light of evidence directed the opposite parties to refund Rs. 35,000/- to complainant No. 2 for non-allotment of car parking. In the light of admission made by the opposite parties, necessarily they had to provide car parking, if not pay Rs. 35,000/- to complainant No. 2 as directed by the Dist. Forum together with interest.

15) Coming to the claim of complainant Nos. 3 & 4 for allotment of car parking there is no proof that the opposite parties had collected Rs. 35,000/- each towards car parking area. The Andhra Pradesh Apartments (Promotion of Construction) & Ownership Act, 1987 would undoubtedly apply to the facts in question. Chapter-III Section 9(2) of the Act makes it clear that in order to have the benefits of these amenities coming under Chapter-III the owner shall execute and register the declaration as provided. In the instant case it is not the case of the complainants that declarations as provided u/s 14 of the Act was followed and registered as provided under the Act. When they did not purchase the car parking site, it cannot be said that it is a common amenity. They were not entitled for car parking area or any compensation.

16) Complainant No. 2 alleged the following defects had to be rectified.

Flat No. 102:

Drainage sink in kitchen is leaking.

To provide iron nets to the outlet pipes as the rats were entering through the pipes and spoiling the pipes in the flats.

Taps are not working properly as cheap quality taps were provided.

No slope is provided towards drain pipes in the kitchen, master

Bedrooms balconies due to which water is stagnated.

Plastering at the door of the bedroom not properly done as pieces are falling.

Cheap quality tiles provided on the flooring and on the walls in the bath rooms due to which the colour of the tiles got faded and looking ugly.

Several cracks developed in the flat.

17) The Dist. Forum appointed Sri G. Viswanath Kumar, Architect as Commissioner. He noted the following observations after inspecting Flat No. 2 of Sri S. Venkata Ratnam (complainant No. 2):

Tiles in all toilets are 2nd quality. Wood work badly damaged by white ants at Master bed room door frame attached toilet door frame, Master bed room balcony door frame, Seepage at bed room 2 balcony wall from flooring to 3’ .6’ height.

He did not allege that the white ants damaged the wood work nor that teak door was not provided. Admittedly he obtained the possession on 30.06.2003. For the first time the Commissioner visited the flat on 22.4.2005 almost after two years. Clause 25 of the construction agreement reads as follows:

“The builder shall bear the maintenance of the flat in case of any repairs/damages for a period of six months and he has to make necessary steps replacement for the said complaint at his own cost on confirmation that there is no mishandling or misuse by the owner.”

The complainant having taken possession on 30.6.2003 did not allege that white ants had damaged the wood work. When there is categorical stipulation that for about six months the opposite parties are responsible, necessarily if there were any defects pertaining to the maintenance problem the opposite parties are responsible. The complainants were not entitled to any relief. It is for them to maintain properly. Questioning this, after two years does not hold good. The Commissioner did not find any cracks in the walls. He did not mention that there were plumbering defects. He noticed that electrical, plumbing and other fittings are of second grade quality, and there are no traces of ISI grade. Obviously two years have elapsed, and still to find out, whether it had ISI mark cannot be accepted. If really the name of the manufacturer is embossed on these fittings, it would be visible. Non-finding of any mark cannot be said to be of an inferior quality.

18) Coming to the case of complainant No. 3, evidently possession was delivered on 30.11.2003 vide her own certificate Ex. A8. She also certified that “I have fully satisfied with the construction of flat”. Having given such a certificate she is estopped from contending that there were defects and that white ants damaged the wood work. The very same yard stick applied to some of the maintenance defects pointed out in regard to complainant No. 2 would equally apply to complainant No. 3. If really white ants had damaged the wood work she could have got it treated and collected the amount from the opposite parties. According to her she spent Rs. 3,375/- and got the termite treatment from Pest Control (India) vide Ex. A16. This is two years after delivery of possession of the property for which the opposite parties cannot be found fault with.

19) In regard to complainant No. 4 whatever minor defects that were pointed out by the engineer, the Dist. Forum awarded an amount of Rs. 5,000/- for getting them rectified which we fell reasonable in the circumstances.

20) The complainants had alleged that they had contributed Rs. 17,000/- each for installation of transformer which they were entitled for refund as the builder had to bear it. Clause – 21 of the agreement reads as follows:

“Any expenses or deposits if any required by A.P. Transco towards external electrification (transformer post, cablecast from HT to transformer, meters, panel boards etc) and also service connection charges, voluntary contribution etc. for the purpose of giving electricity connection to the building dwelling unit be paid proportionately by the owner. Such proportion will be determined by the builder on the basis of the areas of each flat in the said multi-storeyed building”.

Therefore the contention that the builder has to bear the entire amount towards installation of transformer etc. cannot be countenanced. It is not their case that the electricity supply was not given nor there was any defect. At any rate there is no evidence to prove that there was defect either in transformer or meter. Therefore the complainants are not entitled to any amount paid towards transformer.

21) It is contended that there is shortfall in the plinth area. They contended that 373.33 sq.yds of site was not proportionately divided. Admittedly a perusal of the agreement shows that 10 flats were constructed ranging from one bed room to three bed room flats and pent house having different extents. Since the complainants did not get the site measured through the Commissioner, nor proved that there was short of site to any of the complainants, we are unable to appreciate this contention, and therefore the complainants are not entitled to difference of amount.

22) Finally, it is the contention of the complainants that opposite parties had constructed a pent house on the terrace therefore they were unable to use the terrace. Clause 16 of the agreement reads as follows:

“The builder shall have exclusive rights over the terrace, stilt/cellar floors. The builder shall have the right of passages on the existing floors to serve as common passage for the people to be accommodated in further extension and for itself.”

They cannot seek any relief in this regard.

23) In the light of admission by the complainant that car parking was provided alternative direction of Dist. Forum awarding refund of Rs. 35,000/- as against complainant No. 2 is dismissed.

23) In regard to complainants Nos. 3 & 4 there is no proof that they paid the amount towards car parking, we set-aside the directions of Dist. Forum to pay Rs. 35,000/-to the complainant for non-allotment of car parking as there was no declaration in the agreement.

24) For rectifying the defects pointed by the engineer the Dist. Forum had awarded Rs. 5,000/- each which we feel suffice. We do not find merits in the contentions raised this regard.

25) The order of the Dist. Forum directing the opposite parties to pay Rs. 35,000/- to each of the complainants is set-side and rest of the order is confirmed. No Costs. The appeals are disposed of accordingly. Time for compliance fours weeks.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 28/06/2010.

*pnr