Kerala

Thiruvananthapuram

CC/19/439

Nasimudeen - Complainant(s)

Versus

Ajith B - Opp.Party(s)

16 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACADU, THIRUVANANTHAPURAM

PRESENT

                                         SRI.P.V.JAYARAJAN        : PRESIDENT

          SMT.PREETHA.G.NAIR     : MEMBER

                                        SRI.VIJU.V.R.                   : MEMBER

CC.NO.439/2019 (Filed on :06/12/2019)

ORDER DATED : 16/09/2022

 

COMPLAINANT

 

Nasimudeen,

S/o.Ahammed Kannu,

“Alif Khram”, Perumanchira,

Kizhakkumbhagom Muri,

Kazhakkuttom.P.O,

Thiruvananthapuram District

 

(By Adv.M.Saifudeen & Others)

VS

OPPOSITE PARTY

Ajith.B,

Proprietor,

Achu Builders, Kallara,

Thiruvananthapuram

(Exparte)

ORDER

SMT.PREETHA.G.NAIR  :MEMBER

The complainant is the owner of the property having an extent of 19 ½ cents of property and has decided to construct a house adjoining to the building bearing Kallara Gramapanchayath House.No.147/A. The opposite party approached the complainant for the construction of the works and considering the friendship and mutual understanding between them the complainant also agreed to entrust the construction work to the opposite party. After commencement of construction works opposite party has lagged the work without any reason in spite of being accepted Rs.6,00,000/- (Rupees Six lakhs only) as advance. In the circumstances on the basis of the pressure putforth for by the complainant and some mediators, complainant and the opposite party has entered into an agreement on 08.04.2019 which has been signed by the complainant and opposite party accordingly. Total plinth area of the building has not been mentioned in the agreement but the rate of the construction has been discussed and agreed by the complainant and the opposite party as Rs.1000/- per sq.ft. As per the agreement reached between the complainant and opposite party, the opposite party has to finish all the works of the building within 40 days from 08/04/2019 ie on or before 17/05/2019. By accepting the terms and conditions, in addition to Rs.6,00,000/- (Rupees six lakhs only) given earlier, the complainant has additionally given Rs.1,50,000/- and totally opposite party received Rs.7,50,000/-. But due to opposite party’s wilful latches, inordinate delay, negligence, unfair trade practice and deficiency in service work has not been completed so far. Therefore the complainant has been suffered heavy loss, which amounts to Rs.3,00,000/- for which opposite party is only responsible and liable.  This shows that there is wilful restrainment on the part of opposite party to slow down the work which has caused both physical and mental disturbances and monetary loss to the complainant. The complainant while assessing the quantum of work done by the opposite party has found that only 794 sq.ft work has been finished so far. As per the agreement of opposite party has yet to finish the following works.

1. Electrical
2. One coat primer on woods
3. Bathroom doors
4. To get electric meter
5. To get house number

As per the agreement Rs.1000/- per sq.ft is the agreed rate for the work. So far opposite party has completed only 749 sq.ft and still some works are pending. In spite of the above the total amount for the finished work comes to Rs.7,94,000/- out of which opposite party has already received Rs.7,50,000/- If the work has been completed and the key handed over by the opposite party, the complainant should have received a minimum of Rs.10,000/- as monthly rent and a reasonable amount of 10 times of monthly rent as advance. Also mental strain and loss of time has only added the gravity of opposite party’s wilful latches negligence, unfair trade practice and deficiency in service. The opposite party issued an advocate notice raising false allegations and for the same the complainant replied properly. Hence the complaint.

After accepting the notice the opposite party was absent before the commission and op set exparte.

Complainant filed proof affidavit and documents. Exts.A1 to A3 and Ext.C1 marked.

 

 Issues to be considered are :

1. Whether there is any deficiency in service and unfair trade practice on the side of the opposite parties?
2. If so, what is the relief and cost?

Issues I & II

          As per the agreement Ext.A1, Rs.1000/- sq.ft is the agreed rate for the work. Total plinth area of the construction of building has not been mentioned in the agreement. The complainant stated that opposite party has completed only 749 sq.ft and still some works were pending. Ext.A2 is the legal notice sent to the complainant by opposite party. In Ext.C1 commission report, commissioner stated that the opposite party has completed only 815 sq.ft and balance cost of construction work was Rs.40,150/-. The complainant admitted that he had paid Rs.7,50,000/-. The total cost of construction of 815 sq.ft it is Rs.81,50,000/- (815x 1000) In Ext.A3 reply notice, the complainant stated that 794 sq.ft was completed and as per the agreement the opposite party is entitled to get an amount of Rs.7,94,000/- and out of which he had received Rs.7,50,000/-. The remaining Rs.44,000/- (815000-750000  = 65000). But the opposite party had not completed the work of Rs.40,150/- as per Ext.C1 will be received only after completing the balance works. As per Ext.C1 report the expert commissioner stated that the opposite party has completed only 815 sq.ft. Then the complainant had paid Rs.65,000/- to opposite party. The cost of material of construction works and labour charges are increased daily. Then the act of opposite party to non completion of works amounts to deficiency in service. The complainant stated that if opposite party had completed work in accordance with the agreement within the time the complainant should have saved Rs.1,00,000/- on account of the increasing materials costs and Rs.40,000/- for increasing labour cost. Moreover, the complainant should have rent out the building for an amount of Rs.10,000/- per month as such he has sustained a loss of Rs.60,000/-. The opposite party has not produced evidence to disprove the case of complainant. The opposite party has not completed construction work within the time as per the agreement. On the available evidence the complainant proved that the opposite party had not completed the work as per Ext.A1.

                  In view of the above discussions, we find that the act of opposite party amounts to deficiency in service.

                  In the result, complaint is partly allowed. We direct the opposite party to pay an amount of Rs.50,000/- as compensation for mental agony and Rs.2500/- as cost of the proceedings.  

               A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

               Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open commission, this the 16^th day of September 2022.

                                                                                     Sd/-

P.V.JAYARAJAN            : PRESIDENT

 

                                                                                       Sd/-

PREETHA.G.NAIR        : MEMBER

 

                                                                   Sd/-

VIJU.V.R. MEMBER

 

APPENDIX

CC.NO.439/2019

List of witness for the complainant

PW1                      - Nasimudeen

Exhibits for the complainant

Ext.A1                  - Agreement between the petitioner and opposite party

Ext.A2                  - Copy of advocate notice issued by the opposite party

Ext.A3                  - Reply notice issued by the petitioner to the notice to the opposite party

List of witness for the opposite party – NIL

List of Exhibits for the opposite party – NIL

Court Exhibit

Ext.C1                                     - Commission Report    

 

 

                                                                                               Sd/-

                                                                                        PRESIDENT