State Consumer Disputes Redressal Commission
P.Chandiran, S/O.Late Periaswamy, ... vs The General Manager, Irwo (Indian ... on 21 September, 2011
Date of filing : 24.02.2010
Date of order:
28.12.2006
BEFORE THE TAMILNADU
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial
Thiru.S.Sambandam,
B.Sc., Member
C.C.No.02/2007
WEDNESDAY, THE 21st DAY OF SEPTEMBER 2011.
P.Chandiran, S/o.Late Periaswamy, Senior Electronic Data Processing Manager, Southern Railway, Madurai and Residing at :No.283/2, 4th Avenue, Anna Nagar, Chennai-600 040. .
Complainant Vs.
1. The General Manager, IRWO (Indian Railway Welfare Organisation), Southern Railway, Construction Office Complex, Egmore, Chennai 600 008.
2. The Managing Director, IRWO (Indian Railway Welfare Organisation), Railway Complex, Sivaji ( Minto Bridge), Behind Sankar Market, New Delhi 110 001. .. Opposite parties.
This complaint coming on before us for hearing finally on 29+.08.2011, upon perusing the material documents, and upon hearing the arguments of both sides and having stood over till this day for consideration, this Commission made the following order.
For the Complainant : In Person (P.Chandran) Counsel for the Opposite parties : M/s.S.Ramasubramaniam & Associates.
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL The complaint filed under Section 17 of the Consumer Protection Act- 1986
1. The details of complaint in brief as follows : The complainant is working as a Senior Electronic Data Processing Manager in Southern Railway, Madurai. As a member of the opposite party Welfare Organisation for the dwelling unit as primarily registered with 2nd opposite party under Registration No.41293. The 1st opposite party called for allotment of flats proposed construction at the Koyambedu Project under Registration No.2250 for the allotment of one higher type flat and the petitioner was allotted one M-3A flat on 21.6.92 and subsequently based on the request of the petitioner on 18.09.92 a M-4 flat was allotted on 16.12.92 and the cost of M-4 Flat was to remit in 10 instalments with separate cost for car parking and for the provision of the left and complainant paid all the amounts. Since the demand was more from the officials opposite parties decided to construct additional flats in the vacant place pending approval of CMDA and thereby the opposite parties have decided to convert car parking areas as flats with the condition that such flats will be allotted only the members who have joined in the scheme later and accepted to take the same. The M-4 block consists of A, E, F, G and H. In the A block two car parking areas and in other blocks one car parking area were converted as flats. All these flats roof height is only 8 to 9 ft from the ground level and in other flats roof height is 13 ft and converting the car parking area is an unfair trade practice. The complainant is one of the victims in the allotment of car parking converted flats in the A Block flat No.A-1, even though he is not a member who joined in the scheme belatedly. Hence the complainant had made many representation in this regard and due to the deviation the electricity box as planned was not able to be fixed during the rain season electrical line will not work on account of this deficiency and during the year in 2005 3.5 ft height of water entered in to the complainants flat and damaged all the wood work and furniture and the car parking area converted as flat got regularized from CMDA after constructing the A Block and the additional construction were regularized in 1997 and 1999. The lift is provided from the normal ground floor level even for this one has to reach the lift as to claim up 5 steps to go to 1st and 2nd and 3rd floor. During the year 2005 only M-4 flats were submerged damaging the flats and the flat is not fit for living condition. Hence the complainant asked for allotment of another flat or to pay the cost of the flat on several occasions. But the opposite parties have not complied. Hence a final notice was given on 1.11.06 and the 2nd opposite party replied on 28.11.06. The complainant taken over possession of the flat on 10.12.96, petitioner has replied in detail on 5.12.06 for the letter dated 28.11.06 asking for various details and papers relating to the construction approval of plan, allotment etc. The opposite parties not complied with the same. Hence complainant has come forward with this complaint claiming cost of the flat for Rs.82,25,000/- at the rate of Rs.5,000/- per sq. ft. at the prevailing market rate for 1430 sq. ft. plus 250 sq. ft as common area Rs.3,00,000/- as cost of car parking Rs.2,00,000/- cost of wood work, grill work tiles etc., and registration charges for Rs.6,58,000/- or to allot a flat in the same colony by constructing in the vacant lands or on the top of the building and Rs.5,00,000/- as compensation for mental agony.
