DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  12^th  day of January,  2024

Present      :   Sri. Vinay Menon V.,  President

                   :  Smt. Vidya A., Member              

                  :  Sri. Krishnankutty N.K., Member                                 Date of Filing: 28/04/2022    

     CC/75/2022

1. A.S. Vivekanandan,

S/o. T. Sankara Patter,

24/1881-D, Puthiyaparambath,

Mankavu (PO).,Valayanad Amsam,

Kozhikkode

2. R. Jayalakshmi,

W/o. A.S. Vivekanandan,

24/1881-D, Puthiyaparambath,

Mankavu (PO).,Valayanad Amsam,

Kozhikkode                                                                       -           Complainants

(By Adv. Ullas Sudhakaran)

                                                                                                  Vs

1. Sivadasan Pattath,

S/o. Sreedharan,
Pattath House,

Karalam (PO), Thrissur – 678 711

2. Manoj R.,

S/o. Ramachandra Iyer,

14/442, Theeram,

Sanjay Nagar, Sekharipuram,

Kalpathy, Palakkad – 678 010

3. Sathyalakshmi,

W/o. Manoj,

14/442, Theeram,

Sanjay Nagar, Sekharipuram,

Kalpathy, Palakkad – 678 010                                          -           Opposite parties  

(OP 1 by Adv. M/s. K.A. Stanley James & Pramod P.K.

      OPs 2 & 3 by Adv. M. Anilkumar)

O R D E R

By Sri. Vinay Menon V., President     

1. Gist of the complainants’ grievance is that they purchased a flat from the 1^st OP which was constructed by OPs 2 & 3. Post purchase they found that the building does not have water supply from KWA, that construction is made of substandard material, that the lift is not functional, that there is no stand-by generator and that the borewell water is contaminated.  Aggrieved by inaction on the part of opposite parties in providing better facilities and curing the aforesaid defects, this complaint is filed.
2. OP1 filed version stating that he is a land owner and therefore is not a necessary party to the dispute.
3. OPs 2 & 3 filed version denying the complaint allegations. They stated that they have provided all facilities. They could not provide the water as they are having dispute with the first OP and that without settlement of that dispute they are unable to proceed further with providing of water facilities from KWA.
4. Pleadings considered the following issues were framed.

1. Whether the complainant is a consumer under Consumer Protection Act?
2. Whether the OPs failed to provide the amenities assured by them for the residential flats of the complainant?
3. Whether there is any deficiency in service on the part of OPs in not providing the water connection, generator backup and functional lift to the complainant?
4. Whether there is any deficiency in service/unfair trade practice on the part of the opposite parties?
5. Whether the complainant is entitled to any of the reliefs claimed?

6.         Any other reliefs?

5.         Subsequent to framing of issues OP1 filed an application as IA 260/2023 seeking to hear the maintainability of this complaint as against OP1 as a preliminary issue.

                        OP1, admittedly is the land owner. Therefore, his sole responsibility is with regard to the sale of property. We held that any grievance by the complainant as against OP1 will have to be settled before a civil court of competent jurisdiction. Accordingly, IA 260/2023 was allowed on 16/3/2023.  Complaint as against OP1 was dismissed.

6.         (i)     Evidence comprised of proof affidavit and Exhibits A1 to A4.  

(ii)     OPs 2 & 3 did not adduce any evidence.

            Issue No.1

7.         Even though the question of status of complainant was questioned, this contention was not taken up seriously by the OPs but resorting to prove whether there is privity of contract between the complainant and O.P.s 2 and 3.  Hence this issue needs no discussion.

            Issue No. 2

8.         It can be seen that grievance of the complainants are with regard to lack of KWA water facility, non-functioning of lift, construction using substandard materials, lack of standby generator and supply of contaminated borewell water. Pleadings of the complainant were totally countered to by OPs 2 & 3.

9.         In view of the countering of the complaint pleadings, it was incumbent of the complainants to prove their case by way of taking out  an Expert Commissioner so as to have a report upon which this Commission can rely on for passing a studied order. But the complainant has failed to do so. Therefore, this Commission lacks a solid ground upon which it can pass a studied and considered order.

10.       Ext.A2 is a notice issued by the complainant to the first OP. In the said notice the sole complaint is with regard to the lack of water. Ext.A2 does not make any mention with regard to any other grievance suffered by the complainants. Considering the fact that Ext.A2 notice was issued on 14/12/2021, i.e. approximately 3 years after purchase of the property and 4 months prior to filing of this complaint, we find that the complaints with regard to matters beyond water supply are made for the purpose of this dispute sand are not seriously pursued.

11.       At the time of hearing, counsel for the complainant argued that even in the absence of any evidence this Commission can rely on the admissions made by the OPs 2 & 3 in coming to a conclusion that there is deficiency in service on the part of OPs 2 & 3 in not providing KWA water connection. We went through the contents of the version in paragraph 7 of the version. It is true that the O.P.s have stated that they had taken action to avail connection. Even if we take up this contention of the complainant, the complainant has failed to prove that the OPs 2 & 3 had a duty to provide KWA  connection to the complainants or that the O.P.s 2 and 3 had held out to the complainants that they would provide KWA connection to the complainants.

12.       Ext.A1 is a copy of Sale Deed bearing No.2432/2018 of Olavakkode SRO executed by OP1 to the complainants. Whatever rights, title, interest and possession were transferred by the OP1 upon the property which is the subject matter of this dispute forms the subject matter of this sale deed. Schedule C in page 10 of the sale deed is the description of the property upon which rights are transferred. Said schedule is totally silent on the matter pertaining to water supply by/from KWA. Only mention is with regard to borewell. We cannot automatically presume that such absence of any mention of KWA connection is unintentional or accidental.

13.       The fact that Ext.A1 sales deed was executed on 7/12/2018 and this complaint was filed after span of over 3 years also point fingers to the fact that this complaint is nothing but an after-thought. 

14.       Resultantly, we hold that the complainant has failed in all aspects to prove that there was a liability cast on OPs 2 & 3 to provide KWA water connection to the complainants.

             Issue Nos. 3 & 4  

15.       In view of the discussions in Issue no. 2 supra, we hold that the complainant has failed to prove that there is deficiency in service on the part of OPs 2 and 3 in not providing KWA water connection, generator backup and functional lift.  

16.       From the pleadings and evidence adduced, we do not find any other deficiency in service or unfair trade practice on the part of OPs.

            Issue Nos.  5 & 6

17.       Complainant is not entitled to any of the reliefs sought for.

18.       In the facts and circumstances of the case parties are directed to suffer their respective costs. 

19.       With the above findings, this complaint is dismissed against OPs 2 & 3 also.

Pronounced in open court on this the 12^th day of January, 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   -  Notarised copy of  sale deed bearing No.2432/2018 of Olavakkode SRO

Ext.A2series  –   Copy of lawyers notice and postal receipt and AD card

Ext.A3   -  Original reply notice dated 22/12/2021

Ext.A4  -  Original Pass book belonging to complainants.

Exhibits marked on the side of the opposite party: Nil

Court Exhibit:  Nil

Third party documents:  Nil

 Witness examined on the side of the complainant

Nil

Witness examined on the side of the opposite party: Nil

Court Witness: Nil

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.