Tamil Nadu

North Chennai

123/2014

Balakrishnan,S/o.Arumugam, - Complainant(s)

Versus

Rep by its Partner,M/s.Hari OM Builders, a Partnership company - Opp.Party(s)

M/s.R.Vijayaraghavan

31 Oct 2017

ORDER

 

                                                            Complaint presented on:  25.06.2014

                                                                Order pronounced on:  31.10.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 31^st DAY OF OCTOBER 2017

 

C.C.NO.123/2014

 

 

1.Balakrishnan,

M/aged 33 years,

No.222, 4^th Street,

TNHB Colony,

Korattur,

Chennai – 6000 080.

                                                                                ….. Complainant

 

..Vs..

1.M/s. Hari Om Builders, a Partnership

Company Rep. by one of the Partner

Mrs. Latha Nachiappan,

F/aged 44 years.

 

2.Mrs. Latha Nachiappan,

F/aged 44 years,

W/o Nachiappan.

 

3.Manickam, Builder.

All the three are residing at 2/27,

Mugappair East,

Chennai – 600 037.

.....Opposite Parties

Date of complaint                                 : 30.06.2014

Counsel for Complainant                      : M/s.R.Vijayaraghavan, S.Annakkodi,

                                                                    V.R.Ramesh

Counsel for Opposite Parties                   : M/s. S.S.Cheran, D.Satishkumar

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant claiming medical expenses, transport and rental charges, broker commission,  compensation for pain and suffering and also for mental agony, damages for house hold articles and cost of repair  charges   u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The opposite parties have developed a residential apartment at plot No.13, Sri Janakiram Nagar, Puthagaram, Kolathur, Chennai – 99. The complainant agreed to purchase a flat No.B-2, first floor. A sale deed for UDS land - 302 sq.ft was sold and executed and registered in favour of the complainant on 31.05.2012 by the 2^nd opposite party. The 2^nd opposite party entered an agreement with the complainant in respect of construction and payment schedule. The complainant purchased the flat for Rs.24,90,000/-.

          2. The flat possession was handed over to the complainant on 12.11.2012. The complainant after performing Graha Pravesam started to live in the flat from 07.04.2013. On 18.02.2014, about 3.00 a.m, while the complainant and all the family members were sleeping, there was a loud noise and before they could realize, the plaster in ceiling in the hall fell on the family members including the complainant. The neighbours also came and rushed the complainant and others to the nearby hospital Sundaram Medical Foundation. The police came to the hospital and received a complaint from the complainant and registered a case and the opposite parties 2 & 3 came out on bail.

          3. The fall of roof purely due to poor quality of materials used for construction. The complainant and others stayed in the friend’s house for 4 days and thereafter took a house for rent for a sum of Rs.6,000/- per month for the months of  March & April 2014 and lived therein. The complainant and his family members were yet to recover from the shock. Due to poor quality of construction, the opposite parties have committed deficiency in service. Hence, the complainant filed this complaint claiming medical expenses, transport and rental charges, broker commission, compensation for pain and suffering and also for mental agony, damages for house hold articles and cost of repair charges with cost of the complaint.

4. WRITTEN VERSION OF THE  OPPOSITE PARTIES IN BRIEF:

          The 1^st opposite party is a builder company and the 2^nd & 3^rd opposite parties are the partners of the 1^st opposite party. A sale agreement and construction agreement was entered between the complainant and the opposite parties.   After completion, the flat was handed over on 12.11.2012 and he never pointed out any defects in the flat. One Mrs.O.Brett has purchased the C-1 Flat which is opposite to the complainant’s flat. The complainant also quarreled with the said Mrs. O.Brett for fixing the gate and with  Mr.Pandurangan in respect of the two wheeler parking. The opposite parties used quality materials as per specifications to complete the construction.

           5. The complainant used jumper to put holes in the ceiling for fixing decorative and fancy lights which resulting there was air crack and bubbles in the ceiling plastering and fell down, hence for the said incident the opposite parties are not liable and also for compensation. The flat was constructed in accordance with the terms of the construction agreement. Therefore, the opposite parties have  not committed any deficiency in service and prays to dismiss the complaint with costs.

6. POINTS FOR CONSIDERATION:

          1. Whether the complaint is filed within the period of limitation?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what extent?

