By. Sri. Jose. V. Thannikode, President:-
The complaint is filed against the opposite party under Section 12 of the Consumer Protection Act to compensate the complainant for the defects in the construction and incompletion of the house construction.
2. Brief of the complaint:- The complainant entrusted the construction work of his residential house to opposite party according to the plan and estimate approved by the municipality under an agreement executed between them on 07.07.2008. The complainant is the absolute owner and in possession of an extent of 10 cents of land in Resurvey No.406/1 of Kalpetta village, as per the Registered deed No.3298/06 of S.R.O, Kalpetta. The complainant is a business man and doing business in Kalpetta. As per the terms, the opposite party offered to complete the ground floor work of the house within 6 months @ Rs.680/- square feet including the materials in a ready to occupy condition. The complainant need only pay consideration to the opposite party according to the progress of the work. On the same day Rs.1,50,000/- and subsequent days Rs.2,25,000/- were given to the opposite party by the complainant. The receipt of which had been endorsed in the agreement by the opposite party. The complainant performed all the duties as per the terms of the agreement but the opposite party failed to complete the construction work within the stipulated period. As per the measurement taken by the complainant the opposite party had completed only 1/3 of the estimated work to be done by him as per the agreement, though he received more than the amount due from the complainant. Even though the complainant contacted opposite party directly, and with the mediators to resume the work, he failed to do so.
3. The complainant has every reason to believe that the opposite party after having received more than what is due from the complainant, has cheated the complainant by leaving the place without completing the work. If the opposite party had completed the work within 6 months of the agreement as assured by him the complainant and his family could have moved to the new house long back. The complainant has thus sustained heavy loss, injury, damage and inconvenience as a result of the breach of contract committed by the opposite party, which is estimated as Rs.5,00,000/-. Besides, the complainant also has to suffer further loss on account of the escalation of cost of materials and labour charges since the work has not been completed within the stipulated time. The additional expenses which the complainant has to incur now on account of the escalation of price of materials and the labour charges are worked out to be Rs.5,00,000/- and the work done by the opposite party and the material used is of inferior standard and quality. The work done by the opposite party suffers from serious infinities and defects. The opposite party also deviated from the plan and permit without getting consent from the complainant. On the above head the complainant lost Rs.1,00,000/- the above act of the opposite party is a clear deficiency of service, which is to be compensated. The total amount of compensation which the complainant claimed is calculated to be Rs.11,00,000/-.
4. In the above circumstances the complainant caused to send a Registered Notice to the opposite party on 21.10.2010, calling upon him to complete the work within one month of receipt of Notice, also calling upon him to resume the work within 7 days thereof and reiterating interalia that failing which it would be presumed that the opposite party has abandoned the work and that the complainant would be constrained to complete the work at the risk and costs of the opposite party by engaging other persons. Though the opposite party received the notice, he has neither complied with the directions nor sent any reply for the same.
5. Anyway the complainant ought to have complete the remaining work. When the complainant planing to resume the remaining work, he got a reliable information from the neighbours of the opposite party that the opposite party is planing to obstruct the complainant from engaging other persons to complete the work with some ulterior motives. In the circumstances the complainant filed a suit before the Munsif Court Kalpetta as OS 289/2010 for the relief of Prohibitory injunction as against tress pass in the property. In the proof affidavit complainant stated that the above petition is allowed by the Munsif Court.
6. Hence the complainant prayed before the Forum to direct the opposite party to pay to the complainant a sum of Rs.11,00,000/- as damages, loss and injury caused as a result of the deficiency in the service of opposite party and also direct the opposite party to pay cost of the complaint and other reliefs.
7. The complaint filed on 22.11.2010 and Notice were served to opposite party and opposite party entered appearance and filed version. But thereafter the opposite party set ex-parte on 12.09.2013 and proceeded with the case. As per the Evidence Act 1872, S 114 illustration (g), Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh V Gurdial Singh (AIR 1927 PC 230:32 CWN 119).
