Date of filing:  26.07.2021                                                     Date of Disposal: 20.04.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 20^TH DAY OF APRIL, 2023

CONSUMER COMPLAINT NO. 334/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Lalmon C Kurian,

S/o. CC Kurian,

C/o. Villa No.149, Himagiri Meadows,

Gottigere, Bangalore-560083.

1) Buildness Infra & Tech Pvt Ltd.,

#301, Lyon Square, 3^rd Floor,

(Rep. by Sri.Prabhakara S.K, Advocate)

2) BV. Pinto & S.K. Prabhakara Shetty

(Advocate) #49, 8^th Main, 11^th Cross,

WG & No.156, 2^nd Main, Sheshadripuram,

(Deleted as per order dated: 12.08.2021)

3) Sushma Srinivas,

Buildness Infra & Tech Pvt Ltd.,

#301, Lyon Square, 3^rd Floor,

(Deleted as per order dated: 12.08.2021)

4) Rashad,

Buildness Infra & Tech Pvt Ltd.,

#301, Lyon Square, 3^rd Floor,

(Deleted as per order dated: 12.08.2021)

//JUDGEMENT//

BY SRI. RAJU K.S, MEMBER

01.    The complainant has filed this complaint seeking for compensation of Rs.5,00,000/-.

02.    The case of the complainant is that, in May-2019 the complainant has filed the complaint against the opposite parties in C.C. No.836/2019 with a relief for poor quality construction and delay in service by the opposite parties.  As per instructions of the Hon’ble Court to wait until September-2019 and give time to builder to complete the work as per email contract dated: 15.12.2020 with opposite party.  Further the complainant has paid as per agreed to the opposite party.

Further the complainant has paid additional money as per request of the one Mr. Vivek, the Managing Director of opposite party. 

03.    Further the house construction was started in the month of Septmeber-2018.  Even almost three years elapsed, the opposite parties have not completed the construction even they received extra payment as agreed.  Now the house was partially completed including electrical and plumbing.  Due to substandard work there was leakage from roof and water pooled inside the house.  Due to substandard work of the opposite parties, the new contractors asked huge money to complete the construction.  Since from three years the opposite party has failed to complete the construction as per the agreed terms and conditions even he had received extra payment.  Thereby the opposite party is liable under deficiency of service and prays to allow the compliant as sought for.

04.    The opposite party has filed his version by resisting the claim of the complainant.  The opposite party has admitted the construction agreement dated: 28.07.2018 with the complainant.  Further alleged that the complainant has failed to facilitate the electric service to the construction site as agreed.  Due to severe escalation in the prices of material, labour and miscellaneous charges, the opposite party had issued a legal notice in May-2019 for reconsideration of contract price.  But the complainant failed to consider it.  The opposite party has ensured to provide quality service with the qualified Civil Engineers and structural consultants, but the complainant constant nagging about the quality of construction and substandard material used.  The complainant having a habit of torturing the opposite party by interfering the project, even the Engineers, workman deployed at site and they did their jobs without any deviation.  Due to the attitude of the complainant the entire project was in nightmare to the opposite party and it was very difficult to complete the construction.

05.    The complaint filed by the complainant in CC No.836/2019 was unaware to this opposite party.  As per the revised construction agreement dated: 16.07.2019 the opposite party has continued the construction until the end of March-2020.  Further the opposite party denies the fact that, he has agreed to pay Rs.1,000/- penalty per day in case of delay.  The complainant has tried to divulge the entire episode and attempted to mislead this Commission by supressing the material facts.

06.    Due to pandemic and Lockdown, the construction work has hampered and due to sky-rocketing price of the materials and difficult to secure the labours the opposite party was unable to complete the construction work within stipulated time.  The complainant has not put forward the revised construction agreement dated: 16.07.2019 and has suppressed the material facts.  Due to lackadaisical nature and non-cooperation of the complainant, the opposite party was unable to complete the construction work.  Hence there is no deficiency on the part of the opposite party.  Further the complainant is due of payment of Rs.2,00,000/- towards escalation of costs, taxes and miscellaneous expenses.  Hence prays for dismissal of the complaint.

07.    The complainant has reiterated his case by filing affidavit and got marked EX.P.1 to EX.P.5 documents.  The opposite party Managing Director one Sri. Vivek Prabhakar was examined by filing affidavit and got marked EX.R.1 to EX.R.4 documents.

08.    Based on the pleadings and documents the points that would arise for consideration are as under:-

  (1) Whether the complainant has proved deficiency in service on the part of the opposite party?

  (2) Whether the complainant is entitle for the 

    relief as sought ?

       (3) What order ?

