Andhra Pradesh

Visakhapatnam-II

CC/68/2011

Dasari Jagannadharao - Complainant(s)

Versus

Sudia Indira - Opp.Party(s)

M. Hari Mehar

22 Nov 2014

ORDER

                                              Date of Registration of the Complaint:04-03-2011

                                                                                                Date of Order:22-11-2014

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President           

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

                                3. Sri C.V. Rao,  M.A., B.L.,

                                     Male Member

 

                            Friday, the 22^nd day of November, 2014.

                                 CONSUMER CASE No.68/2011

Between:-

Dasari Jagannadha Rao, S/o D. Ramulu,

aged 42 years, R/o Dr. No.32-39-14,

Kanchara Veedhi, Visakhapatnam-530001.

….. Complainant

And:-

1.Smt. Sudia Indira, W/o S. Rama Rao,

   aged 57 years, Dr. No. 45-58-17,

   Indu Enclave, Narasimhanagar,

   Visakhapatnam.

2.Sri Sudia Rama Rao, S/o late Appa Rao,

    aged 63 years, Dr. No.45-58-17,

    Indu Enclave, Narasimhanagar,

    Visakhapatnam.

3.Sri Sudia Kamala Kumar, S/o Rama Rao,

   aged 30 years, Dr. No.45-58-17,

   Indu Enclave, Narasimhanagar,

   Visakhapatnam.

4.M/s. Kamala Builders, represented by its

   Authorized Agent S. Kamal Kumar,

   the 3^rd O.P, (its legal entity is not known to Complainant)

   having their office at Dr.No.45-58-17, Indu Enclave,

   Narasimhanagar, Visakhapatnam.

                                                                                           …  Opposite Parties  

                     

          This case coming on 12.11.2014 for final hearing before us in the presence of Sri M. Hari Mehar and Sri R.S.J.D. Raju, Advocates for the Complainant and Sri S. Arun Dev, Advocate for the Opposite Parties and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)

 

1.       This consumer complaint is filed by the Complainant against the  Opposite Parties directing them  to complete the listed unfinished items stated in their letter dated 18.01.2009: 1) Providing taps 2) Electrical switches in good condition 3) Outside painting for the entire building (final coat), 4) Intercom system, 5) Generator supply with connection, 6) To allot Car parking except 7^th item i.e., Flooring with grouting within a specified time failing which directing them to pay expenditure to each respective item @ 1) Rs.5,000/- + 2) Rs.5,000/- +  3) Rs.70,000/- +  4) Rs.50,000/- + 5) Rs.2,00,000/- +  and 6) Rs.50,000/- = total Rs.3,80,000/-, and to pay the expenditure Rs.1,00,000/- incurred by him against admitted list item No.7  of the letter dated 18.01.2009, to pay damages of Rs.2,00,000/- towards loss of value of the flat, to pay a compensation of Rs.1,00,000/- towards mental agony and costs etc. 

 

 2.      Instead of reproducing the averments of the Complaint I would like to state the case of the Complainant in brief that he purchased flat by way of Registered Sale Deed on 19.01.2008 from the Opposite Parties along with registered construction agreement with the specification mentioned and the Opposite Party promised to hand over the same in 18 months and as he required the flat after due payment on 18.01.2009 the flat was handed over to him, and  at that time the Opposite Parties admitted that they have left the following works unfinished 1) Providing taps 2) Electrical switches in good condition 3) Outside painting for the entire building (final coat), 4) Intercom system, 5) Generator supply with connection, 6) Car parking and 7) Flooring with grouting  and assured  him in writing that he will complete the same within a month, and to identify the unfinished works more easily for himself and the 3^rd Opposite Party he has taken photographs, at the time of handing over the flat, but the Opposite Parties failed to perform their obligations.

 

3.       It is his further case that as he could not make good of the flat without completion of 7^th item flooring and grouting, he got it done with his own expenditures of Rs.1,00,000/- through a contractor in order to keep his flat in use.   In respect of other items, inspite of his requests the Opposite Parties failed to complete the unfinished works and allot the car parking.  He also contended the Opposite Parties has not followed standards as per norms of the GVMC Rules while making constructions; and all these acts caused him mental agony.   Hence, this Complaint.

 4.      The case of the 3^rd Opposite Party, denying all the material averments of the Complainant is that they delivered the flat to the satisfaction of the Complainant and none of the other inmates of the building have complained about the quality of construction till date and in case, the Complainant any grouse for the same, he was at liberty to raise his voice much earlier.  The Complainant had taken delivery of the flat after it was completed in all respect and the claim made by the Complainant is highly excessive and totally imaginary and he enjoying Car parking exclusively, and he incurred expenditure for the flooring and grouting is also untenable.    For all these reasons, the Complaint is liable to be dismissed.

