Tamil Nadu

South Chennai

746/2004

V.S.Saravanan and another - Complainant(s)

Versus

Uma Maheswari constructions - Opp.Party(s)

J.Ferozkhan

06 Dec 2017

ORDER

                                                                        Date of Filing :   02.11.2004

                                                                        Date of Order :   06.12.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. 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.746/2004

WEDNESDAY THIS 6^TH  DAY OF DECEMBER 2017

1.  V.G. Saravanan,  (died)

S/o.V.A.Shankugam,

 

2. Mrs. Kanthi Sarvanan,

W/o. Mr.V.S.Saravanan,

7, East Chitrakulam Street,

Mylapore,Chennai -4.                               Complainant

 

                                        ..Vs..

 

Mrs. Usha Anandan,

M/s. Uma Mheswari Constructions,

Door No.97 & 98, R.K Mutt Road,

Mandaveli,

Chennai 28.                                            Opposite party

 

Counsel for Complainants            :   M/s. J. Ferozkhan & V. Balaji          

Counsel for opposite party           :   M/s. K.S.V.Sethuraman & others    

 

ORDER

THIRU. M. MONY, PRESIDENT

 

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to rectify the defects and to deliver the car parking and to pay compensation of Rs.1,00,000/- and to pay cost of the complaint.

 

1. The averment of the complaint in brief are as follows:

         The complainants submit that  the opposite party has entered  into a construction agreement dated 27.1.2003 with the 2^nd complainant to construct the flat No.G on the ground floor extent super build up area of 940 sq. ft. which shall include undivided part of common area and exclusive of car park area.    As per clause-4 of the agreement the opposite party agreed to complete the entire construction of the flats within a period of one month from the date of commencement with a grace period of three months.  Further the complainant state that  they paid entire construction amount to the opposite party and the opposite party constructed the flat and handed over the same to the complainant on April 2003.   The following defects are found in the said flat

Bath room concrete roof is always leaking  and the water stagnation inside and outside of the roof;

Ground floor roof is leaking and water stagnation inside and outside the roof;

Water leakage through electoral pipe and water leakage in the beam, brick wall and roofs;

Short circuit in the electric line  and tiles are broken in the bathroom, and water leakage through pipe line, etc.

Even after the complainants request to the opposite party to rectify the defects,   there was no response from the opposite party.     As such the act of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in the Written Version filed by the opposite party are  as follows:

      The opposite party deny each and every allegations except those that are specifically admitted herein.   The opposite party submit that the land in which the superstructure consisting of four residential flats and other portions are constructed; out of which one flat is purchased by the complainant was the absolute property of her husband Mr.Anandan, who got the same from his ancestors in a suit for partition which finally ended up in a compromise  decree.  After paying the other co-sharers, the said land measuring 2405 sq. ft. was allotted to the share of Mr.V.Anandan husband of the opposite party as per the terms of the Joint Memo of compromise vide in I.A./No.2292 of 2001 in O.S.No.6620 of 1998 on the file of the VI Assistant Judge, City Civil Court, at Madras.    The complainant approached the opposite party in person to rectify the defects  but there is no response from the opposite party are all denied by the opposite party.    The opposite party further state that the car parking area is not provided to the complainants.  The car parking rights were given to the complainants but what the complainants are seeking at present is they want their car parking area to be exclusively covered by grill.    When they proposed such idea, the opposite party suggested the complainants to purchase the car parking area as outright purchase by way of a sale deed itself to which the complainants are not agreeable.         Hence there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 marked.  Proof affidavit of opposite party filed and Ex.B1 to Ex.B5 marked on the side of the  opposite party.

4.   The points for the consideration is: 

1. Whether the complainant is entitled to rectify the defects mentioned in the complaint as prayed for?

2. Whether the complainant is entitled to deliver car parking area as per the agreement as prayed for?

3. Whether the complainant is entitled to pay a sum of Rs.1,00,000/- as compensation for mental agony with cost as prayed for?

