State Consumer Disputes Redressal Commission
S.Ravishankar,Perumalpuram,Tirunelveli. vs G.V.Krishnan,Tirunelveli. on 18 December, 2015
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MADURAI BENCH.
Present: Thiru.J. JAYARAM, PRESIDING JUDICIAL MEMBER.
Thiru.M.MURUGESAN, MEMBER.
F.A.No.340/2012
(F.A.No.1133/2011 on the file of the State Consumer Disputes
Redressal Commission, Chennai)
(Against the order in C.C.No.181/2010 dated 12.10.2011 on the file of DCDRF,
Tirunelveli)
THE 18th DAY OF DECEMBER 2015.
S. Ravishankar,
S/o. Sambasivam,
G-3, Block-2, Vidhya Sankara Apartment,
10th Street, "C "Colony,
Perumalpuram,
Tirunelveli. Appellant/Complainant
Vs
G.V. Krishnan,
S/o. Late. G.S. Venkatarama Iyer,
Proprietor,
Sri Sharada Extates, 9/1, Madurai Road,
Tirunelveli.
Residing at:
Plot No.C-104, 4th Cross Street,
Maharaja Nagar,
Tirunelveli. Respondent/Opposite Party
Counsel for Appellant/Complainant: Mr.S. Natarajan, Advocate.
Counsel for Respondent/Opposite party: Mr. S. Suresh, Advocate.
This appeal coming before us for final on 26.11.2015 and on hearing
the arguments of both sides and upon perusing the material records, this
Commission made the following:
2
ORDER
THIRU. J. JAYARAM, PRESIDING JUDICIAL MEMBER.
1. This appeal is filed by the complainant against the order of the District Forum, Tirunelveli passed in C.C.No.181/2010, dated 12.10.2011, dismissing the complaint.
2. The case of the complainant is that the complainant entered into a builder's agreement with the opposite party on 20.09.2006 and on that date itself he paid a sum of Rs.9,75,000/- for purchasing a Flat No.G-3 on condition that the opposite party shall complete the construction and deliver the possession of the flat by 21.03.2007. The opposite party has not issued completion certificate to be obtained from Tirunelveli Municipal Corporation and only after furnishing the possession certificate issued by the Tirunelveli Corporation from the complainant and others can take over the maintenance of the amenities. The opposite party has collected Rs.300/- per month for two bed- room apartments and Rs.400/- for three bed room apartments towards maintenance charges continuously for more than a year. The complainant is also being charged an amount of Rs.44/- as penalty for every six months by the Tirunelveli Municipal Corporation due to variation made in the construction of flats which can be regularized only after the opposite party submits his revised plan and gets the same approved by the Municipal authorities. The complainant has paid only Rs.176/- as penalty which is a deficiency in service. The complainant has paid Rs.9,75,000/- for the agreed amenities and common 3 amenities. There is no children's park or play ground, construction license issued by the Municipal Corporation has already expired; in deviation of construction plan, compound wall was not put up; 24 hours drinking water was not provided. The opposite party advertised that flat is ready for Grahapravesam house warming ceremony. All these amount to deficiency in service on the part of the opposite party and also unfair trade practice and hence the complaint praying for direction to the opposite party to provide all amenities and rectify the defects and to submit the revised plan to the Tirunelveli Municipal Corporation and to get it approved and to pay further sum of Rs.50,000/- towards compensation for not providing drinking water, Rs.25,000/- for not providing compound wall, Rs.25,000/-children's park and approach road within the campus, Rs.25,000/- for not adhering to the mandatory sanction conditions of the Municipal Corporation, Rs.25,000/- for not operating the stand by generator during power cut to have common lighting and water supply and Rs.50,000/- for mental agony and to pay costs.
