This case is coming for final hearing on 08.09.2014 in the presence of Sri I.M.Ahmed Advocate for the Complainant and of Sri S.Arun Dev & Sri K.Raja Gopala Rao, Advocate for Opposite Party and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

1.     The case of GPA holder as well as father of Complainant Sri G.N.Satyanarayana is that the Opposite party approached the Complainant by stating that it is one of the best builders in the city who constructs apartments in the Visakhapatnam city with a high quality material and with all facilities as mentioned in the brochures and apartment building plan with B.A.NO.80/ACP-I dated 05.05.2006 of M/s Annapurna Arcade with an approval of Greater Visakhapatnam Municipal Corporation in S.No.248/11/D of Madhurawada Village and the Complainant believed the assurances and with good faith entered into a Sale Agreement with Opposite party and paid advance amount and subsequently, paid the total amount for the Flat bearing No.402 for which the present door number is 45-58-17.  The Complainant stated that the original sale agreement with the Opposite party and the opposite party promised that he will hand over the Flat to the Complainant within 18 months from the date of sale agreement.  The Complainant stated that as per brochures supplied by the Opposite party he promised to provide the facilities they are:

a)         Specifications for structure as framed structure (RCC)

b) Super Structure as Brick work with cement mortar 6” thick for   external and ‘” thick for internal.

c) Flooring will be provided with ceramic tiles with standard make.

d)         Wardrobes provisions made for wardrobes in all rooms

e)         Wood work you have promised is to use Teak wood main doors         for all flats, and all the remaining doors and windows with well    seasoned country wood.

f) Electrical concealed copper wiring with modular switches will be done.

g)         Kitchen will be provided with polished marble platform and sink with 2’ height ceramic tile dado above platform.

h)         Painting will be done with distemper for internal walls and matt paint outside and Enamel paint for wood work is in your scope.

i) five passengers “two” lifts to be provided to the flat owners.

j) Generator will be provided

k) Municipal tap will be provided for which you have collected        money from complainant.

l) Modular Switches will be proved.

m)        Country wood to be provided

n)         Distemper will be provided for painting.

o)         good quality Slabs will be provided for the flat and apartment.

p)         Continuous solar system will be provided.

q)         EPABX Electronic box will be provided.

2.     But the Opposite party not accomplished the above mentioned premises as agreed and not provided facilities which amounts to negligence on the part of the Opposite party and also deficiency in service on its part which caused lot of mental agony and financial loss to the Complainant.  The Opposite party also collected additional amount for BRS (Building Regularisation Scheme) even though it is not in the agreement and also collected Rs.30,000/- as tax to be paid to GVMC. The Opposite party kept the septic tank and domestic water tank connection side by side which is not at all advisable and right in the hygienic point of view and also the discharge of water and septic tank in the same mixed with both provided by the opposite party which is not correct and spreading epidemics and diseases to the flat owners.  The Complainant made several demands and also issued legal notice on 18.03.2011 for which there is no response from the Opposite party even on receipt of said notice.  The Opposite party provided the cellar flooring inferior quality material and he also utilized inferior quality iron material which causes rust to the iron material of the said Flat and apartment.  The Opposite party has provided an inferior quality of tiles and he has to hand over the flat within 18 months from the date of agreement but he took more than 36 months which is an excess of another 18 months.  Because of unplanned construction made by the Opposite party lot of inconvenience being faced by the Complainant and the corridor is not provided and the flooring of the same is not being done properly.  The Opposite party has painting marks on the glassed door looking awkward and also not provided drainage pipelines and not done as per specifications.  The installation of electricity meter which was installed by the Opposite party is unprotected and very dangerous to the goods and more over he constructed a terrace room which is not as per the plan and it is illegal and against law.  In the Agreement of Construction, it was mentioned that if the vendee not paid the amount as per the terms, he has to pay interest at 24% p.a. and the Opposite party will complete the apartment within 18 months, but it took more than 36 months to hand over the flat, hence the Opposite party has to pay compensation for remaining 18 months at 24% p.a. to the Complainant.  The Complainant informed several times regarding the inferior quality construction of opposite party within six months after occupying the flats, but the Opposite party used to tell the Complainant that the above problems will be rectified and requested the Complainant to give some more time etc. orally, but the Opposite party never taken any steps to solve the problems even after issuance of legal notice.  As there is no reply after issuing the legal notice the Complainant approached qualified technical expert who is also a registered valuer and technical expert gave a detailed comprehensive report in which he mentioned about the inferior quality of construction and technical blunders done by the Opposite party and construction was below prescribed standards and not followed the civil engineering code of practices as Opposite party did not execute the basic needs like pest control measures, damp proof course measures and point protection course etc. 

