State Consumer Disputes Redressal Commission
Leelamma Jose vs Heera Construction (P) Ltd., on 29 June, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/10/16 1. Leelamma Joseph ...........Complainant(s) Versus 1. Heera Constructions (P) Ltd. ............Opp.Party(s) BEFORE: HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI PRESIDENT PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
C.C. No.16/2010
JUDGMENT DATED 29/06/2013
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
COMPLAINANT:
Leelamma Jose, D/o. Abraham M.K.
Villa No.MIC, Heera Vasthu Gramam,
Kaakandu, Kochi-39.
(By Adv: Sri. M.R. Hariraj)
Vs
OPPOSITE PARTIES:
1. M/s. Heera Construction (P) Ltd.,
Registered Office at Citi Centre, 113, Patto Plaza,
Panaji, Goa, Regional Office at Heera Park,
M.P. Appan Road, Vazhuthacaud,
Thiruvananthapuram-14.
Rep. by its Managing Director,
Shri.A.Abdul Rasheed Alias Dr. A.R. Babu,
Son of Aliyarukunju, Residing at "Sunny Side",
Keston Road, Opposite Raj Bhavan,
Kowdiar Village, Thiruvananthapuram.
2. Mr. Ajay Kumar.N., Deputy General Manager,
M/s. Heera Construction (P) Ltd., Regional Office,
Heera Park, M.P. Appan Road,
Vazhuthacaud, Thiruvananthapuram-14.
(By Adv: Sri. A. Santhosh Kumar)
JUDGMENT
SMT. A. RADHA : MEMBER This complaint is filed claiming Rs.55,00,000/- as compensation towards the demolition and reconstruction of the building and Rs.17,00,000/- towards the amount spent for the improvements carried out in the building. Further relief claimed in the complaint is for Rs.25,00,000/- for the damages towards mental agony due to defective construction and delay in the delivery of properly constructed villa and also to allow the cost of the proceedings to realize from opposite parties and their assets.
2. The complainant is a citizen of USA, though of Indian origin, attracted by advertisement of construction and sale of luxury villas in Kakkanad contacted the opposite parties, the construction company. On 14/09/2005 the complainant entered into an agreement for the purchase of plot No.MI-C with an extent of 7 cents having an offer with an imperial type house of 2650 sqft which would be constructed according to the specifications of the agreement and the proposed construction would be completed by July 2006. The construction of the building was not over even in November 2006 and the complainant was compelled to conduct the blessing ceremony in November in an incomplete building. The work of interiors and land scaping were pending. At that time itself the complainant noticed some cracks on the walls of the completed structure. In March 2007 when the sale deed executed it was noticed that though the old cracks were patched up, new and worse cracks formed in the building. The opposite parties insisted for an undated cheque for the balance outstanding amount which was issued by the complainant on execution of sale deed. Though an undated cheque was given as security, the balance outstanding consideration for Rs.4 lakhs was kept in abeyance and promised to release after fixing the cracks. Even after fixing cracks, new cracks kept on appearing and the patchwork was not worthwhile. An expert from M/s. Associated Structures Consultants was engaged by opposite parties to inspect and it is suggested that the cracks are due to consolidation of soft top soil normally seen in sediment soils and the cracks will normally die out within 2 to 4 years after loading the soil. Thereafter in early 2009 the opposite parties conceded that cracks developed not due to the problem of soil but due to structural defect in the building and agreed to construct 11 new piles connected to the existing piles through plinth beams to reduce the load on the existing piles and the work was carried out by opposite parties during the absence of the complainant. The major reinforcement effort, by erecting additional piles had not shown any beneficial results. Thereafter seepage of water formed. The sinking in the midst of the building is visible and hence at present the structure is in danger. The complaint is filed as there is no other proper solution other than reconstruction of building and alleging deficiency in service, the total compensation is sought for Rs.97,00,000/-. The complainant invested additional expenditure of Rs.17,00,000/- for interior works like furnishing, flooring, lighting, sanitary fittings etc. The opposite party refused to mutate the land in the name of the complainant which also resulted in difficulties to obtain water connection. The complainant prayed to direct the opposite parties to demolish and reconstruct the building at their own expense or in the alternative to compensate the complainant for the expenditure of the building.
