State Consumer Disputes Redressal Commission
Jos Antony, vs Pioneer Infrastructures Company ... on 23 February, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/09/19 1. Jos Anthony Kerala ...........Complainant(s) Versus 1. Pioneer Infrastructures Co. Ltd. Kerala ............Opp.Party(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
CC.NO.19/09
JUDGMENT DATED 23.2.2012
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
Jos Antony, Puthenveetil, 406, Oakbrook Illinois, 60523 USA, Reptd. by Power Holder, -- COMPLAINANT Francis Joseph, S/o Joseph Residing at Kulavely House, Vaduthala, Pin 683023.
(By Adv.K.L.Joseph) Vs.
1. Pioneer Infrastructures Company Pvt.Ltd, West High Court Road, Bajaj Nagar, Nagpur. -- OPP.PARTIES
2. Managing Director, Pioneer Infrastructures Company Pvt.Ltd, Swapnil Enclaves, Marine Drive, Ernakulam.
(By Adv.C.Rasheed & Ors.) JUDGMENT SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER The complaint is filed through the power of attorney holder of the complainant who is working in USA. The allegations in the complaint are that on 1.2.2006 opposite parties entered into an agreement with the complainant for sale of undivided share of 0.975% of 61.27 cents of property in survey No.843 situated in Ernakulam village together with the right to construct residential apartment marked as 5D in the 5th floor with a super built up area of 1920 Sq.ft. and one car park marked 8 on the 4th floor parking and proportionate share in the common areas and common facilities for a consideration of Rs.9,60,000/-. On 1.2.2006 itself the opposite parties entered into an agreement with the complainant to construct as builder or contractor for the complainant a residential apartment in the multi storied building named as Swapnil Enclave, Marine Drive, Kochi-31 to be constructed over 61.27 cents of land comprised in survey No.843. As per the agreement the total construction cost of the apartment including the cost of construction of one covered car park was fixed as Rs.50,04,000/- which was to be paid in 7 instalments on the specified dates. The complainant paid Rs.9,60,000/- towards the cost of undivided share in the land and Rs.50,04,000/- towards the construction cost as per the agreement. The complainant performed his part of the contract in full.
2. But the opposite parties have not completed the works of the apartment as agreed to between the parties. The opposite parties have not provided car parking in the 4th floor as provided in the agreement despite requests by the complainant. Thus, the opposite parties have committed deficiency in service. In September 2006 the 2nd opposite party assured the complainant through E mail that the flat would be handed over on 26th January 2007 without fail but on 4.5.2007 by another E mail, the 2nd opposite party fixed the final date of handing over possession of the flat as 15.8.2007. As per another E mail dated:4.7.2007 the complainant was told that the construction work was nearing completion and the key handing over ceremony was being planned on 31.8.2007. Through yet another E mail dated:27.09.2007 the 2nd opposite party requested the complainant to make payments for handing over possession of the flat. But the work was not yet complete. All along the complainant was enquiring about the date of completion of the flat. E mail dated:16.6.2008 sent by the 2nd opposite party would show that works of party area on the terrace, video door phone, car lift, basement, car park area cleaning, final coat of painting, closing of ducts in common area and interior works remained to be completed.
3. There were defects in the interior construction of the apartment therefore the complainant was forced to engage his own contractors for rectifying the defects and mistakes and spend money for the purpose. He has thus incurred a sum of Rs.1,13,640/- as agreed between the complainant and the representative of the opposite parties. Hence the complainant is entitled to receive the said amount from the opposite parties. Notice was issued to the opposite parties through the lawyer of the complainant on 14.10.2008 but the opposite parties failed to reply to the notice. The key of the flat was finally handed over only on 11.6.2009. Thus, the complainant was not in a position to use the flat beneficially for about 30 months. As a result the complainant sustained heavy loss. If possession of flat was handed over to the complainant on 1.12.2006 as agreed, he could have rented out the flat on rent. As per the prevailing rate, he would have got Rs.40,000/- per month as rent. The loss suffered by the complainant on this account is estimated at Rs.12. lakhs. The failure to provide car parking on the 4th floor has diminished the value and attraction of the flat considerably and the complainant sustained loss of Rs.6. lakhs on the said account. The complainant also claimed compensation of Rs.1 lakh for the deficiency of service committed by the opposite parties. Thus the complainant claimed a total compensation of Rs.20,13,640/- with interest.
