Tamil Nadu

South Chennai

233/2006

Jubilee Flat Ownersand Residents Association - Complainant(s)

Versus

The Achidiose of Madras-Mylapore and another - Opp.Party(s)

S.Arokia Mariraj

03 Oct 2016

ORDER

   Date of Filing :   03.04.2006

                                                                      Date of Order :   03.10.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM,CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

            

C.C.NO.233/2006

MONDAY THIS  3^rd DAY OF OCTOBER 2016

 

M/s.  Jubliee Flat Owners,

& Residents Association,

Rep. by its President,

Mr.Parthiban Morais,

No.127/7, Ottiambakkam Main Road,

Sithalapakkam,

Chennai – 600 073.                                                    ..Complainant

 

                                              ..Vs..

 

1.  The Archdiose of Madras,

Mylapore,

Rep. by Francis Michael,

Project-incharge,

Chimanaya Nagar,

Chennai – 92.

 

2. M/s. Kingland Foundations,

Rep. by its Proprietor,

1652-H, II Avenue, 10^th Main Road,

Anna Nagar, Chennai – 40.

 

3. Pauline Edyson,

W/o. Edyson,

NO.37-A, MC Nicholas Road,

Chetpet,

Chennai 600 031.

 

4. Reena Jennifer Edyson,

D/o. Edyson,

No.37-A, MC Nicholas Road,

Chetpet, Chennai 600 031.

Rep. by his mother and natural

Guardian the 3^rd opposite party herein.         ..Opposite parties.    

 

 

For the Complainant               :    M/s. Arokia Maniraj

For the opposite party-1          :   M/s. M.L.Ganesh & S.Arunkumar

For the opposite party-2          :   M/s. T.Surendran & V.Anuradha

For the opposite parties 3 & 4  :   Exparte.

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to rectify the complaint mentioned defects and also to pay a sum of Rs.1,50,000/- as damages and deficiency in service and also cost of the complaint.    

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that  as per the Memorandum of Tri party Agreement the 1^st opposite party as a owner of the land i.e “A” Schedule property mentioned thereon and the 2^nd opposite party as a promoter and one Mrs.D. Ambika (one of the members of the complaint mentioned flats owner association),   have entered into an tri-party agreement for purchase of a flat, described as “B” Schedule property thereon.   Accordingly the total number of flats in the said project is 204 which have been constructed by the 2^nd opposite party, M/s. Kings land Foundations as Promoter.  The said flats were already constructed and were handed over to the respective owners of the flat purchasers and subsequently they formed the complaint mentioned association.  After filing of this complaint the proprietor of the promoter’s firm, who is the 2^nd opposite party was died leaving his wife and daughter i.e opposite parties 3 and 4 as legal heirs respectively as such they were impleded as parties.    

2.     Further the complainant also state that there were defect in constructions of the said flats and in the common amenities with some violation of approved plan as mentioned in the complaint which are all to be rectified by the opposite parties and despite of several demand and notice they have not complied the same.  As such the act of the opposite parties amount to deficiency in service which caused mental agony and hardship to the complainant.   As such the complainant has filed this complaint seeking compliance of the said defects and also claims compensation of Rs.15,00,000/- against the opposite parties.

Written Version of 1^st opposite party is  in briefly as follows:

3.     The 1^st opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The 2^nd opposite party  could not complete the project in time due to poor booking of the flats by the members of the complainant-association but however without any stoppage of work, the project was completed.   The land cost as fixed by them is far below as compared to the government guideline value, prevailing market rate and also the Tamil Nadu Housing Plots adjacent to the flats under consideration.    The opposite party also submit that the 2^nd opposite party has completed the respective flat of the owners who have paid the total sale consideration to him in a good condition and all the flat owners are living with utmost satisfaction.   The 2^nd opposite party has constructed the flats as per the specifications and the members of the complainant- association leveling false allegations taking advantage of the fact that the 2^nd opposite party had died.    The opposite party denied that the sewerage treatment plant is not sufficient to accommodate 204 flats and not designed as per Tamil Nadu Pollution Control Board Standard.   Ever since from the date of commissioning of the plant, no complaints have come from any flat owners till date except some disgruntled members with vested interest leveling the same for oblique motive.  The alleged complaints given by the adjacent associations are all made in this complaint for self-serving purpose.   The opposite party states that earthing work was properly done and some of the flat owners have caused damage to the same while repairing their respective flats for installing extra points to install AC connection and the opposite party  denies the allegation that due to the defects in the electrical wiring causing shocks and pose danger to the life of its members.   The opposite party also denies the allegation that improper and substandard weathering course were made and consequently cracks have been developed.    The opposite party denies the allegation that they were not allowed to inspect their respective flats before taking possession and they were pressurized to give completion certificate.   Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

Written Version of 2^nd opposite party is  in briefly as follows:

4.     The 2^nd  opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The proprietorship company is no more in existence and the proprietor Edison already passed away in an accident and the proprietorship concern was closed down.  The surviving legal heir of Edison is his wife Pauline Edison and his daughter.   The 2^nd opposite party submit that the members of the complainant’s association believing the representation made by the first opposite party subscribed for the purchase of the flats and the 2^nd opposite party only a builder engaged by the 1^st opposite party and the 1^st opposite party is solely responsible for the grievance suffered by the complainant.   The 2^nd opposite party’s wife who is the surviving heir of the proprietor is no way connected to the negligence caused by the 2^nd opposite party.    Hence there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

5.  Even after receipt of the notice from this forum in this proceeding, the  3^rd and 4^th opposite parties did not appear before this Forum and did not file any written version.  Hence the 3^rd and 4^th opposite parties were set exparte.  

