DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 20th day of June, 2024.
Filed on: 18/11/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 523/2022
COMPLAINANT
M.D. Joy, S/o. Dharmaputhran, Kammadathinkal House, P.D. Road, Palluruthy, Kochi-682006.
(Rep. by Adv. Binni Kamal, 1st Floor, Sui Palace, Chittoor road, Ernakulam)
Vs.
OPPOSITE PARTY
D. Prajesh, S/o. Dharman, Poliyath House, Cheruvadhaani, Anjoor, Thrissur-680523.
(Rep. by Adv. Anish Jain & Sebi Bridgit, AS Legal, Kolappallil House, ESI road, Ernakulam North, Ernakulam 682018)
FINAL ORDER
D.B. Binu, President:
- A brief statement of facts of this complaint is as stated below:
The complaint was lodged under Section 35 of the Consumer Protection Act, 2019. The complainant and his wife are absolute owners of 2 cents of property in Survey No. 797/2 of Rameswaram Village, Kochi Taluk, Ernakulam District. The opposite party is a building contractor. The complainant entered into an agreement with the opposite party for constructing a shop room with two shutters on 450 square feet in the above-mentioned 2 cents of property for an amount of Rs. 1,670 per square foot. As per the agreement, the total amount for construction would be Rs. 8 lakhs. In the agreement, the opposite party undertook to complete the construction work of the shop room before May 31, 2022. Out of the said 8 lakhs rupees, before completing the tenure of the agreement, the opposite party received a total sum of Rs. 7,80,000 from the complainant. The agreement also stated that if the opposite party did not complete the construction works before May 31, 2022, he would return an amount of Rs. 2,50,000 to the complainant. The original agreement entered between the complainant and the opposite party dated April 21, 2022.
The opposite party violated the agreement by not completing the construction works before May 31, 2022. Stating all the facts, the complainant sent a lawyer notice dated July 30, 2022, to the opposite party, which he received but did not respond to or redress the grievances of the complainant.
The cause of action for the complaint arose on April 21, 2022, when the complainant entered into an agreement with the opposite party, and on subsequent dates, including July 30, 2022, when the complainant sent the lawyer notice to the opposite party. In the circumstances, it is prayed that this commission may be pleased to issue an order directing the opposite party to return an amount of Rs. 2,50,000 with 12% interest per annum, directing the opposite party to pay Rs. 1,00,000 as compensation for monetary loss, mental agony, and hardship suffered by the complainant, directing the opposite party to pay the complainant the cost of the proceedings, and to pass any order which this commission deems fit and proper in the circumstances of the case.
2) Notice:
The notice to the opposite party was sent by the commission. However, despite accepting the notice, the opposite party did not file a version, and as a result, they are set ex parte.
3.Evidence:
The complainants submitted an ex-parte proof affidavit along with three documents, marked as Exhibits-A-1 to A-3.
Exhibit-A-1: Agreement dated April 21, 2022, entered between the complainant and the opposite party.
Exhibit-A-2: Copy of Lawyer notice dated July 30, 2022.
Exhibit-A-3: Postal receipt dated August 2, 2022.
4. Points for Analysis:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
Analysis and Legal Reasoning:
5) The issues mentioned above are considered together and are answered as follows:
In the present case, as per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant, having entered into an agreement with the opposite party and made payments, is thus a consumer as defined under the Act. The receipt evidencing payment to the opposite party (Exhibit A-1) supports this. Exbt. A1 establish that the complainant is a consumer as defined under Consumer Protection Act, 2019. Therefore Point No. 1 goes against opposite party.
The complainant initiated legal action to seek redress for the deficiencies in service and the engagement in unfair trade practices by the opposite party. The evidence presented included an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the opposite party. Therefore, the complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
We have carefully heard the submission made at length by the learned Counsel representing the complainant and have also considered the entire evidence on record.
The opposite party has clearly violated the terms of the agreement by not completing the construction works before the stipulated date of May 31, 2022, and by failing to refund the amount of Rs. 2,50,000 as promised. This amounts to a deficiency in service as defined under Section 2(11) of the Consumer Protection Act, 2019, which includes any act of negligence or omission by the service provider leading to inadequate service.
The lack of response to the lawyer notice and the subsequent failure to participate in the proceedings further corroborate the opposite party's negligence and unfair trade practice. In the landmark case of Indian Medical Association vs. V.P. Shantha (1995) 6 SCC 651, the Hon’ble Supreme Court held that any act of omission or commission which causes a consumer to suffer due to lack of proper service constitutes a deficiency.
We determine that issue numbers (I) to (IV) are resolved in the complainant's Favor due to the significant service deficiency and the unfair trade practices on the part of the opposite party. Consequently, the complainant has endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite party.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The opposite party is directed to return an amount of ₹2,50,000 (Rupees Two Lakh Fifty Thousand Only) to the complainant as evidenced by Exhibit A-1.
- The opposite party is directed to pay ₹25,000 (Rupees Twenty-five Thousand Only) as compensation for monetary loss, mental agony, and hardship suffered by the complainant.
- The opposite party shall also pay the complainant ₹10,000 (Rupees Ten Thousand Only) towards the cost of the proceedings.
The opposite party is mandated to comply with the directives mentioned above within 45 days from the date of receipt of this order. Failure to comply with the payment orders under points I and II will result in interest at the rate of 9% per annum from the date of filing the complaint (18-11-2022) until the date of full payment realization.
Pronounced in the Open Commission this 20th day of June 2024.
Sd/-
D.B. Binu, President
Sd/-
Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar
Appendix
Complainant’s Evidence
Exhibit-A-1: Agreement dated April 21, 2022, entered between the complainant and the opposite party.
Exhibit-A-2: Copy of Lawyer notice dated July 30, 2022.
Exhibit-A-3: Postal receipt dated August 2, 2022.
Opposite party’s Exhibits
Nil
Despatch date:
By hand: By post
kp/
CC No. 523/2022
Order Date: 20/06/2024
