State Consumer Disputes Redressal Commission
A.Salija Venugopal, Proprietrix, M/S. ... vs 1.Muralidhar, ... on 25 November, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A.No.735/2009 against C.C.No.186/2006, District Forum-II, Visakhapatnam. Between A.Salija Venugopal, Proprietrix, M/s. Sai Theertha Builders, Indian, R/o.D.No.2-39-13, Sector -10, Behind M.V.P.Public School, M.V.P.Colony, Visakhapatnam-17 Appellant/ Opp.party And 1.Muralidhar, S/o.M.L.N.Murthy, Indian, aged 35 years, R/o.Flat no.512, 4th floor, Theerthu Towers, Sector-X, Behind M.V.P.Public School, M.V.P.Colony, Visakhapatnam-17. 2. M.V.L.D. Satya Sai Sree, W/o.M.Muralidhar, Indian, aged 28 years, R/o.Flat No.512, 4th floor, Theerthu Towers, , Sector X, Behind M.V.P. Public School, M.V.P.Colony, Visakhapatnam-17. Respondents/ Complainants Counsel for the Appellant : M/s.A.Srinivasa Sarma Counsel for the respondents : Mr.A.S.C.Bose QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER
FRIDAY, THE TWENTY FIFTH DAY OF NOVEMBER, TWO THOUSAND ELEVEN.
(Typed to dictation of Smt.M.Shreesha, Honble Member) **** Aggrieved by the order in C.C.No.186/2006 on the file of District Forum-II, Visakhapatnam, the opposite party preferred this appeal.
The brief facts as set out in the complaint are that the complainants entered into a Construction Agreement for construction of Flat no.512 in the Fifth Floor of Theerthu Towers , M.V.P.Colony, Visakhapatnam which was registered with the sub Registrar, Visakhapatnam on 26.10.04 and the opp.party received Rs.9,47,500/- towards the consideration for the said flat and the complainants became absolute owners of the said flat through registered Sale Deed vide document no.4675/2004 dt.26.10.2004. The complainants submit that as per the agreement entered into with the opposite party, the opposite party has to provide all common facilities within 6 months and also finish the apartment in all respects as agreed upon including all facilities. But the opposite party handed over the semi finished to the complainants with an abnormal delay besides not providing the required facilities. The requirements which are to be provided are as follows:
1.BALCONY:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Work of ceramic tile dedo/skirting is very poorly executed . The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
c) Wall plastering and finishing is of very poor quality.
d) A hole of about 6 dia is left open in the North-East corner of the roof slab.
e) Water seeps through the roof slab and the entire slab is damp.
f) The heights of the parapet wall on either side of the column is different. The height is 3-03 for a length of 10-2 and 2-11 for a length of 9-07
2.MASTER BED-ROOM:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Work of ceramic tile dado/skirting is very poorly executed. The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
c) Wall plastering and finishing is of very poor quality.
d) Seepage of water through the North and South walls.
e) Seepage of water through the West part of the roof slab.
f) Floor in the North-East corner is not properly fixed to the wall and leaves a gap between the door frame and the wall.
g) Hair-line crack (East to West) in the middle of the slab for the entire length besides hair-line cracks in the South wall.
h) Window shutters are poorly made and leaves wide gaps between the frame and the shutter at the top as well as at the bottom point of the shutters.
i) The R.C.C. planks for the cup-board is not properly joined and also damaged.
3. TOILET OF MASTER BED-ROOM:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Wall plastering and finishing is of very poor quality.
c) Wash basin is left dangling to the wall and no properly fitted
d) The plastic seat of the European-type water closet is of poor quality and broken.
e) The shutter of the door is poorly made does not close properly.
4.LOBBY OF THE ABOVE TOILET:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Work of ceramic tile dado/skirting is very poorly executed. The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
c) Wall plastering and finishing is of very poor quality.
5. CHILDRENS BED-ROOM:
a) Very poor quality of workmanship of flooring tile fixing and joining .
b) Work of ceramic tile dado/skirting is very poorly executed. The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
c).Wall plastering and finishing is of very poor quality.
d)Window shutters are poorly made and leaves wide gaps between the frame and the shutter at the top as well as at the bottom point of the shutters.
e).The R.C.C. planks for the cup-board is not properly joined and also damaged.
f).Ventilator size is uneven. It is wrongly fitted i.e. inside out and upside down and the privacy is lost as outsiders can see inside but not vice versa.
6. DINING ROOM:
a) Work of Ceramic tile dado/skirting is very poorly executed.
The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
b) Wall plastering and finishing is of very poor quality.
c) Seepage pf water through the South wall.
d) Continuous fall of droplets of water from the roof slab.
e) Hair-line crack (East to West) in the middle of the slab for the entire length.
f) Cup-boards damaged by the moisture in the South wall.
g) The R. C. C. planks for the cup-board is not properly joined and also damaged.
