DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 10th day of July, 2023
Present : Sri. Vinay Menon V., President
: Sri. Krishnankutty N.K., Member Date of Filing: 29/03/2019
CC/101/2019
P.N.Prakash,
S/o. Parameswaran Bhatt,
Presently Residing at SMQ – 87/5,
Vayu Vihar Complex, HQ SAC IAF,
Trivandrum, Kerala – 695 011. - Complainant
(By Adv. P.M. Ramesan)
Vs
- Victoria Realtors,
Rep. by its CEO,
Corporate Office, 127, 1st Floor,
Opp. Bishop Appaswamy College,
Race Course, Thiruguna Sambadh Road,
Coimbatore – 641 018.
- K.B.Prasad,
Partner, Victoria Realtors,
Corporate Office, 127,
1st Floor, Opp.Bishop Appaswamy College,
Race Course, Thiruguna Sambadh Road,
Coimbatore – 641 018.
- K. Bindi Prasad,
Partner, Victoria Realtors,
Corporate Office, 127,
1st Floor, Opp. Bishop Appaswamy College,
Race Course, Thiruguna Sambadh Road,
Coimbatore – 641 018.
- Victoria Realtors,
Mettupalayam Street,
Palakkad – 678 001. - Opposite parties
(O.P. by Adv.M/s.G.Ananthakrishnan & K.B.Priya)
O R D E R
By Sri. Vinay Menon V., President
- Sized to its crux complaint pleadings are that the flat purchased by the complainant from opposite parties were not provided with 24 hour security, fresh water supply and rain harvesting and a covered car parking even after being assured of the said facility. Aggrieved thereby this complaint is filed.
- O.P.s stoutly contested the plaint pleadings stating that 24 hours security was t9 be provided by the Residents’ Association and not the builder, that water supply and fresh water harvesting were provided later on and that they had undertook only to provide covered car park and not specific marked car park. Father in law of the complainant had notice of all the facts pertaining to status quo of the flat. This complaint is an abuse of the process of law.
- Hence to adjudicate the dispute, the following Issues are to be decided:
1. Whether the complainant is maintainable before this Commission?
2. Whether there is any deficiency in service or unfair trade practice on the part of opposite party company ?
3. Whether the complainant is entitled to receive any of the reliefs sought for ?
4. Any other reliefs?
4. (i) Complainant filed proof affidavit and marked Exts. A1 to A6. Marking of Ext. A5 was objected to on the ground that they are photographs and mode of proof is different. Marking of Ext.A6 was objected to on the ground that it is a photocopy.
The opposite party has no case that the Ext.A5 photograph depict a different building. Further with regard to Ext.A6 also the opposite party has no case that it is a forgery. Since this Commission is not bound by Indian Evidence Act these objections are over ruled.
(ii) Report of the expert commissioner was marked as Ext.C1.
(iii) Opposite party filed proof affidavit and marked Ext.B1.
Issue No. 1
5. One of the objections of the O.P.s was with regard to the maintainability of this complaint before this Commission as according to them, this was a complaint pertaining to immovable property and disputes pertaining to immovable properties did not fall within the ambit of jurisdiction of this Commission.
6. While admitting that questions regarding immovable properties were not triable before this Commission, this dispute pertains to grant of specific marked car parking area, and other incidental facilities that come with a flat and not a dispute pertaining to right, title and interest over immovable property.
7. Thus we dismiss this objection and hold that the complaint is maintainable before this Commission.
Issue No. 2
8. Grievance of the complainant are on four counts.
1) Fresh water is not being provided
2) There is no facility for rain water harvesting.
3) 24 hours security is not being provided
4) Even though covered car parking was provided the OP has failed to provide marked
car parking.
Complaints 1 and 2
9. Countering the complainant’s plea that the O.P.s had failed to provide fresh water facility, the O.P.s pleaded that they had provided fresh water facility and rain water harvesting facility, albeit at a later stage. In his deposition, at pages 3 and 4, the complainant deposes to the effect that his complaint was that he was not receiving Malampuzha water. He admitted that he was receiving filtered water from borewell. In page 7 of the deposition he admits that he is receiving water supply for 24 hours. But he had not taken any steps to assay the quality of the water he is receiving. Thus he has failed to prove the quality of the water he is receiving.
10. In page 7 of the deposition he further states that he is not aware, whether there is facility for rain water harvesting.
