Date of filing: 16.09.2019
Date of disposal: 13.02.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,M.Com.,ICWA (Inter), B.L., ....MEMBER-II
CC. No.39/2019
THIS MONDAY, THE 13th DAY OF FEBRUARY 2023
Mr.K.Pachaiyappan, S/o.Kanniyappan,
No.8/18, Thangal Karai Vaniyar Street,
Poonamallee, Thiruvallur District, Chennai 56. ……Complainant.
//Vs//
Guru Chandra Constructions,
Rep. by its Proprietor Mr.Guru Chandran,
Plot No.7, 1st Street,
Manali Ramakrishna Avenue,
Ambal Nagar, Mangadu, Chennai 600 122. ..........Opposite party
Counsel for the complainant : M/s.K.Thilageswaran, Advocate.
Counsel for the opposite party : Mr.S.Kaviarasu,Advocate.
This complaint is coming before us on various dates and finally on 31.01.2023 in the presence of M/s.K.Thilageswaran counsel for the complainant 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.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in construction along with a prayer to direct the opposite party to pay a sum of Rs.7,06,000/- towards repair for the defective construction and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service and to pay a sum of Rs.10,000/- towards cost of the complaint to the complainant.
Summary of the facts culminating into complaint:-
It was the case of the complainant that believing the words of the opposite party he entered into an agreement with them on 27.08.2016 to construct 339 square feet of building in ground floor annexing an existing old building of 500square feet and 1000 square feet of building in the first floor over it. The opposite party demanded a total sum of Rs.25,11,300/- which was also paid by the complainant on various dates during the construction. After completion of construction work the said building was handed over to the complainant on 05.03.2017, in addition to the said payment an extra amount of Rs.4,76,700/- was demanded by the opposite party which was also paid on 06.03.2017 by the complainant. On the very next day of his occupation he found cracks and seepages in the said house due to the improper construction and due to the improper plastering work the edges of the windows were crumbling. Immediately, the complainant informed the same to the opposite party and asked him to repair the cracks and seepages in almost all the rooms of the house constructed. Though the opposite party has assured to repair he has not taken any steps to repair inspite of several reminders made by the complainant to rectify the seepage and cracks. Therefore, the complainant was trying to rectify the said defects by engaging other builders. However, one of such builders namely Royal Enterprises has given an estimation to a tune of Rs.7,06,000/- for repairing the said defects over the building. 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.7,06,000/- towards repairing the defective construction and to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service and to pay a sum of Rs.10,000/- towards cost of the complaint to the complainant.
Crux of the defence put forth by the opposite party:-
The opposite party filed version disputing the complaint allegations contending interalia that the opposite party handed over the building in a very good condition to the complainant as per the construction agreement entered by the complainant and the opposite party. The opposite party had not claimed any additional amount from the complainant. The complainant proposed to do some modern designs works as additional works subsequent to the agreement between the parties entered by them. Hence the opposite party demanded Rs.4,76,700/- as an excess amount only for the additional work done by them. The opposite party used very good work materials. The complainant had mentioned that the very next day of his occupation he found the cracks in the construction was totally a false statement. The complainant filed the complaint after one year and eight months later. If the complainant really found the said defects on the very next day of occupation he ought to have filed the complainant as early as possible. That the Royal Enterprises has given an estimation to a tune of Rs.7,06,000/- for repairing the alleged cracks is false and a created statement. Thus they sought for the complaint to be dismissed.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A7 were marked. Though the opposite party filed written version they did not appear before this commission to file any proof affidavit, written arguments and to adduce any oral arguments. Hence, evidence and the stage of arguments on the part of opposite party was closed.
Points for consideration:-
Whether the complaint is hit by limitation?
Whether the complaint allegation with regard to defective construction by the opposite party has been successfully proved by the complainant?
If so to what reliefs the complainant is entitled?
Point No.1:-
On the side of complainant the following documents were filed in proof of complaint allegations;
Proposed construction specification note dated 27.08.2016 was marked as Ex.A1;
Payment details was marked as Ex.A2;
Extra work payment details was marked as Ex.A3;
Legal notice sent by the complainant to the opposite party dated 28.08.2018 was marked as Ex.A4;
Acknowledgement card for proof of delivery was marked as Ex.A5;
Copy of photos was marked as Ex.A6;
Estimate for repairing work dated 24.07.2019 was marked as Ex.A7;
Advocate Commissioner’s Report dated 14.11.2022 was marked as Ex.C1;
The crux of the arguments adduced by the learned counsel appearing for the complainant is that the complainant had entered into an construction agreement with the opposite party for constructing 339 square feet in the ground floor and 1000 square feet in the 1st floor. The entire payment was made and in addition to the agreed amount, a sum of Rs.4,76,700/- was also paid to the opposite party. The complainant after the construction was completed took possession on 05.03.2017. On the very next day of occupation the complainant found cracks and seepages in the construction. When the same was intimated to the opposite party they assured to repair the same but did not turn up. One of the builders Royal Enterprises had given an estimation for the alleged repairs for a sum of Rs.7,06,000/-. Thus he sought for the complaint to be allowed.
On the other hand, there was no representation for the opposite party after filing written version and they also did not file any proof affidavit and written arguments. Hence evidence on their side was closed. However, they took a defence that there was no deficiency in service in the construction made and they did not claim any excess amount but they claimed the said amount for the additional work done by them. Further after the complainant entered into possession when he mentions that he found cracks and seepages on the very next day but he had filed complaint only after a lapse of one year and eight months. Thus they sought for the dismissal of the complaint.
This commission on verification of the date of filing of the complaint, found that the complaint was filed only on 16.09.2019. Though at the time of filing of complaint a question was raised as to limitation, the complaint was numbered and notice was issued to the opposite party without taking into account the provisions under section 24 A of the Consumer Protection Act 1986. As per the said provision the District Forum, the State Commission and National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. In the present case it is the case of the complainant that he took possession on 05.03.2017 and on the very next day he found the defects in the construction and hence as per the provisions of section 24 A of the Consumer Protection Act 1986 the complainant ought to have filed the complaint on or before 05.03.2019. However, the complaint was filed on 16.09.2019 beyond the period of limitation. For the query raised at the time of filing with regard to limitation no appropriate answer was given and also no delay condonation petition was filed by the complainant. In such circumstances, inspite of opposite party not raising the said issue, being a question of law this commission entertains the said issue and holds that the complaint was hit by limitation.
Point No.2:-
As we have held above that the complaint was hit by limitation we do not dwelve into deciding the merits of the complaint. If the complainant wishes he can proceed before the appropriate Forum for redressing his grievances.
Point No.3:-
As the complaint was hit by limitation the complainant is not entitled any reliefs from the opposite party.
In the result, the complaint is dismissed. No order as to cost.
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 the 13th day of February 2023.
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MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 27.08.2016 Proposed construction specification. Xerox
Ex.A2 01.09.2016 Payment details. Xerox
Ex.A3 06.03.2017 Extra payment details. Xerox
Ex.A4 28.08.2018 Legal notice issued by the complainant to the opposite party. Xerox
Ex.A5 ............. Acknowledgement card. Xerox
Ex.A6 ............ Photos. Xerox
Ex.A7 24.07.2019 Estimate for repairing work. Xerox
Court Document:-
Ex.C1 14.11.2022 Advocate Commissioner’s Report. original
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MEMBER-II PRESIDENT