6.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A21 were marked on the side of the complainant.   Proof affidavit of 1^st opposite party filed and no documents marked on the side of the opposite parties and also Ex.C1 marked. 

7.      The points that arise for consideration are as follows:-

1.   Whether the opposite parties had committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

8.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the 1^st and 2^nd  opposite parties and the proof affidavit filed by complainant and opposite party 1, the documents Ex.A1 to A21 filed on the side of the complainant and also  considered the arguments of the learned counsel appearing for the complainant and for the opposite parties 1 and 2.  Ex.C1 marked. 

9.     There is no dispute that as mentioned in the Memorandum of Tri party Agreement Ex.A5, the 1^st opposite party as a owner of the land i.e “A” Schedule property mentioned thereon and the 2^nd opposite party as a promoter and one Mrs.D. Ambika (one of the members of the complaint mentioned flats owner association),   have entered into an tri-party agreement for purchase of a flat, described as “B” Schedule property thereon.  The total number of flats in the said project is 204 which have been constructed by the 2^nd opposite party, M/s. Kings land Foundations as Promoter.  The said flats were already constructed and were handed over to the respective owners of the flat purchasers and subsequently they formed the complaint mentioned association.  After filing of this complaint the proprietor of the promoter’s firm, who is the 2^nd opposite party was died leaving his wife and daughter i.e opposite parties 3 and 4 as legal heirs respectively as such they were impleded as parties. 

10.    The complainant raised grievance in this complainant that there were defect in constructions of the said flats and in the common amenities with some violation of approved plan as mentioned in the complaint which are all to be rectified by the opposite parties and despite of several demand and notice they have not complied the same as such the complainant has filed this complaint seeking compliance of the said defects and also claims compensation of Rs.15,00,000/- against the opposite parties.

11.    Whereas the 1^st opposite party has resisted the complaint by contending that they are only the owners of the land and proposed to built the flats for their community people accordingly the applications were called for from the purchasers and the construction work was exclusively entrusted with the 2^nd opposite party with the promoter agreeing the same the respective purchaser of the same have entered into the tri party agreement, accordingly except for the cost of the land, the respective UDS  for the said flats have been collected from the respective purchaser and necessary for the said UDS for the flat was executed by the 1^st opposite party, the other cost for constructions of the flats were paid by the purchasers through the finance arrangement directly to the 2^nd opposite party promoter as such for the complaint mentioned allegations if any, for which the 1^st opposite party is not responsible, as such the 1^st opposite party is an unnecessary party to the proceedings, thus,  this complaint against the 1^st opposite party is to be dismissed.

12.    Whereas the 4^th opposite party who is the daughter of the deceased proprietor of the 2^nd opposite party firm remained exparte in this proceedings.

13.    The 3^rd opposite party who is the wife of the deceased proprietor of the 2^nd opposite party firm has resisted this complaint by saying that she was not aware of the said transactions, the 2^nd opposite party proprietorship is not in existence after the death of its proprietor, as such the 3^rd opposite party was not responsible for the alleged allegations made in the complaint and the complaint against this opposite party and her daughter  4^th opposite party are liable to be dismissed.  Whereas the 3^rd opposite party has not filed proof affidavit in support of the said contention in this proceeding.

14.    However considering the above contention of the 3^rd opposite party  that the 3^rd opposite party has not produced any documentary evidence in support of the non existence of the 2^nd opposite party firm i.e M/s. Kings Land Foundations after the death of its proprietor.  Even in the event of non existence of the 2^nd opposite party firm, since, it was a proprietary concern, the opposite parties 3 and 4 as wife and daughter,  they are as the legal heirs of the deceased P.D. Edyson are liable for the claims made in the complaint out of the funds / assets left by the deceased P.D. Edyson and succeeded by the  opposite parties 3 and 4.  Therefore the total denial by 3^rd opposite party as the opposite parties 3 and 4 are not liable for the claim made by the complainant, in the complaint is not sustainable and not acceptable. 

