Andhra Pradesh

Visakhapatnam-II

CC/324/2012

Malla Santosh Kumar - Complainant(s)

Versus

Sudia Rama Rao - Opp.Party(s)

Ch. Sadhu

14 Nov 2014

ORDER

                                              Date of Registration of the Complaint:05.10.2012

                                                                                                Date of Order:14-11-2014

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 14^th day of November, 2014.

                                 CONSUMER CASE No.324/2012

Between:-

Sri Malla Santosh Kumar, S/o Manmadha Rao,

Hindu, aged 31 years, residing at HIG-587,

Midhilapuri VUDA Colony Madhurawada,

Visakhapatnam.

….. Complainant

And:-

Sudia Rama Rao, S/o late Appa Rao,

Managing Partner, M/s. Kamal Builders,

resident at D.No.45-58-17, Pent House, Indu

Enclave, Narasimha Nagar, Visakhapatnam-530 024.

                                                                                         …  Opposite Party      

                     

          This case coming on 07.10.2014 for final hearing before us in the presence of Sri Ch. Sadhu, Sri Kotyada Jagannadham and Sri Kotyada Gowri Shankara Rao, Advocates for the Complainant and the Opposite Party being exparte 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 Party directing him to allot the second lift, generator, Car parking, Municipal Tap and EPABX phone points to the Flat No.307 situated in Annapurna Arcade, Midhilapuri VUDA Colony, Visakhapatnam or to refund the cost of the said amenities to a tune of Rs.1,50,000/- along with interest @ 24% p.a. from 19.06.2009 i.e., date of  handed over of the flat to the Complainant till realization, to pay Rs.50,000/- towards compensation and to pay costs.

 

 2       The case of the Complainant in brief is that the Opposite Party is doing Real Estate business and the Complainant is the absolute owner of the flat bearing No.307 Annapurana Arcade in an extent of 1025 Sq. feet in third floor situated Madhurawada, Visakhapatnam, having purchased the same by way of Registered Sale Deed dated 24.02.2007 from the Opposite Party herein.   Prior to purchase himself and the Opposite Party entered into Sale Agreement-cum-Power of Attorney dated 06.06.2006.  Wherein the Opposite Party agreed to provide Car parking, EPABX, Generator for common areas, the second lift and Municipal bulk water supply by having collected Rs.10,000/- towards costs of Municipal water tap and Rs.4,60,000/- towards generator, the Opposite Party did not provide the amenities as stated supra.   He approached many times so also sent many E-mails, but the Opposite Party has been postponing the same on some pretext or other, though handed over the flat on 19.06.2006.   It is also his case due to non-fulfillment of the above amenities, he suffered a lot.  Hence, this Complaint.

 

 3.      The Opposite Party though put up appearance through advocate did not file counter for the reasons best known to him.

 

4.       To prove the case, on behalf of the Complainant, his evidence affidavit is filed and got marked Exs.A1 to A8.     On the other hand, on behalf of the Opposite Party, no documents were marked and no evidence affidavit is filed.

 

5.       The Complainant filed written arguments.

 

6.       Heard arguments of the Complainant.

 

7.       Now the points that arise for determination are:-

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

 

8.       In order to prove the case, the Complainant, in his evidence affidavit filed had sworn to the relevant contents of the complaint.   His evidence is corroborated by Ex.A1 to A4.   Ex.A1 reveals that the Opposite Party is doing real estate business and the Complainant is the absolute owner of the flat bearing No.307 in Annapurna Arcade in an extent of 1025 Sq. feet in the 3^rd floor and the car parking measuring 60 Sft. cellar situated at Madhurawada, Visakhapatnam having purchased the same by way of a registered sale deed dated 24.02.2007 which was acquired by the Opposite Party under development agreement-cum-GPA dated 06.06.2006.    Ex.A1 also disclose prior to the purchase of the flat the Complainant and the Opposite Party entered into an agreement of sale deed dated 27.11.2006 under the guise of the registered development agreement and the Opposite Party agreed to provide car parking to the flat No.307 measuring 60 Sft. EPABX, Generator for common areas second lift and Municipal bulk water supply.   Ex.A4 registered lawyers notice got issued by the Complainant reveals that he approached several times to  the Opposite Party to provide the above amenities as agreed, but they have been postponing the same on one pretext or other.   Ex.A3 handed over certificate dated 19.06.2009 shows that the aforesaid flat was handed over to the Complainant.   Ex.A8 G-mail correspondence reveals the Opposite Party did not comply with requirements i.e., EPABX phone and car parking to the Complainant inspite of addressing them herein.  The above unchallenged evidence of Complainant establishes his case.

 

9.       As seen from the evidence let in by the Complainant, it is evident that due to non-fulfillment of the above amenities, the Complainant approached this Forum.    To prove his defence the burden of proof lies on the Opposite Party, but though attended through advocate he failed to file counter and to provide the aforesaid amenities.    Therefore, we are of considered opinion, that the Opposite Party committed guilty of deficiency of service within the meaning of the Consumer Protection Act.     For the reasons, we are also of the view directing the Opposite Party to provide EPABOX, Generator for common areas, Municipal bulk water supply and to provide and car parking area measuring 60 Sft. in the cellar of Annapurna Arcade to the Complainant.    However, since there is no agreement in relation to the 2^nd lift, this complaint is not entitled for the said relief.        

 

    

 

 10.    Whether the Complainant is entitled for compensation of Rs.50,000/- is to be considered.    It appears as seen from the evidence of PW-1 and Ex.A2 notice got issued by him, that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss.   It is an un-dispute the fact that the Opposite Party did not refund the amount subscribed by the Complainant, 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 compensation.   But that does not and cannot mean to say that the Complainant claim for compensation at Rs.50,000/- is acceptable.    Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 25,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.25,000 /-, in the circumstances of the case on hand. Accordingly this point is answered.

 

11.     Before parting our discussion, it is an incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum and his claim for refund of the sum of Rs.1,50,000/- 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/- towards costs would better serve the ends of justice.

 

12.     In the result, this Complaint is allowed in part directing the Opposite Party to provide car parking to the Complainant admeasuring 60 Sft. in the cellar of Annapurna Arcade, generator for common areas, EPABX and Municipal bulk water supply situated in Annapurna Arcade, Midilapuri Vuda Colony, Visakhapatnam and the rest of the relief is hereby  dismissed.   The Opposite Party is also directed to pay a compensation of Rs.25,000/- (Rupees Twenty five 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, one month.   

 

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 14^th day of November, 2014.

Sd/-                                     Sd/-                                          Sd/-

 

Male Member                       Lady Member                                     President

 

 

                             APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A1	27.11.2006	Agreement for Sale	Photo copy
Ex.A2	24.02.2007	Registered Sale Deed	Photo copy
Ex.A3	19.06.2009	Handing Over Certificate issued by M/s. Kamal Builders	Photo copy
Ex.A4	09.05.2012	Registered Lawyer’s Notice issued by the Complainant’s counsel to OP	Office copy
Ex.A5		Acknowledgement card	Original
Ex.A6	19.04.2012	Quotation issued by the Mahavir Engineering Corporation.	Original
Ex.A7		Broucher	Original
Ex.A8	04.06.2009	Gmail letters	Office copy

For the Opposite Party:-                                             

                                      -Nil- 

Sd/-                                     Sd/-                                          Sd/-

                                     

Male Member                         Lady Member                                   President