State Consumer Disputes Redressal Commission
The Assistant Engineer,Salem Housing ... vs V. Chinnappan,S/O. C.Varadappan, ... on 28 February, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.373/2008 [Against order in C.C.21/2005 on the file of the DCDRF, Namakkal] DATED THIS THE 28th DAY OF JANUARY 2011 1.
The Assistant Engineer, | Salem Housing Unit, | Namakkal Divisional Office, | Mullai Nagar, Namakkal. | Appellants /Opposite Parties |
2. The Executive Engineer/Administrative Officer, | Salem Housing Unity, Jyanthirumalai Street, | Salem 8. | |
3. The Managing Director, | Tamil Nadu Housing Board, Nandanam, | Anna Salai, Chennai. | Vs.
1. V. Chinnappan, | Respondents / Complainants S/o.
C.Varadappan, A-1-48, Mullai Nagar, | Trichy Road, Namakkal. | |
2. Namakkal Taluk Consumer Protection Council, | Rep. by its Secretary K. Subrayan, | 40-B-1, Senthamangalam Salai, | Namakkal. | The Respondents / complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.90,000/- to rectify the defective construction, to pay Rs.15,000/- for shifting residence by paying rent and to pay Rs.25,000/- as compensation. The District Forum allowed complainant in part, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.15.05.2007 in C.C.373/2008.
This appeal coming before us for hearing finally on 12.01.2011, upon hearing the arguments of either counsels and perused the documents, written submissions of respondent filed as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants / O.Ps. : M/s.S.Rajakumar, Advocate.
Counsel for the 1st Respdt/1st Complainant :
M/s.Sheikh Meharunisa,Advocate.
For the 2nd Respondent / 2nd Complainant : Served Absent M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The first complainant/first respondent (herein after called complainant] was allotted a house by the opposite parties, bearing Door No.A1-48/5/663, as per the proceedings dated 28.03.94 and possession was also handed over to him on 13.6.94. Thereafter, obtaining permission, additional construction was put up by the complainant, not affecting the existing structure, since the additional construction was not put up upon the building. The total amount, as agreed, was paid on 29.3.96. After the entire payment, though, the complainant had requested the opposite parties to execute the sale deed, the opposite party failed and neglected to execute the sale deed, thereby committed negligent and deficiency. For the past six months, the roof of the building is falling, exposing the rusting rod, threatening, even the collapse of the terrace, for which, a complaint was lodged and no action has been taken. In order to rectify these defects in the construction, the complainant is entitled to a sum of Rs.1,25,000/-, in addition to, a sum of Rs.15,000/- for shifting the residence by paying rent, during the period of repair for three months as well a compensation of Rs.50,000/-. Hence, the complaint.
3. The opposite parties, admitting the allotment of the house as well the tentative cost paid by the complainant as requested, resisted the complaint, contending that they have not executed the sale deed, because of the non-payment of the final cost or the balance of the amount, that as per the Clause available in the lease-cum-sale agreement, the opposite parties should not be held responsible for any defect, structural or otherwise in the property, that the complaint is clearly barred by time, not maintainable, thereby praying for the dismissal of the complaint.
4. The District Forum though the complainant had claimed a sum of Rs.1,25,000/- for repair charges, directed the opposite parties to pay a sum of Rs.1,27,000/-, placing reliance upon the Commissioners Report, in addition to, pay a sum of Rs.5,000/-, negativing the claim regarding direction sought for, for execution of the sale deed, concluding that final cost was not determined, not paid and therefore, no direction could be issued, to execute the sale deed. Aggrieved by the said order, the opposite parties alone, have preferred the appeal, whereas, the complainant has not preferred any appeal.