4. Opposite parties 1 and 2 filed version through their authorized agent raising the following contentions. The complainant approached the 1st opposite party and sought allotment of a residential apartment. He opted apartment 5 D with one car park marked as 8 on the 4th floor. Agreement for sale of undivided share of property is entered into between the parties on 1.2.2006. Agreement for construction was also entered into between the parties on the said day. But the allegation that opposite parties failed to perform their part of the contract is totally wrong. The construction was delayed solely on account of various changes in the interior or finishing works of the apartment which was executed by the complainant from time to time. In order to comply with the request of the complainant considerable time was spent and possession of the apartment could not be handed over to the complainant within the time stipulated under the agreement. However with all modifications changes and additions the possession of the flat was handed over to the complainant. The delay in taking possession of the apartment was basically on the part of the complainant himself. The allegation that the opposite parties have not completed the construction work as per the agreement and they have not provided a temporary car park in the basement is equally unfounded. The various E mails sent by the complainant show that he has made repeated requests seeking changes in the interior finishing of the apartment. In fact the opposite parties were not bound to effect any changes and variations which ought to have been carried out by the complainant himself. The only reason why the opposite parties agreed to do so was because the complainant was abroad and with a view to maintain good will. The opposite parties had absolutely no control over such works executed by the complainant himself. The opposite parties had informed the complainant that the safety of high quality fittings in the apartment made by the opposite parties will have to be safeguarded by the complainant himself. In fact the complainant was allowed to use the basement, car parking whenever he was in Kochi.
5. The initial plan for construction of the residential cum commercial place, Swapnil Enclave, was approved by the GCDA and the Kochi Corporation on 23.7.2005 and as per the approved plan the 4th floor of the building was to be used as a car parking lot which was the first of its kind in Kerala. The GCDA authorities have granted approval for the said proposal and also permitted the opposite parties to use a lift to take the cars to the 4th floor. The 1st opposite party is the pioneer in introducing this facility and in doing so there is likelihood of teething problems associated with such introduction. It was based on the plan approved by both Kochi Corporation and the GCDA, the complainant was allotted parking space No.8. The opposite parties commenced construction of the said structure as per plan and specification approved. The car lift manufacturers, M/s Otis India Limited was the suppliers of the car lift. As per the licence and requirements of M/s Otis India Limited the work of the side structure was commenced. The entire side work pertaining to erection of a car lift to the 4th floor has been completed as per plan and specifications approved by the GCDA and Kochi Corporation. Thereafter the corporation authorities issued stop memo on the ground that the construction was in violation of the building rules. The opposite parties were therefore compelled to stop the work and take up the matter with the corporation authorities and GCDA. Hence in so far as the car lift is concerned the opposite parties cannot be found fault with. There is absolutely no deficiency of service on the part of the opposite parties. The complainant had engaged various persons for carrying out interior works of his apartment. The request of the opposite parties to give all his requirements in writing to avoid confusion was not heeded by the representative of the complainant. The claims made by the complainant are imaginary and without any basis and the complainant is trying to take advantage of his own lapses to make illegal gain. The activities of the contractors engaged in the interior works by each of the apartment owners were beyond the control of the opposite parties. During such works various costly fittings done by the opposite parties were either pilfered or lost or damaged. The works were completed immediately after the waiting period. Common facilities have been given by the end of March 2009. The allegations that the opposite parties failed to provide kitchen granite top, stainless steel sink etc are not correct as those works were carried out by the complainant himself. It is also pertinent to notice that almost all the owners of the flat are NRIs, employed abroad and most of the flats are closed or locked and no maintenance is carried out in those apartments. Because of lack of maintenance and use and due to natural causes rusting of fittings etc is quite probable. The natural wear and tear due to climatic erosion and other natural phenomenon cannot be thrust upon the opposite parties. The completion certificate was duly granted on 1.7.2007. The delay in obtaining the completion certificate was solely on account of the interior works that were being carried out by the complainant and other apartment owners.
6. The claim for reimbursement of Rs.1,13,640/- is totally unsustainable. With regard to the car parking area the opposite parties have spent an amount of Rs.70 lakhs for completing RCC structure for the car lift and car parking area. The opposite parties are taking effective steps for lifting, the stay order issued by the corporation authorities with regard to the installation of the car lift. The Commission has no jurisdiction to entertain the complaint. The complainant is not entitled to any relief and the complaint is liable to dismissed.
7. The evidence consists of the deposition of PW1, the power of attorney holder of the complainant. Exts.A1 to A22 were marked on the side of the complainant. The authorized person of the opposite parties gave evidence as DW1. Exts.B1 to B 23 were marked on their side. The commissioner's report was also marked through PW1 as Ext.C1.
