BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  22^nd December 2015      

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 220/2015  

Complainant/s:       Smt. Drakshayini D/o. Shankreppa Gummagol, Age: 55 years, Occ: Household, R/o. Plot No.15, Sutagatti, Navanagar, Hubli 580025, Dist.Dharwad.

(By Sri.R.M.Patil, Adv.)

v/s

Respondent/s:         Basavaraj S/o.Kareppa Totad, Age: 54 years, Occ: Building contractor, R/o.Near Police Station, Hubli 580025.

(Exparte)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondent to complete the construction work & to deliver the possession, in alternative to direct to refund Rs.6.30 lakhs received by the respondent towards construction work along with interest, to pay Rs.1 lakh towards mental agony and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant is a household woman. On 11.08.2014 the respondent entered into an agreement to construct RCC roof house on the vacant plot no.15 measuring 28 x 38 ft., situated at Sutagatti village owned by the complainant at the cost of Rs.6.30 lakhs. Despite receipt of the entire amount the respondent did not constructed the house as agreed. On 24.02.2015 the complainant personally met & requested the respondent to complete construction work or otherwise to refund the amount. Instead of complying, the respondent acted harshly against the complainant. Left with no other alternative complainant got issued legal notice to the respondent on 25.02.2015 calling upon to complete the works and to deliver the possession. For that the respondent on 11.03.2015 sent untenable reply. Thereby the respondent has committed deficiency in service amounting to unfair trade practice. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     Despite service of notice issued from this Forum the respondent remained absent. Placing exparte initiated exparte proceedings against the respondent.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Complainant admits sworn to evidence affidavit, relied on documents. Since the respondent remained absent to know the truth and also to assess proper position of the building structure & the amount spent on the unfinished construction by the respondent this Forum got appointed the engineer as court commissioner & obtained the report. Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documentary evidence supported with commissioner report it is evident that there is no dispute with regard to the fact,  the respondent entered into an agreement with the complainant to construct a residential house despite of it the respondent did not fulfil the contract as per the agreement.

6.     Since the respondent had remained exparte just for arrival on merits Forum got appointed an engineer to inspect the spot in question and assess & to report. In turn the commissioner submits report as per Ex.CR-1.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     The complainant approached this Forum for non compliance of contract as per Ex.C1 i.e. construction agreement entered between complainant and respondent. This is the pivotal document. Based on this document the complainant approached this Forum & filed the instant complaint. As per Ex.C1 agreement the total consideration of the agreement is Rs.6.30 lakhs. Ex.C1 is executed on stamp paper of only Rs.100/- denomination. As per the Stamp Act the document is suffering from deficit stamp fee & cannot be admissible in evidence except payment of proper stamp fee on the said document. Hence, the complainant ought to have pay proper duty stamp on the said document immediately. Unless the payment of the deficit stamp the order will not comes to force till then an endorsement to that effect is produced by the complainant.

9.     Since the respondent remained absent and exparte proceedings initiated the contention and claim of the complainant remained unimpeached.

10.   As per the citation relied by the complainant AIR 2009 Pg-1188 SC Sujit Kumar Banerjee vs. M/s.Rameshwara & others, the present complaint is maintainable and the complainant is the consumer and respondent is service provider as defined under CP Act.

11.   As per the own admission of the complainant the respondent has raised construction partly and is unfinished. As per Ex.C-1, C-2 & C-4 it is evident that the complainant has paid Rs.6.30 lakhs so far to the respondent towards the construction work. But respondent in reply notice Ex.C3 to the notice issued by complainant Ex.C-2 admits the contract & also receipt of only Rs.4.30 lakhs. While the complainant contended that respondent had received in total Rs.6.30 lakhs and produced Ex.C4 book maintained by her. In the absence of rebuttal evidence to the genuinity of the Ex.C4 book maintained by the complainant in consonance with the Ex.C1 agreement this Forum has no other option but to accept the same.

12.   Perusal of Ex.CR-1 commissioner report. As per the report the commissioner has made observation in detail with all measurements and constructional works, materials used, assessed the amount spent on unfinished building construction to an extent of Rs.1,68,888/-. In the absence of rebuttal to this, this Forum has to accept the report with smaller margin of lower or upper  amount of expenses spent on the building by the respondent except this commissioner report is acceptable in total. The commissioner report further evidenced building is incomplete position & it still requires more than 75% works for completion. It is also observed here the commissioner submitted his report based on the rates of PWD department norms. It is also made observation here that at the rate of PWD norms one cannot done the work at present at that rate taking into consideration of labour charges, cost of the materials. Even look into the photographs showing the position of the unfinished building produced by the commissioner the Forum consider the respondent has spent about Rs.2 lakhs on the building structure to the present existing stage of the building. By the report it is firmly confirmed the building is in incomplete position & respondent has committed deficiency in service. Interalia the complainant with appulsive and cogent evidence established her case of deficiency in service and unfair trade practice by the respondent. Hence, complainant is entitled for the relief.

13.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in Affirmatively and accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is partly allowed. The respondent is directed to refund Rs.4 lakhs along with interest @ 9% P.A. from the date of notice 25.02.2015 till realization along with Rs.5,000/- towards cost of the commissioner fee, Rs.5,000/- towards mental agony and Rs.1,000/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order.  

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 22^nd day of December 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR