Date of Filing 03.02.2020

                                                                                                             Date of Disposal: 16.11.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

CC.No.15/2020

THIS THURSDAY, THE 16^th DAY OF NOVEMBER 2023

Mrs.Vittobai,

W/o.Late K.Shanmugam,

No.8, 11^th Street, Padipudhunagar,

Anna Nagar West, Chennai – 600 040.                                                ......Complainant.

                                                                              //Vs//

G.R.B.Construction and Real Estates,

Rep. by its Proprietor Mr.G.R.Baboo,

Having Office at No.64,

2^nd Street, Nachiyarchathiram,

Tiruninravur 602 024.                                                                          .…..Opposite Party.

Counsel for the complainant                                : Mr.S.Muthukumaravel, Advocate.

Counsel for the opposite party                              : Mr.D.Visvabharathi, Advocate.

This complaint coming before us on various dates and finally on 09.11.2023 in the presence of Mr.S.Muthukumaravel, counsel for the complainant and Mr.D.Visvabharathi, counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to the construction made by them along with a prayer to direct the opposite party to pay a sum of Rs.5,00,000/- towards compensation for deficiency in service in not completing the construction as per the agreement, to pay s sum of Rs.1,00,000/- towards non-intimation of stoppage of work, to pay a sum of Rs.8,00,000/- towards completion of the project, to pay a sum of Rs.2,00,000/- towards the inordinate delay in handing over the building along with cost of Rs.6,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that an construction agreement was entered with the opposite party for constructing a house on 21.08.2016.  As per the agreement the total cost was fixed at Rs.17,01,525/- and the complainant had paid a sum of Rs.16,47,000/- to the opposite party.   As per the agreement the opposite party has to complete the construction within 6 months from the date of agreement and the costs has to be paid periodically and the same was also paid by the complainant without any delay but for the opposite party has left out the building with incomplete works in the ground floor such as flooring and tiles, external and internal plastering, electrical wiring, Doors and windows, cupboard plastering and slap fixing, electrical work outer lighting and motor pump, sump for water storage, toilet sewage connection etc., and in the first floor such as roofing work-concrete, left work, external and internal plastering/ceiling, windows and ventilators, Doors, Floorings and tiles, Cupboard plastering and slap fixing, electrical fixtures, fittings, wiring, plumbing work, toilet work, sewage connection, painting work, kitchen tables and cup boards, extension of columns, parapet wall, weathering coat for ceiling and electrical wiring etc. Though the complainant requested to complete the construction work the opposite party did not turn up for the reasons best known to him. The complainant did not have any due to be paid to the opposite party.  Receiving payment and leaving the works incomplete by the opposite party was a gross deficiency in service and unfair trade practice.  The complainant was surprised by the denial of receipt of payment of Rs.16,47,000/- by the opposite party and admitting only the receipt of Rs.13,60,000/-. The payment of Rs.16,47,000/- includes Rs.1,69,000/- on account of extra work for 149 square feet, Rs.65,000/- towards half share of cost of bore well and motor and Rs.72,000/- towards electricity connection and meter charges.  The remaining Rs.14,41,000/- was exclusively for construction of the building portion against which the opposite party has completed 70% of work in Ground Floor and 20% of First floor amounting to Rs.8,17,000/- only.  Thus, aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to pay a sum of Rs.5,00,000/- towards compensation for deficiency in service in not completing the construction as per the agreement, to pay s sum of Rs.1,00,000/- towards non-intimation of stoppage of work, to pay a sum of Rs.8,00,000/- towards completion of the project, to pay a sum of Rs.2,00,000/- towards for the inordinate delay in handing over the building along with cost of Rs.6,000/- towards litigation expenses to the complainant.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations contending interalia that the complainant approached the opposite party to construct a building and after mutual understanding an agreement was entered on 21.08.2016 between them.  Accordingly as per the agreement, total cost was fixed at Rs.17,01,525/-.  But the opposite party specifically denies that the complainant had paid a sum of Rs.16,47,000/-.  As per the agreement the building construction work was only 735 square feet.  In this regard ground floor work was finished by the opposite party.  On request of the complainant to extend 65 square feet further construction the opposite party demanded sum of Rs.84,500/-  The complainant promised to give that additional extent cost but till now had not given that amount.  It was submitted that ground floor to first floor, first to second floor staircase was no mentioned in the agreement.  The construction cost sum of Rs.2,40,000/- should be paid by the complainant. In the month of September 2016 the opposite party requested extra amount for sand because sand was in demand during that time one Thenmozhi was paying the amount. The opposite party demanded Rs.1,50,000/- as per the agreement.  Thereafter agreement amount transaction between the complainant and opposite party had stopped because the said Tmt.Thenmozhi alone had given amount to opposite party.  At the time of death of Tmt.Thenmozhi, construction work in the Ground Floor internal plastering work was finished, external ground floor one side wall was finished. The opposite party has spent extra amount regarding Bore well and Electricity connection.  The opposite party received only a sum of Rs.13,50,000/- from the complainant. It was submitted that he got loss because of the complainant’s construction due to defaulting payment and extension of building.  The complainant has to pay a sum of Rs.9,36,025/- to the opposite party.  Thus he sought for the dismissal of the complaint.

4. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B4 were submitted.

Points for consideration:-

1)   Whether the allegations of the complainant that the opposite party has inspite of receipt of money stopped the construction in the middle amounting to deficiency in service and unfair trade practice has been successfully proved by the complainant by admissible evidence?

2) If so to what reliefs the complainant is entitled?

 Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. List of payment done by online and cheque by the complainant to the opposite party was marked as Ex.A1;
2. Construction Agreement 21.08.2016 was marked as Ex.A2;
3. Legal notice issued by the complainant to the opposite party on 25.09.2019 was marked as Ex.A3;
4. Reply by the opposites party to the complainant’s counsel dated 09.10.2019 was marked as Ex.A4;
5. Legal notice issued by the complainant to the opposite party dated 23.10.2023 was marked as Ex.A5;
6. Reply notice issued by the opposite party to the complainant dated 14.11.2019 was marked as Ex.A6;
7. Photos were marked as Ex.A7;

On the side of opposite party the following documents were filed in proof of their defence;

8. Legal notice by the complainant dated 25.09.2019 was marked as Ex.B1;
9. Reply notice of the opposite party dated 03.10.2019 was marked as Ex.B2;
10. Legal notice by the complainant dated 23.10.2019 was marked as Ex.B3;
11. Re-joinder by opposite party dated 14.11.2019 was marked as Ex.B4;

            5. Heard Oral Arguments made by the learned counsel appearing for the complainant. The learned counsel appearing for the opposite party endorsed that the written arguments filed by them may be treated as oral arguments.  Hence this Commission considered the written arguments made by the opposite party for passing the order on merits.

6. The learned counsel appearing for the complainant argued that the construction Agreement was entered between the parties in 2016 and that the total cost was fixed at Rs.17,01,525/- and that the complainant had paid Rs.16,47,000/-, claiming a higher amount the opposite party stopped the work.  He also relied upon the Advocate Commissioner’s Report in proof of his allegations and he prayed for the complaint to be allowed directing the opposite party to pay a sum of Rs.14,74,350/- as estimated by the Chartered Engineer for the completion of the work.

7. On the other hand, by way of written arguments it was submitted by the opposite party that it was not true that the complainant had paid the said amount of Rs.16,47,000/- but had paid only Rs.13,50,000/- and even as per agreement Rs.6,76,025/- is pending.  Further as per the request of complainant additional construction work was made and hence totally a sum of Rs.9,36,025/- has to be paid by the complainant to the opposite party.  Denying that he did not stop the work in middle but only due to non-payment of money as agreed by the complainant the opposite party could not complete the construction the opposite party sought for the dismissal of the complaint.

