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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
A.P. Sahi, President
Usha Anandan and Anr. – Appellants
versus
Dr. V.J. Vikram and Anr. – Respondents
First Appeal Nos.80 and 319 of 2014
Decided on 14.2.2024
Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 – Section 51] – Services – Allotment of Flat / Plot – Delayed Possession – It is thus evident that the complainants on the one hand want to save the premises and on the other hand are attempting to allege deficiencies without having objected to it when they purchased the flat. They subsequently raised issues as noted above. The deficiencies were made a cause in the year 2008 through the suit filed by them which is almost after five years of taking the possession of the premises – The finding recorded by the State Commission that since the complainants have undertaken various proceedings which established the loss and sufferings of the complainant is a finding which cannot be sustained in as much as merely because several complaints have been lodged, the constructions automatically do not get converted into unauthorized construction or amount to deviation. There is no actual loss to the complainants established which may be on account of any lessening of area or in the quality of construction. There is no such averment about the design and the quality of the construction or any delay in the handing over of possession. In fact there is no challenge to the services that are covered by the agreement and in the absence of any loss identified and established, allegations of deficiency cannot ipso-facto be treated to be conclusive, hence impugned order is erroneous – The complainants have miserably failed to establish that basement or the parking area are common areas available to them so as to contravene Clause 15 of the agreement. In the absence of any such evidence proving the existence of any deviation that might have caused a loss or expected loss, the State Commission could not have arrived at a conclusion of deficiency in service as alleged – The question of award of Rs.75,000/- compensation does not arise as in view of the findings recorded herein above, there is no deficiency in services and the complaint ought to have been dismissed. [Paras 30 to 60].
Result: Complaint dismissed.
ORDER
These are two appeals filed by the owner and the builder/developer as well as the purchaser respectively regarding the premises wherein the flat purchaser/complainants had raised their grievances before the State Commission about certain deficiencies in service and compensation due to the loss suffered by them arising out of the alleged deviations in the construction and also depriving them of their user rights as agreed upon between the parties. The complainants have filed FA No.80/2014 being not satisfied with partial relief granted to them upon accepting the deficiency and have prayed for enhancement.
2. The appeal filed by the complainants raises a grievance that the State Commission, after having found the deficiencies established, erroneously awarded a very small amount of compensation of Rs.75000/- on account of the contraventions alleged together with a cost of Rs.10000/-.
3. FA/319/2014 has been filed by the builder praying for setting aside the entire impugned order passed by the State Commission dated 05.12.2013.
4. The dispute has a long chartered history and therefore, it is necessary to arrange facts in seriatum in order to understand the exact nature of the grievance raised in the complaint and to appreciate the contentions raised in both the appeals.
5. There existed an old tiled house with a municipal old door number 73 situated on survey no.4192/2 and 4196/4 of Village Mylapore on R.K. Mutt Road, Mandaveli, Chennai. The area of the said land over which the aforesaid old house was situated, is stated to be approximately about 2405 sq. ft. Admittedly, the property belonged to Mr. Anandan which was his ancestral property and he decided to demolish the old tiled house and launch a project in the name of his daughter Uma Maheshwari Constructions along with his wife Mrs. Usha Anandan. Consequently, in the year 2001-2002, the aforesaid plan was sought to be executed and accordingly, a sanction for the aforesaid plan was moved before the competent authority that is stated to have been sanctioned on 08.11.2002.
6. It appears that after demolition of the old building, new constructions commenced planned with a basement and two floors with two flats on each floor, a first floor and a second floor. The floor above the basement appears to have been utilized as a parking area and partly as a jewellery shop of the owner Mr. Anandan who has an ancestral business belonging to the family of Vishwakarma Achari Jewellery Makers. The building, as planned, was to comprise of only four residential flats on two floors.
7. It also appears that the complainants Dr. V.J. Vikram and his mother Mrs. Suryakantham proposed to buy a flat on the first floor of the said construction and with that end in view, a construction agreement was entered into on 26.08.2003. According to the said agreement, a flat on the first floor was negotiated along with an undivided common share of the land of the property described in the schedule of the said agreement. It seems that the flat was almost constructed and in a very short span of the said agreement, the sale deed was executed on 02.09.2003 with the complainants promptly entering into possession of the said flat. The other flat on the first floor was retained by the owner and the other two flats on the second floor were sold to Mr. and Mrs. Sarvanan and one Mr. Balaji respectively.
8. The complainant alleges that after possession of the premises, which according to them was purchased for the purpose of running a Chartered Accountant Office, they started experiencing that the enjoyment of the common areas was being disturbed and that the parking area had been settled with the other two flat owners depriving the complainants of the enjoyment of that area. Thus, this dispute was raised by the complainants regarding common enjoyment of the common areas including parking and basement, and not only this, the owner/builder is alleged to have deviated the building plan by creating additional space in th
Basement – The complainants have miserably failed to establish that basement or the parking area are common areas available to them so as to contravene Clause 15 of the agreement.
Contractual obligations under the Consumer Protection Act require service providers to fulfill all promised specifications, and failure to do so constitutes deficiency of service.
(1) After taking possession over constructed flats per Supplementary Agreement, Appellants are estopped from challenging its validity.(2) Under Section 24 of Andhra Pradesh Apartments (Promotion of C....
In the event of failure to give possession of flat as agreed, purchaser is entitled to approach Consumer Commission.
In the event of failure to give possession of flat as agreed, purchaser is entitled to approach Consumer Commission.
The court affirmed that housing construction agreements fall under the Consumer Protection Act, establishing that both parties were bound by the definitions of 'consumer' and 'service'.
Subsequent purchasers retain consumer rights under the Consumer Protection Act and can seek remedies for deficiencies in service from property developers.
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