2. The opposite parties denied the allegations of the complainant in their common written version contended that the complainant was originally allotted M-3A flat and subsequently on the basis of his requests he was allotted M-4 flat and no specific indication was given as to the flat or the block in which he would be allotted an unit at the time of registration as per the standard practice followed by the opposite parties allotment of specific dwelling unit is decided by draw of lots by eligible employees for the respective type when the construction is complete and the flats were ready for allotment. In order to accept heavy demand for the flats the authorities decided to convert car parking areas in to regular additional flat and after obtaining necessary approval from CMDA and other authorities they were constructed and the complainant name was included in the general flat for normal type M-4 flats which were housed in A, E, F, G and H blocks. As a result of draw he got flat No.A1 in the ground floor of A Block. Separate loss were conducted for the flats with a lesser floor to ceiling height, which were confined to the allottees who had specifically opted to accept such flats. The allottees were given possession to the respective flats from 1.8.96 onwards on their clearing of dues. The allottees were handed over flats after inspecting the flats and satisfied with the facilities by an undertaking to that effect and the deficiencies pointed out by the allottees were attended on inspection by the opposite parties engineers during the liability period of contract. Regarding the deficiency pointed out by the complainant it is not correct that he was allotted type M-4 as a converted car parking in to a flat.
He was advised that the flat ceiling height of the flat allotted to him was the same as in other type M4 flats in the same block. It was also clarified that the basic difference between the stilt/car park and a flat for dwelling lies in the floor to ceiling height. In such cases relating to slits/ car park can be as low as 8 ft. But in the case of living portion of the flat is normally kept around 9 ft complainant flat A-1 confirms also with 9 ft to the normal building standards and the complainants contention that car parking converted flat for the allotted is wrong. Further during the year 2005 due to abnormal floods the whole of city especially Koyambedu area were submerged and there was no deficiency in this regard.
3. The IRWO is a society in which complainant is a member and hence he is not a consumer and IRWO is not a trader or service provider and hence the complaint is outside the jurisdiction of Consumer Disputes Redressal Commission. Slight reduction in the floor level by itself cannot be considered sufficient ground to make the floor uninhabitable. At the time of handing over of the flat complainant inspected the flat and taken possession after giving a certificate regarding his satisfaction on condition if they are not satisfied he had the option not to accept the flat. IRWO is a Welfare Organisation functioning on no profit no loss basis by following fair and standard construction practices in all housing schemes all over India ensuring quality at affordable costs to all the Railway Employees and as per the application issued to the members any matter relating to disputes be referred to the Chairman who shall appoint Arbitrator and no request for arbitration will be entertained unless within two months of the cause of action and prior to taking possession of dwelling unit. Possession will not be given till the Arbitration proceedings are complete. The above terms were not followed by the complainant and not sought for arbitration prior to taking possession.
After living in the flat for more than so many years from 1996 complainant come forward with an after thought complaint and to be dismissed as no merits.
4. Both sides have filed their proof affidavits and the documents the complainants side documents are marked as Exhibit A1 to A9 and for the opposite parties Exhibit B1 to B35 have marked.
5. The points for consideration are :-
1) Whether the complainant is not a consumer and the matter to be referred before the Arbitrator under the provisions as per para 23 and 24 of broacher cum application Exhibit B1 ?
2) Whether there are any deficiency of service and unfair trade practice on the part of the opposite parties ?
3) To what relief ?
6. Point No.1 : In this complaint enquiry the opposite parties have contended that the Indian Railway Welfare Organization (IRWO) against whom the complaint was made is the Welfare Association functioning for the benefits of Railway Employees both service and retired personnel on no profit no loss basis by following Fair and standard constriction practices in all its housing schemes all over India by affording quality dwelling units. It is an admitted fact the complainant is the member of the organization as an employee of Railway and only on that basis he has applied for the allotment of flat subsequently obtaining the same came forward with the allegations of defects and other deficiency regarding the same. As per the provision under Consumer Protection Section 2(d) in order to file a complaint as a consumer there must be a service provider with the nature or in the business motive to sell the product to the consumer. In this case the opposite parties have filed the brochure with terms and conditions as per Exhibit B1 in which in clause 1.2 it is stated that the scheme is applicable only for those applicants who have obtained primary registration of IRWO and those who do not own house or flat in Madras metropolitan area are eligible to apply the scheme and is open up 8.5.92 from this and further in the introduction it is stated the Indian Railway Welfare Organisation has been set up as a registered society and with its head quarters at New Delhi under the Societies Registration Act to provide houses for serving and retired railway men at all India level purely as a social welfare measure on no profit no loss basis.