3.     The Opposite party also not provided car parking to the Complainant, but Opposite party has collected excess amount for car parking.  The Opposite party constructed the watchman room is ridiculous because on top of the watchman’s room the Opposite party constructed a bath room and outside rain water is coming into the cellar due to improper construction of cellar and there is no foundation to the compound wall.  The Opposite party collected Rs.20,000/- for his BRS purpose, then, the Complainant requested to give the proof  of the same but no receipt or proof for payment was issued by the Opposite party.  Thus, the Opposite party deviated the Standards of Civil Engineer Code of Practices and in the Engineers report it clearly mentioned that “if any mishap, collapse or severe damages, if occurred to the structure, the loss in terms of lives of many families’ investment or material is attributable to the negligence, irresponsibility of the builder only and further warned that the “assigned structure of the building is most unsafe and undesirable for occupation unless immediate technical rectifications and suitable structural modifications are adopted forthwith”.  It clearly shows the deficiency in service by the Opposite party, hence this complaint to direct the Opposite party;

a) to pay Rs.2,00,000/- towards damages to the Complainant’s flat due to inferior quality material utilized by the Opposite party in construction of apartment internally

b) to pay a sum of Rs.3,00,000/- towards sufferings of mental agony and physical sufferings of complainant

c) to pay back the additional amount collected from the complainant which is an amount of Rs.30,000/-.

d)         to rectify the defects which are not done as per the agreement between the complainant and Opposite party failing which to direct the Opposite party to pay an amount of Rs.10,00,000/- to get the repairs done by the Complainant.

e)         to pay a sum of Rs.10,000/- towards legal expenses and costs and

f) for such other relief or reliefs as the Honourable Court may deems fit and proper in the circumstances of the case.

4.     On the other hand, the Opposite party filed its counter and denied the allegations mentioned in the complaint and pleaded that the collection of Rs.30,000/- form the Complainant towards tax is not true, but collection of money for building regularization scheme is true and it was paid to the Municipal Corporation.  The Complainant is not entitled to any amount, as the Complainant avoided to specifically state the date when he had taken delivery of the flat as such disclosure would reveal that the complaint is barred by time.  The Opposite party stated that he never collected any excess amount for car parking and problem of sump with dirtiness is due to improper maintenance of the apartment/complex by the residents in that apartment.  The Opposite party stated that the Complainant purchased undivided share of land on 06.06.2007 and entered into agreement for construction of flat on same day and the construction was completed within 18 months from the date of agreement and delivered by December, 2008.  The Opposite party is governed by the terms and conditions of agreement and the specifications mentioned in the schedule “C” of agreement and completed construction strictly as per the terms of the construction agreement and the complainant having found satisfied with the construction was made in accordance with the specifications mentioned in the construction agreement and took delivery of the flat in the year 2008 itself.  The Flat of the complainant was assessed to property tax in the year 2008 and the Complainant is paying the tax since then, it established that the flat was in occupation of the Complainant since 2008-2009 but the Complainant filed complaint on 13.10.2011 which is beyond the prescribed period of limitation and the same is barred by limitation.  The Opposite party stated that the apartment was not properly maintained by the Complainant and other inmates, but not due to the defects in the Construction and there was no clause EPABX and as such the Complainant cannot claim the same and the Complainant as well as other apartment owners has let out their respective apartments for bachelor accommodation to the students studying in the nearby Engineering colleges and the maintenance of the apartment was totally neglected by the occupants.  The report of the chartered engineer is totally biased and does not give any reasons for the said conclusions and the conclusions of the chartered engineer are nothing but surmises and conjunctures and that the Chartered Engineer did not observe the documents of the parties and did not try to acertain the actual date of delivery.  The said report was given on 09.09.2011 and the falsity of the said report can be inferred by the engineer stating “newly constructed” without mentioning about the date of completion of the building or ascertaining the said date of completion. 

5.     The Opposite party stated that the Flat has delivered as per the agreement and constructed the same as per the terms of the Construction agreement, hence there is no deficiency of service on the part of the Opposite party and more over, the Complainant did not pay the VAT and service tax payable and as this Opposite party demanded payment of the same, the Complainant filed this Complaint for unlawful gain without any cause of action.  Hence, this complaint is to be dismissed.

