BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 12th day of January, 2017
C.C. No.3/2016
(Date of Institution 05.07.2016)
G.Manoharan, S/o Govindasamy,
Aged about 75 years, residing at
No.10, First Cross Street, Santhi Nagar,
Elango Nagar Extension,
Puducherry. ………… Complainant
Vs.
P.Vetriselvan, S/o Pandian,
Proprietor: Maragatham Builders,
No.25, Shop No.2, First Cross
Rainbow Nagar, Puducherry -11. …………. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN
PRESIDENT
TMT. K.K.RITHA,
MEMBER
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE COMPLAINANT:
Tvl.A.Kanniappan & K.Balaji,
Advocates, Puducherry
FOR THE OPPOSITE PARTY:
Ex parte
O R D E R
This complaint is filed seeking the following reliefs:
- Directing the opposite party to repay the amount of Rs.29,00,000/- paid by the complainant towards cost of construction under Section 14(c) of the Act.
- To pay a sum of Rs.4,80,000/- to the complainant as compensation for potential loss of income at Rs.30,000/- per month from February, 2015 to till May, 2016, u/s 14(d) of the Act.
- To pay Rs.1,50,000/- as compensation for negligence in not obtaining building permit from Puducherry Planning Authority, u/s 14(d) of the Act.
- To pay Rs.3,00,000/- as compensation for mental agony, loss and sufferings underwent by the complainant due to abrupt stoppage and abandonment of construction work and for deficiency in service u/s 14(d) of the Act.
- To pay Rs.25,000/- as cost of proceedings u/s 14(i) of the Act.
2. The short matrix of the complaint, as set out by the complainant in nutshell , is stated hereunder.
a) The complainant is the owner of the plot bearing No.17 & 18 in Sudhakar Nagar, Reddiarpalayam in R.S.No.133/1. He has approached the opposite party builder for construction of a residential building in the said plots. He also entered into an agreement with the opposite party on 15.04.2014 for construction of building at a total cost of Rs.69,75,000/-. The opposite party totally received a sum of Rs.29,00,000/- on various dates and passed receipts for the same. Though the opposite party agreed to complete construction on or before 31.01.2015, he could construct only the structure with column and roof of first floor. Thereafter, he abruptly stopped and abandoned the construction in October, 2014 though the complainant was ready to pay the next installment of construction as per agreement. Thus, the opposite party committed breach of trust and cheated the complainant. The complainant has estimated the cost of work completed so far at only Rs.28,00,000/- through an approved valuer//engineer, but the complainant had already paid Rs.29,00,000/- to the opposite party. On enquiry with the Puducherry Planning Authority, he came to know that he will incur additional cost of Rs.1.50 lakhs with penalty for approval for construction.
b) The complainant would have earned a sum of Rs.30,000/- p.m. as interest if the complainant had deposited the investment of Rs.29,00,000/- in bank. Thus, the complainant had lost potential income of Rs.4,80,000/- till May, 2016.
c) The complainant also suffered untold mental agony and sufferings and the complainant has lost of sleek since his investment of Rs.29,00,000/- is lying waste. In spite of several requests made by the complainant, the opposite party has not come forward to proceed with construction. By letter dated 29.09.2015, the opposite party has admitted his mistakes and assured to commence construction within 15 days, but till date the opposite party has not done any work. Therefore, the complainant issued a lawyer notice on 21.01.2016 calling upon the opposite party to pay compensation to the complainant, but the same was returned as 'left'. Being left with no other option, the complainant has approached the State Commission for the reliefs stated above.
3.Though notice has been sent to the opposite party, the opposite party has not chosen to appear before this Commission to dispute the statement made by the complainant. Hence, the opposite party was set ex parte.
4. On behalf of the complainant 12 documents have been filed and marked as Exs.C1 to C12. We have also heard the learned counsel appearing for the complainant. We have also perused the documents filed on behalf of the complainant. . The following points are framed for consideration.
1. Whether the complainant is a consumer as defined in the Act?
2. Whether the Opposite Party is liable to pay the amount claimed by the
Complainant?
3. Whether the complainant is entitled for cost?
4. To what other relief the complainant is entitled>
5. POINT No.1:
The complainant had entered into an agreement with the opposite party for putting up construction in the plots owned by the complainant and it is alleged on behalf of the complainant that the opposite party has not completed the construction and caused loss to him. Therefore, we can safely conclude that the complainant is a consumer as defined in Act.