Further in condition No.23 and in 23.1 it is stated all the matters of disputes differences relating to the booking, registration, allotment of flats and other incidental matters it may be referred to the Chairman who shall appoint an arbitrator to adjudicate the matter whose decision in the matter shall be final and binding on the Registrant as well as organization. In 23.2 stated no request for arbitration for adjudication of a dispute will be entertained by the Chairman of IRWO unless it is made within two months of the cause of action and prior to taking on possession of dwelling unit. Possession will not be given till the arbitration proceedings are complete and in condition No.24 Registrant/allotte can take recourse court only if he has exhausted of avenues of redress including arbitration provider in the rules. According to those conditions a Registrant for the member of the Society who was allotted the flat can seek remedy regarding grievances by approaching the chairman for requesting appointment of arbitrator before taking over the possession of the flat. In this case complainant has not taken any such steps even though he had taken possession of the flat as per Exhibit B29 on 10.12.96 in which it is stated in clause 3-B that he had specifically inspected and verified the flat and the common areas and fully satisfied with the structure materials, finishers, fittings and physical conditions of the same as well as common area and the land.
Further in clause C also it is stated that the allottee is aware that the defect rectification liability period of contractor for the flat expires on 31.10.97.
7. In those circumstances, even as per the handing over certificate Exhibit B29 with any grievance or defects relating to the flat the liability period would expire on 31.10.97 and till 2005 for more than 8 years. The complainant have not come forward to report the same for seeking remedy for the same with the contractor of the opposite party for the liabilities. In those circumstances we are of the view that the complainant is not a consumer and in view of the arbitration classes available in the broacher cum application to the complainant and the complaint is barred by jurisdiction. The complainant is not a consumer as the opposite parties are not service provider for any profit or commercial motive.
8. Point No.2 : As per the document Exhibit B29 Clause 3 (e) the complainant has to report the defect for rectification before the contractor or to the authorities on or before 31.10.07 the stipulated date relating to the liability and the complainant has not come forward with any such report relating to the defects till 2005 and as far as the other defects are concerned on perusal of both sides documents the complainant himself asked for alternative flat instead of M3A Flat originally allotted and subsequently allotted as request in M4 Block as per Exhibit B6 and subsequently taken possession as per Exhibit B29 and it is contended that during the year 2005 due to flood is flats become submerged and wooden articles become damaged for which he has not produced any materials to prove the damages and it is contended by the opposite party during 2005 due to unusual rain entire city was flood especially Koyambedu area where the construction of flats are situated and thereby when it was due to the general calamity or hardship caused to each and every citizen the complainant cannot claim damages on that basis. Regarding the allotment of car parking converted flat it is categorically denied by the opposite parties by stating that in the construction of stilt /car park the roof level height would be only all the 8 ft and for the dwelling area of flat normal. It is 9 ft. and in the flat M-4 A1 allotted to the complainant within the normal height of 9 ft. like any other flat owners M-4 in which the ground floor or lower than other flats because of the floor level it considered the ground for making the flat uninhabitable and complainant has not come forward to prove the contentions regarding the car parking area converted as flats he has not filed any expert evidence to prove the same or to take steps under rule 13 of the Consumer Protection Act Rules to inspect the disputed flat and measurements and when the opposite party denied the same by stating that it was not so. Further regarding other relief praying for payment of cost market prevailing price for the flat or to allot an alternative flat by constructing in the vacant land or on the top floor which are all practically not possible which cannot be done to suit the single person when the complainant himself alleged deviation and violation of ruling in the construction when it comes for his he prayed for fresh construction in the vacant land or to construct on the top floor against normal procedure Rules and Regulations and thereby the complainants claims of any one can be sustained as proved and in the circumstances we are of the view that the complainant failed to prove regarding the deficiency or unfair trade practice against the opposite parties.
