Tamil Nadu

South Chennai

379/2005

A.R.Dhanalakshmi - Complainant(s)

Versus

Vijayshanthi Builders and 2 others - Opp.Party(s)

N.Chinnu

11 Oct 2017

ORDER

                                                                        Date of Filing :   16.06.2005

                                                                        Date of Order :   11.10.2017

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.379/2005

WEDNESDAY THIS  11^H  DAY OF OCTOBER 2017

 

Mrs. A.R. Dhanalakshmi,

Flat No.E, III Floor, Block-C,

Sri Jayendra Colony,

4/360, Old Mahbalipuram Road,

Kottivakkam,

Chennai 600 096.                                          .. Complainant

 

                                        ..Vs..

 

1. Vijay Shanthi Builders,

Rep. by its Directors,

 

2. Mr. Chandan Kumar,

S/o.V.C. Jain,

Director – Vijay Shanthi Builders,

 

3. Mr. Suresh Jain,

Director – Vijay Shanthi Builders,

 

All are at Vijay Complex, 2^nd Floor,

No.3, Blackers Road, Anna Salai,

Chennai 600 002.                                       .. Opposite parties.

 

 

Counsel for Complainant                :    M/s. N.Chinnau & others      

Counsel for opposite parties           :    M/s. Sathish Parasaran & others

 

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction for the proper supply of water through R.O. plant and overhead tank and proper functioning of sewage plant alternatively  and payment of Rs.1,00,000/- for such deficiency  and also to have the individual car parking by registered document and refund of amount towards sales tax and Registration charges and also to pay compensation of Rs.1,00,000/- towards deficiency of service and Rs.50,000/- towards mental agony and Rs.25,000/- towards cost of the complaint.

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

         The complainant submit that  as per agreement for construction the opposite parties  ought to provide proper supply of R.O water purification plant and supply of  water through overhead tank after providing sufficient bore-well etc.   Further the complainant state that the opposite party has not provided sufficient bore-well and the R.O. water purification plant are not functioning properly in some blocks and there is no proper supply of purified water to some block due to failure of the R.O. water purification plant.   There is no sufficient supply through overhead tank.  The complainant further state that  the sewage treatment plant had not been constructed but the opposite party provided only pumping motor.   The complainant also state that he had also paid Rs.36,642/- for stamp duty and registration charges out of which Rs.4829/- as balance remains unpaid by the 1^st opposite party after a total expenses of Rs.31,813/- spent on stamp and registration charges, despite of demands made in this regard.   The 2% charges for sales tax i.e. Rs.14,584/- remains unpaid and is due for if any such payments had been made no receipt is given till date.    Further the complainant state that  the opposite party had collected Rs.35,000/- for individual car parking, which is yet to be registered individually.   The opposite parties has allotted car parking in the common area.     As such the act of the opposite parties clearly amounts to gross deficiency in service & unfair trade practice  and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

2. The brief averments in Written Version of  the opposite parties are as follows:

        The opposite parties denies each and every allegation except those that are specifically admitted herein.   The opposite parties submit that  it was only because of the intention of the first opposite party to maintain its high standards of service to its customers that even though it was not required under the builders agreement, it entered into a water supply arrangement with the Perugudi Panchayat, for supply of water from the Perungudi lake and has out of its own expense.    The opposite parties further state that  the allegation that the plant is not functioning is wholly without any basis and in any event cannot be directed against the first opposite party.    Further the opposite parties state that  the sewerage treatment plant is as per the standards and were functioning properly at the time of installation of subsequent period of maintenance by the first opposite party.     The opposite party also state that  the accounting in respect of the payments collected have already been made.   In fact in law, no sales tax that has been collected can be retained and all payments are made for the credit of the department from the customers and all the taxes collected have been remitted to the Government account.    Hence there is no deficiency in service on the part of the opposite parties  and therefore this complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A16 marked.  Proof affidavit of opposite parties filed and Ex.B1 to Ex.B19 marked on the side of the opposite parties.  

4.   The points for the consideration is:  

1.  Whether the complainant is entitled the relief of proper supply of water through R.O. plant and overhead tank and proper functioning of sewage plant alternatively  and payment of Rs.1,00,000/- for such deficiency  as prayed for ?

 

2.  Whether the complainant is entitled to have the individual car parking by registered document and refund of amount towards sales tax and Registration charges as prayed for ?

 

3. Whether the complainant is entitled to the relief of compensation of Rs.1,00,000/- towards deficiency of service and Rs.50,000/- towards mental agony and Rs.25,000/- towards cost of the complaint as prayed for?

 

5.      POINTS 1 to 3:

         

        Heard both sides.   Perused the records.   The learned counsel for the complainant contended that as per Ex.A1 agreement for construction the opposite parties shall provide proper supply of R.O water purification plant and supply of water through overhead tank after providing sufficient bore-well etc.   In this  case the opposite party has not provided sufficient bore-well and the R.O. water purification plant  provided are not functioning properly in some blocks and there is no proper supply of purified water to some block due to failure of the R.O. water purification plant.  Equally there is no sufficient supply of  water through overhead tank.  But the complainant has not produced any record to prove the above said allegation.  On the other hand the contention of the opposite parties is that he is a reputed builder provided as much as sources for the due supply of R.O. water and regular supply of water through over head tank by providing water connection from the Perungudi Panchayat tank.   All the expenditures towards water connection has been borne by the opposite parties in order to establish his name in the field of construction.  

