Andhra Pradesh

East Godwari-II at Rajahmundry

CC/98/2011

S.S.Ventures Rep. by its Partner, P. Rama Subrahmanyam, - Complainant(s)

Versus

S.S.Residency Apartment Flat Owners Association , Rep. by its President, P. Ramesh Babu, - Opp.Party(s)

Sri G.Srinivasulu Reddy

25 Aug 2014

ORDER

        Date of filing:   11.11.2011

                                                                                            Date of Order:  25.08.2014

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

          PRESENT:   Sri B.Vinay Kumar, B.Sc., B.L., PRESIDENT

                                            Smt H.V. Ramana, B.Com., L.L.M., MEMBER.

                                                   Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                        Monday, the 25^th day of August, 2014

 

C.C.No.98 /2011

Between:-

 

 

S.S. Residency Apartment Flat Owners Association,

Represented by its President, P. Ramesh Babu,

S/o. Dasaradha Ramaiah, Hindu, aged 50 years,

D.No.2-12-9, 2-12-10 & 11, Alcot Gardens,

Rajahmundry.                                                                         …        Complainant

 

                                    And

 

1)  S.S. Ventures, rep. by its Partner,

     P. Rama Subrahmanya Raju, Block Nos.1 & 2,

     Kalyani Estates, Railway Station Road,

     Visakhapatnam.

 

2)  Gondesi Suryanarayana Reddy, S/o.G. Appala Reddy,

     S.S. Ventures, Block Nos.1 & 2, Kalyani Estates,

     Railway Station Road, Visakhapatnam.

 

3)  P. Rama Subrahmanya Raju, S/o. P. Appala Raju,

     S.S. Ventures, Block Nos.1 & 2, Kalyani Estates,

     Railway Station Road, Visakhapatnam.

 

 

 

 

 

            This case coming on 05.08.2014 for final hearing before this Forum in the presence of Sri P.A. Suryanarayana Murthy and Sri Ch.V. Prasad, Advocates for the complainant and Sri G. Srinivasulu Reddy, Advocate for the opposite parties, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

(Per Sri B. Vinay Kumar, President) 

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 to direct the opposite parties to rectify all the defects pointed out by the complainant; or in the alternative to pay Rs.19,80,000/- towards damages; award Rs.10,000/- towards costs of the complaint and such other reliefs.

2)         The complainant states that he is the President of society consisting of members of S.S. Residency apartments.  The 1^st opposite party is a partnership firm consisting of opposite parties 2 & 3. Based on the promises made by the opposite parties, the complainant society members have purchased undivided and unspecified share of vacant site in Door No.2-12-9, 2-12-10 and 2-12-11, Alcot Gardens, Rajahmundry and entered into construction agreement with the opposite parties for construction of apartments.  At the time of entering into construction agreement, the opposite parties have promised that they will construct the apartment complex with good building material, common facilities like good lift, water for drinking etc.  But they did not do so.  The opposite parties handed over the flats to the members of flat owners society on April, 2010 with so many defects.  The said defects were brought to the notice of the opposite parties from time to time.  The opposite parties have put a deaf ear to grievances of the society members.  The complainant lodged a separate complaint to the municipal authorities.  District Collector and other statutory authorities requested to enquiry into the structural stability and got issued a legal notice to the opposite parties.  The registered notices were returned with an endorsement ‘not claimed returned to sender’.  As the opposite parties are not came forward to attend the repairs.  The complainant is constrained to file the present complaint before this Forum.  Hence, the complaint.  