7. POINT NO :1

          The 1^st opposite party is a partnership firm and carrying on construction business in the name of  M/s Hari Om Builders. The 2^nd & 3^rd opposite parties are the partners in the 1^st opposite party. They constructed residential apartments at plot No. 13, Sri.Janaki Ram Nagar, Puthagaram, Kolathur, Chennai – 99. The complainant purchased the flat No.B-2 in the first floor towards a total sale consideration of Rs.24,90,000/-. Ex.A1 is the builders agreement entered between the complainant and the 2^nd opposite party. In the said agreement UDS land of 302 sq ft. allotted to the complainant. In respect of the said UDS land the 2^nd  opposite party executed, Ex.A2 sale deed and registered on 31.05.2012 in favour of the complainant. The construction of the flat was completed and handed over to the complainant on 12.11.2012.  The complainant performed Graha Pravesam and started to live in the flat from 07.04.2013. The complainant paid the entire cost of the flat to the opposite parties and there was no dispute in respect of the same between the parties.

 

8. The opposite parties would contend that the complainant further took possession of the flat on 12.11.2012 and the complaint is filed in this Forum on 25.06.2014 after a period of two years from the date of possession and hence the complaint is barred by limitation. It is not in dispute that on 18.02.2015 the plaster in the ceiling in the hall of the flat fallen and all the family members were sustained injuries. The complainant actually occupied the flat on 07.04.2013 after performing Graha Pravesam. Therefore, the complainant has cause of action on 07.04.2013 and the defect noticed on 18.02.2015. Hence we hold that the complaint is filed within the limitation period and the same is maintainable.  

 9. POINT NO:2

It is the case of the complainant that on 18.02.2014 around 3.00 a.m the complainant and his family members were sleeping   and suddenly they heard a loud noise and before they could realize, the plaster in the ceiling in the hall collapsed and fell on the family members including the complainant  and they have sustained injuries and immediately rushed to the nearby Sundaram Medical Foundation Hospital at Anna Nagar, Chennai and after four days they got discharged and ceiling fan got twisted and fridge was also damaged due to fall of concrete pieces and this incident proves that the opposite parties have used substandard materials for construction and therefore the opposite parties have committed deficiency in service.

10. The opposite parties would contend that the complainant used jumper and put a hole on the ceiling for fixing decorative and fancy lights and resulting cracks and bubbles occurred in the plastering and fell down and therefore, the opposite parties have not used substandard materials to construct the flats and further Ex.B2  stability certificate dated 25.01.2017 issued by the chartered engineer proves that the building is structurally sound and stable and therefore the opposite parties have not committed any deficiency in service in constructing the flat to the complainant and prays to dismiss the complaint.

11. The fact remains that on 18.02.2014 at about 3.00 a.m the ceiling of the hall was collapsed and fell down and the complainant and his other family members were sleeping sustained injuries due to fall of concrete pieces.  Immediately the complainant and others were admitted in a nearby Sundaram Medical Foundation Hospital. In respect of the incident the complainant gave a compliant and based on that Ex.A3 FIR was registered.  The complainant sustained injuries in his head and right arm. Ex.A5 accident register issued by the above said hospital supports that the complainant sustained lacerated injury on his scalp, laceration on the right thigh and abrasion on his left shoulder. Ex.A5 is the discharge report issued to the complainant with the treatment bills. Therefore the FIR, accidents register and discharge summary proves that the complainant sustained injury due to fall of ceiling and took treatment.

12. The opposite parties specifically contended that the complainant put holes  in the ceiling by using jumper to put up decorative lamps and that is why the ceiling was fallen and not because of deficiency in the construction. Even according to the opposite parties, jumper is used to put holes in the ceiling, the ceiling plastering is unable to withstand the vibrations at the time of  making hole itself proves that the construction and plastering is very weak.  Further, Ex.B2 stability certificate obtained during the pendency of the case in the year of 2017 was filed as a document cannot be accepted without supporting evidence on behalf of the opposite parties.  

13. According to the opposite parties, Ex.B1 is the satisfaction letter issued by the complainant at the time of taking possession of the flat. Nowhere in this letter he has stated that the construction of his flat are good and materials used are not substandard. He only stated that the builder has completed the construction of the flat and he is taking possession of the flat. Hence, Ex.B1 is no way useful to support the case for the opposite parties. Therefore we hold that the opposite parties 1 to 3 have constructed the flat with substandard materials and thereby committed deficiency in service to the complainant.  