3. According to the opposite party, whatever facilities were cited in the advertisement have been provided by the builders. The complainant has paid Rs.9,75,000/- for the purchase of the flat No.G-3 and took possession of the same from the builders. 24 hours drinking water supply has been provided. There is bore-well which supplies drinking water for 24 hours for the entire apartments and the sample was taken from the bore-well and was certified by relevant authorities that the water is good and drinking water. The opposite 4 party has provided two motors for pumping the water for the complex. There is no necessity for providing a separate road since the complex is situated on the main road itself. The opposite party provided and installed lifts for block No.2 for the past two years and the allegation that the lift was commissioned hastily on 06.07.2010 is incorrect. It is none of the business of the petitioner whether the opposite party's plan has been rejected by the Director of Town and Country Plan, Chennai and whether the licence for completion of construction expired on 21.03.2007 and it is the duty of the appropriate authority to find out all these things. It is not the duty of the opposite party to maintain the work after the completion of the sale. The builder is spending Rs.32,000/- per month towards the salary of the watchman and the sweeper and general lighting charges, pumping sewage water and other essential services. But, on the other hand the allottees are contributing only Rs.13,800/- per month in total and in spite of repeated demands made by the opposite party the allottees have not formed any association or society till date. Water sumps have been provided for not for the use of the purchaser and it is for the use of the opposite party himself for further construction. The concrete work has been done by the opposite party and that itself is weathering course and no separate weathering course is needed. It is a false allegation that during the rainy days, rain water pours through the roof and make all stairs slippery. The opposite party has already allotted children's play ground which is not given in the advertisement or the agreement that the approach road inside the campus is provided. It is not mandatory to get the 5 completion certificate from the Municipal Corporation to assess property tax only after the completion of the entire building work. The opposite party is doing maintenance work of the apartments by spending money from his packet and the complainant is contributing a small amount towards maintenance charges and further the maintenance work has been done by the residents of the apartments. The opposite party is doing the maintenance work and there is no clause in the agreement to that effect. The opposite party has already provided rain water harvesting construction inside the complex. It is a false allegation that the opposite party has constructed apartments against the approved plan. The opposite party has provided all the facilities stated in the agreement and there is no deficiency in service or unfair trade practice on his part.
4. The District Forum considering the rival contentions dismissed the complaint on the ground that the complaint is barred by limitation while coming to the conclusion that there is deficiency in service on the part of the opposite party. Aggrieved by the impugned order, the complainant has preferred this appeal.
5. In the appeal pending enquiry, 4 additional documents were filed in the appeal and marked as Exhibits B4 to B7. Ex B4 is the letter written by the Public Information Officer and the Assistant Commissioner of Tirunelveli Municipality. Ex B5 is the application sent to the Tirunelveli Municipal Corporation seeking certain information. Ex B6 is the letter sent by the Public Information Officer and the Assistant Commissioner of Tirunelveli Municipality. 6 Ex B7 is the letter sent by G.V. Krishnan to the Commissioner, Tirunelveli Municipal Corporation, Tirunelveli. The Commissioner has filed his report under Ex C1.
6. The Junior Engineer, Tirunelveli Municipal Corporation has been examined as P.W.2 who has stated that the amount has been collected from the complainant for unauthorized construction and for unauthorized plan and the complainant has to pay penalty amount of Rs.44/- for every six months and the complainant has paid penalty for deviation in the construct ion made by the opposite party. Though unauthorized construction has been subsequently authorized by giving revised plan by the complainant, the complainant has paid penalty from the deviation made by the opposite party in the approved plan and as held by the District Forum in the order, this amounts to deficiency in service on the part of he opposite party by constructing the building deviating from the approved plan. Further, the Commissioner has stated in his report Ex C1 that during the rainy season, there is possibility of seepage of water inside the lift room since its floor is below the floor of the car parking area. It is contended by the complainant that because of the problem that the lift was not functioning properly these difficulties have to be rectified and the lighting floor of the lift room is below the level of car parking area which amounts to deficiency in service on the part of the opposite party as held by the District Forum in the order. Further the commissioner has stated in his report that the roof of the car parking is very low and so the cars with reasonable size cannot be parked there 7 and that the parking area is not suitable for parking cars with reasonable sizes. This also amounts to deficiency in service on the part of the opposite party as held by the District Forum.
7. It is contended by the complainant that the opposite party has not received the completion certificate from the Tiruneveli Municipal Corporations and even if such provision for providing completion certificate is not incorporated in the agreement, the opposite party is responsible for securing the completion certificate (as under section 26 of Public Health Act, 1939) and providing them to the allottees. If the completion certificate is not obtained from the Public Health Department and the Local Authority, the house cannot be occupied or permitted to be occupied. The construction plan was approved by Municipal Corporation subject to condition No.9 as mentioned in Ex A22 that if a certificate under section 26 of the Public Health Act is not received, the house cannot be occupied. The omission to obtain the completion certificate from the Public Health Authority amounts to further deficiency in service on the part of the opposite party as held by the District Forum. The further contention is that solar heating system and fire safety equipments have not been installed by the opposite party. Non-providing necessary facilities and non-receipt of the above certificates amount to deficiency in service on the part of the opposite party.