11. Thus we hold that the complainant has failed to prove his complaints with regard to availability of fresh water and rain water harvesting.
Complaint No.3
12. Third complainant pertains to the availability of 24 hours security. In page 6 of the deposition, in lines 12 and 13, the complainant admits that providing security is the liability and responsibility of the Residents’ Association.
13. Thus the grievance of the complainant with regard to this issue is also undone.
Complaint No.4
14. Main grievance of the complainant is with regard to non-grant of specified car parking. complainant paid Rs.150000/- for covered car parking, but the opposite party has failed to provide him with a specific marked car parking.
15. Ext.C1, as already stated, is the report of expert commissioner. Along with his report, the expert commissioner has appended a sketch of the car parking area provided by the opposite party. It can be seen that even though cars parked in the space allotted for parking of cars numbered as 2 to 9 has unfettered easy egress and ingress to the property, cars bearing Nos. 1,10 & 11 have to suffer blockade by the cars which are parked behind them and will have to wait for the respective owners of the cars parked behind them to remove their cars to effect ingress and egress.
16. Ext.A1 is the sale agreement executed by the 3rd OP for and on behalf of 1st opposite party favouring the complainant. Schedule A of Ext.A1 shows the description of property that was sold to the complainant as being Jenmam Purayidam lands having a total extent of 0.0475 hectors in Re-survey No.221/2.
17. Ext.A6 is the split up of the price arrived at. The vehicle parking area is valued at 1,50,000/-. Rest of the property is valued at Rs.24,09,373/-. It is to be noted that the value of Rs.24,09,373/- is for the total extent of land and the flat. An additional amount of Rs.1,50,000/- is charged for car parking area.
18. When a person is charged an additional of Rs.1,50,000/- it is only natural that such vendee can hope to have a space specifically marked and allocated to him for his free, unhindered and unfettered use without interference from any one else. But what we see here is that the opposite party has charged an additional 1,50,000/- for unspecified areas in the common areas that is already covered under the value of 24,09,373/-. i.e. the complainant is made to pay an additional 1,50,000/- to park his car in a plot of land over which he already has rights, title and interest. The complainant is forced to park his car, wherever any space is left when he arrives at the flat. We also find merit in the case of the complainant that the area provided for car park is the area mandatorily required to be maintained as Set-off in accordance with the Kerala Municipalities Act.
19. We hold that when the complainant is forced to pay amounts for a piece of land over which he already has right, title and interest, the O.P. is resorting to unjust enrichment. Thus we hold that there is unfair trade practice on the part of opposite parties.
Issue Nos. 2 & 3
20. Resultantly, based on the findings in Complaint 4 in Issue No.1, we hold that that the complainant is entitled for refund of the amount of Rs.1,50,000/- paid by him towards the cost of car parking area. We summarise the reliefs payable by the opposite parties 1 to 4 to the complainant as herein below:
1. Opposite parties shall refund an amount of Rs.1,50,000/- (Rupees One lakh fifty thousand Only) together with interest @10% from 10/05/2017 till the date of payment.
2. The complainant is entitled to a compensation of Rs.2,50,000/-(Rupees Two lakhs fifty thousand Only) payable by the opposite parties.
3. The complainant is entitled to a cost of Rs.1,00,000/- (Rupees One lakh Only) payable by the opposite parties.
4. Opposite parties shall be jointly and severally liable to pay the aforesaid amounts.
5. If the orders above are not complied within 45 days of receipt of this Order, the complainant shall be entitled to a solatium of Rs.500/- per month or part thereof from the date of this Order till the date of final payment of the amounts ordered above.
Pronounced in open court on this the 10th day of July, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Copy of sale deed bearing No.2151/2017 dated 10/5/2017
Ext.A2 – Copy of lawyer’s notice dated 24/12/2018
Ext.A3 – Original reply notice dated 9/1/2019
Ext.A4 – Copy of communication dated 8/10/2018
Ext.A5 – Print out of photographs
Ext.A6 – Copy of communication dated 7/9/2015
Exhibits marked on the side of the opposite party:
Ext.B1 – Copy of building sketch
Court Exhibit:
Ext.C1 – Commission report dated 29/11/2019
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – P.N.Prakash, Complainant
Witness examined on the side of the opposite party:
DW1 – Sasidhar K., CEO of OP
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
