Tamil Nadu

South Chennai

CC/765/2004

Mr.Jeevan Jeyaraj - Complainant(s)

Versus

City Bank N.A. - Opp.Party(s)

L.Arokiasamy

21 Feb 2017

ORDER

                                                                        Date of Filing :   18.08.2004

                                                                        Date of Order :   16.02.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 759/2004

THURSDAY THIS  16^th  DAY OF FEBRUARY 2017

Mr. Soundarrajan,

No.33/5, 2^nd Main Road Extension,

Thirupathi Nagar,

Kolathur,

Chennai 600 099.                                 .. Complainant.

 

                                   ..Vs..

Mr. Raman,

Maistry,

No.5/7, Anna Road,

MGR Nagar, 2^nd Street,

Chennai 600                                           .. Opposite party.

 

Counsel for the Complainant              :  M/s. C. Umashankar & another  

Counsel for the opposite party           :  M/s. G.S.Sivakumar  

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.3,00,000/- for monetary loss and mental agony.  

1. The averment of the complaint are brief as follows:

         The complainant is the absolute owner of land at No.33/5, 2^nd main Road Extension, Thirupathi Nagar, Kolathur, Chennai and desirous to construct a house over the said land, he entered into an agreement with the opposite party, who is a Mason to build a house as per his requirement.   The opposite party measured the place and stated that the total area for putting up construction is about  880 square feet and charged Rs.480/- per square feet.  The complainant  agreed to this rate and paid the opposite party an advance amount of Rs.25,000/- which the opposite party received and started construction on 15.9.2002.  Further the complainant states that the opposite party received various amounts on various dates at every stage of work and that during the period from 15.9.2002 to 13.8.2003 and he had received a total sum of Rs.5,55,000/- for completion of the said house.

2.     When the opposite party informed him that the construction has been completed, he went to see the same and was shocked by the poor quality of construction and enquired about the quality of construction, the opposite party was very evasive and not even divulged the split up figure for the construction which he has made.    After long persuasion the opposite party came forward to reveal certain figures.   The complainant further states that he engaged an independent engineer to verify and report the exact measurement of construction and quality of the same.   On examining the report of the independent Engineer, he came to realize that not only the measurements were overestimated but that he had also been charged twice in respect of certain items of work by the opposite party.

3.     The complainant states that the construction was sub-standard and of poor quality to his utter dismay he found that the walls and floors developed cracks.   The complainant has been cheated by the opposite party in as much as he has paid excess amount, construction is of sub-standard quality and the opposite party did not heed to his request for rectifying the defects inspite of his repeated request.     Then the complainant issued a legal notice dated 16.12.2003 calling upon the opposite party to repair the cracks and rectify the defects in the construction.    But after receipt of the said notice also the opposite party was deliberately avoiding the complainant from making the repairs.  Hence the complaint.

4. Written Version of  opposite party are  in brief as follows:

The opposite party denies all the allegations contained in the complaint except those that are expressly admitted here under.   It is true that the complainant had engaged the services of the opposite party to construct the building.   In fact, the complainant had approached the opposite party to construct his house.    The complainant required built up area of 880 sq. ft. constructed in the land.   The opposite party has agreed to build the superstructure after measuring the land.  The terms were discussed in detail between both parties before the terms were reduced in writing.   All the conditions and the mode of payments were discussed and there was no ambiguity while executing the contract.   The complainant was satisfied with the terms and the integrity of the opposite party

5.     The possession  was handed over by the complainant as per the contract.   The opposite party had started the construction in right earnest from 15.9.2002 as admitted in the complainant.  The construction was periodically supervised by the complainant and his suggestions were implemented by the opposite party immediately.  The complainant or his authorized person was present throughout the period of construction.  They have not made any complainants during the period of construction regarding the materials used for the construction.   On the other hand the opposite party used to seek the complainants’ views regarding the quality of his work.   The complainant did not raise any objection in respect of quality of materials used by the opposite party.  In other words, the complainant was aware of the materials and its quality from the beginning of the construction till date of completion of the work.   The complainant visited the spot before taking delivery of possession of the completed building.   It is not correct to state that as made in para-5 of the complaint as if the complainant visited the place for the first time.

6.     The opposite party denies the allegation that the amount of Rs.5,55,000/- was paid by the complainant from 15.9.2002 to 13.8.2003.  The complainant only had paid the amount of Rs.5,20,000/- till date, though the construction was completed in all respects as per the conditions within the stipulated time.   It is not correct to allege that the opposite party had made evasive reply to the complainant and did not disclose the amounts spent for the construction.   The correct figures were disclosed to the complainant and it was tallied with the statement of accounts kept by the complainant.   The accounts revealed that the complainant has to pay the balance amount towards the construction cost of Rs.35,000/- to the opposite party.  

7.     In fact, the complainant has agreed to pay the balance amount to the opposite party within 15 days.  It is not correct to allege that the costs were over charged and the construction was of sub-standard.   The opposite party is not aware of the report made by the engineer.   The opposite party states that the report cannot be relied at any event as it ought to have prepared for the purpose of this complaint.