7. DRAWING ROOM:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Work of ceramic tile dado/skirting is very poorly executed.
The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
c) Wall plastering and finishing is of very poor quality.
d) Seepage of water through the South wall.
e) Hair-line crack (East to West and North to South ) in the middle of the slab for the entire length.
f) Seepage of water through the roof slab.
g) The R. C. C. planks for the cup-board is not properly joined and also damaged.
h) Second coat of polish not provided to the main door.
i) Door lock fitted to the door is of poor quality and not functioning properly.
8. LOBBY AT KITCHEN:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Work of ceramic tile dado/skirting is very poorly executed. The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
c) Wall plastering and finishing is of very poor quality.
d) Seepage of water through the North wall at dado level.
9. COMMON TOILET:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Wall plastering and finishing is of very poor quality.
c) Seepage of water through the North wall.
d) Seepage of water through the roof slab.
e) The shutter of the door is poorly made does not close properly.
f) Plumbing arrangement and tap points are not providing for hot and cold water mixing.
10. KITCHEN:
a) Very poor quality of workmanship of flooring tile fixing and joining.
b) Ceramic tile flooring and provided in areas underneath the kitchen platforms and cup-board.
c) Work of ceramic tile dado/skirting is very poorly executed. The top level is uneven and gap is left at the bottom between these tiles and flooring tiles.
d) Wall plastering and finishing is of very poor quality.
e) Seepage of water through the East wall .
f) Hair-line crack (East to West and North to South) in the middle of the slab for the entire length.
g) Hair line crack in the roof slab.
h) The R. C. C. planks for the cup-board is not properly joined and also damaged.
i) The R. C. C. planks are not of proper size and leaves a gap of 1 all along.
j) The shutter of the door on west is poorly made does not close properly.
k) Door in the South-East corner is not properly fixed to the wall and leaves a gap between the door frame and the wall.
l) The shutter of the door in the South-East is very badly made and has wooden pieces nailed over the shutter to bring it to shape.
m) Sink not properly fitted leaving gaps all round and seepage into the walls.
n) Cub-boards damaged by the moisture in the North wall.
11. COMMON WORKS INSIDE THE FLAT:
a) Overall painting of doors and windows with 2 coats of standard enamel paint.
b) Internal and External plastering (due to poor quality) with 2 coats of standard distemper over suitable primer.
c) Painting all the walls (due to poor quality) The complainants respectfully submit that the opp.party has to complete all the pending works in common areas as per the agreement entered into with them and other flat owners, but the opposite party has chosen not to finish them even after a long period of 5 years from the commencement of the project. The complainants submit that the required amenities were not provided since February,2005 though all the flats were occupied by March,2005. The complainants have estimated the value of the work which is to be completed by the opp.party in the flat through a registered property valuer Mr.A.R.Naushad at Rs.5,19,538/-. The complainants further submit that the opp.party promised to provide DELUXE TYPE flat as per the specifications but the flat delivered is of very poor quality and is not fit for living. The complainants addressed a letter dt.15.3.2005 to the opp.party through registered post ack.due, for rectification of defects for which the opp.party did not give any reply. The opposite party laid the sixth floor unauthorisedly though the permission was accorded only for five floors and hence the construction became weak and the flat of the complainants is situated on the fifth floor and was constructed with very poor quality and submits that the flat has to be replaced with a new flat having deluxe quality as per the terms of the agreement.
Hence the complaint seeking direction to the opp.party to replace the flat of the complainants i.e. Flat No.512 of Theerthu Towers, M.V.P.Colony, Visakhapatnam, with a newly constructed flat which is having good quality construction i.e. deluxe type construction, or to direct the opp.party to pay Rs.5,19,538/- to rectify the defects in the property, together with Rs.2 lakhs towards damages and costs.
Opp.party filed counter and submits that out of total 60 flats in number, 20 flats are given free of cost to the Land Owners apart from meeting the cost of construction. Opp.party had to bring the necessary permission from the municipal administration and collected the amount as per the Construction Agreement and when the complainant demanded extra works, the opp.party completed the works but the complainant did not pay the amounts. There are no deviations in apartment construction and opposite party strictly observed all the norms of the Municipal Corporation. Opposite party denies about the non provision of car parking, generator, poor maintenance and all other averments in the complaint with respect to poor construction. The entire cellar was left as a parking area and the opposite party constructed his office room with a promise to remove after the completion of the project. But the complainant and others gave a complaint to Municipal Corporation and got it demolished. Out of 60 flat owners only 8 or 9 persons did not join including the complainant and they are not paying the maintenance charges or the electricity bills. 8 flat owners filed a suit O.S.no.982/05 on the file of first Addl.Senior Civil Judge Court for a permanent injunction against the opp.party therefore this complaint is not maintainable. The complainants also failed to pay the amounts to this opposite party and their cheques were dishonoured and hence no deficiency of service can be attributed to the opp.party.