5. The learned counsel for the appellant urged before was, that because of the non-payment of the balance of the cost alone, sale deed was not executed, which cannot be termed as negligent act or deficiency of service and on this ground, the complainant is not entitled to any relief. As far as this point is concerned, the District Forum has accepted the case of the opposite parties, as seen from the conclusion on Point No.1, in Para 5 of the judgement, and therefore, it is not necessary for this commission to go into detail, what is the final cost, payable by the complainant etc. in this appeal.
6. It is the further submission of the learned counsel for the opposite parties that as per the terms and conditions available in the lease-cum-sale agreement, the complainant cannot questione the defects if any in the building and as accepted, the opposite parties are also not liable to pay any amount even if any defects, which submission is not acceptable to us, as rightly repudiated by the learned counsel for the complainant/respondent.
True, there is a Clause in the lease-cum-sale agreement, which is exhibited, reads The lessor shall not be responsible for any defects, structural or otherwise in the property and the lease shall be bound to purchase the property not withstanding defects if any constructions without any claim for compensation from the lessor. Since the complainant and the opposite parties are parties to the agreement, it can be said, easily, that the said term is binding upon the complainant also. But, by going through this Clause carefully, we are of the view, that only for known defects alone, this Clause will come into operation and not for the inherent defect, which had come into surface, when the sale transaction, was not compelled, giving a quit was for the transaction.
In this case, it is not the case of the complainant, that the defects now available in the building, were available at the time of taking possession or the delivery as the case may be, whether it is structural or otherwise. Therefore, taking advantage of this Clause, it may not be fair on the part of the Housing Board to contend that they can construct a building with sub-standard materials or with bad design, causing damage, that too, when the transaction is not completed, thereby deprive the right of the Consumer/Purchaser. As pleaded in the complaint, the peeling of roof or projection below the roof, exposure of rusted iron rod are all just six months, prior to the date of filing the complainant, thereby showing these defects are not available on the date of lease-cum-sale agreement. In this view, we are constrained to say, Clause 26 of Lease-cum-Sale Agreement will not come to the aid of the opposite parties, to evade the responsibility from the deficiency committed, namely constructing a building, not worthy of living. Next, we have to see, the question of limitation.
7. Admittedly, allotment was made on 28.03.1994, possession was given on 13.6.1994. Based upon these two dates alone, if a claim has been filed, certainly we can conclude the claim is barred by limitation, since case was filed only in the year 2005.
But, as seen from the Para 4, it is the specific case of the complainant, that only for the past six months alone, the plastering was peeling off, exposing the rusting rod, revealing the bad quality of construction, for which, admittedly on 12.1.2005, a communication was also sent. The defects so alleged, which come to surface in 2005, is not denied, as seen from the Written Version specifically. Only for repairing the defective construction, which was hidden, at the time of delivery of the possession, came out in 2005, case has been filed and the date of cause of action must be only in 2005 and therefore since the case came to be filed in 2005 itself, it is to be held, the claim is in time.
8. In order to ascertain the cost for repairing works, a Commissioner was appointed, who has filed Ex.C1, for which, objections appear to have been filed. Though an attempt was made to say, that the defects if any, would occur due to additional construction, which is ruled by the technical certificate, that too, in view of the fact, after obtaining permission, additional construction was put up by the side, not over the existing roof. Therefore, the damage cannot be attributed to the conduct of the complainant. Though the Engineer has quoted Rs.1,27,000/- to set right the defects, probably on the date of his report, that cannot be taken as the correct value on the date of filing the case, since the District Forum is expected to decide the right of the party, on the date of the filing of the case alone through the complaint was amended. The District Forum forgetting this fact, has directed the opposite parties to pay a sum of Rs.1,27,000/-, which is not acceptable to us, when the complainant himself had claimed a sum of Rs.90,000/- originally. For the above said reasons, the order of the District Forum is to be modified, reducing the amount, otherwise, confirming the order.
9. In the result, the appeal is allowed, in part, the order of the District Forum is modified, directing the opposite parties to pay a sum of Rs.90,000/- which is not disputed, confirming the rest of the order. There will be no order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Housing Board