3)         The opposite parties filed written version contending that he denied the allegations made in the complaint is not maintainable either under law or on facts. The opposite parties have given a good Elevation.  After more than 2 years when there were air cracks due to improper maintenance.  The opposite parties have cleared all the air cracks and the members of Apartment complex have agreed for further painting as it was their latches.  There is continuous supply of water.  The opposite parties have paid the required fees to Municipal Corporation for drinking water.  It is the latches of Municipality is not supplying water.  It is not true to say that 23 car parking facility are given.  The car parking is allotted to only there who have paid and it is requisite to them.  The living and bath rooms were all provided with quality tiles only.  It is not true to say that there was no second coat paint to elevation due to improper maintenance by owners by dumping waste and unused furniture and material on the terrace by owners, due to that there was seepage leakages.  There were few works done again by the opposite parties at the request of owners.  It is not true to say that Enamel painting for windows, cellar painting is not done.  It is not true that Eastern side compound wall was not construct, as it is the owners of the Apartment who did not want the Eastern compound wall to be constructed as the Eastern neighbor’s compound wall is already existing and so that they can use the space.  It is a blatant lie that Municipal water is not provided and storage sump is not built.  The bore water submersible pump is 2.0 H.P. installed by the opposite parties in 2008 itself.  It is not true that all the bath rooms are leaking.  The leakages if any in bathrooms due to use of concentrated acid to clean which should not be used though the opposite parties repeatedly warned them.  It is the owners who wanted to earmark the car parking and requested the opposite parties not to mark or paint any owners name as they wanted to adjust the car parking within themselves.  It is also not true that terrace is not plastered.  The western side compound wall gravel is not filled is a blatant lie and fictitious.  The lift is 6 person lift and it is ‘KONE’ brand, a reputed international company.  Few owners are still due in making payments to the opposite parties.  The person who is said to be president without the consent of the owners is high handedly filing cases to the builder and gain unlawfully.  The estimates submitted by the complainant is exaggerated done by a private engineer to mislead the Forum.

            The Additional Written version filed by the opposite parties contending that previously they filed some documents along with a document petition.  They may be marked as Exs.B1 to B5.  Recently, they found some more documents which are very relevant and important to their case.   Hence, there is no deficiency of service on the part of the opposite parties and the complaint is liable to be dismissed.         

4.         Heard both sides.  The complainant filed proof affidavit and Exs.A1 to A6 are marked on behalf of the complainant. Proof affidavit filed by the opposite parties and Exs.B1 to B7 are marked on behalf of the opposite parties. Both parties filed their written arguments.

 

5.         Points raised for consideration are:

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

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

           

6.   Point Nos.1 & 2:-  On perusal of the entire record, it is found that the complainant herein is the President of S.S. Residency Apartment Flat Owners Association, Rajahmundry as per Ex.A1 Societies Registration Certificate dt.2.5.2011 and Ex.A6 Memorandum of Association.  The complainant further stated that the opposite parties obtained acknowledgements from the individual owners and the members of the S.S. Residency occupied the premises by April, 2010 in a phased manner.  The complainant further alleged that there are defects in the construction and there are no proper facilities to the flat owners.  The same were brought to the notice of the opposite parties, but they failed to sort out their grievances due to interse disputes between them. The complainant society got estimated the amount for rectification of the defects under various heads to a tune of Rs.15,32,000/- as per Ex.A5 estimation. On that the complainant society got issued Ex.A2 legal notice dt.11.10.2011 which was returned unserved as per Ex.A3.  Ex.A4 dt.31.12.2010 was the proceedings of the Commissioner, Municipal Corporation, Rajahmundry for regulation and penalization of unauthorizedly constructed building i.e. S.S. Residency Apartments, Door No.2-12-10/11, Alcot Gardens, Rajahmundry. 

            We further observed that the complainant filed an application vide IA No.100 of 2012 to appoint an Advocate Commissioner to find out the alleged defects in the construction by the opposite parties and this Forum appointed an Advocate Commissioner to look into the matter who filed the detailed commissioner report dt.25.2.2013.  As per the report of the Advocate Commissioner, he executed the warrant in the presence of the present President & Secretary of the Association and some members.  In the said report, the commissioner mentioned that the entire building completely painted, but there are some patch marks over the painting and cellar is also painted. Municipal tap connection of the schedule premises was appeared at the sump within the premises and the sump was neat and filled with water. There is a motor in working condition of 1.5 watt in the north-eastern side. There is no compound wall on eastern side, but neighbours compound wall is existed.  The bathroom outlet pipes fixed at outside the building were leaking and due to that nachu (rust) formed outside walls of Flat Nos.103, 105, 305, 205 & 405.  Car parking is in the cellar, but without demarcation and no name plates of the building.  Western side compound wall is there with ten inch thickness and there is a small pit in depth between western side wall and Godavari bund.  There is a lift of Kone making in good working condition, but there is no board on it indicating the capacity of the lift.  The water pipes connected to the overhead are running above the flooring and the flooring is rough on terrace.  There are rain water outlets on the terrace to drain out surplus water to the municipal drainage.  There are two rubber tubes temporarily connected to the overhead tank to rain water outlets  to drain out surplus water in the head tank.  There were leakage stains at stairs on the ground floor.           