09.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative 

Point No.3 :  As per the final order for the following:-

REASONS

10. POINT NO.1:-  With regard to the averments of the complainant that, he has filed a consumer complaint against opposite party in CC No.836/2018 the complainant has not produced any certified copy of the documents and failed to prove the same. 

11.    The complainant has produced Ex.P.1 the construction agreement dated: 28.07.2018, in which the opposite party has agreed to construct for Rs.1,700/- per square feet as prescribed in the agreement.  In EX.P.2 the total estimation amount was Rs.40,15,855/-.  As per EX.P.2 the total project completion period is 11 months with addition buffer period of 02 months.  Hence the construction is to be completed within 11 months from July-2018 with grace period of 02 months.  As per Ex.P.4 the Whatsapp chats reveals that, in-spite of repeated requests the opposite party has not completed the construction within a stipulated period.  But the opposite party demanded for additional amount for complete the construction by saying personal inconvenience.

12.    The complainant has stated in the written argument that, Rs.21.5 lakhs was paid to the opposite party.  But the complainant has not provided the detailed payment made by him to the opposite party.  In EX.R.4 construction agreement dated: 16.07.2019 the opposite party agreed to complete the construction for total amount of Rs.38,46,471/-.  Further the opposite party agreed to complete the construction within 08 months from the date of construction agreement dated: 16.07.2019 with the buffer period of 15 days.  Further the opposite party agreed to handover the possession of the building within 31.03.2020.  The opposite party not denied the payment of Rs.21. 5 lakhs received by him. 

13.    The main allegation of the complainant is that, in-spite of receiving adequate amount towards construction of the property the opposite party failed to complete the project as agreed in the construction agreement and failed to hand-over the same.  In-turn the opposite party took the defence that, due to escalation of prices, pandemic lockdown and lack of availability of the labour he was unable to complete the construction as stipulated period.  In addition to that, due to constant nagging of the complainant about the quality of construction, sub-standard materials used in the construction work, hampered the completion of the project within stipulated period.  However the opposite party not provided any data / statistics with regard to escalation of prices.  If at all the opposite party having the major issue with regard to the price escalation he has to demand as per construction agreement.  But in this complaint the opposite party failed to provide adequate data with regard to the price escalation, lack of labours, etc.  Totally the opposite party has failed to give reasons for exonerating the project in-completion.  Thereby the opposite party is liable for deficiency of service to the complainant and we answer point No.1 in affirmative.

14.    POINT NO.2:-     As per Ex.R.4 the total cost of the project was Rs.38,46,471/-.  Out of that, the complainant has paid Rs.21.5 lakhs as stated in the written argument of the complainant.  Same has not been denied by the opposite party.  The complainant not filed any document which tends to show that, how much construction work was completed.  The complainant has not produced any document to show how much amount required to complete the construction work.  In these circumstances it is difficult to fix the extent of liability of the opposite party.  However the complainant has pleaded that, he has to pay Rs.3,00,000/- for repair work due to substandard quality construction work of opposite party.  Same is not assigned by any documents.  In our view Rs.3,00,000/- is exorbitant one.  Hence we fix the compensation of Rs.50,000/- for delayed and incomplete construction by the opposite party.  In addition to that, the complainant is also entitle for Rs.50,000/- as compensation for inconvenience and mental agony.  The complainant is also entitle for Rs.10,000/- as litigation cost.  Hence we answer point No.2 partly in affirmative.

15.    POINT NO.3:-     As discussed supra, for the foregoing reasons we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.50,000/- to the complainant with interest at the rate of 9% per annum from the date of complaint till realization.

Further the complainant is entitle for  a sum of Rs.50,000/- towards mental agony and inconvenience, and a sum of Rs.10,000/- towards litigation cost.

The opposite party shall comply the order within 30 days from the date of the order.   In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.60,000/- carries interest at the rate of 9% p.a. from the date of order to till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 20^th Day of April, 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri. Lalmon C Kurian, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents submitted by the complainant side:

1. Notarized copy of construction agreement dt.28.07.2018 – EX.P.1.
2. Notarized copy of area calculation and estimation – EX.P.2.
3. Certificate U/s 65(b) of Indian Evidence Act – EX.P.3
4. Notarized copy of Watsapp chat between complainant and OP – EX.P.4
5. Email communication between complainant & OP – Ex.P.5

Witness examined for the opposite party side: 

Sri. Vivek Prabhakar, Director of opposite party company (RS-1) has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Party side:

1. Certificate U/s 65(B) of Indian Evidence Act – EX.R.1.

2. Computer downloaded WhatsApp conversation – EX.R.2.

3. Computer downloaded email conversation – EX.R.3.

4. Copy of the construction agreement – EX.R.4.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•