KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISISON VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL NOS.649/03, 650/03, 656/03 AND 657/03
COMMON JUDGMENT DATED : 30.4.2010
PRESENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
APPEAL NO.649/2003
1.Skyline Builders, : APPELLANTS
Rajaji Road, Ernakulam.
2. Mr.Joseph Philip,
Managing Partner,
Skyline Builders,
Rajaji Road, Ernakulam.
(By Advs.K.I.Narasimhan &V.Santharam)
Vs.
1. Sunil Chandran, : RESPONDENTS
Villa No.7,
Skyline Queen Park villa,
Keerthinagar,
Cochin- 24.
2. Dr.P.K.Vijayachandran,
A.21, Sautho Nagar Annexie,
Rajagiri.P.O.,
Cochin-683 104.
(By Adv.S.P.Chaly)
APPEAL NO.650/2003
Skyline Builders, : APPELLANT
Rajaji Road, Ernakulam
Cochin 682 035 represented
By its Managing Director
(By Advs.K.I.Narasimhan & V.Santharam)
Sheela George, : RESPONDENT
Menakalickal House,
28/2146,
Wood House Gardens,
Chilavannoor Road,
Cochin-20.
(By Adv.S.P.Chaly)
APPEAL NO.656/2003
1. Sunil Chandran, : APPELLANTS
Villa No.7,
Skyline Queen Park villa,
Keerthinagar,
Cochin- 24.
2. Dr.P.K.Vijayachandran,
A.21,
Sautho Nagar Annexie,
Rajagiri.P.O.,
Cochin-683 104.
(By Adv.S.P.Chaly)
1.M/s Skyline Builders, : RESPONDENTS
41/349 B, Rajaji Road,
Ernakulam.
2. Mr.Joseph Philip,
Managing Partner,
Skyline Builders,
41/349 B, Rajaji Road,
Ernakulam.
(By Advs.K.I.Narasimhan & V.Santharam)
APPEAL NO.657/2003
Sheela George, : APPELLANT
Menakalickal House,
28/2146,
Wood House Gardens,
Chilavannoor Road,
Cochin-20.
(By Adv.S.P.Chaly)
M/S Skyline Builders, : RESPONDENT
Rajaji Road, Ernakulam
Cochin 682 035 represented
By its Managing Director
(By Advs.K.I.Narasimhan & V.Santharam)
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
The above 4 appeals are preferred from the common order dated 19th May 2003 passed by CDRF, Ernakulam in OP.Nos 758/98 and 899/99. The appellants in appeal 649/03 were opposite parties 1 and 2 and respondents 1 and 2 were the complainants 1 and 2 in OP No.758/98. The appellant in appeal 650/03 was the opposite party and respondent was the complainant in OP 899/99. The appellants in appeal 656/03 were the complainants 1 and 2 and the respondents 1 and 2 were the opposite parties 1 and 2 in OP 758/98. The appellant in appeal 657/03 was the complainant and the respondent was the opposite party in OP No.899/99. The aforesaid consumer complaints in OP Nos.758/98 and 899/99 were filed before the CDRF, Ernakulam alleging deficiency in service on the part of the opposite party M/s Skyline Builders in providing amenities and common facilities to the plots and the villas thereon constructed by the opposite party M/s Skyline Builders. The main grievance of the complainants in OP 758/98 was failure on the part of the opposite party M/s Skyline Builders in providing tennis court with the required specifications and in changing the location of the tennis court to an area where the high tension electric line is passing through. The complainant in OP.899/99 has also alleged deficiency in service and unfair trade practice on the part of the opposite party M/s Skyline Builders by preventing free flow of light and air to her villa by constructing additional 2 villas on the western side of her plot. The complainant therein alleged that by the said action of the opposite party the value of her villa has been considerably decreased and thereby she claimed compensation of Rs.3 lakhs. The complainants in OP 758/98 sought for the direction to the opposite party M/s Skyline Builders to construct the tennis court in a suitable location with required specifications and also to award compensatory cost and costs to the complainants.
2. The opposite party M/s Skyline Builders filed separate written versions in the aforesaid consumer complaints and denied the alleged deficiency in service. They further contended that the alignment of the plots was made according to the direction of GCDA and thereby the tennis court from the originally proposed area was shifted and that no deficiency in service had occurred due to the shifting of the tennis court. They further contended that the said changing was communicated to the complainants and they did not raise any objection to the aforesaid change. Thus, the opposite party M/s Skyline Builders prayed for dismissal of those complaints.
3. Both the above consumer complaints were tried jointly. The evidence was recorded in OP 758/98. Before the Forum below, the 1st complainant in OP 758/98 was examined as PW1 and the complainant in OP.899/99 was examined as PW2. The partner and authorized representative of M/s Skyline Builders was examined as DW1. Exts. A1 to A6 documents were marked on the side of complainants in OP 758/98 and Exts. A7 to A9 on the side of the complainant in OP 899/99. From the side of the opposite party M/s Skyline Builders Ext.B1 to B29 were marked. On an appreciation of the evidence on record, the Forum below passed the impugned common order dated 19th May 2003 and thereby the opposite parties in OP 758/98 were directed to shift the tennis court to a safer place and to construct the same in accordance with specifications and rules within 2 months from the date of receipt of he copy of the order. It was further directed that in case the tennis court could not be shifted as directed, due to non availability of space or want of sanction from the concerned authority or any other justifiable reasons, the opposite parties are directed to compensate the complainants by paying Rs.25,000/- each within 2 months. The opposite parties are also directed to pay Rs.750/- as cost of the proceedings. As per the impugned order the complainant in OP.899/99 has been awarded compensation of Rs.50000/- with cost of Rs.1000/-. Aggrieved by the said common order passed on OP.NOs 758/98 and 899/99 the opposite parties therein have filed the above appeal NOs.649/03, 650/03. The complainants in OP.758/98 are not satisfied with the compensation of Rs.25000/- ordered by the Forum below. Hence they filed the appeal 656/03 claiming enhanced compensation. The complainant in OP899/99 is also not satisfied with the quantum of compensation awarded by the Forum below. Hence she preferred the appeal 657/03 claiming compensation of Rs.3 lakhs.
4. These four first appeals were heard together. This Commission is pleased to dispose of these appeals by a common judgment. These appeals are preferred from the common order passed by the Forum below. Moreover, the issues involved are connected and interrelated and so for the sake of convenience these appeals are being disposed of by this common judgment.
5. We heard both sides in these 4 appeals. Both the parties submitted their arguments based on the grounds urged in the memorandum of the present appeals. The learned counsel for the appellants in appeals 649/03, and 650/03 much relied on Ext.B1, B2 and B9 agreements executed between the complainants and the builders M/s Skyline Builders and by relying on the said agreements it was submitted that the complainants had given the consent to the builder to make such variations as may be considered necessary by the builder during the process of the construction work. He also relied on Ext.B14 letter dated 17.6.95 issued by the Cochin town Planner, to the Senior Town Planner, Ernakulam stating that the approval of the lay out is granted on condition that the 12 meter wide road after formation should be handed over to the cochin Corporation for maintenance. Thus, argued for the position that the 12 meter wide road was formed as directed by the Town Planner and thereby the tennis court was shifted from the originally proposed area. Thus, the appellants/ M/s Skyline Builders justified their action in shifting the tennis court from the originally proposed area. They prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the appellants in A.656/03 and A.657/03 supported the finding of the Forum below regarding the deficiency in service on the part of M/s Skyline Builders. But they challenged the quantum of compensation awarded by the Forum below. Thus, the appellants in A.656/03, A657/03 prayed for enhancing the compensation awarded by the Forum below.
6. The points that arise for consideration in these 4 appeals are as follows:-
1) Whether the complainants in OP.758/98 and OP.899/99 have succeeded in establishing the alleged deficiency in service and unfair trade practice on the part of the opposite party M/s Skyline Builders in providing the amenities and facilities to the complainants?
2) Whether the Forum below can be justified in passing the impugned common order dated 19.5.2003 in OP.No.758/98 and OP.No.89/99?
7. Points 1 and 2:-
For the sake of convenience the parties to these 4 appeals can be referred to according to their status before the Forum below in OP.758/98 and 899/99.