5.      POINTS 1 to 3:

          Admittedly the complainant is a purchaser.   The opposite party is a builder.   Ex.A1 is the construction agreement.  As per the agreement clause-13 is as follow: 

“The party of the first part  guarantees that if any major defect affecting the construction exists within one year of taking possession of the flat by the party of the second part, the same will be rectified free of cost.  However the said guarantee does not cover routine masonry /non structural cracks in the brick walls and / or damage that are caused due to mishandling after taking over possession of the flat by the party of the second part and of normal use / were and tear and or any abuse by them or by the tenant or others. “

The contention of the complainant is that there are several construction defects in the flat at the time of delivery especially bath room concrete roof is always leaking  and the water stagnation inside and outside of the roof; Ground floor roof is leaking and water stagnation inside and outside the roof; water leakage through electoral pipe and water leakage in the beam, brick wall and roofs; resulting short circuit in the electric line  and titles are broken in the bathroom, and water leakage through pipe line.   All these defects were  noted within one year and duly intimated to the opposite party for due rectification.    But the opposite party has not rectified the same.  

6.     The contention of the opposite party is that he has constructed the building with quality material as per the plan without any deviation.   There is no material defects as alleged by the complainant.   The defects mentioned in the complaint regarding stagnation of water; leakage in the beam, and short circuit in the electric line etc. are imaginary.   All the defects were duly rectified.  The complainant has not taken any steps to appoint the Advocate Commissioner to note down the physical feature particularly the alleged defects in the building; without concrete evidence only on the basis of the imaginary the allegation of defects cannot be considered establishes that there is no substantial defects.  

7.     Further the complainant pleaded and contended that as per the agreement the complainant is entitled  to a covered car parking.  The opposite party has not delivered the said covered car parking after proper construction.   But on a careful perusal of Ex.B3 is as follows:

        “v‹ r«gªÂ¡F gh¤Âa¥g£l v«.v°. Ïr£ 5032 v‹w thfd¤ij j‰nghJ m§F ãW¤Â it¤JŸns‹.  xJ¡f¥g£l fh® gh®¡»§ Vçahit ghJfh¡F« bghU£L mªj fhiu ãW¤ÂÍŸns‹.    flªj 1 1/2   tUlkhf m›thW ãW¤Â it¤JŸns‹.   v‹ål« fh£l¥gL« òif¥gl« jhth brh¤Âš vL¡f¥g£lit MF«”

proves that the complainant had his own car parking and he is using it. 

8.     Further the contention of the complainant is that due to the defects in the construction and deficiency in service the complainant is put to great hardship.  The complainant is claiming a sum of Rs.1,00,000/- towards compensation.  But the complainant has not proved the deficiency  in construction  and the alleged defects in the construction.  Hence  the alleged mental agony never arise.  The contention of the opposite party is that the alleged non delivery of the car parking is imaginary. Complainant is using the said parking  As per the construction agreement due car parking was delivered to the complainant without any defect.   The claim of imaginary amount of Rs.1,00,000/- towards mental agony is unsustainable.   Considering the facts and circumstances of the case this Forum is of the considered view that the complainant has not proved the defects in appropriate manner by appointing Advocate Commissioner.  On the other hand the defects noticed by the opposite party has been duly rectified.     Therefore the complainant is not entitled for any relief as prayed for in the complaint and the points 1 & 2 are answered accordingly.

        In the result, the complaint is dismissed.No cost.  

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 6^th day  of  December  2017.  

 MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants’ side documents:

Ex.A1- 27.1.2001 - Copy of construction agreement.

Ex.A2- 3.2.2003    - Copy of sale deed.

Ex.A3- 20.5.2004  - Copy of complainant’s counsel notice

Ex.A4- 25.5.2004  - Copy of reply notice.

Opposite party side document: -   

Ex.B1- 24.5.2005  - Copy of Plaint in O.S.No.3189 of  05

Ex.B2- 27.10.2005         - Copy of written statement of O.S.No.3189 of  05

Ex.B3- 13.7.2005  - Copy of proof affidavit in O.S.No.3189 of 05

Ex.B4- 27.11.2006         - Copy of Judgment and decree in O.S.No.3189 of 05  

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.