DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 15th day of March 2018
Present : Smt.Shiny.P.R. President
: Sri.V.P.Anantha Narayanan, Member Date of filing: 07/12/2017
(C.C.No.185/2017)
Sivadasan,
S/o Late Manikkan,
Elayakariyambathu Veedu,
Nelliyampadam, Polpully PO,
Palakkad. - Complainant
(By Adv.T.V.Praveen Kumar)
V/s
Avanidran, - Opposite party
Gurumandirathil,
Vithanasseri (PO),
Nemmara,
Chittur Taluk.
O R D E R
By Sri. V.P.Anantha Narayanan, Member
The case of the complainant is discussed as follows.
The complainant on the land in Polpully Village with Block No.45 and survey No.49/08, in order to construct a 856 square feet residential house @ Rs.1,450/- per square foot, with a total amount of Rs.12,41,200/- contacted the opposite party and both the complainant and the opposite party agreed to construct a residential house for the complainant and for that purpose signed a contract on 13.11.2015. As per the contract the amount was paid by the complainant in stages to the opposite party. When the measurement of the building was taken, it was 6 square feet less and the amount was fixed at Rs.12,32,500/- and the opposite party received the whole amount but he did not do the finishing work – painting, door polishing, outer toilet, floor tile work, electrical work, tile polishing work, concrete work around the house in 3 feet wide – was not done. The complainant told this to the opposite party many a time in person,
through phone and through mediation and finally by a registered notice on 14.11.2017. According to the complainant, although the opposite party received the registered notice, the opposite party did not complete the work nor did he send a reply to the notice received by him from the complainant. According to the complainant, to finish the work around Rs.60,000/- are to be spent and without completing the work opposite party has cheated the complainant, thereby causing financial difficulty to the complainant, also at the auspicious time house warming could not be done which has caused mental agony to the complainant for which claims Rs.1,00,000/-. The complainant prays to the Hon’ble Forum to appoint an expert commissioner to examine the building and file a report. Complainant also pleads that without completing the work, opposite party has unauthorisedly received the amount which amounts to deficiency in service on the part of the opposite party. Complainant also prays to the Hon’ble Forum to direct the opposite party to pay to the complainant Rs.1,60,000/- as compensation for the loss caused to him due to non completion of the work, for financial difficulties and mental agony suffered by the complainant.
Complaint was admitted and notice was sent to opposite party to enter appearance and file version. Notice to opposite party returned stating unclaimed and hence notice was deemed to be served and opposite party’s name called absent and he was set ex-parte. Complainant filed chief affidavit and Exts.A1 & A2 which were marked. Complainant filed IA 368/2017 to appoint an expert commissioner to inspect the property and file a detailed report. IA was allowed and expert commissioner was appointed. The expert commissioner filed his report marked as Ext.C1. The complainant was also heard.
As per commissioner’s report, details of pending works not executed by the opposite party were mentioned and balance amount to be spent on the pending works is reported as Rs.87,400/- (Rupees eighty seven thousand four hundred only). According to the commission report, the plinth area of the building was 856 square feet and full payments were handed by the complainant to the opposite party.
The following issues are considered in this case.
- Whether there is any deficiency in service and/or unfair trade practice on the side of the opposite party ?
- If so, the remedy and relief available to the complainant?
Issues 1 & 2
The case of the complainant is that on the land possessed by him and legally entitled to him in Polpully Village 856 square feet building @ Rs.1,450/- per square foot is to be constructed with a total amount of Rs.12,41,200/- and for this purpose the complainant entered into an agreement on 13.11.2015 with the opposite party as per Ext.A1 which shows that on November 13, 2015 work agreement was entered into between the complainant and the opposite party to construct 856 square feet residential house. This land has block No.45 and survey No.49/08. According to the complainant, he paid to the opposite party the agreed amount stage by stage. The area of the building constructed was measured and it was 6 square feet less and therefore opposite party received from the complainant Rs.12,32,500/-. According to the complainant the finishing work was not done by the opposite party, inspite of complainant contacting the opposite party several times and finally by a registered letter dated.14.11.2017, but the opposite party did not complete the pending work nor sent a reply to the registered letter of the complainant. The copy of the lawyer notice and postal receipt are marked as Ext.A2 series which indicate sending of lawyer notice to the opposite party. According to the complainant, non completed works amounted to Rs.60,000/- which caused him mental agony and financial difficulties. As per the expert commission report marked as Ext.C1 the expert commissioner reported that the complainant owned land at Polpully Village in survey No.49/08 and block No.45 and the complainant entrusted the construction work of this residential building to the opposite party @ Rs.1,450/- per square foot, with plinth area of 856 square feet. Full payments were handed to the opposite party by the complainant, but the opposite party did not execute pending works which were valued at Rs.87,400/- (Rupees eighty seven thousand four hundred only).
From the affidavit, expert commissioners report and other documents filed to the Forum, we understand that opposite party has been found not to have completed the residential building construction work entrusted to him by the complainant, inspite of the fact that full payments were received by the opposite party from the complainant and inspite of lawyer notice sent to the opposite party by the complainant’s counsel; these acts on the part of opposite party demonstrate that opposite party has been found to have committed grave deficiency in service and unfair trade practice. In the result the complaint is allowed.
We direct the opposite party to pay to the complainant Rs.87,400/- (Rupees eighty seven thousand four hundred only), being the value of pending woks not executed by the opposite party as reported by the expert commissioner; opposite party is also directed to pay to the complainant Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony suffered by him due to non completion of his residential house construction work and consequent non conduct of his house warming ceremony at the auspicious time and Rs.5,000/- (Rupees five thousand only) towards cost of proceedings incurred by the complainant.
This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to 9% interest p.a on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 15th day of March 2018.
Sd/-
Shiny.P.R
President
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Original agreement between the complainant and opposite party
Ext.A2 series - Copy of Registered lawyer notice dated.14.11.2017 sent by the
complainant’s counsel to opposite party and postal receipt
Exhibits marked on the side of Opposite party
Nil
Commission Report
Ext.C1 - Expert commissioner’s report dated. 18.12.2017 with photographs of the
constructed building
Witness examined on the side of the complainant
Nil
Witness examined on the side of opposite party
Nil
Cost
Rs.5,000/-