8. There is no dispute that the complainants in the said consumer complaints entered into agreements with M/s Skyline Builders(Opposite party) for the purpose of constructing 3 villas for the 3 complainants there on. Exts. B1, B2 and B9 agreements would make it clear that the said 3 complainants availed the services of opposite party M/s Skyline Builders for the purpose of constructing villas for them. Ext.A 7 is the sale deed executed by M/s Skyline Builders in favour of the complainant in OP.899/99 transferring the plot referred to in the schedule to the said sale deed. Admittedly such sale deeds had also been executed by M/s Skyline Builders in favour of the complainants 1 and 2 in OP No.758/98. Ext.A1 series of lay outs and A2 specifications issued by the opposite party M/s Skyline Builders would also show that the opposite party builder had agreed to provide common facilities such as tennis court, shuttle court, internal roads, satellite dish antina, club house, open air auditorium, jogging track etc. The payment of consideration by the complainants is also admitted by the opposite party M/s Skyline Builders. Thus, the services availed by the complainants from the opposite party M/s Skyline Builders can be considered as services as defined under Section 2(1)(o) of the Consumer Protection Act and the complainants can be considered as consumers as defined under Section 2(1) (d) of the Consumer Protection Act, 1986. The Forum below had the jurisdiction to entertain the disputes involved in OP NOs.758/98 and 899/99. The case of the opposite party M/s Skyline Builders that the Forum below had no jurisdiction to entertain the complaint in OP.758/98 and 899/99 can not be upheld.
9. The opposite party M/s SKYLINe Builders has also got a case that the Forum below had no jurisdiction or authority to issue a direction to the opposite party to construct any tennis court as directed in the impugned order. The Forum below has rightly considered that aspect and passed the impugned order by relying on the provisions of Section 14 of the Consumer Protection Act, 1986. The case of the complainant is that the opposite party M/s Skyline Builders failed to provide tennis court with required specifications and the said failure would amount to deficiency in service and unfair trade practice. The Forum below can very well direct the opposite party to remove the deficiencies in services in question. So, the reliefs sought for can be granted by the Forum below. The aforesaid contention raised by the opposite party cannot be up held in the light of the provisions of Section 14(1)(c) of the Consumer Protection Act,1986.
10. The complainants have also alleged unfair trade practice on the part of the opposite party M/s Skyline Builders by not providing the tennis court as specified in the brochure and in the original lay out of plots. It is the case of he complainants that they were made to believe that the tennis court will be provided as shown in the brochure and lay out, but subsequently the opposite party shifted the tennis court from the original area shown in the lay out to the place where over head high tension electric line is passing through. It is the case of the complainants that they were attracted by the offer made by the opposite party builders and thereby they entered into agreements with the opposite party for getting allotment of the plots and construction of the villas thereon; but there after opposite party deviated from the assurance given to the complainants. The aforesaid case of the complainants would attract the provisions of unfair trade practice as defined under Section 2 (1)( r) of the Consumer Protection Act, 1986. Unfair trade practice is defined as follows:- “ unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice. The allegations of the complainants would attract the unfair trade practice as defined under Section 2(1) (r ) of the Consumer Protection Act. So, the Forum below had the jurisdiction to entertain the disputes involved in OP.No.758/98 and 899/99.
11. Ext.A1 series of documents would show that originally there were only 32 plots offered for construction for villas thereon. In the old plan a tennis court was also provided. The said area for tennis court was provided on the side of private road existing on the western side of plot No.20,21,22 and 23. But subsequently the plan was changed and thereby 34 plots were demarcated by allotting of 2 more plots. The above area provided for construction of tennis court was converted into 2 additional plots and thereby the numbers allotted to the plots were also changed. In the present revised plan the plots with old No.20,21,22 and 23 were re allotted the NOs. 15,16,17 and 18 and the 7 meter width road was changed to 5 meter wide road. The area allotted for construction of tennis court has been converted to 2 plots with NOs. 24 and 25. Thereby the tennis court was shifted from the original place to an open area where high tension electric line is passing through. Ext.A1 series of lay outs are not disputed by the opposite party M/s Skyline Builders.
12. The authorized representative of the opposite party M/s Skyline Builders was examined as DW1. He also admitted A1 series of plans (layouts) and admitted that 2 more additional villas were constructed in the place allotted for construction of tennis court. It is to be noted that DW1 is one of the partners of M/s Skyline Builders. So, it can very safely be concluded that the shifting of the tennis court from the original place was necessitated because of construction of 2 additional villas in the said place. It is to be noted that the complainants purchased the plots and entered into the agreements with the opposite party M/s skyline Builders for construction of villas with the understanding that there will be 32 villas and there will be sufficient open area and the tennis court will be provided in the place shown in the original plan. There can be no doubt that the opposite party M/s Skyline Builders is benefited by construction of 2 additional villas in the space where the tennis court was provided. Thus, the opposite party changed the alignment of plots with the selfish motive of earning more profit at the risk of causing inconvenience and discomfort to the complainants and like other occupants of the villas. So, the complainants are justified in alleging deficiency in service and unfair trade practice on the part of the opposite party M/s skylone Builders.