6. POINT NO.2:
As regards this point, it has to be seen that the complainant entered into an agreement with the opposite party on 15 04.2014 under Ex.C1. He has paid totally a sum of Rs.29,00,000/-, as could be seen from Exs.C2 to C6, the receipts issued by the opposite party. From the above referred receipts issued by the opposite party, we can safely conclude that the complainant has totally paid a sum of RS.29,00,000/- to the opposite party. To deny the same, the opposite party has not chosen to appear before this Commission and to dispute the statement made by the complainant. Unfortunately, the opposite party did not appear before this Commission to state that he has not received the amount from the complainant, as set out by him in the complainant. Therefore, the only conclusion that could be arrived at is that the opposite party has received Rs.29,00,000/- from the complainant on various dates and passed on receipts, Exs.C2 to C6. The complainant has filed the photographs of construction site in question, which are marked as Ex.C7. The lawyer's noticed on behalf of the complainant was marked as Ex.C9. The opposite party has not received the same, which could be seen from the returned postal cover marked as Ex.C10. The valuation certificate of the work executed by the opposite party, dated 24.08.2015 is marked as Ex.C11. Ex.C12 is the letter written by the opposite party on 29.09.2015 to the complainant wherein, he has admitted the facts set out in the complaint. The above referred document establishes the case put forth by the complainant. There is no contra evidence on behalf of the opposite party since the opposite party has not chosen to appear before this Commission and was set ex parte. Therefore, we can safely conclude that the opposite party not only committed breach of trust but also there is deficiency in service. However, it is even the admitted case of the complainant that the opposite party put up construction which was valued at Rs.28,00,000/-. Though it is stated now that the construction so put up by the opposite party are in damaged position, there is no pleadings to that effect in the complaint. Not even the same is proved before us. However, definitely there would have been some damage because of paucity of time. Therefore, we are of the view that damage caused could be to the tume of a sum of Rs.3,00,000/- would be just and reasonable. Therefore, the opposite party is liable to return a sum of Rs.4,00,000/- to the complainant out of the advance paid by the complainant..
7. As far as the sum of Rs.4,80,000/- claimed by the complainant saying that potential loss at the rate of Rs.30,000/- p.m. is concerned, we are of the view that the complainant has not proved that there was potential loss of Rs.30,000/- p.m. by way of interest had he been invested the amount of Rs.29,00,000/- with the bank .It is just and reasonable to direct the opposite party to pay Rs.10,000/- p.m. towards loss of income, which the opposite party is liable to pay from February, 2015 till 12.01.2017, the date of the order. As per the agreement, the opposite party has to complete the construction on or before 31.01.2015 and hence we are fixing the date from February, 2015.
8. As far as compensation for negligence is concerned, though a sum of Rs.1,50,000/- is claimed by the complainant, the interest of justice would be met if a sum of Rs.25,000/- is awarded towards that head.
9. The complainant had claimed another sum of Rs.3,00,000/- towards compensation for mental agony, loss and sufferings underwent by him. Since a sum of Rs.25,000/- is awarded for negligence on the part of opposite party, a sum of Rs.25,000/- could be reasonable under the head compensation for mental agony, etc.
10. Thus, the opposite party has to return a sum of Rs.4,00,000/- (Rupees Four-Lakhs only) to the complainant out of the advance paid by the complainant to the opposite party under the Agreement, Ex.C1. A sum of Rs.10,000/- p.m. from February, 2015 till the date of this order towards compensation for potential loss; a sum of Rs.25,000/- towards compensation for negligence and a sum of Rs.25,000/- towards compensation for mental agony, etc.
11. The opposite party has driven the complainant to file complaint before this Commission. Therefore, the complainant is entitled to a sum of Rs.5,000/- towards cost of the proceedings.
12. No other relief other than the amount ordered is payable by the opposite party to the complainant. Thus, the complaint is allowed to the extent indicated above.
13. The opposite party is directed to pay above ordered amount within two months from today, failing which, the opposite party is directed to pay interest at 15% p.a. from the date of order till the payment of entire amount.
Dated this the 12th day of January, 2017.
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
LIST OF COMPLAINANT'S WITNESSES:
PW1 – Proof-Affidavit of G.Manoharan, Complainant, filed on 23.11.2016.
LIST OF COMPLAINANT'S EXHIBITS:
Ex.C1 – Copy of Agreement for construction, dt. 15.04.2014 executed between
complainant and opposite party.
Ex.C2 – Copy of Cash Receipt, dt. 21.04.2014 for Rs.17,00,000/-, issued by opposite
party.
Ex.C3 - Copy of Cash Receipt, dt. 21.04.2014 for Rs.1,00,000/-, issued by opposite
party.
Ex.C4 - Copy of Cash Receipt, dt. 7.06.2014 for Rs.6,00,000/-, issued by opposite
party.
Ex.C5 - Copy of Cash Receipt, dt. 02.07.2014 for Rs.3,00,000/-, issued by opposite
party.
Ex.C6 - Copy of Cash Receipt, dt. 12.07.2014 for Rs.2,00,000/-, issued by opposite
party.
Ex.C7 – Two positive photographs depicting the status of the building
Ex.C8 – Compact Diskette
Ex.C9 – Copy of complainant's lawyer's notice, dt. 14.01.2016 issued to the opposite
Party
Ex.C10- Returned postal cover bearing the address of opposite party.
Ex.C11- Valuation of the work done by opposite party
Ex.C12- Copy of reply by opposite party, dt. 29.09.2015.
(Justice K.VENKATARAMAN)
PRESIDENT
(K.K.RITHA)
MEMBER
(S.TIROUGNANASSAMBANDANE)
MEMBER
