KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos. 857/2015 & 454/2017

COMMON JUDGMENT DATED: 20.10.2022

(Against the Order in C.C. 159/2012 of CDRF, Palakkad)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.T.S.P. MOOSATH                                                                 : JUDICIAL MEMBER

SRI.RANJIT. R                                                                            : MEMBER

APPEAL No. 857/2015

APPELLANT:

S. Chandrika, W/o Chandramohan, Krishna Nivas, Chorath Line, Chittur Taluk, Palakkad presently residing at Rohini, Western Village Road, Thathamangalam, Palakkad-678 102.

(By Adv. Narayan R.)

                                                Vs.

RESPONDENT:

          Chenthamarakshan, S/o Chami, Aalakkal Veedu, Edakara P.O., Pin-679 331.

(By Adv. N. Anoopkumar)

APPEAL No. 454/2017

APPELLANT:

Chenthamarakshan, S/o Chami, Aalakkal Veedu, Edakara P.O., Pin-679 331.

(By Adv. N. Anoopkumar)

RESPONDENT:

S. Chandrika, W/o Chandramohan, Krishna Nivas, Chorath Line, Chittur Taluk, Palakkad presently residing at Rohini, Western Village Road, Thathamangalam, Palakkad-678 102.

(By Adv. Narayan R.)

COMMON JUDGMENT

SRI.T.S.P. MOOSATH: JUDICIAL MEMBER

Appeal No. 857/2015 is filed by the complainant and Appeal No. 454/2017 is filed by the opposite party in C.C. No. 159/2012 of the Consumer Disputes Redressal Forum, Palakkad, in short the District Forum, against the order passed by the District Forum by which the opposite party was directed to pay Rs. 1,50,000/- as compensation and Rs. 5,000/- as costs of the proceeding to the complainant.

2.  The averments contained in the complaint are, in brief, as follows:  The complainant entrusted the work of construction of her house building with the opposite party and for that purpose they had executed an agreement on 31.08.2009.  As per the agreement the opposite party was bound to construct and handover a RCC residential house on the specification details stated in the agreement with good quality materials and as per the consideration as agreed and decided by the complainant.  As per the terms of the agreement, it has been mutually agreed that the consideration for the said construction is Rs. 800/- per sq. ft.  Time was the essence of the agreement and it was mutually agreed and decided also.  The complainant was required to pay Rs. 7,21,200/- as the total consideration when the opposite party handed over the key of the building after its complete construction.  As per the agreement the opposite party had to complete the construction of the building on or before 31.08.2010.  The opposite party had undertaken the work and began to construct the house.  But the opposite party has not completed the work as per the terms of the agreement and he has abandoned the construction midway without completing it on time.  The complainant had paid Rs. 3,32,000/- to the opposite party by way of different occasions.  The opposite party made construction up to the lintel level and walls up to half feet above the lintel level.  The work done by the opposite party has a lot of defects and would be worth only Rs. 1,79,600/-.  Thus, the opposite party had collected an excess amount of Rs. 1,52,400/-.  The non-completion and abandoning of the house construction midway would amount to deficiency in service on the part of the opposite party.  As the building is not completed within time, the complainant had to incur a loss of more than Rs. 7,00,000/-.  The complainant had availed a housing loan from the LIC and she had suffered financial loss since the building was not completed within time.  The prayer of the complainant is to direct the opposite party to pay compensation of Rs. 10,00,000/- and costs of the proceedings.

3.  The opposite party entered appearance and filed version denying all the allegations made in the complaint.  The opposite party admitted that there was a building contract between him and the complainant, but all the rest of the allegations contained in the complaint are denied.  According to the opposite party the reason for non-completion of the construction of the building is due to non-co-operation of the complainant and the complainant has not effected payments as per the terms of the agreement.  There is no deficiency in service on the part of the opposite party and complainant is not entitled to realize any amount from the opposite party as compensation. 

4.  Complainant was examined as PW1 and Exts. A1 & A2 were marked on her side.  The commissioner who filed the reports was examined as CW1 and the reports filed by him were marked as Exts. C1 and C2.  No oral or documentary evidence was adduced by the opposite party. 