8. The points that arise for determination are:-
1. Whether there was deficiency in service on the part of opposite parties?
2. If so what is the quantum of compensation payable to the complainant?
9. POINT NOs.1& 2:-
The first opposite party is a builder. Admittedly, on 1.2.06, the complainant entered into an agreement with the opposite parties whereby the latter agreed to convey the right over undivided share of 0.975% of 61.270 cents of land in Sy.No.843 in Ernakulam Village together with the right to construct residential apartment marked 5D on the 5th floor with super built up area of 1920 sq.ft and one car park marked 8 on the 4th floor parking and the proportionate share in the common areas and common facilities, for a consideration of Rs.9,60,000/-. Ext.A1 is the agreement. Ext.B2 is the same document. On 1.2.06 itself, the parties entered into Ext.A2 agreement (Ext.B3 is the same document) whereby the opposite parties as builder or contractor for the complainant agreed to construct a residential apartment in the multi storied building named as "Swapnil Enclave" for a consideration of Rs.50,04,000/-. Ext.A2 provides the payment schedule and it is admitted that the complainant had paid the entire consideration of Rs.50,04,000/- as per the schedule. Clause 5 of Ext.A2 fixed the date for completion of the construction of the residential apartment and obtaining of completion certificate from the Corporation Cochin and handing over possession of the apartment as on or before 1.12.06 provided the entire amount due from the complainant was paid . As mentioned already that the entire amount was paid by the complainant on the due dates is an admitted fact. The grievance of the complainant is that possession of the flat was not handed over him after completing the construction on the due date on 1.12.06. It is alleged that there was delay of more than 2 years in handing over possession of the flat He has suffered income loss because of that and mental agony. Hence the complaint.
10. The claims of the complainant are resisted mainly of 3 grounds. Firstly it is contended by the opposite parties that the delay was on account of changes suggested by the complainant himself regarding the interior works and finishing works for doing which the complainant and other flat owners engaged their own contractors. So the opposite parties had to stop their work delaying completion of construction. In fact they have a case that during that period valuable fittings made by them in the apartments were stolen or lost or damaged. Secondly, it is contended that delay in completing the construction of the car park at the 4th floor was due to reasons beyond their control. They started the construction of the car park and car lift earnestly. But they had to stop the construction midway due to the intervention of Authorities. Thirdly, it is contended that soon after the construction wok of the car part and the car lift were stopped they had taken timely steps to get the stay vacated. So really there was no deficiency in service on their part.
11. The commissioner who filed Ext.C1 report had visited the spot on 12.10.11. The report gives the nature of the construction of the apartment of the complainant in the 5th floor. Regarding the quality of construction it is observed that sample testing would be necessary to ascertain the strength of the structure and it was a time consuming process but observed that during inspection of the flat and common area, no crack or structural failure have been noticed and in general the work was seen completed. Regarding the nature of the work done for the car lift the commissioner observed that the structural part of the covered car park in the 4th floor and the structural work of the lift and lift pit below the ground floor have been completed. Roofing, plastering, flooring and erection of lift appliances, finishing etc. were to be done. The commissioner was told that all those works would be completed immediately after vacating the existing stay orders. The commissioner has assessed the value of diminution in value of the apartment due to the absence of the car lift as per the market value at Rs.6 lakhs. The complainant has a case that the opposite parties have failed to provide alternative parking area, but the commissioner noted that the authorized representative of the company informed and showed him the temporary space for safe parking of the car of the complainant in the basement common area marked as BL 3. So from the commissioner's report it appears that there was no structural or other defect in the construction. The learned counsel for the opposite parties prefaced his arguments by pointing out that this is not a case in which the builder has abandoned the contract midway. On the contrary he was earnest in completing the construction and the delay occurred only due to reasons beyond the control of the opposite parties.
12. Before considering the contentions of the opposite parties, it is relevant to notice the actual dates of obtaining completion certificate and handing over possession of the flat. I have referred to Ext.P2 in which the agreed date of completion of the work was on 1.12.06. Ext.A6 is the copy of the E-mail communication sent by the opposite parties which shows that the construction work was nearing completion and the key handing over ceremony was planned on 31.8.07. Ext.A8 is a communication dated 27.9.07 whereby the complainant was informed that the opposite parties had received the final completion or occupancy certificate for their premium project swapnil enclave. As per Ext.A9, the complainant was informed that he was free to take possession of the flat as he was aware of the fact that completion certificate was already obtained. If he had not already taken possession of his area he was requested to do so immediately. So it appears that the allegation that the flat was handed over to the complainant only on 15.8.08 and therefore there was delay of nearly 2 years is not correct. If the complainant was vigilant he could have taken possession of the flat around September 2007. It is true that construction of the car lift was not completed by that time. It also appears from the evidence of PW1 that the complainant is a U.S.citizen. He would visit the native place with family once in a year. He has family house at Vaduthala at Ernakulam. Before the completion of the construction whenever he came to the native place he used to stay at the family house. So, the non availability of the complainant at the locality has also contributed to his delay in taking over possession of the flat on time.