            We further observed that as per the Commissioner’s report, some bathrooms of the apartments are with stains and makku between the tiles was partly damaged and some bathrooms were in good condition and neatly maintained. There were air cracks and cracks in some flats.  The opposite parties stated that they have clear all the air cracks before painting and the seepage of walls is due to dumping of waste and unused furniture and material on the terrace by the flat owners.  Further, the leakage of bathrooms due to use of concentrated acid to clean bathrooms which should not be used. 

            It is further observed that as per Ex.B7 registered document dt.19.11.2009 and Annexure I-A Certificate of even date, the flat bearing No.304 in second floor was registered and handed over to one Bora Jayalakshmi on 19.11.2009 itself.  We further observed that the opposite parties applied for regularization of the construction of said S.S. Residency on 29.5.2008 as per Ex.B3 and paid the penalty amount for regularization of the building same as per Exs.B4 to B6 documents.  We further found that as per Ex.B1 dt.31.12.2009 invoice of Kone Elevator India Private Limited and as per Ex.B2, the opposite parties purchased Elevator of six passenger capacity.   

            We further observed that the complainant S.S. Residency Apartment Owners Association failed to produce the agreement between owners and the opposite parties.  Further, as per the available evidence under Ex.B6, the opposite parties applied for Regularization of building and paid the penalty imposed by the Municipal Corporation, Rajahmundry themselves.  We further observed that the complainant issued a legal notice dt.11.10.2011 and filed the complaint on 11.11.2011, after more than one and half years of their occupation of the flats.  There is no evidence filed by the complainant association that the seepage of flats is due to inferior quality construction of disputed S.S. Residency Apartments by the opposite parties.  Further, once the apartments were occupied by the owners, it is deemed that they satisfied with the construction by the opposite parties and the burden of further maintenance of the entire building rests on the flat owners collectively. The leakages of bathrooms and seepage might be due to improper maintenance of the flats by the respective owners as it is evident from the Commissioner’s report that some flats are well maintained by the respective owners and some flats are damaged with stains on the walls and cracks.                      

With the discussion held supra, under the facts and circumstances of the case, we are unable to fasten any deficiency in service on the part of the opposite parties at this juncture.  The complainant association failed to prove the allegations made against the opposite parties with any reliable evidence and so, the complaint is liable to be dismissed.  

 

 

7.  Point No.3:-  In the result, the complaint is dismissed without costs.

Typed to dictation, corrected and pronounced by us in open Forum, on this the 25^th day of August, 2014.

      

            Sd/-xxx                                     Sd/-xxx                                             Sd/-xxx

            MEMBER                                 MEMBER                                PRESIDENT

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT:  None.                                                               FOR OPPOSITE PARTIES:  None.

 

DOCUMENTS MARKED

 

 

FOR COMPLAINANT:

 

Ex.A1    Certificate of registration of the complainant.

Ex.A2    Brochure.

Ex.A3    Proceedings issued by Rajahmundry Municipal Corporation under B.P.S.

  2352/2008 G-2 dt.21.12.2010.        

Ex.A4    Legal notice dt.11.10.2011 issued by the complainant.

Ex.A5   Returned postal covers.

Ex.A6    Estimate for repairs given by Licensed Surveyor.

 

FOR OPPOSTIE PARTIES:-   

 

Ex.B1    Copy of “KONE” elevator Description.

Ex.B2    Letter issued by “KONE” to the opposite parties.

Ex.B3    The application showing payments of Rs.50,000/-.

Ex.B4    Bank Statement.

Ex.B5    Bank Statement.

Ex.B6    two xerox copies of DDs with original voucher.

Ex.B7    Copy of sale deed executed by the 1^st opposite party.

 

   Sd/-xxx                                                  Sd/-xxx                                        Sd/-xxx

      MEMBER                                       MEMBER                                PRESIDENT