6.       Further the learned counsel for the complainant contended that there is no proper provision of sewage treatment.  But it is not denied that the opposite parties provided sewage system.  The contention of the opposite parties is that he has provided well maintained sewage system as per the specification in the agreement.   The complainant’s  baseless allegation regarding the sewage construction without any record cannot be  taken into consideration.     Further the contention of the opposite parties is that immediately after sale by the opposite party it is the duty of the complainant and his association as to maintain both R.O. system and sewage system.   The opposite party also sent letter Ex.A9 to that effect.    

7.       Further the learned counsel for the complainant contended that the complainant is claiming a sum of Rs.1,00,000/- towards such deficiency for improper supply of R.O. system and sewage system.  But on a careful perusal of the records it is very clear that till the apartment was sold / the building was constructed and possession was handed over as per Ex.B17  the opposite parties has properly maintained is proved in this case.

8.     The learned counsel for the complainant further contended that the opposite parties collected a sum of Rs.1,00,000/- towards sales tax and registration charges.    But the opposite parties has expended only a sum of Rs.36,642/- towards stamp duty and registration charges there is a balance of Rs.4829/- with the 1^st opposite party and has not refunded.  Equally the opposite party has collected 2% charges towards sale tax amount of Rs.14584/-.  The said amount also not paid in accordance with the agreement and it should be returned.   But the complainant has not produced any record to prove the above said amount related to the registration charges and stamp duty and sale tax.   The learned counsel for the opposite parties contended that admittedly the opposite party collected the amount towards stamp duty and registration charges which has been duly expended for that.  Similarly the amount collected towards sale tax also paid to the  Sales Tax Department as per Ex.B14.   Ex.A14 & Ex.B14 are the clinching evidence to prove that the said amount has been properly utilized and there is nothing to refund.

9.     The learned counsel for the complainant contended that as per Ex.A1 agreement the complainant is entitled to an individual car parking allotted as per the specification.  The opposite parties has allotted car parking in the common area.   The opposite parties neither specified / ear marked the car parking area to the complainant or other purchasers and has not executed any document to that effect.   The learned counsel for the opposite party contended that the stilt area of the building is allotted and ear marked for car parking.  As per Apartment Act such stilt  area shall be treated as common area.   The complainant has been duly allotted the car parking area in the common area.   The complainant is not entitled to any registered separate document for such stilt common area for car  parking.  Demanding such registered document for car parking in the common space is abuse of process of law.    But it is very clear from the records that the opposite parties builder has not ear marked the individual car parking area to the respective apartment holder.  It is the duty of the opposite parties to ear mark the car parking area.    The learned counsel for the complainant contended that the opposite party committed deficiency of service right from the beginning of construction till the sale and handing over the property.   The complainant is claiming a sum of Rs.1,00,000/- towards such deficiency of service and a sum of Rs.50,000/- towards mental agony with cost of Rs.25,000/-.   But it is very clear from the records that the alleged deficiency by the complainant is imaginary.   There shall be no mental agony caused to the complainant without any concrete deficiency of service.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties are jointly and severally liable to ear mark the car parking area specifically to all the apartment holders including the complainant with cost of Rs.5,000/-  and the points are answered accordingly.

        In the result the complaint is allowed in part.  The opposite parties are jointly and severally liable to ear mark the car parking area specifically to all the apartment holders including the complainant with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.

 

The above  amount shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% p.a to till the date of payment.    

 

              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  11^th   day  of  October  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-  19.4.1999 - Copy of builder agreement.

Ex.A2-  29.11.2001 - Copy of Association’s letter

Ex.A3- 15.4.2004  - Copy of Association’s letter

Ex.A4- 22.4.2004  - Copy of Association’s letter

Ex.A5- 3.5.2004    - Copy of Association’s letter

Ex.A6- 7.5.2004    - Copy of Association’s letter

Ex.A7- 25.5.2004  - Copy of Association’s letter

Ex.A8- 13.7.2004  - Copy of Association’s letter

Ex.A9- 22.11.2003         - Copy of Opposite parties letter

Ex.A10-30.3.2004 - Copy of Opposite parties letter

Ex.A11- 13.5.2004         - Copy of Opposite parties letter

Ex.A12- 14.6.2004         - Copy of Opposite parties letter

Ex.A13- 1.11.2004         - Copy of Opposite parties letter

Ex.A14- 8.1.2005  - Copy of Opposite parties letter

Ex.A15- 13.12.2004- Copy of notice.

Ex.A16- 12.01.2005- Copy of reply.

Opposite parties’ side document: -     

Ex.B1-         -        -  Copy of delivery receipts.

Ex.B2-         -       -  Copy of Final bills.

Ex.B3- 7.7.2003    -  Copy of structural stability certificate.

Ex.B4- 16.6.2004  -  Copy of quote for R.O plant.

Ex.B5- 3.3.2004    -  Copy of Invoice for R.O. Plant.

Ex.B6-         -       -  Copy of Cost breakup for sewage treatment plant.

Ex.B7- 26.10.2004         -  Copy of letter to Secretary, Residents association.

Ex.B8- -       -       -  Copy of Sales tax assessment orders.

Ex.B9- 12.5.2004  -  Copy of remainder letter for maintenance charges.

Ex.B10- 21.7.2005         -  Copy of lift license with challans.

Ex.B11- 6.10.2003         -  Copy of regularization charges paid to CMDA with

                               Application.

Ex.B12- 10.10.2003- Copy of completion certificate.

Ex.B13- 28.10.2002- Copy of proceedings of Collector, Kancheepuram.

Ex.B14-       -       -  Copy of Sales tax assessment orders.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.