IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 31st DAY OF JANUARY 2023
Present: - Smt.S.Sandhya Rani. Bsc, LLB , President I/C
Sri.Stanly Harold, B.A.LLB, Member
CC.No.122/2022
Kiran Radhakrishnan,
J.K.Hearing,
Near Upasana Hospital,
Kollam. : Complainant
(By Adv.Rajalakshmi Surendran)
V/s
Aadish O., S/o Omanakuttan,
Attukal Puthuvel, Eravipuram,
Kollam 691 011. : Opposite Party
ORDER
Sri.Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.
The averments in the complaint in short are as follows:-
Complainant and opposite party had entered into a contract on 12.08.2021 for the purpose of construction and maintenance work of the building on the upper portion, J.K.hiring situated near Upasana Hospital, Kollam. The opposite party had prepared a new plan and estimate and he agreed to complete work within one month in a perfect and good condition. The complainant has agreed to give Rs.7,79,250/-(Rupees Seven lakh Seventy nine thousand and two hundred fifty) to the opposite party for the purpose of the construction work. But after negotiation the opposite party had demanded Rs.16,40,300/- for the purpose of the maintenance work. The complainant had paid Rs.15,75,000/- through his bank. But the opposite party had performed the maintenance work violating the conditions on the contract. The complainant cannot install A/c in the bed room and hall due to the improper installation of hall ceiling. Moreover the enamel paint used by the opposite party is inferior quality due to that while on touching the wall the paint is hoosing out from the surface. The TV stand and the door of the kitchen was installed by the opposite party is in an improper manner which has to be removed and refitted which caused damage and disfiguration to the same. The opposite party had assured 20 years of warranty for the kitchen interior and still now the warranty card was not issued by the opposite party. The electrical goods and fitting used by the opposite party is not at all having the quality and specifications which was mentioned in the contract entered between the complainant and opposite party. The opposite party has assured that new windows will be installed in the building having high quality but windows was patch worked old one after effecting painting it was fitted in the building. In the construction of the bath room necessary fittings were not installed and the tiles used in the bath room were broken one and the main front door of the building is in a bended condition. The above said work done by the opposite party is against the contract entered between the complainant and the opposite party on 12.08.2021. During the construction work of the opposite party he had received Rs.15,75,000/-. Since the perfection of the work was not up to the standard and the complainant on different occasions made his grievance regarding this aspect. But the opposite party was not amenable to hear the complainant. The opposite party had used low quality materials on violation with the agreement and hence the walls are rough without any perfection. The opposite party had not perform the construction work as agreed in the contract. In the circumstances the complainant had no other option due to the non fulfilment of the obligation from the side of the opposite party and has issued a legal notice and that was deliberately not received by the opposite party. The above said act of the opposite party clearly amounts to deficiency in service which caused serious mental agony and monitory loss to the complainant. Hence the complaint.
Though notice was issued from this commission to the opposite party notice returned unserved. Thereafter paper publications was effected the opposite party failed to appear before the commission nor made any representation hence opposite party was set exparte. The complainant filed proof affidavit by reiterating the averments in the complaint and got marked Ext.A1 to A3 documents. Ext.A1 is the building construction agreement dated 12.08.2021. Ext.A2 is the plan and estimation of the house. Ext.A3 is the legal notice send to the opposite party. Heard the learned counsel for the complainant.
The unchallenged averments in the affidavit coupled with Ext.A1 to A3 documents would establish that that complainant had entered into a contract with the opposite party on 12.08.2021. Ext.A1 agreement for construction would make it clear the details of the construction total amount required for the construction and the period in which the work has to be completed. But the opposite party failed to carry out the work as per the terms of Ext.A1 agreement. However the work was no fully carried out and the perfection of the work done was not upto the minimum standards. The grievance of the complainant was not at all considered by the opposite party eventhough the opposite party received full amount needed for the construction irrespective of the work done, adopted a lagging policy in the construction work due to the reasons known to him only. It is also brought out in evidence that the opposite party used low quality materials in contravention of the terms of agreement and hence the walls are rough without any perfection and the entire work lacks perfection in all respect. This was pointed out by the complainant and requested to rectify the above defects. Due the imperfection of the construction work the complainant was unable to install A/c in the bed room and in the dining hall. According to the complainant the opposite party had used low quality TV stand, windows electrical fittings and lights. In the agreement the opposite party had assured he will provide lighting and wiring with superior quality products of V-guard switches/Anchor/Legrand. But low quality and inferior quality switches were used for the electrical works. According to the complainant the opposite party had assured in the agreement he will provide painting with primer putty and paint of superior quality will be provide for wall and ceiling with the branded company Asian/Berger. It is also available from the materials that on several occasions the complainant approached the opposite party to complete work within the stipulated time. But there was no positive response from the part of opposite party. However the opposite party had received Rs.15,75,000/- irrespective of the work done. It is also clear from the available materials that due to the defective and incomplete construction complainant has sustained much mental agony apart from financial loss. Hence the complainant is entitled to get the compensation from the opposite party.
On evaluating the entire materials available on record we hold that the opposite party had entered into a contract with the complainant on 12.08.2021 and perform the construction work with low quality materials and not in a minimum standard as per the agreement. However the opposite party failed to complete the work. The opposite party is under an obligation to perform the work of the upstair of the building in a perfect condition as per the terms of Ext.A1 agreement which he failed to do so. The non-fulfillment of the obligation on the side of the opposite party clearly amounts to deficiency in service .
In the result complaint stands allowed in the following terms.
- The opposite party is directed to refund Rs.2,00,000/- received by him from the complainant to complete the balance work with 6% interest from 12.08.2021 onwards.
- The opposite party is directed to pay Rs.15,000/- as compensation to the complainant for the mental agony and inconvenience caused to the complainant due to the non-completion and defective construction of the building by the opposite party.
- The opposite party is also directed to pay Rs.5,000/- as costs of the proceedings.
- The opposite party is directed to comply with above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to realize the amount of Rs.2,20,000/- along with interest @ 9 % p.a. from the date of complaint till realization along withcosts from the opposite party and from his assets both movable and immovable.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 31st day of January 2023.
STANLY HAROLD:Sd/-
S.SANDHYA RANI:Sd/-
(President I/C)
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.A1 : The building construction agreement dated 12.08.2021
Ext.A2 : The plan and estimation of the house.
Ext.A3 : The legal notice send to the opposite party
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-Nil