3. Resisting the allegations in the complaint, the opposite parties filed version contending that the present complaint is filed on an experimental basis. It is admitted that the complainants purchased a villa unit at "Heera Vasthugramam" in Kochi. The construction agreement entered into between the parties on 14/09/2005 to allot and sell the plot No.MI-C having an extent of 7 cents and to construct an imperial villa of 2650 sqft and the Sale Deed was executed on 13/03/2007 in favour of the complainant with full satisfaction in November 2007. Though the Sale Deed was registered, the amount towards statutory payment was not paid by the complainant till 12/02/2010. The possession of the building was handed over only after inspection and subject to satisfaction of the complainant. It is contended in the version that in order to avoid the balance amount of Rs.4,67,513/- the complainant raised complaints of small cracks which were rectified during July 2009 in consultation with the structural consultant. The complainant was fully satisfied with the rectification work. On demand for the balance amount the complainant issued a cheque dated 03/05/2010 for Rs.4,67,513/- drawn on SBT, Edappally, Kochi. The cheque was issued as a security for the outstanding balance amount is a false statement. It is also contended that the cheque was dishonoured on presentation on 10/05/2010 for 'insufficiency of funds' and the opposite parties were constrained to file a criminal case against complainant which is pending. In the meantime, the complainant filed this complaint to resist the liability. No deficiency in service committed by the opposite parties. The complaint is barred by limitation. The opposite party already handed over the possession of the constructed villa in November 2007 and the complaint is filed after 2 years in 2010 and prayed to dismiss the complaint with compensatory costs.
The issues for our consideration are:-
(1) Whether the complaint is barred by limitation. (2) Whether there is any defect in building if so, whether it amounts to deficiency in service? (3) Reliefs and costs?
4. In support of the case, the complainant was examined as PW1 and Exbts. A1 to 24 were marked. On the part of opposite parties DW1 was examined and Exbt.B1 was marked. Commission Report was marked as Exbt. C1.
Issue No.1:-
5. The opposite parties raised the contention at the time of hearing, that the complaint is barred by limitation as the sale deed was executed in November 2007 whereas the complaint is filed in 2010 before this Commission and 2 years period of limitation is over to file the complaint. As per the Sale Deed executed between the parties it is clearly stated that the vendor shall not be liable to set right any structural defects arising out after a period of one year from the date of handing over. Since the issue with regard to the limitation is not raised in the version as a specific contention, the opposite parties are estopped from raising such a contention at a later stage, on the ground that which is not pleaded cannot be looked into. The cracks in the constructed building were found before the execution of the Sale Deed and the opposite parties were setting it right till 2010 and hence the structural defects were under notice of the opposite parties before the handing over of the building and was still persisting. So the question of limitation does not arise in this case.
Issue No.2:-
6. The agreement (Exbt.A1) entered into between the complainant and opposite parties on 14/09/2005 for the construction of villa was to complete the villa in July 2006 and even in November 2006 the construction was not yet completed and there had some cracks on the walls which was immediately brought to the notice of opposite parties and agreed to rectify. Then in March 2007 when the complainant came from USA executed Sale Deed (Exbt.A2). New cracks had formed, because of that the last payment to the opposite parties was withheld. It is very clear even after the execution of Sale Deed on 13/03/2007 the construction work was continuing. The structural consultant was engaged by opposite party, evidenced by Ebt.A3 to rectify the defects that formed in the building. Later in early 2010 the opposite parties and consultants conceded that the cracks developed not due to the problem of soil but due to structural defects which is evidenced by Exbt.A5. Due to the development of new cracks the opposite parties in consultation with experts strengthened the existing piles with 40 cm diameter piles eleven in number to roof level and connected to the existing piles with plinth beams (Exbt.A4). Hence the defects in the constructed villa proved and it is clear from the documents produced by the complainant.
7. The expert Commissioner appointed by this Commission inspected the premises on 20-09-2011 in the presence of both parties and the inspection report (Exbt. C1) reveals that cracks have developed in almost all the walls varying from hair line surface cracks, to wide and deep cracks in the masonry walls, roof slabs which continued to occur before the completion of building and even continues after the completion of building ie. more than 4 years. It is also noticed that the wall of northern side of car porch constructed as a part of strengthening measures also cracked. The deflection noticed in the horizontal decorative band in the 1st floor on the outer side below the parapet and due to leaking of water dampness varying from moderate to severe were visible in ground floor, in first floor and car porch also. Though immediate collapse of building due to structural failure is not apprehended, cracks will continue to appear for an uncertain period in future. It is stated in the report that cracks are either due to sinking of pile or deflection of supporting beam leaking by weakening of structure in the long run.
8. The objection to expert Commissioner's report was filed by opposite parties. It is stated that report is vague, uncertain and lacks bonafides. The shrinkage of cracks in the walls will totally affect the structural stability of the building. The report is not based on facts and is hypothetical. The cracks were appeared and developed only after the completion of the building and it was only due to temperature variation. The additional work carried out was not effective in preventing the development of cracks are totally wrong and objected by the opposite parties.
9. It is clear from the report of the expert Commissioner that the opposite parties admitted the cracks and appearance of new cracks. Moreover, the rectification carried out by opposite parties is an undisputed fact. It is also evident that the rectification through strengthening piles and beams were effective for a short period and in the long run the defects certainly will continue. Hence issue No.2 is discussed and it is in favour of the complainant.
