STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
F.A.No.95/2014
(Against the order passed in C.C.No.490/2012, dated 12.07.2013 on the file of the District Commission, Coimbatore)
TUESDAY, THE 03rd DAY OF AUGUST 2021.
A. Veeramani,
S/o. R. Annamalai,
11-B, Nehru Street,
Arignar Anna Colony,
SIDCO Po,
Coimbatore – 641 021. Appellant/Complainant
Vs
Er.J. Wilfred Jebaraj, Civil Engineer,
13/149, A. Deivanayagi Nagar,
Near Roots Company Po,
Ganapathy Po,
Coimbatore – 641 006. Respondent/Opposite Party
Counsel for the Appellant/Complainant : M/s. V. Balaji, Advocate.
Counsel for the Respondent/Opposite party : M/s. K. Ramesh, Advocate.
This appeal coming before us for final hearing today, on 03.08.2021 and on hearing the arguments of the appellant and on perusing the material records, this Commission made the following
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT (Open Court)
1. This appeal has been filed by the appellant/complainant under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Coimbatore made in C.C.No.490/2012, dated 12.07.2013, dismissing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redressal Forum, Coimbatore. As per the Consumer Protection Act, 2019 the District Consumer Disputes Redressal Forum is nomenclatured as District Consumer Disputes Redressal Commission (In short, “District Commission”).
3. The case of the complainant before the District Commission is that he had entrusted the construction of 1st floor of his property situated at 11-B, Nehru Street, Arignar Anna Colony, SIDCO Post, Coimbatore-21 with the opposite party who is in the business of buildings construction. The construction of 1st floor measuring 24 ft x 11 ft was agreed by the opposite party for a sum of Rs.2,90,000/-. The complainant paid an advance amount of Rs.2,25,000/- and the complainant and the opposite party entered into an agreement on 16.07.2011. The opposite party had agreed to construct the building within three months from 27.07.2011. The complainant also agreed to pay the balance amount of Rs.67,000/- on completion of construction work. Though the opposite party has received Rs.2,25,000/- as advance amount from the complainant he has not chosen to carry out the construction work. Hence, the complainant engaged another builder namely one V. Shanmugam and completed the construction work. The said Shanmugam received Rs.3,50,000/- for completion of the work. The complainant was forced to engage the said V. Shanmugam since the opposite party had not come forward to complete the construction as agreed. Because of the attitude of the opposite party, the complainant had incurred more expenses to complete the work. Further, the complainant was also put to great mental agony and sufferings due to failure on the part of the opposite party to put up the construction work. Hence, the complainant issued a lawyer notice, dated 01.08.2012 to the opposite party calling upon him to pay compensation. The opposite party received the said notice but he has not chosen to pay the demand made by the complainant and hence the complainant filed the complaint before the District Commission for a direction to the opposite party to refund Rs.2,25,000/- with interest at the rate of 24% per annum from 16.07.2011 till its realization and also to pay a sum of Rs.15,090/- being the excess amount paid by the complainant for construction work and Rs.5,00,000/- as compensation for deficiency in service committed by the opposite party which resulted in mental agony and monetary loss to the complainant.