Accordingly we find the answer for this point against the complainant.
9. Point No. 3 : In view of the findings against the complainant in point No.1 and 2, the complainant cannot have any relief in this complaint and the complaint deserves to be dismissed as not maintainable.
10. In the result, the complaint is dismissed as not maintainable. No order as to costs.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant A1 Oct.1989 IRWOs brochure and managing Directors letter.
A2 11.09.90 Copy of Registration certificate acknowledgement.
A3 06.06.96 Copy of representation of the complainant.
29.11.96 Copy of representation of the complainant.
22.01.97 Copy of representation of the complainant.
22.01.97 Copy of representation of the complainant.
23.05.97 Copy of representation of the complainant.
A4 09.12.96 Copy of opposite party letter stating that it is not a car parking flat.
A5 14.12.05 Copy of representation of the complainant.
25.01.06 Copy of representation of the complainant.
06.03.06 Copy of representation of the complainant.
16.03.06 Copy of representation of the complainant.
30.10.06 Copy of representation of the complainant.
03.11.06 Copy of representation of the complainant.
A6 01.11.06 Copy of final notice from complainant.
A7 18.11.06 Copy of reply received from the opposite party.
A8 05.12.06 Copy of the reply given by the complainant.
A9 12.02.97 Copy of a letter written by the representative Shri C.S.Kannan to the opposite parties.
Exhibits (Xerox copies) of the opposite parties B1 - Hill view Rail nagar-Group Housing Scheme Brochure with terms and conditions & Application.
B2 31.08.90 Application of the complainant.
B3 21.06.92 Allotment letter from opposite parties to complainant.
B4 21.06.92 Undertakings of the complainant.
B5 18.09.92 Letter from Complainant to 1st opposite party.
B6 16.12.92 Letter from 1st opposite party to complainant.
B7 29.07.93 Letter from Member Secretary, MMDA to the Commissioner, Ambattur Municipality.
B8 30.08.94 Letter from 1st opposite party to 2nd opposite party.
B9 31.08.94 Builders agreement.
B10 9.9.94 Letter from 2nd opposite party to 1st opposite party.
B11 19.9.94 Sale deed for undivided share of land.
B12 07.2.95 Letter from complainant to 1st opposite party.
B13 15.5.95 Letter from 1st opposite party to Dr.Premkumar, Allottee.
B14 22.05.95 Letter from Mr.H.Krishna Iyer to the 1st opposite party.
B15 31.05.95 Letter from Dr.Premkumar, Allottee to the 1st opposite party.
B16 16.8.95 Letter from 1st opposite party to complainant.
B17 21.09.95 Letter from 1st opposite party to complainant.
B18 21.09.05 Letter from 1st opposite party to complainant.
B19 08.01.96 Letter from 1st opposite party to Director/Technical , IRWO.
B20 09.04.96 Letter from 1stopposite party to Mr.H.Krishna Iyer, Allottee.
B21 26.4.96 Letter from 1st opposite party to complainant.
B22 1.7.96 Letter from 1st opposite party to complainant.
B23 1.7.96 Letter from complainant to 1st opposite party.
B24 23.7.96 Letter from Complainant to 1st opposite party.
B25 25.7.96 Letter from 2nd opposite party to complainant.
B26 12.11.96 Letter from 1st opposite party to Chief Project Manager, Rail Nagar, Madras, Copy to Complainant.
B27 19.11.96 Letter from 1st opposite party to complainant.
B28 9.12.96 Letter from 2nd opposite party to complainant.
B29 10.12.96 Handing/Taking over Certificate.
B30 19.02.97 Letter from Member Secretary, MMDA to the Commissioner, Ambattur Municipality.
B31 02.07.97 Letter from 1st opposite party to 2nd opposite party.
B32 01.08.97 Letter from 1st opposite party to 2nd opposite party.
B33 30.10.06 Letter from Complainant to the opposite parties.
B34 02.11.06 Letter from 1st opposite party to complainant.
B35 28.11.06 Letter from 2nd opposite party to complainant.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ Railway flats