13. The opposite party M/s Skyline Builders has got a case that the old plan was changed as directed by the GCDA cannot be believed or accepted. The aforesaid case of the opposite party cannot be believed for a moment. The learned counsel for the opposite party M/s Skyline Builders much relied on B14 approved plan and the sanctioned letter issued by the Senior Town Planner. In the said sanctioned letter dated 17.6.95 it is only mentioned that the plan submitted for approval has been granted approval on condition that the 12 meter width road shown in the said plan is to be handed over to the cochin Corporation for maintenance. But, there is no whisper in the said sanctioned letter that the 12 meter wide road was formed as directed by GCDA or the Cochin Corporation. There is nothing on record to show that Ext.B14 plan was prepared as directed by GCDA or the Cochin Corporation. On the other hand, it can only be seen that B14 plan was prepared at the instance of the opposite party and the said plan was submitted for approval of GCDA, as the opposite party found it convenient for their purpose. There is nothing on record to show that 12 feet width road was formed as requested by the local Authority. Ext.B14 site plan and the accompanying sanctioned letter would not support the case of the opposite party M/s Skyline Builders that the plots were realigned and relocated as directed by the local body(GCDA and Cochin Corporation). On the other hand, it can be seen that the realignment of the plots was necessitated for the convenience of the opposite party in order to effect sale of 2 additional floats and for the purpose constructing 2 additional villas. The oral testimony of DW1 would strengthen the aforesaid conclusion. The Forum below is perfectly justified in finding deficiency in service and unfair trade practice on the part of the opposite party M/s Skyline Builders in shifting the tennis court from the proposed original plan to an inconvenient place where over head high tension electric line is passing through.
14. The opposite party M/s Skyline Builders has got a case that the complainants were informed about the changes made in the original plan. It has also got a case that the complainants did not raise any objection to the said changes. But the said case of the opposite party has been denied and disputed by the complainants. There is no evidence on record to show that any such letter was issued by the opposite party intimating the complainants about the changes made in the original plan. DW1 has deposed that letters were issued to the complainants he further deposed that outword register and local delivery register are maintained by the opposite party. But no such document is forthcoming from the side of the opposite party to substantiate their case that letters were issued to the complainants informing or intimating the changes made to the original plan. The available evidence on record will go to show that the opposite party made the changes to the original plan without informing the complainants and other alottees of plots. No evidence is forthcoming from the side of the opposite party to substantiate its case that complainants consented for the said changes. So, it can only be inferred that the changes to the original plan were made by the 1st opposite party for their convenience and at the risk of causing inconveniences and discomforts to complainants. The changes were made with the profit motive of the opposite party to effect sale of 2 additional plots by converting the place allotted for tennis court into 2 additional plots for construction of 2 additional villas.
15. The complainant in OP 899/99 was allotted plot No. 22 in the old plan. She was given the very same plot with the plot No.as 17 It is to be noted that plot No.22 in the old plan and plot No.17 in the new plan are one and the same plot. Ext.A7 is the sale deed executed by the opposite party M/s Skyline Builders in favour of the complainant in OP.899/99 effecting sale of the said plot. The said plot was having private road on its western boundary. In Ext.A1 old plan it can be seen that the plot No. 22 was having a private road on its western side. It can also be seen that on western side of the said private road there was an open area which was allotted for construction of tennis court. But, by the realignment of the plots the old plot No.22 was given the new No. as 17 and on the open area on the western side has been converted into plot Nos. 24 and 25.
16. Complainant in OP.899/99 (PW2) has deposed about the additional 2 villas constructed on the western side of her villa. She has also deposed about the inconvenience caused to her property by the construction of 2 additional villas in the open space. It is deposed by PW2 that the toilet and other backyard of the said 2 additional villas are facing the front portion of her villa and that free flow of air and light has also been prevented by the lack of open space on the western side. There can be no doubt that the lack of open space on the western side has created inconvenience and discomfort to the occupants of the villa in new plot No.17. It can also be concluded that the market value of the complainant’s plot and villa has been considerably reduced by the coming into existence of the other 2 additional plot on the western side. The materials on record would show that the complainant purchased the plot covered by Ext.A7 sale deed with the bonafide belief that there is an open space provided for tennis court on the western side with a 7 meter wide road on its side. But, the opposite party changed their stand to the disadvantage of the complainant in OP.899/99. So, the complainant in OP.899/99 has been adversely affected by the deficiency of service and unfair trade practice on the part of the opposite party M/S Skyline Builders. Thus, the finding of the Forum below regarding deficiency of service and unfair trade practice on the part of the opposite party M/s Skyline Builders is to be confirmed.