15.    Though the complainant has alleged several defects of construction in para 4 to 7 of the complaint there is no evidence on the side of the complainant to establish the said allegation in this proceedings, but the only evidence admissible and acceptable with regard to the alleged defects of construction and omission and commission as violation of approved plan, the only allegation that  instead of  3 water storage sumps  and seven parking areas in each block  A   to G  as   mentioned   in   the    approved  plan   only one water   storage   sump   alone   was   constructed  and  provided  in the said project is acceptable, when perusal of the approved plan filed herewith Ex.A11.  But in respect of there were other defects in the leakage of sewerage  pipelines  attached in the flats as well as the sewerage sump and other cracks were found in some of the flats and also with regard to the allegations of provided 100KVA of E.B. transformer against the necessary capacity of 125 KVA transformer and the defects in earth connection wires etc., are not considered to be relevant and acceptable as they were not proved  on the side of complainant, since,  as per the advocate commissioner report, the said advocate commission has not inspected and note down the said defects with help of qualified civil engineers as directed in the warrant.  Further it is also pertinent to mention that the damaged sewerage pipelines mentioned in the commissioner report may be due to improper maintenance of the flat owners, in the course of the usage from the date of their taken possession of the flats, since the advocate commission has inspected the said project after seven years, during the October 2007, which is after three or four years. With regard to the allegation about the provision of transformer and its capacity the complainant has not filed any proof  that the promoter has promised to provide  E.B. transformer  to the capacity of 125 KVA.  Therefore expect the defect in construction and for providing three sewerage sumps the promoter has only constructed one sewerage sump that too violation of the approved plan, the other defects of constructions mentioned by  the complaint,  as well as mentioned in the report of the advocate commissioner are not  considered to be proved  by the complainant and  the promoter cannot be said to have committed fault and liable to be rectified.   Further some of the cracks found in some of the said walls in the  flats are all concerned with the respective flat owners not by the association / complainant   to raise it to get remedy. 

16.    Therefore as discussed above, we are of the considered view that among the allegations,  the defect in construction and omission and commission to the violation of approved plan made by the complainant in the complaint, the only one sewerage sump constructed and provided instead of three sewerage sumps mentioned in the approved plan,  i.e the omission of construction of  another two number sewerage sumps by the promoter the 2^nd opposite party alone was proved and the same to be complied by the promoter, since, the 2^nd opposite party promoter was died and not in existence of the firm of the said proprietor ship itself, the legal heirs of the said deceased proprietor P.D. Edyson i.e 3 and 4  opposite parties are liable to comply the same out of the assets left by the deceased P.D. Edyson and succeeded by them.  Considering the facts and circumstances of the case, for the above said defective  construction and omission the1^st opposite party is not responsible and this complaint against the  1^st opposite party is liable to be dismissed.  Accordingly the points 1 and 2 are answered. 

In the result, this complaint is partly allowed.  The  opposite parties 3 and 4 as a legal heirs of the deceased promoter / the 2^nd opposite party are directed to construct another two sewerage sumps in the above said apartment area as mentioned in the approved plan, out of the funds / asset left by the deceased 2^nd opposite party and succeeded by them, within three months from the date of this order, failing which the complainant association itself construct the said two sewerage sumps and can claim the said value of expense, with additional sum of Rs.25,000/- as just and reasonable  compensation  from the  assets left and succeeded by the 3^rd and 4^th opposite parties. This complaint against the 1^st opposite party is dismissed.   No costs.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  3^rd    day  of  October   2016.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

 

Ex.A1-                    -        - Copy of Pamphlet.

Ex.A2-                   -        - Copy of Application format under the housing scheme.

Ex.A3-                    -        - Copy of Brochure with details of the housing of the scheme.

Ex.A4-                    -        - Copy of letter of 2^nd opposite party to Indian Bank.

Ex.A5- 31.3.2001      - Copy of Model of Memorandum of tripartite Agreement.

Ex.A6- 4.6.2004        - Copy of Certificate of registration of complainant’s society

                               and other forms.

 

 

Ex.A7- 8.7.2004        - Copy of Memorandum of complainant submitted by complainant

                               to Parish Priest.

 

Ex.A8- 14.12.2004     - Copy of Memorandum submitted by complainant to TNPCB.

 

Ex.A9- 30.1.2006      - Copy of legal notice issued by the complainant.

 

Ex.A10- 2.2.2006      - Copy of ack. by 1t opposite party with return cover

 

Ex.A11-         -        - Copy of site plan.

 

Ex.A12-         -        - Copy of STP Plan Site.

 

Ex.A13- 7.1.2006      - Copy of complaint by Village public of Sithalapakkam Village.

 

Ex.A14- 27.1.2006     - Copy of complaint by Executive officer, Sithalapakkam Village.

 

Ex.A15- 5.4.2006      - Copy of letter from TNPCB.

 

Ex.A16- 3.5.2006      - Copy of  reply by complainant to TAPCB.

 

Ex.A17- 13.8.2007     - Copy of Analysis report by TNPCB.

 

Ex.A18- 28.1.2008     - Copy of order issued by Public Health Department.

 

Ex.A19- 13.2.2008     - Copy of reply by complainant.

 

Ex.A20- 14.2.2008     - Copy of legal notice issued by complainant.

 

Ex.A21- 14.4.2005     - Copy of letter from the opposite party.  

                               

 

Opposite parties’ side documents: -    ..Nil ..

 

Court’s Exhibits: -

Ex.C1- Advocate Commissioner’s report.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.