Issue No.3:-
10. Admittedly, the complainants paid the consideration except the last payment. The Sale Deed was executed for an amount of Rs.36,30,000/- (Exbt. A1) as consideration and Rs.17,00,000/- was spent towards furnishings, improvements etc. evidenced (Exts. A6 to A24). The complainant though Indian origin, is a citizen of USA and she lost all her hopes and wishes in her own country due to act of the opposite parties having defect in the building construction. The counsel also pointed out that to live in a house with defective structure certainly amount to threat for life of the inhabitants. It is a matter of good will and faith in entrusting the construction of villas/buildings by the builders and the deficiency of service is to be appropriately considered. Demolition of existing building and reconstruction is the only remedy available with the complainant to live peacefully. Hence prayed to allow the complaint.
11. The counsel for the respondent pointed out the maintainability question and further he argued that cracks noticed were all rectified. He also argued that the opposite parties had rectified to the utmost satisfaction of the complainants strengthening of structural modifications and rectifications. Even after the rectifications, the complainant filed this complaint to evade the payment of Rs.4,67,513/- which was issued by cheque in favour of the opposite parties was returned on insufficiency of funds and had to file criminal complaint against the complainant. In order to defend that criminal case the complainant approached this Commission with the complaint under the guise of defect in construction and deficiency of service. The opposite parties are reputed builders and are having thousands of flats/villas are constructing and the complaint is filed with a malafide intention to defame the opposite parties and the complaint is to be dismissed with compensatory costs.
12. It is found that there is deficiency in service on the part of opposite parties in the construction of villa and it is proved properly with evidence and documents. On hearing the learned counsels and on perusing the documents we find that the complaint is to be allowed in favour of the complaint. Relying on the Commission Report that the defect is to be rectified in the future certainly the complainant is to be compensated. Sale Deed was executed in November 2007 and the complainant was enjoying the possession of the villa. Hence the complainant is entitled for relief claimed for. Considering the hike in the price of the land we are limiting the compensation to the consideration paid by the complainants on execution of Sale Deed.
13. The complainant is entitled to Rs.36,30,000/- (Rupees Thirtysix lakhs thirty thousand only) towards compensation for strengthening the building and rectification of leakage in the building and also Rs.2,00,000/- towards mental agony and Rs.20,000/- towards cost of the proceedings. The opposite parties shall deduct Rs.4,67,513/- towards the balance payment and also a lumpsum amount of Rs.4,50,000/- towards enjoyment of possession of property. Non compliance of the order, will entitle the complainant to realize interest @ 9% per annum from the date of this order.
The order is to comply within 30 days on receipt of the copy of the order.
In the result, the complaint is allowed as above.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
Sa.
APPENDIX
Witness for the Complainant:-
PW1 10/02/12 - Leelamma Jose
Witness for the Opposite Party:-
DW1 19/10/12 (A. Shrisankar)
Exhibits for the Complainant:-
A1 - 14/09/05 - Sale and Construction Agreement.
A2 - 13/03/07 - Sale deed.
A3 - 17/07/08 - Letter to the Chief Engineer/Heera
Vasthugram, Kakkanad.
A4 - 16/02/09 - Letter to Leelamma Jose sent by
Ajaykumar, Deputy G.M., Heera
Construction.
A5 - 04/01/10 - Minutes of the Meeting dt. 04/01/2010
A6 - 28/10/06 - Invoice
A7 - 25/08/06 - Bill
A8 - 28/09/06 - Receipt
A9 - 28/10/06 - Credit Bill
A10 - 09/11/06 - Cash Bill
A11 - 29/12/06 - Cash Bill
A12 - 08/11/06 - Cash Bill
A13 - 24/01/07 - Invoice
A14 - 11/11/06 - Sale Bill
A15 - 09/08/06 - Estimate
A16 - 24/11/00 - Invoice
A17 - 28/10/06 - Invoice
A18 - 21/11/07 - Invoice
A19 - 27/10/06 - Bill
A20 - 10/10/06 - Bill
A21 - 03/11/06 - Bill
A22 - 22/09/05 - Quotation
A23 - 20/09/06 - Quotation
A24 - 12/02/10 - Letter to Leelamma Jose
sent by Ajaykumar
C1 - 30/09/11 - Expert Commission Report by S.R.C. Nair,
Retd. Engineer, Civil, FEDO, Edapally.
Exhibits for the Opposite Party:-
B1 - 04/09/12 - Authorisation Letter
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
C.C. No.16/2010
JUDGMENT DATED 29/06/2013
sa
[HON'ABLE MR. JUSTICE SRI P.Q.BARKATH ALI] PRESIDENT