14. POINT NO:3

          The fall of ceiling at the time of sleeping of all the family members during the odd hours is very serious one. The complainant further took treatment in the hospital for the injuries sustained in the incident and also spent money for repairing of the ceiling caused mental agony to the complainant is accepted. For such mental agony it would be appropriate to order a sum of Rs. 1,00,000/- towards compensation. The complainant himself repaired the ceiling and for the same an estimate of Rs.90,000/- given by an engineer is marked as Ex.A7. It is not the case of the opposite parties that they were willing to repair and rectify the ceiling and for which the complainant was not willing. Therefore, the complainant is entitled for a sum of Rs.90,000/- towards repairing charges. The complainant claimed medical expenses of Rs.7,211/- and another sum of Rs.10,000/- towards transport and other medicines. The complainant filed hospitals bills and bills for purchase of medicines along with Ex.A5 discharge report for a sum of Rs.7,211/- towards medical expenses and the complainant is entitled for the said amount. However, no proof filed by the complainant for a sum of Rs.10,000/- towards transport charges and for other medicines and  hence  for such an amount of Rs.10,000/-  he is not entitled. Though the complainant claimed a sum of Rs.6,000/- towards broker commission, he has not filed any proof for payment of the said amount and hence he is not entitled for any broker commission. After fall of ceiling the complainant lived in a rental house for two months by paying monthly rental of Rs.6,000/- per month and also paid Rs.12,000/- as per Ex.A6 rental agreement.  Since the rental agreement supports that the complainant lived in a rental house for two months, the complainant is entitled for a sum of Rs.12,000/- towards rental charges.

          15. The complainant claimed a sum of Rs.50,000/- towards pain and sufferings. The complainant suffered lacerated injury on his head, thigh and abrasion on his left shoulder. Due to such injuries the complainant suffered with pain and suffering is accepted and for the same it would be appropriate to order a sum of Rs.10,000/- as compensation.

16. The complainant also claimed a sum of Rs.20,000/- for the damages to house hold articles such as fridge, ceiling fan, sofa etc.   On seeing Ex.A9 series photographs, two photographs shows the fridge is in open condition and however unable to understand what parts of fridge got damaged. Further the fridge was placed in the corner of the hall. We are unable to find the damages in the fan and sofa. No proof of estimate filed to rectify the damages to the house hold articles. Therefore, we are not inclined to award compensation on the head of damages to the house hold articles. The complainant further claimed a sum of Rs.5,60,000/- towards monetary loss due to poor quality of construction.   There is no evidence to prove how the complainant sustained monetary loss. Hence he  is not entitled for the claim amount of Rs.5,60,000/- in this regard. The complainant has not claimed any litigation expenses and hence he is not entitled to the same.

 

In the result the Complaint is partly allowed. The Opposite Parties 1 to 3 jointly or severally are ordered to pay a sum of Rs.1,00,000/- (Rupees one  lakh  only) towards compensation for mental agony, Rs.90,000/- (Rupees ninety thousand only) towards the cost of repair of the ceiling, Rs.7,211/-(Rupees seven thousand two hundred and eleven only) towards medical expenses and  also to pay a sum of Rs.12,000/-(Rupees twelve thousand only) towards rental charges to the complainant. The complainant has not claimed any litigation expenses. So, he is not entitled to the same.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 31^st day of October 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 22.03.2012                   Builders Agreement

Ex.A2 dated 31.05.2012                   Sale Deed

Ex.A3 dated 18.02.2014                   F.I.R.

Ex.A4 dated 18.02.2014                   Accident Register

Ex.A5 dated 18.02.2014                   Discharge Report

Ex.A6 dated NIL                     Rent Receipt

Ex.A7 dated NIL                     Engineer’s Report

Ex.A8 dated 19.02.2014                   News paper cutting

Ex.A9 dated NIL                     Photos

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

Ex.B1 dated 15.01.2012                   Satisfaction letter by the complainant

 

Ex.B2 dated 25.01.2017                   Structural Stability Certificate

 

 

 

 

MEMBER – I                                                               PRESIDENT