By Sri. A.S. Subhagan, Member:
This is complaint preferred under Section 35 of the Consumer Protection Act 2019.
2. Facts of the case in brief:- On 21.08.2020, the Complainant entered into an agreement with the 1st Opposite Party for the construction of a house building as per the plan approved by the panchayat, with an area of 1244 sq.ft at the rate of 1,600/- per sq.ft, as per certain conditions stipulated in the agreement. At the time of execution of the agreement the Complainant paid Rs.50,000/- to the Opposite Party in cash. Before starting the work, the Opposite Parties collected Rs.1,00,000/- each on 26.08.2020 and 11.11.2020. For this purpose, the Complainant had availed Rs.20,00,000/- as loan from the South Indian Bank. After collecting the above Rs.2,50,000/- the Opposite Parties had not worked for a long time. Before entering into the agreement, the site was visited and convinced by the site supervision and the estimate was prepared by the Opposite Party themselves. The Opposite parties had to complete the work within 9 to 10 months after agreement. The M sand and metal required for the construction was delivered in the work site at Complainant’s expenses but the Opposite Parties had purchased only cement and steel rods. The concrete pillars were constructed by the Opposite Parties as per the plan but were in an asymmetric manner. The Construction was done by sub-standard cement and steel and the ratio of the concrete was also not in correct proportion in PCC work. As the Complainant pointed out may defects in the work, the Opposite Parties abandoned the work and left the place. Then the Complainant repeatedly contacted the Opposite Parties but they tried to pacify the Complainant with lame excuses. Though they had assured to start the work the next day, nothing happened. On enquiry, the Complainant realized that the Opposite Parties had given subcontract for the work and as the Opposite Parties had not given the stipulated money to the sub-contractors, they had left the work. So, a legal notice was delivered to the Opposite Parties on 11.12.2020 asking to finish the work, curing the defects within seven days. The Opposite Parties did not responded to the notice but instead they came and constructed the balance one pillar and the beam. This construction also had many defects and the materials used were of low quality. The Complainant intimated the matter to the Opposite Parties and requested several times to rectify the faults and to finish the balance work but they did not do that. Due to the irresponsible act of the Opposite Parties, the Complainant is sustaining huge financial stringency and stress. The interest on loan is raising day by day and thus the Opposite Parties had really pushed the Complainant in utter financial crisis. The act of the Opposite Parties is deficiency in service and unfair trade practice. Hence this complaint with the following prayers before this Commission:-
- To direct the Opposite Parties to rectify the drawbacks made by them in the basement construction with quality materials with their own expenses.
- To complete the balance work as per agreement in time.
- To permit the Complainant to complete the work if the Opposite Parties are not completing the work.
- To give Rs.5,00,000/- to rectify defaults of the basement.
- To give Rs.2,50,000/- towards the extra amount sustained by the Complainant on loans availed by him.
- To give Rs.5,00,000/- towards compensation, mental agony and suffering of the Complainant.
- To give cost of this Complaint and
- To grant such other relief, the Complainant shall pray for and the Commission deems fit enough to grant.
3. Notice was served upon the Opposite Parties. Though the Opposite Party appeared and filed Version, they failed to appear and give evidence inspite of many chances were given and hence they were set exparte.
4. Proof affidavit was filed by the Complainant, Exts.A1 to A10, C1 and C2 were marked from his side and he was examined as PW1. In affidavit the Complainant reiterated all his allegations against the Opposite Party. So as to prove the defects made by the Opposite Party in the construction violating the conditions in the agreement, reports were taken from an Advocate Commissioner and Expert Commissioner, which was marked as C1. The C1 report of the Expert Commissioner was remitted by the Complainant and C2 Expert Commissioner’s report was taken and produced before the Commission. On perusal of the C1 Expert Commissioner’s report, it is seen that there are defects in the construction as pointed out in Para 6, 10 and 11 of the report. From the C2 report also it can be seen that defects are there in the construction as pointed out in para ‘d’ and ‘e’. Entering into contract for construction work and doing the work violating the plan, specifications and conditions attached thereto amounts to deficiency in service/ unfair trade practice. So, we are of the view that there has been deficiency in service/unfair trade practice on the part of the Opposite Party for which they are responsible and liable.