8. The District Forum has dismissed the complaint on the point of limitation. Admittedly, the opposite party has not obtained the completion 8 certificate from Tirunelveli Municipal Corporation and the opposite party is responsible for securing the completion certificate.
9. Further, in the circumstances, it is a case of continuing cause of action, we rely on the decision of the Hon'ble National Commission in the case of MOPAR BUILDERS AND DEVELOPERS PVT. LTD., - Vs - UNITY CO-OP HOUSING SOCIETY LTD., reported in I (2011) CPJ 71 (NC) wherein it is laid down as follows:
"Possession given - Facilities not provided - Continuing cause of action - Alleged deficiency in service - Contended complaint time barred - Completion Certificate and occupancy certificate not issued - Continuing cause of action.
"Argument that the complaint is time-barred cannot be accepted as the completion certificate and occupancy certificate have not been made available to the purchasers/occupants. Therefore, it is a clear case of continuing cause of action."
10. Therefore, in the light of the above decision, we hold that it is a case of continuing cause of action and therefore we hold that the present complaint is not barred by limitation and that the complaint can be entertained and the complaint is maintainable. The District Forum has erred in this aspect in holding that the complaint is hit by limitation which is an erroneous decision.
11. In the complaint, the complainant has sought for the relief of direction to the opposite party to provide all the amenities and to rectify all the defects. It 9 is pertinent to note that the construction was over by the year 2007-2008 and the complaint has been filed in the year 2010 and now we are in the end of 2015. Therefore, it is not proper to direct the opposite party to provide all amenities and to rectify the defects at this stage. Further, the complainant has claimed Rs.50,000/- for compensation for not providing drinking water, Rs.25,000/- for not providing compound wall, Rs.25,000/- for not providing children's park and approach road within the campus, Rs.25,000/- for not adhering to the mandatory sanctioned conditions of Municipal Corporation, Rs.25,000/- for not operating the stand-by generator during the power cut to have common lighting and water supply and Rs.50,000/- for mental agony.
10. On considering the entire materials on record including the builders agreement and the Commissioner's report Ex C1, we feel that an award of Rs.2,50,000/- would be just and reasonable compensation for not providing amenities and not rectifying the defects and the deficiency in service and that an amount of Rs.50,000/- would be the reasonable compensation for mental agony and sufferings.
11. In the result, the appeal is allowed by allowing complaint and the respondent/opposite party is directed to pay a sum of Rs.2,50,000/- (Rupees two lakh and fifty thousand only) for not providing the amenities and not rectifying the defects and the deficiency in service on the part of the opposite party and to pay further sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony and sufferings and to pay costs of 10 Rs.10,000/-(Rupees ten thousand only). The opposite party is further directed to obtain the revised approved plan from Tirunelveli Municipal Corporation and to obtain completion certificate and to hand over the same to the complainant.
Time for compliance - three months from the date of receipt of copy of this order. In case of default to comply with the order, the amounts shall carry interest at the rate of 9% per annum from the date of default till compliance.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxxxx M. MURUGESAN, J. JAYARAM, MEMBER. PRESIDING JUDICIAL MEMBER.
Additional Documents filed on the side of the Respondent/opposite party before this Commission.
Ex B4 30.10.2013 Letter written by Public Information Officer and the Assistant Commissioner, Tirunelveli Municipal Corporation Ex B5 24.07.2014 Application sent to the Public Information Officer and the Assistant Commissioner, Tirunelveli Municipal Corporation by advocates under RTI act seeking information Ex B6 27.10.2004 Letter sent by Public Information Officer and the Assistant Commissioner, Tirunelveli Municipal Corporation. Ex B7 26.10.2015 Letter sent by the opposite party to the Commissioner, Tirunelveli Municipal Corporation.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxxxx M. MURUGESAN, J. JAYARAM, MEMBER. PRESIDING JUDICIAL MEMBER. INDEX: YES / NO TCM/Mdu Bench/Orders- 2015/Dec