BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P.V.JAYARAJAN                                : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU V.R                                               : MEMBER

C.C. No. 333/2018 Filed on 13/09/2018

ORDER DATED: 30/04/2022

ORDER

SRI. P.V. JAYARAJAN,  PRESIDENT:

This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.After hearing the matter the commission passed an order as follows:

The case of the complainant in short is that the complainant’s mother is the owner in possession and enjoyment of 2.80 cents of property  and the complainant had entered into an agreement with the opposite party on 14/09/2015 for the construction of a residential building measuring 1415 sq.ft and the total cost of construction of the said building is Rs.26,17,750/-.  The period of completion of the said contract is 5 months from the date of execution of the agreement which expired on 14/02/2016.  Since the construction was not completed within the time as agreed, it was

extended two times verbally for 6 months for the completion of the building.  The opposite party had received total amount of Rs.26,00,000/- being the cost of construction form the complainant and in addition to that on 09/08/2016 he had received Rs.10,000/- for obtaining T.C.number from the Corporation of Thiruvananthapuram and also received Rs.11,500/- for doing extra work (kitchen cabin).  As per the agreement the  opposite party did not complete the work in time even in the extended period also.  The complainant had contacted opposite party several times and requested to complete the work.  The opposite party told that one Sreekumaran, the husband of complainant’s mother’s sister obstructed in doing the work due to the animosity towards the complaint’s mother in connection with a partition suit filed against Sreekumaran in the Munisiff Court, Thiruvananthapuram by the complainant’s mother and another.  The opposite party did not turn up to complete the work inspite of the repeated request.  In OS No.94/2017 filed by Sreekumaran pending before the Hon’ble Munsiff Court, the Hon’ble Court has appointed an Advocate Commissioner to ascertain the works already completed and the works to be completed.  Accordingly the advocate Commissioner has visited the building under construction and reported that the opposite party had completed structural works and one of the bedrooms in the ground floor and the opposite party has to completed laying tiles in the kitchen single zinc, Cera Wash basin, laying granite steps in the work area and kitchen, no bathroom fittings done in the upstairs of the building, electrical work has not been completed, window door not fitted, cupboard not fixed on the wall and also the painting works are not completed.  The complainant had contacted opposite party several times and sent registered notice to resume the work.  But the opposite party did not turn up inspite of the repeated request and the notice returned un delivered.  Apart from the cost of construction the opposite party had agreed to pay the sanction expenses, electricity connection expenses, water charges and electricity charges during construction are also included in the total cost of construction.  The complainant is entitled to recover all the above expenses from the opposite party.  Complete the construction of the building, the complainant has to spent more than Rs.10,00,000/-.  The opposite party deliberately not completing the building construction which he has to be performed in pursuance of the agreement executed with the complainant especially after receiving the entire agreed amount and this act of the opposite party amounts to deficiency in service and hence the complainant approached this Commission for redressing his grievances.

After admitting the complaint notice was issued to the opposite party.  The notice issued to the opposite party was returned unserved with endorsement “addressee left India”.  Hence the complainant filed an application as IA No.327/2021 to issue notice to the opposite party through substituted service.  That application was allowed and the complainant produced paper publication as directed by this Commission.  After paper publication the name of the opposite party was called absent and the opposite party was declared as ex parte.

The evidence in this case consists of PW1 and Ext.A1 to A3 on the side of the complainant.  The opposite party being declared ex parte, there is no oral or documentary evidence from the side of the opposite party.

                             Points to be considered.

     1) Whether there is any deficiency in service on the part of the Opposite Party?

     2) Whether the complainant is entitle for the relief claimed?

 3) Order as to cost?

Heard.  Perused records and affidavit.  To substantiate the case of the complainant, the complainant himself sworn an affidavit as PW1 and Ext.A1 to A3 were produced and marked.  Ext.A1 is the Copy of Agreement.  Ext.A2 is the Returned registered notice.  Ext.A3 is the Copy of commission report filed before the Munsiff Court, Thiruvananthapuram in OS No.94/17.  As the opposite party was declared ex parte, there is no written version or oral and documentary evidence from the side of the opposite party.  The main allegation of the complainant is that the opposite party has not completed the construction work as agreed up on.  According to the complainant to complete the remaining pending works Rs.10 Lakhs is required.  The complainant also contended that the act of the opposite party amounts to deficiency in service and due to that deficiency in service, the complainant has suffered mental agony and financial loss.  From the evidence available before this Commission, it is evident that the work of the building construction is not completed.  But to substantiate that Rs.10 Lakhs is required for the remaining pending works is not supported by any data or cogent evidence.  Hence we are unable to accept the claim of Rs.10 Lakhs made by the complainant in the absence of any evidence to prove the same.  By swearing an affidavit as PW1 and marking documents Ext.A1 to A3, we find that the complainant has established that he has suffered mental agony as well as financial loss due to the act of the opposite party.  As there is no contra evidence from the side of the opposite party to discredit the evidence adduced by the complainant, we accept the evidence adduced by the complainant.  Hence we find that there is deficiency in service on the part of the opposite party.  From the evidence before this Commission, we also find that the complainant has suffered mental agony and financial loss due to the deficiency in service on the part of the opposite party and hence the opposite party is liable to compensate the loss sustained by the complainant.  In view of the above discussion, we find that this is a fit case to be partly allowed in favour of the complainant.  As we have find that there is deficiency in service on the part of the opposite party, in the absence of any cogent evidence to prove the loss sustained by the complainant, from the available evidence, this Commission assess the loss of the complainant is Rs.1,00,000/-.

In the result the complaint is partly allowed.  The opposite party is directed to pay Rs.1,00,000/- (Rupees One Lakh Only) along with Rs.50,000/- (Rupees Fifty Thousand Only) as compensation and Rs.5,000/- (Rupees Five Thousand Only) being the cost of this proceedings to the complaint within 30 days from the date of receipt of this order failing which the amount except cost shall carry an interest @ 9% per annum from the date of order till the date of realization/remittance.     

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 30^th  day of April, 2022.    

   Sd/-

                                                P.V.JAYARAJAN                 : PRESIDENT

    Sd/-

PREETHA G. NAIR             : MEMBER   

                Sd/-

                                                                        VIJU V.R                    : MEMBER   

R        

C.C. No. 333/2018

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

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                                                                                                                  PRESIDENT