5.  After considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum, the complainant has filed Appeal No. 857/2015 and the opposite party has filed Appeal No. 454/2017.

6.  Since both the appeals were filed against the same order both appeals were heard and considered together. 

7.  Heard.  Perused the records.

8.  Parties are referred according to their status/rank in the complaint.

9.  There is no dispute to the fact that the complainant entrusted the work of construction of her house building with the opposite party and for that purpose they had executed Ext. A1 agreement.  It is also not in dispute that the opposite party has not completed the construction of the house building.  According to the complainant she had paid Rs. 3,32,000/- to the opposite party by way of different occasions as per the terms of Ext. A1 agreement.  But the works done by the opposite party would be worth only Rs. 1,79,600/-.  So according to the complainant the opposite party had collected an excess amount of Rs. 1,52,400/-.  As found by the District Forum, it is evident from the endorsements on Ext. A1 agreement and Ext. A2 pass book of the complainant that, the complainant had made payment of Rs. 3,32,000/- to the opposite party.  The commissioner appointed from the District Forum assessed the work done by the opposite party to be worth only Rs. 1,80,000/-.  The commissioner was examined as CW1 and he was cross examined by the counsel for the opposite party, but nothing was brought out in evidence so as to discard the reports filed by him. Hence as rightly found by the District Forum, the commission reports are to be accepted.  According to the opposite party, the reason for non-completion of the construction of the building was due to the non-co-operation of the complainant, that she had not effected the payments as per the terms of the agreement.  It has come out in evidence that the complainant had paid Rs. 3,32,000/- to the opposite party.  But the opposite party had done construction works worth only Rs. 1,80,000/-.  So the contention of the opposite party that the reason for the non-completion of the construction of the building was due to the non-co-operation of the complainant, that she had not made payments as per the terms of the agreement is not sustainable. After considering the evidence the District Forum found that the opposite party had committed deficiency of service by not completing the construction of the building of the complainant as per the terms of the agreement and abandoning the construction midway.  We find that there is no reason/ground to interfere with the said finding of the District Forum.  The District Forum has directed the opposite party to pay compensation of Rs. 1,50,000/- to the complainant.  Admittedly the opposite party collected an excess amount of Rs. 1,52,000/- from the complainant.  In these circumstances Appeal No. 454/2017 filed by the opposite party against the order of the District Forum is liable to be dismissed. 

10.  The grievance of the complainant who has filed Appeal No. 857/2015is that the compensation ordered by the District Forum is too low.  The counsel for the appellant submitted that it has come out in evidence that the opposite party collected an excess amount of Rs. 1,52,000/- from the complainant.  But the compensation ordered by the District Forum is only Rs. 1,50,000/-.  He further submitted that the complainant had to incur additional expenses since the opposite party had abandoned the construction of the house midway.  The cost of materials and labour charges are likely to increase day by day, when there is delay in making construction of the house building.  Considering all these aspects we consider that the compensation ordered by the District Forum is inadequate and it has to be enhanced.  Considering the facts and circumstances, we consider that an amount of Rs. 3,00,000/- as compensation will be just and reasonable.  The District Forum has ordered costs of Rs. 5,000/- which is just and reasonable, which do not call for any interference. In view of the above, the order passed by the District Forum is to be modified by enhancing the amount ordered to be paid by the opposite party to the complainant as compensation to Rs. 3,00,000/-. 

In the result, Appeal No. 857/2015 is partly allowed and the order passed by the District Forum is modified by enhancing the compensation ordered to be paid by the opposite party/respondent to the complainant/appellant to Rs. 3,00,000/-.  In all other aspects, the order of the District Forum will stand.  The parties are directed to suffer their respective costs. 

Appeal No. 454/2017 is dismissed.  Parties are directed to suffer their respective costs. 

In Appeal No. 454/2017 the appellant has deposited Rs. 25,000/- at the time of filing the appeal.  The respondent/complainant is permitted to obtain release of the said amount on filing proper application to be adjusted/credited towards the amount due to her from the appellant/opposite party. 

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                                           T.S.P. MOOSATH   : JUDICIAL MEMBER

                                  RANJIT. R                : MEMBER

jb