17. The Forum below has awarded a compensation of Rs.50,000/- to the complainant in OP.899/99. It is true that the complainant thereon claimed compensation of Rs.3 lakhs for the deficiency of service and unfair trade practice on the part of the opposite party M/S Skyline Builders. But the complainant has not adduced any evidence to substantiate her claim for Rs.3 lakhs as compensation. It is also to be noted that the complainant had taken possession of her villa in November 1997 she came up with the present complaint only in the year 1999. A8 lawyer notice was issued to the opposite party only on 16.4.99 claiming compensation of Rs. 3 lakhs. Thus, she took about 2 years time to take steps for getting compensation from the opposite party. It is also to be noted that the complainant in OP.899/99 was also negligent in the matter. She entrusted the construction of the villa with the opposite party builder and she was keeping idle she did not care to make local inspection. She did not raise any objection regarding the construction of the other 2 villas in front of her villa and against the understanding made by the opposite party. It is only after construction of those villas and getting possession of the villa constructed for the complainant she came up with the present case for compensation. It is true that there was deficiency of service and unfair trade practice on the part of the opposite party M/s Skyline Builders. But, the complainant because of her negligence and laches permitted the opposite party to carry on the deficiency of service by constructing 2 additional villas in front of her villa. The complainant has also failed to substantiate her claim of compensation for Rs.3 lakhs. In the absence any such concrete evidence to prove the quantum of compensation, the Forum below assessed the compensation at Rs.50,000/-. The complainant is not in a position to say the basis for claiming compensation for Rs.3 lakhs. The Forum below can be justified in disallowing the said claim for Rs.3 lakhs as compensation. In the absence of any evidence, the Forum below has done some guess work in fixing the compensation. At any rate, the compensation of Rs.50,000/- awarded by the Forum below cannot be treated as unreasonable or unjustifiable. This Commission is of the view that he compensation of Rs.50,000/- awarded by the Forum below can be upheld. Therefore, the complainant in OP.899/9 is entitled to get compensation of Rs,50,000/- and the opposite party M/S Skyline Builders is liable to pay the aforesaid compensation to the complainant. The said compensation is to be paid within one month from the date of this judgment failing which the said amount will carry interest at the rate of 12% per annum from the date of this judgment till realization. The cost of Rs.1000/- ordered by the Forum below is also confirmed.
18. The Forum below directed the opposite parties in OP.758/98 to shift the tennis court to a safer place and lay out the same in accordance with the specifications and rules. The grievances of the complainant in OP.758/98 is that the tennis court now constructed is not fit for their use as a tennis court. Admittedly, over the tennis court high tension line are passing and the complainants have got an apprehension in playing tennis in that place because of the potential danger. There can be no doubt that people are not interested to have tennis court below high tension over head electric line. It is true that no acceptable evidence is forthcoming from the side of he complainants to prove the potential danger in using that place. The commission report submitted by the commissioner would also show that the said place cannot be used as a tennis court with much convenience and comfort. The report would also show that enough space is not left on either side of the said tennis court. So, the recreational utility is decreased. The Forum below has rightly directed the opposite party to shift the tennis court to a safer place with the required specifications. We do not find any ground to interfere with the aforesaid direction given by the Forum below. In the alternative, the Forum below also ordered compensation of Rs.25000/- each to the complainants 1 and 2 with cost of Rs.750/-.
19. The complainants have got a case that the compensation awarded is negligible and the same is to be enhanced. It is to be noted that the tennis court is provided for all the occupants of 34 villas constructed in that project. So, compensation of Rs.25,000/- each awarded to the complainants can be considered as sufficient and adequate compensation. The order passed by the Forum below in OP.758/98 is also upheld. There is no sufficient reason or ground to interfere with the impugned order passed by the Forum below. These points are answered accordingly.
In the result the above 4 appeals are dismissed. The parties to these appeals are directed to suffer their respective costs. The impugned common order dated 19.5.2003 passed by CDRF, Ernakulam in OP.NOs.758/98 and 899/99 is confirmed.
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
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