8.     The opposite party met the complainant after the receipt of the notice to have a discussion.  The complainant gave an evasive reply for the issuance of the notice.   He asked the opposite party to ignore the notice as it was issued without proper appreciation of facts.   The opposite party believed  the complainant ‘s response and did not issue the notice.  The opposite party has not committed any deficiency of service under the consumer act.  The complaint is made so as to avoid the payment of Rs.30,000/- due to the opposite party for the work done by him.     He should have disclosed how he suffered mental agony and deserved to be dismissed with cost.   

9.       In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 marked.  Proof affidavit of opposite party filed and no document was marked on the side of the opposite party.  

10.   At this juncture, the point for the consideration before this

        Forum is:  

 

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite party as alleged in the complaint?

 

2.  Whether the complainant is entitled to any relief as prayed for?

11.  Point No.1

            It is an admitted fact that the complainant had engaged service of the opposite party to construct the building and for build up area to extend of 880 sq ft. and both of them satisfied with terms and conditions and thereby the opposite party has started the construction from 15.9.2002 as admitted by the complainant.   During construction the complainant has paid amount periodically from 15.9.2002 to 13.8.2003 and the opposite party had received a total sum of Rs.5,55,000/-. The note book with entries for payment made by the complainant to the opposite party for the above said period is marked as Ex.A1.   Further it is learnt that when the opposite party informed the complainant the construction has been completed, he went to see the same and was shocked by the poor quality of construction.  In this aspect, on enquiry about the quality of the construction the opposite party was very evasive and not even divulged the split up figures for the construction, which he has made.   After long persuasion the opposite party came forward to reveal certain figures.   Further the complainant found that the construction was sub standard and used poor quality of materials and found that the walls and floors developed cracks. Subsequently the complainant engaged an independent Engineer to verify and measurement of the construction and the quality of the same and obtained Engineer’s report which is marked as Ex.A4.  It is further stated by the complainant that though the opposite party was paid on excess amount and repeated request for rectifying the defects but the opposite party has not come forward to rectify the construction and hence the complainant had issued Ex.A2 legal notice to the opposite party and even on receipt of the same the opposite party deliberately avoiding the complainant by making repairs, the acknowledgment card is marked as Ex.A3. 

12.    On the other hand from the evidence of the opposite party it is stated that the allegation made in the compliant are all denied and in fact the complainant has  paid a sum of  Rs.5,20,000/- only  till date and in order to avoid the payment of the balance amount of Rs.35,000/- the complaint is filed.  Hence the opposite party  was not committed any deficiency in service and alleged Engineer report cannot be taken into consideration and the same has  been prepared only for the purpose of the complaint.

13.    At the outset, from the rival submissions put forth on either side, the only contention raised by the opposite party is that the complainant has not paid the whole amount of Rs.5,55,000/- as agreed but he has paid only Rs.5,20,000/- only and the balance amount of Rs.35,000/- to be paid.  At this instance, in order to final truth of the alleged payment, on careful perusal of Ex.A1 series, it is found that the complainant paid amount on different dates from 15.9.2002 to 17.8.2003.   It is crystal clear that the complainant has paid the whole amount as agreed between the parties.   It is further seen that each and every amount for the receipt of the same the opposite party has signed.    In such circumstances the opposite party had neither denied the receipt of the payment nor the signature of the opposite party found in Ex.A1.  Hence, there is no doubt regarding the above payment through Ex.A1 series.   If it is so, the opposite party ought to have proved the above payment and to prove that the balance amount of Rs.35,000/- is due to the opposite party by the complainant and in which the burden of proof shifted to the opposite party,  but the opposite party has failed to do so.   Not only that the opposite party did not sent any reply to the complainant Ex.A2 legal notice which containing all the above facts which clearly shows that the allegations made in the complaint becomes true.  Furthermore, on going through Ex.A4 it is found that there are so many defects in the construction as mentioned in that report and thereby the sub-standard poor quality of the construction has been proved which certainly caused mental agony and hardship to the complainant and the same has to be compensated.

14.    In the light of the above and evidence adduced on both sides the deficiency in service committed by the opposite party has been proved. Thus point No.1 is answered accordingly.

15.    POINT No.2

As per the decision arrived in point No.1, the complainant is entitled for reasonable compensation for causing mental agony due to the deficiency in service on the part of the opposite parties with cost. Thus the point No.2 is also answered accordingly.

In the result, the complaint is allowed in part.  Accordingly the opposite party is directed to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the opposite party and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards cost to the complainant.

 

The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a. till the date of payment.

         

         Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  16^th    day  of  February 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s side documents:

Ex.A1- 15.9.2002 to   -  Copy of notebook with entries for payment made by

           13.8.2003          complainant to the opposite party

 

Ex.A2- 16.12.2003            -   Copy of Legal notice.

 

Ex.A3-         -          -   Copy of Ack. card.

 

Ex.A4- 19.11.2003            -   Copy of Report of the Engineer.

 

Opposite party’s side document: -

.. Nil..

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.