4. The complaint was resisted by the opposite party by filing a written version contending inter alia that the complainant approached the opposite party for construction of the house measuring 24 ft x 11.5 x 10 in the existing house at No.11-B Nehru Street, Arignar Anna Colony, Sidco Post, Coimbatore and for the said purpose and an agreement was entered into in detail for a total amount of Rs.2,90,000/- and the opposite party received a sum of Rs.2,25,000/- as advance amount from the complainant. But, the complainant during the course of construction was frequently instructing the opposite party to alter the plinth area of the 1st floor. Initially, for clearing the debris from the house alone took more than a month due to non-cooperation of the complainant. After initial spade work, construction work measuring 24 x 11x.5 x 10 was commenced. Suddenly, the complainant requested the opposite party to modify the area into 26.5 x 12’ x 10’ with additional costs for the remaining part of the earlier construction and additional tiles etc.., worked out to Rs.1,00,000/- and the complainant agreed to enter into a fresh agreement by incorporating the additional features. But, subsequently, the complainant under the guise of one or other reason, failed to enter the revised agreement. Believing the words of the complainant, the opposite party procured bricks and other building materials etc., to the tune of Rs.2,00,000/- and kept them at the site of the complainant for construction of the first floor as per the revised plan of the complainant. Before commencing the works, the officials from the Local Body visited the construction site and asked the opposite party to produce the building approval for additional construction and hence the opposite party approached the complainant and instructed him to produce a copy of the building approval to the local body personnel. But, the complainant said that he did not obtain additional plan approval and therefore local body personnel instructed the opposite party not to proceed with the construction work until the building approval is obtained. Hence, the opposite party was left with no other option except to stop the work. Even after 5 months, the complainant did not apply for necessary approval and therefore the opposite party is in no way responsible for the delay in completion of the building. Therefore, the opposite party sought for dismissal of the complaint.
6. Before the District Commission, on the side of the complainant proof affidavit was filed and Exhibits A1 & A2 were also marked whereas on the side of the opposite party proof affidavit was filed and no Exhibit was marked
7. After analysing the documents and submissions made by either side, the District Commission dismissed the complaint for the reason that no building can be constructed within the limits of Coimbatore City Municipal Corporation without approved building plan issued by the Local Body. But, the complainant has not obtained building plan and he has also not produced any such building plan or other evidence to show that he had already obtained building plan approval. Similarly, the District Commission has also come to the conclusion that the complainant has failed to substantiate his contention that he engaged one Shanmugam and completed the construction by spending additional amount of Rs.3,50,000/- and therefore the District Commission dismissed the complaint holding that the complaint has not produced any acceptable evidence to show that the opposite party has committed deficiency in service. Aggrieved over by the order of the District Commission, the complainant has preferred this appeal seeking for setting aside the same and the complaint be allowed.
9. In view of the submission made by both sides, the following point is raised for disposal of this appeal?
(1) Whether the appeal has to be allowed and the complainant is entitled for refund of Rs.2,25,000/- from the opposite party?
10. Point No.1:- Heard both sides’ submissions and perused the materials on record. Keeping in mind the submissions made on either side, we have carefully considered the same. As we have appreciated the factual aspect of the case at required length we refrain ourselves from reiterating it any further in the appeal. However, certain facts which are essential alone are dealt with hereunder for the purpose of this appeal.
11. The only grievance of the counsel for the appellant is that no building approval plan was produced by the complainant before the District Commission. The dismissal of the complaint in toto is not correct and proper when it is admitted by the opposite party that he had received a sum of Rs.2,25,000/-as advance from the complainant and hence the complainant is entitled for refund of Rs.2,25,000/-. Further, the counsel for the appellant also submitted that though it has been claimed by the opposite party that he spent a sum of Rs.2,00,000/- for procuring building materials, no proof was produced before the District Commission and in such circumstances the said submission of the opposite party cannot be accepted.
9. Though it is true that the complainant has failed to produce any plan approval, the District Commission, ought to have directed the opposite party to refund the amount of Rs.2,25,000/- received from the complainant as advance since the opposite party had not commenced the construction work. The opposite party has also failed to produce any documents to show that he had purchased building materials to the tune of Rs.2,00,000/- as claimed in the written version. In the above circumstances, we agree with the submissions made by the complainant and accordingly we direct the opposite party to return the advance amount of Rs.2,25,000/- with interest at the rate 6% from 16.07.2011 till its realisation.
10. In the result, the appeal is allowed by setting aside the order of the District Commission, Coimbatore made in C.C. No.490/2012, dated 12.07.2013 and the complaint is allowed by directing the respondent/ opposite party to pay a sum of Rs.2,25,000/- with 6% interest per annum from 16.07.2011 till its realisation, with cost of Rs.5000/-.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
Index: Yes/No