8. We perused the pleadings and evidence submitted by both parties and the Advocate Commissioner’s Report along with Chartered Engineer’s Report.  The complainant had filed Ex.A1 the Statement of Account to show that he had paid a sum of Rs.16,71,040.4/- by cueque and NEFT as follows:

No.                             Date                                                 Amount

1.                            12.08.2016                                      :  4,50,000/-

2.                            26.08.2016                                      :     79,005.75/-

3.                            30.08.2016                                      :     79,000/-

4.                            07.10.2016                                      :     50,000/-

5.                            14.10.2016                                      :  2,00,000/-

6.                            15.10.2016                                      :  2,00,000/-

7.                            19.12.2016                                      :  3,00,028.75/-

8.                            27.12.2016                                      :      63,000/-

9.                            11.12.2017                                      :  1,00,005.90/-

10.                          18.12.2017                                      :     50,000/-

11.                          28.12.2017                                      :      50,000/-

12.                          06.01.2018                                      :       50,000/-

                                                                                           ........................

                                              Total amount                    :16,71,040.4/-

9. The fact that construction agreement entered between the parties, payment of money (though quantum disputed) construction by opposite party was not in dispute.  However, the main allegation is that the opposite party had not completed the construction was not denied by them.  The only reason stated by the opposite party was that as the complainant failed to make the payment as agreed, they could not complete the construction and also complainant sought for some extra works.  The opposite party however did not file any piece of evidence to show that they had done any extra work for the value beyond the payment made by the complainant and that the complainant was still due for payment of Rs.9,36,025/-.  In the absence of any evidence we could not accept the bald allegations of the opposite party.

 10.  As per the Advocate Commissioner’s Report, the Chartered Engineer after thorough inspection had filed his report along with photos of the construction made by the opposite party.  He had clearly provided the actual agreed measurement value and also the revised agreement value.  He also provided that the opposite party had completed construction in 2016 for a value of Rs.10,50,000/-.  In his report he had listed out the visible defects and damages such as cracks and cavities in the pillars and he also observed that the structure is completely weakened due to the weather condition and lack of protection coats.  The estimated value for completing the construction as on 15.01.2023 is Rs.14,74,350/-.

11. The opposite party walking out the construction without completing the building though not disputed by either of parties, the reason could not be culled out as no clear pleadings and evidences submitted by both parties.  Therefore, we could not hold the opposite party liable for the damages caused due to the incompleted works. However, in the facts and circumstances though we are unable to accept the estimated cost for completion of the incomplete works, the allegation of the complainant that the act of opposite party not completing the construction for the value of money received from them stood established.  Thus this Commission has no hesitation to hold that the opposite party had committed deficiency in service in not completing the construction work for the amount received from the complainant.  Except the legal notice and reply notices the opposite party did not file any documents to show that they had done any extra work beyond the agreed construction work.  In such circumstances we hold that the complainant’s allegations that the opposite party stopped the work in middle of construction and not made the construction to the value of money received from the complainant amounts to clear deficiency in service which has been successfully established by the complainant. Thus we answer the point accordingly in favour of the complainant and as against the opposite party.

Point No.2:-

12. As already discussed though the opposite party leaving the construction incomplete has been established, we are not clear as to why the work was stopped in middle due to lack of pleadings by both parties and at whose fault.  The payment of Rs.16,71,040.4/-by the complainant was proved by Ex.A1 and the value of the work done by the opposite party to the tune of Rs.10,50,000/- stood proved as per Advocate Commissioner’s Report which was placed on record.  In such facts and circumstances the relief as claimed by the complainant could not be granted in entirety.  Thus the appropriate relief would be direct the opposite party to refund the amount/value equal to the construction not made by them for the amount paid by the complainant i.e. 6,21,000/- (Rupees six lakhs twenty one thousand only) (Rs.16,71,041 - 10,50,000) with 6% interest from the date of complaint till the date of payment.  Further for the act of deficiency in service committed by them we also award a compensation of Rs.50,000/- to be paid by the opposite party to the complainant along with cost of Rs.10,000/- as litigation expenses to the complainant.

In the result, the complaint is partly allowed against the opposite party directing him

a) To refund a sum of Rs.6,21,000/- (Rupees six lakhs twenty one thousand only) with 6% interest from the date of complaint till the date of payment within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 16^th day of November 2023.

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MEMBER-I                                                                                                           PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

Court Document:-

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MEMBER-I                                                                                                         PRESIDENT