6.     At the time of enquiry, the Complainant not filed his evidence affidavit, even after giving so many opportunities by the Forum and also adjourned on costs to file his evidence affidavit, the Complainant not come forward to file evidence affidavit and there is no representation.  As there is no representation treated no evidence to the Complainant.  Ex.A1 to A5 are marked which are filed with main complaint. On the other hand, the Opposite party filed its counter and evidence affidavit, but no documents are marked on behalf of Opposite party.  There is no representation by the Complainant at the time of hearing also and after giving so many adjournments the Forum imposed costs.  But there was no representation by the Complainant and costs were not paid, hence treated it heard for the complainant on 02.04.2014 and posted for opposite party’s hearing.  Heard the Opposite party on 08.09.2014 who reiterated his version. 

7.     In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

8.     As per Ex.A1 dated 06.06.2007 i.e., construction agreement of the Flat but the forum found that there is no signature of the complainant, but there is signature of opposite party only in Ex.A1, the Opposite party is not denied the same.  Ex.A2 is the sale Deed dated 06.06.2007 of the Flat is also not in dispute but here is the case, as per the versions of the Complainant that the Opposite party failed to hand over the Flat within 18 months and till May 2009 the construction took place and an unfinished schedule flat was handed over by the Opposite party in the month of May 2009, hence the cause of action starts from there.  There is defective construction made by the Opposite party by utilizing inferior qualify and the Complainant approached several times within six months after occupying the Flat to rectify the problems but there was no response, then, he issued a legal notice on 18.03.2011 i.e., Ex.A3 to the Opposite party and the same was received by the Opposite party as per Ex.A4.  The Complainant filed Engineers report i.e., Ex.A5 and as per that report dated 09.09.2011 wherein, he explained that “the newly constructed Annapurna Arcade building at Madhurawada is an RCC framed structure with infilled masonry walls and also mentioned about the dampness problems in masonry walls, ceiling slab specially at toilet/bathroom, kitchen, cracks in infilled masonry walls, leakage in sanitary lines and water lines, reverse slope in flooring and gaps between doors and window frames at various locations, difference in level was observed in flooring tiles at few locations, water stagnation was observed on the floors of few toilets due to inadequate slope to drain, cellar floor parking area was not provided with required quality material, electrical fittings are inferior, painting also inferior, continuous solar system not provided, EPABX Electronic system not provided and quality assurance proceedings were not followed for the entire building as per General Civil Engineering Standards and also mentioned that the material used and standards of the civil works of the project appear to be not with in the prescribed specifications as any builder would generally resort to in view of the above observations it is very essential that he should justify all his above misdeeds and deviations which caused severe losses in terms of money, time and quality and also stated that any mishap, collapse or severe damages if occurred to the structure, the loss in terms of lives of many families investment and structure of the building is most unsafe and undesirable for occupation”.  These are the findings given by the engineer on 09.09.2011 but the Forum found that no affidavit of the engineer was filed by the Complainant.  It is also observed that the pleadings took by the complainant regarding the defective construction of the flat as well as total apartment, the Complainant not filed any photographs to show that there is defective construction in other part of the building.  That too, in Chartered Engineers report, he mentioned that it is newly constructed building, but complainant himself agreed that the building was handed over in the year 2009 but the Engineer in his report dated 09.09.2011 nearly after 28 months, after occupation of the flat by the complainant, he approached the Forum.  If there is any seepage or leakage and if any defects in flooring brick work, wood work, electrical work painting work etc., he has to approach the Forum in time as these defects would appear or came into notice within one year, but the Complainant’s version is that he roamed around the Opposite party and requested him to rectify the problems. Finally issued lawyer’s notice on 18.03.2011 i.e., nearly after 32 months and more over the Complainant not substantiate is plea regarding his approach to the Opposite party by filing any evidence.  More over, there is no representation by the Complainant and failed to file his evidence affidavit and written arguments and also even after giving so many adjournments to hear the version of the Complainant neither the counsel nor the Complainant represented the Forum.  The Forum cannot conclude the matter by relying upon the report of Chartered Engineer as it is not supported by his affidavit and also not supported by any photos.  There is no mention in the Chartered Engineers report about the date of documents and also about the completion of the building.  More over the Complainant not filed any document regarding the possession was delivered by the Opposite party is not as per the agreement.  Hence, we are of the view that the Complainant not substantiate his pleas regarding the defective construction by filing any documentary evidence except Engineers report, which is also nearly after 1½ years of the possession occupied by the Complainant.  Hence, as  no sufficient document filed by the Complainant to look into the matter by the Forum, the Complaint is dismissed with no costs.

        Accordingly, this point is answered. 

9.     In the result, the Complaint is dismissed.  No order as to the costs. 

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 25^th day of September, 2014.

   Sd/-                                                                  Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                        Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Party: NIL

   Sd/-                                                                  Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                Visakhapatnam

//VSSKL//