      

5.       To prove their respective cases, on behalf of the Complainant he filed his evidence affidavit and got marked Exs.A1 and A11.   On the other hand, on behalf of the Opposite Parties, the 3^rd Opposite Party filed his evidence affidavit.   Ex.B1 is marked on behalf of the Opposite Parties 1 to 3.

 

6.       Ex.A1is the photo copy Sale Deed Agreement between Complainant and Opposite Parties on 19.01.2008.  Ex.A2 is the photo copy of Agreement For Construction of Residential Unit on 19.01.2008.  Ex.A3 is the Indu Mansion Brochure (Location Map).  Ex.A4 is the Photos 7 (Seven) with C.D.  Ex.A5 is the Letter of the Opposite Parties admitting unfinished works on 18.01.2009.   Ex.A6 Photos (three) with C.D. Ex.A7 is the Receipt No.5 for Rs.1,00,000/- in favour of the Complainant on 18.03.2009. Ex.A8 is the Receipt for Rs.1,00,000/- in favour of the Complainant on dated 30.08.2007.   Ex.A9 is the Receipt for Rs.1,00,000/- in favour of the Complainant on 30.08.2007.   Ex.A10 is the Receipt for Es.72,500/- in favour of the Complainant on 15.02.2011.  Ex.A11 is the Surveyor Estimation on 14.02.2011.

 

7.       Both parties are filed their respective written arguments.

 

8.       Heard arguments of both sides.

 

 

 

 

9.       Now the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the Opposite Parties and the Complainant is entitled for the reliefs of advance amount with interest, compensation and costs.

 

10.     As seen from record it is not in-dispute that the Complainant purchased the flat from the 1^st Opposite Party and the 1^st Opposite Party handed over the possession of the flat on 18.01.2009.    The crux of the point  according to the Complainant, while handing over the flat No.104 of INDU MANSIONS situated in Godewari Ward, Visakhapatnam, the Opposite Party took time for completing the following unfinished works i.e., 1) Providing taps 2) Electrical switches in good condition 3) Outside painting for the entire building (final coat), 4) Intercom system, 5) Generator supply with connection, 6) Car parking for a period of one month, but he failed to complete them as promised.    On the other hand, according to the Opposite Party, he obtained handover Certificate on 18.01.2009 vide Ex.B1 from the Complainant that the flat along with the fixtures are in good condition.    Admittedly, the Opposite Parties not referred the present document dated 18.01.2009 vide Ex.B1 stated to have been filed on 29.10.2014 in the main counter.  If really any such document was in existence, the 1^st Opposite Party would raise the same fact in their counter.   In the absence of the said pleading, it can be said that as an after thought, the Opposite Party took such a plea as defence,   The Complainant contended that his signature on the so-called document filed on 29.10.2014  i.e. Ex.B1is forged one. Admittedly, the signature of the Complainant by name D. Jagannadha Rao is available on record which is not disputed by the Opposite Party much less in Ex.A2 Construction Agreement.   The signature of the Complainant viz., D. Jagannadha Rao is available on record not only in the complaint/petition but also on his Vakalat.   On a careful scrutiny of the admitted and disputed signatures of the Complainant on record, it is evident that the pen movement stokes are similar that of the signature of D. Jagannadha Rao in Ex.A2 Vakalat and complaint but not the signatures found in the document filed dated 29.01.2014 vide Ex.B1.   As per Section-73 Indian   Evidence Act.   This Forum has inherent power to compare the admitted signatures available on record.   On a perusal of the signature of the Complainant in the document filed on 29.10.2014 vide Ex.B1,we are of the considered view, that it is not that off the Complainant herein compare to the admitted signature available on record referred supra.   For these reasons, we are of the further view that the Opposite Party while delivering the flat, he himself gave Ex.A5 dated 18.01.2009 that he will  complete the unfinished works by giving an undertaking that he will be completed the unfinished works within a month, therefore, the Opposite Parties are bound complete the unfinished works as agreed under Ex.A5.    

 

11.     According to the Complainant, he got finished the flooring and grouting by incurring of Rs.1,00,000/-, therefore, the Opposite Parties are liable to pay the same.   To prove the same, he relied upon Ex.A7 Voucher for Rs.1,00,000/- that he paid the same to Komalarupa Earth Money, Visakhapatnam dated 18.03.2009,  but he has not filed in detail how he carried on the work, the relevant evidence affidavit estimation etc. are also not filed.   In the absence of proof, in our view, it cannot be held that he incurred Rs.1,00,000/- towards flooring and grouting.   However, it is a fact that in order to carry the unfinished works the Complainant may incur some reasonable amounts; merely because no proof is filed the claim of the Complainant cannot be denied in view of the admission made by the Opposite Party in Ex.A5.   Even by doing guess work, there is every likelihood the complaint would have incurred reasonable expenditure amount towards flooring and grouting.   Having regard to all these facts and circumstances, we are of the considered view in all probability, there is every likelihood the Complainant would have incurred not less than Rs.40,000/- towards flooring and grouting,   accordingly, the same is awarded directing the Opposite Party to pay the same to the Complainant.   