8. On considering the complaint, affidavit, documents and arguments the following points are to be considered:-
1. Whether there is any deficiency in service on the part of the opposite parties?
2. Relief and Cost.
9. Point No.1:- Since the opposite party is set ex-parte trial was conducted in the case by examining the complainant. The complainant deposed before the Forum in accordance with the averments made in the complaint and Exts.A1 to A12 and X1 are marked. Ext.A1 is the Building permit issued by the Kalpetta, Municipality. Which shows complainant took building permit for construction of his house. Ext.A2 is the Plan of the proposed house. Ext.A3 is the Agreement executed between complainant and opposite party. Which shows the terms and conditions stated in the complaint. Ext.A4 series are the Lawyer Notice, Receipt and Acknowledgment Card issued by the complainant to opposite party. Which shows that complainant sent the Notice for resuming the work. Ext.A5 is the Plaint copy of the suit OS 289/2010 filed by the complaint against the opposite party to restrain the opposite party from disturbing the resume work of the house. Ext.A6 is the written statement filed by the opposite party in OS 289/2010. Ext.A7 series are the Commissioner Report pertaining to this complaint. Ext.A7 (c ) is the final Commissioner Report filed on 13.04.2012, which shows the existing construction and total cost of construction for the existing work as per the Public Works Department rate in the year 2008 and also provide the cost of balance work as per the Public Works Department rate in the year 2008 and escalated price in the year 2010.
10. On considering the complaint, affidavit, documents and deposition of witness, we find that there is deficiency of service from the side of opposite parties and liable to pay compensation to the tune as detailed below:-
Total Cost of works already done by the opposite party : 2,55,035.
as per Commissioner Report (ie Ext.A7 (c) ). :
Complainant paid to the opposite party (admitted amount) : 3,75,000.
(a). Difference of the above : 1,19,965.
Cost of the remaining work as per the Commissioner Report:
in the year 2008. : 2,59,812.
Cost of the remaining work in the year 2010 (escalated price): 4,07,272.
Less Cost in the year 2008. : 2,59,812.
(b). difference of the cost of 2008 and 2010. : 1,47,460. 1,47,460.
Total of (a) and (b) 2,67,425.
(
As calculated above the complainant is entitled to get Rs.2,67,425/- as loss sustained due to the deficiency of service from the opposite party and opposite party is liable to compensate the same. And the opposite party is also liable to pay the interest @ 6% from the date of filing this complaint that is on 22.11.2010 to the complainant and the Point No.1 is found accordingly.
11. Point No.2:- As we find deficiency of service from the part of opposite party, the complainant is entitled for an amount of Rs.5,000/- as compensation and Rs.2,500/- as cost of this complaint. The Point No.2 is found accordingly.
In the result the complaint is partly allowed and the opposite party is directed to pay Rs.2,67,265/- (Rupees two lakh sixty seven thousand two hundred and sixty five) only with 6% interest from 22.11.2010 and also directed to pay Rs.5,000/- (Rupees five thousand) only as compensation and Rs.2,500/- (Rupees two thousand and five hundred) only as cost of this complaint. This Order must be complied by the opposite party within 30 days from the date of
receipt of this Order, failing which the complainant is entitled for interest @ 10% for the whole amount thereafter.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 2nd day of December 2013.
Date of Filing:22.11.2010.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
PRESIDENT, CDRF WAYANAD.
APPENDIX.
Witness for the complainant:
PW1. N. K. Pradeepkumar. Complainant.
PW2. Ajaykumar. Secretary, Kalpetta Co-operative Urban Society Ltd, Kalpetta.
PW3. N. J. Hanas. Advovate.
Witness for the Opposite Party:
Nil.
Exhibits for the complainant:
A1. Copy of Building Permit.
A2. Copy of Plan.
A3. Copy of the Agreement. Dt:07.07.2008.
A4(Series). Copy of Lawyer Notice, Receipt and Acknowledgment.
A5. Plaint copy of the suit in Munsiff Court.
A6. Copy of Written Statement.
A7(Series) a. Copy of Commissioner Report.
b. Copy of Commissioner Report.
c. Copy of Commissioner Report.
A8. Copy of Petition.
A9. Certificate of Deposit Accounts.
A10. Bank Account Statement.
A11. Copy of Plan and Estimate.
A12. Copy of Payment Receipts.
X1. Consolidated Statement of Account. Dt:09.12.2011
Exhibits for the opposite Party.
Nil.