In the result, the complaint is partly allowed and the Opposite party is ordered to :-
- Rectify the drawbacks made by them in the basement construction with quality materials with their own expense within two months.
- Complete the balance work as per agreement within ‘8’ months from the date of receipt of a copy of this order and
- If the Opposite Parties are not willing to complete the work, permission is granted to the Complainant to complete the work and in this case, the Opposite Parties are directed to pay Rs.2,00,000/- (Rupees Two Lakh only) to rectify the defaults of the basement to the Complainant (If the drawbacks in the basement construction is rectified as aforesaid with the expenses of the Opposite Parties, this amount need not to be paid to the Complainant).
- Pay Rs.2,00,000/- (Rupees Two Lakh only) as compensation for deficiency in service/unfair trade practice and
- Pay Rs.8,000/- (Rupees Eight thousand only) as cost of this complaint.
The defects in the basement is to be rectified and the compensation and cost of the complaint shall be paid by the Opposite Parties within two months from the date of this order, failing which the amounts 2,00,000 + 2,00,000+8,000 = 4,08,000/- will carry interest at the rate of 8% per annum from the date of this order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me
and pronounced in the Open Commission on this the 26th day of November 2022.
Date of filing:- 25.02.2021.
PRESIDENT (I/C): Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant:
PW1. P. K. Narayanan. Complainant.
Witness for the Opposite Party:
OPW1.
Exhibits for the Complainant:
A1. Letter. dt:17.10.2019.
A2 (a) Pay in slip. dt:11.02.2020.
A2(b) Pay in slip. dt:02.12.2019.
A2© Receipt. dt:31.10.2019.
A3. Plan of Proposed Residential Building.
A4. Agreement. dt:21.08.2020.
A5(a). Customer Acknowledgement dt:11.11.2020.
A5(b) Customer Acknowledgement dt:26.08.2020.
A6(a) Auction Notice. dt:01.03.2021.
A6(b) Auction Notice. dt:22.02.2021.
A6(c) Auction Notice. dt:20.07.2021.
A6(d) Auction Notice. dt:08.11.2021.
A6(e) Auction Notice. dt:08.11.2021.
A6(f) Auction Notice. dt:08.11.2021.
A6(g) Ordinary Notice. dt:20.07.2021.
A6(h) Auction Notice. dt:07.03.2021.
A6(i) Ordinary Notice. dt:07.03.2022.
A6(j) Ordinary Notice. dt:07.03.2022.
A6(k) Ordinary Notice. dt:07.03.2022.
A7(a) Invoice No.4210. dt:01.09.2020.
A7(b) Invoice No.4210 (Page 2) dt:01.09.2020.
A7(c) Invoice No.311. dt:03.09.2020.
A7(d) Invoice No.1136. dt:11.11.2020.
A8(a) Invoice No.2452. dt:27.10.2020.
A8(b) Invoice No.2561 dt:29.10.2020.
A8© Invoice No.2443. dt:27.10.2020.
A8(d) Invoice No.2572. dt:29.10.2020.
A8(e) Invoice No.2482. dt:27.10.2020.
A9(a) Photos.
A9(b) Photos.
A9(c) Photos.
A9(d) Photos.
A10(a) Lawyer Notice. dt:11.12.2020.
A10(b) Postal Receipt. dt:11.12.2020.
A10© Acknowledgement.
C1. Commission Report. dt:14.07.2021.
C2(a) Report filed by Assistant Engineer,
PWD Special Building Section No.1, Kalpetta.
C2(b) Plan.
C2© Photo.
C2(d) Photo.
C2(e) Photo.
C2(f) Photo.
C2(g) Photo.
Exhibit for the Opposite Party:
Nil.
PRESIDENT (I/C): Sd/-
MEMBER : Sd/-