The Dist. Forum based on the evidence adduced i.e. Exs.A1 to A19 allowed the complaint in part directing the opp.party to rectify all the defects in the construction work of the flat of the complainants i.e. flat no.512 within three months from the date of the order and in the event of its failure to rectify those defects within the time stipulated above the complainants would be at liberty to rectify those defects at their cost and then proceed against the opposite party to recover the cost of those works of rectification. The opp.party is further directed to pay damages of Rs.25,000/- besides a further sum of Rs.2000/- to the complainant towards costs of the litigation within the time stipulated above.
Aggrieved by the said order, the opp.party preferred this appeal. Both sides filed written arguments.
The facts not in dispute are that the complainant purchased flat no.512 from the opposite party vide registered Sale Deed Ex.A1 dt.26.10.04. It is also an admitted fact that the said flat was unfinished at the time of sale and that the complainant paid sale consideration of Rs.7,87,616/- . It is the complainants case that the opp.party vide Ex.A2 Construction Agreement agreed to complete the remaining works. Ex.B1 evidences that the complainant had taken possession of the flat on 15.2.05. The complainant vide Ex.A3 dt.15.3.05 complained to the builder with respect to the semi finished works which proves that within a month from the date of delivery the complainant had raised the issue of unfinished works with the opposite party but did not receive any response. Exs.A6 to A19 are the photographs filed by the complainant to show the defects in the construction of the said flat. Though Ex.B1 letter states that the complainant took the flat in a satisfactory condition we observe that this was signed by only the second complainant .
It is opposite partys case that Ex.B1 shows that the flat was given in satisfactory condition and submits that the complainant did not pay the entire amounts and that C.C.No.676 of 05 has been filed on the file of IInd MM Court, Visakhapatnam for dishonour of the cheque for Rs.24,000/-. Ex.A5 Estimation Report was prepared without the consent of the opp.party and therefore it should not be relied upon. We observe from the record that clause 18 of Ex.A2 construction Agreement dt.26.10.04 stipulates the following:
The Builder shall give performance guarantee for all the manufacturing defects in fitting and fittings electrical, sanitary etc. for a period of three months from the date of completion of the building provided the owner is directly or indirectly responsible for the damage or willful negligence resulting in damage to the property. Such performance guarantee shall be valid for one year from the date to the completion of the Flat and any claim in this regard shall be valid if made only during this period The complainant has filed Ex.A5 valuation report dt.11.11.05 by a registered property valuer, Chartered Engineer who stated that the cost of the facilities not provided would be Rs.5,19,538/-. It is pertinent to note that the appellant/opp.party did not take any steps to appoint a technical expert to refute this calculation. A mere statement from the opposite party that this assessment was done behind his back is unsustainable since he had ample opportunity before the Dist Forum and also before this Commission to take steps for appointment of Technical Expert which he did not choose to do so. The learned counsel for the appellant/opp.party filed a memo stating that the complainant had sold his flat to one Sri Pakalapati Buchi Appalaraju and filed certificate of encumbrance to show that flat no.512 was sold during the pendency of the appeal. When it is admitted that the flat was sold in a semi finished condition and Ex.A2 Construction Agreement evidences that the opp.party has to complete the unfinished works the act of the appellant/opp.party in not rectifying these defects even after five year of the commencement of project despite a notice (Ex.A3) issued by the respondents to the appellant, construes deficiency of service on behalf of the opposite party. Even if the respondent/complainant has sold the flat during the pendency of the appeal, this fact does not in any way take away the breach of the terms and conditions of Ex.A2 committed by the appellant/opp.party. The next contention of the appellant/opp.party that the cheque issued by the complainant for Rs.24,000/- has been dishonoured and a cheque bounce case is pending does not in any way bar the complainant from filing a case in the Consumer Fora. Even as on today the appellant/opp.party did not take any steps to rectify the defects in the construction. The contention of the appellant/opp.party that the flat was sold by the respondent/complainant to a third party during the pendency of the appeal does not in any way change subject matter of the instant case wherein the opp.party did not rectify the defects. The opposite party did not implead the third party who purchased the flat and therefore the benefits which the complainant is entitled to cannot be taken away at this stage when the flat was sold subsequent to the order of the Dist Forum. Keeping in view the balance of equities and principles of natural justice we are of the considered view that the order of the District Forum needs to be modified and we direct the complainants to get the defects rectified and claim the amount from the opposite party but the amount should not exceed Ex.A5 assessment by the registered property valuer. Keeping in view the inconvenience and mental agony caused to the complainants we confirm the compensation and costs awarded by the Dist Forum.
In the result this appeal is disposed of with the afore mentioned directions. Time for compliance four weeks . No further costs.
PRESIDENT MEMBER Pm* Dt.
25.11.2011