 

12.     According to the Complainant, he incurred an amount of Rs.5,000/- towards water taps, Rs.5,000/- towards Electrification Switches in good condition and Rs.70,000/- towards paints (find coat), Rs.50,000/- towards Intercom System of Rs.2,00,000/- towards Generator so also of Rs.50,000/- towards providing Car parking.   To prove them, he relied upon Ex.A11 estimation stated to have been issued by Sri Siva Sai Building Designers, Licenced Surveyor of Visakhapatnam.   Admittedly, the Complainant has not examined the lecenced surveyor or filed any evidence affidavit relevant thereto.   In the absence of substantive proof, we are of the considered view basing of Ex.A11 it is impossible for us come to conclusion.  In regard to the estimate for above the said items would be Rs.4,80,000/-.   However, it is a fact that as per Ex.A5 he Opposite Parties have to complete the unfinished work.   It is held by us that Ex.A5 is a genuine one.   Therefore, duty caste upon the Opposite Party to complete the unfinished works.   Having regard to all these facts and circumstances of the case and in view of our finding referred supra, we are of the opinion that instead of allowing the estimate submitted by the Complainant, we here by direct the Opposite Party to execute the work left unfinished within a reasonable time, it would meet the ends of justice.   Accordingly, we hereby direct the Opposite Party to complete works for our left unfinished as per Ex.A5 and 1 to 6 vide Ex.A6.

 

13.     The Complainant claimed damages of Rs.2,00,000/- towards loss of value of the flat since no positive evidence is let in by the Complainant on record basing on verifying photos etc. it cannot be held that the Complainant has sustained loss of value of the flat and thereby entitled for damages.

 

14.     The Complainant claimed for compensation of Rs.1,00,000/- on the premise that he suffered mental agony owing to deficiency of service on the  part of the Opposite Parties and he suffered waste of time, money and energy in himself attempts to get the unfinished work done.   It appears as seen from record due to the attitude of the Opposite Party referred supra,   the Complainant was compelled to approach the Opposite Party many a time and therefore experienced a lot of physical strain besides mental agony and financial loss.   It is a fact that the Opposite Party did not attend the unfinished work.    Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain.  In this view of the matter we sincerely feel that it is a fit case to award reasonable compensation.   But that does not and cannot mean to say that the Complainant claim for compensation of Rs.1,00,000/- is acceptable.   Having regard records to all these facts and circumstances, we are of the opinion, that the Complainant is entitled to for compensation of R.50,000/-.

 

15.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum had his claim for expenditure of Rs.1,00,000/- or reliefs sought, for have been honored by the Opposite Parties, within a reasonable time and in view of the matter, the Complainant’s claim for claims for costs deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs.5,000/- as costs would appropriate and reasonable.  Accordingly costs are awarded.

 

16.     In the result, Complaint is allowed in part directing the Opposite Parties to complete the listed unfinished items stated in their letter dated 18.01.2009 i.e., providing taps, 2. Electrical switches in good condition, 3) outside painting for the entire building (final coat), 4. Intercom system, 5) Generator supply with connection and 6) Car parking, and to pay Rs.40,000/- (Rupees forty thousand only) incurred by the Complainant against the listed item No.7 and to pay a compensation of Rs.50,000/- (Rupees fifty thousand only) and costs of Rs.5,000/- (Rupees five thousand only).   Advocate fee is fixed at Rs.2,500/- (Rupees two thousand and five hundred only).  Time for compliance, two monhs.

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 22^ndday of November, 2014.

Sd/-                                          Sd/-                                                   Sd/-

Male Member                         Lady Member                                     President

                             APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	19.01.2008	Sale Deed Agreement between Complainant and Ops	Photo copy
Ex.A02	19.01.2008	Agreement for Construction	Photo copy
Ex.A03		Indu Mansion Brochure (Location Map).	Original
Ex.A04		Photos (seven) with C.D.	Original
EX.A05	18.01.2009	Letter of Ops admitting the unfinished works	Original
Ex.A06		Photos (three) with C.D.	Original
Ex.A07	18.03.2009	Receipt No.5 for Rs.1,00,000/- in favour of the Complainant.	Original
Ex.A08	30.08.2007	Receipt for Rs.1,00,000/- in favour of the Complainant.	Original
Ex.A09	30.08.2007	Receipt for Rs.1,00,000/- in favour of the Complainant.	Original
Ex.A10	15.02.2008	Receipt for Rs.72,500/- in favour of the Complainant.	Original
Ex.A11	14.02.2011	Surveyor Estimation	Original

 

For the Opposite Parties:-                                 

Ex.B1

18.01.2009

Letter of Ops admitted the unfinished works.

Original

 

 

Sd/-                                          Sd/-                                                   Sd/-

Male Member                           Lady Member                                President