13. Coming to the contentions of the opposite parties, it appears from the several communications that in fact association of the flat owners was formed and meetings were held to chart out the way in which finishing and interior works have to be completed as per the requirements of the flat owners. In many cases including the complainant, they employed their own contractors to do interior work. It appears that the work of the opposite parties had to be stopped to facilitate the interior and finishing works. But it is a fact that since the opposite parties were bound by the contract evidenced by Ext.A2, they could have opted to complete the works as per contract and left the flats in the possession of the owners to do the interior works and finishing works according to their will and pleasure.
14. Coming to the contention that the construction works of the car park and car lift were delayed due to reasons beyond the control of the opposite parties the report of the commissioner referred to earlier is relevant and shows that a good part of the work was done by the opposite parties. It was at that stage the Corporation of Kochi intervened. In Ext.A11 speech at the residents association meeting the apartment owners were informed that the opposite parties had received a show cause notice from the corporation of Kochi to stop the construction of the car lift alleging violation of the rules. It notes that the dispute was finally sorted out with the Corporation Officials and permission was given to proceed with the work. Then the Regional Town Planning officer objected to the construction taking place on the set back portion of the structure. Ext.A13 addressed to the complainant also shows that steps were being taken to lift the ban on proceeding with the construction of the car lift. Ext.A16 also show that as an alternative measure step was being taken to provide parking area at the basement parking area. Ext.B18 shows that OTIS Elevator Company was arranged to erect the car lift at the premises. Ext.B17 is the copy of the notice dated 28.5.08 issued by the Corporation of Cochin directing stoppage of construction of the building as constructions were being done without obtaining prior permission. As per Ext.B16, the opposite parties were directed to shows cause why the provisional order issued under Section 406 (1) of the Kerala Municipality Act should not be confirmed and unlawful work done should not be demolished. It appears that the opposite parties approached the Hon.High Court of Kerala challenging the order to stop the construction work. Ext. P19 is the copy of the writ petition No.C.8763/11 filed before the Hon.High Court of Kerala. Ext.P20 is the copy of counter affidavit filed by the GCDA, the second respondent in the writ petition. It appears from the contentions of the GCDA that the construction was stopped mainly because the car lift was being constructed over the set back area for the main construction. Anyway the fact remains that there was such proceeding and the opposite parties were prevented from proceeding with the construction. May be the opposite parties were also at fault and it is for the Hon.High Court to decide that aspect. It also appears that there was some confusion regarding the approved plan obtained by the opposite parties for the entire construction. All these have contributed to the delay. At the same time there are circumstances which indicate that the complainant has also contributed to the delay in completing the construction, except the car park and the car lift. So, on the whole in the background of Ext.A2 agreement, it cannot be said that there was no deficiency in service on the part of the opposite parties in as much as there was failure to hand over possession of the flat as well as possession of the car park at the 4th floor.
15. What remains to be considered is the quantum of compensation payable to the complainant. In deciding the quantum the various aspects referred to earlier during discussion of evidence are relevant. The claim that the complainant would have obtained Rs.40,000/- per month as rent for the flat had the construction of the car lift was completed cannot be accepted. According to PW1 after obtaining possession of the flat in fact the premises was let out to lessees Sudeep was one of such lessees. Ext.P22 is the rent deed executed by him. But PW1 was not in a position to say the actual rent for which the premises was let out. Thus the evidence shows that actually the premises was being put to beneficial use. Then the case is that there was reduction in the amount of rent fetched for the premises because car parking was not provided in the 4th floor. But it is relevant that alternative car parking was provided in the basement. So considering the overall circumstances, the reasonable loss can be calculated as loss by way interest for the amount actually paid by the complainant for the construction which remained without any return after the due date for completion. This period actually is nearly 9 months. The added disadvantage was failure to complete the construction of car park and the car lift for which the opposite parties cannot be entirely blamed. So taking into account all the circumstances together Rs.1,50,000/- would be reasonable compensation payable to the complainant on account of deficiency in service committed by the opposite parties. The points are found accordingly.
In the result, complaint is allowed in part. The opposite parties are directed to pay compensation of Rs.1,50,000/- to the complainant for the deficiency in service committed by them within one month from the date of the order, failing which the amount would carry interest at the rate of 9% per annum. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs.
K.CHANDRADAS NADAR : JUDICIAL MEMBER SL APPENDIX EXHIBITS FOR THE COMPLAINANT Ext.A1 : Photocopy of the Agreement dated 1.2.06 for the sale of undivided share Ext.A2 : Photocopy of the Agreement dated 1.2.06 for construction Ext.A3 : Pioneer News letter dated nil Ext.A4 : E-mail showing statement of accounts dated 1.11.06. Ext.A5 : E-mail dated 4.5.07 issued by the 2nd opposite parties. Ext.A6 : E-mail dated 4.7.07 issued by the 2nd opposite party. Ext.A7 : E-mail dated 25.8.07 showing statement of Accounts. Ext.A8 : E-mail dated 27.9.07 issued by the opposite parties. Ext.A9 : E-mail dated 6.3.08 issued by the opposite parties. Ext.A10 : E-mail dated 4.6.08 issued by the 2nd opposite party and its reply issued by the complainant. Ext.A11 : E-mail dated 16.6.08 issued by the 2nd opposite party. Ext.A12 : E-mail dated 23.6.08 issued by the complainant and its reply by the 2nd opposite party. Ext.A13 : E-mail dated 10.8.08 issued by the 2nd opposite party. Ext.A14 : Copy of lawyer Notice dated 14.10.08. Ext.A15 : E-mail dated 18.11.08 sent by 2nd opposite party. Ext.A16 : E-mail dated 19.11.08 issued by the complainant to Adv. KL Joseph Advocate. Ext.A17 : Bill for painting issued by Joyance Enterprises. Ext.A18 : Bill for fixing PVC ceiling issued by Joyance Enterprises. Ext.A19 : E-mail dated 1.8.09 issued by the complainant to Adv.K.L.Joseph Ext.A20 : Photographs 5 in numbers showing various rooms of the flat of the complainant. Ext.A21 : Power of attorney executed by the complainant on 26.6.09. Ext.A22. : Rent deed executed by the complainant on27.8.09 WITNESS FOR THE COMPLAINANT PW1: Francis Joseph WITNESS FOR THE OPPOSITE PARTIES DW1: Subharaj D.Bharadwaj EXHIBITS FOR THE OPPOSITE PARTIES Ext.B1 : Copy of Board Resolution dtd.28.6.10. Ext.B2 : 31.1.2006. Copy of the agreement for sale of Undivided share entered into between G.P.Jose kuttan Ext.B3 : Copy of agreement for construction between M/s.Pioneer infrastructure Co.Pvt.Ltd. dtd.1.2.06 . Ext.B4 : Copy of plan for proposed building approved by corporation of Cochin. Ext.B5 : Copy of plan approved by the Corporation of Cochin. Ext.B6 : Copy of " " Ext.B7 : Minutes of Swapnil Enclave Residential Meeting on 15.3.08 Ext.B8 : Minutes of Residential Owners Association. Ext.B9 : Letter issued by Hameed M. to all flat owners dtd 21.11.08. Ext.B10 : ' ' ' Ext.B11 : Letter issued by Anil Nair M.P; Pioneer Group. Ext.B12 : Letter served to Mrs.Jose Antony Puthen Veedu dated 16.6.08. Ext.B13 : Letter issued by Anil Nair to Town Planner, Cochin Corporation. Ext.B14 : Email correspondence between complainant and opposite parties. Ext.B15 : G.Lr.No.oP.4/139/95 dtd.16.6.05 issued by Town Planning Officer in favour of M/s Tenent Horus and Resort Pvt.Ltd. Ext.B16 : Provisional order No.P4/139/9L received by
Secretary Corporation of Kochi in favour of M/s.Tenent Homes dtd.13.6.08.
Ext.B17 : Notice bearing No.P4/139/96 issued by Asst.Executive Engineer Corporation of Cochin in favour of M/s.Tenent Homes & Resorts.
Ext.B18 : Letter issued by Otis Elevator Company Ltd. in
favour of M/s.Pioneer Infrastructures Co (P) Ltd.
Ext.B19 : Copy of Writ petition.
Ext.B20 : Copy of Counter affidavit.
Ext.B21 : Copy of site plan.
Ext.B22 : Copy of order in WP(c ) 8763/11
Ext.B23 : Copy of basement parking plan.
COURT EXHIBITS
C1 : Commission report.
K.CHANDRADAS NADAR,JUDICIAL MEMBER
SL
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER