BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.96/2008

Dated this the  6^th day of March 2018

(Date of Institution: 23.12.2008)

1. Srinivasan, son of Sambantham

    No.76, Thiyagaraja Street, Pondicherry

2. Sugankumar, son of Sambantham

    No.76, Thiyagaraja Street, Pondicherry

...       Complainants

vs

J. Anandh

Proprietor of M/s J.S.A. Construction

No.10, Subramaniar Koil street

Lawspet, Puducherry.

                                       ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANTS:  Tmt. M. Devasundari, Advocate          

FOR THE OPPOSITE PARTY:  Thiru M. Seran, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Party to pay a sum of Rs.4,93,000/- towards compensation / damages / setting right the deficiency suffered by the complainants upon the act of opposite party and to pay a sum of Rs.10,000/- towards costs of this complaint. 

2.  The case of the complainant is as follows:

                The complainant entered into an agreement with Opposite party on 12.02.2007 undertaking to construct a brick built house with ground floor and first floor at No.76, Thiayagaraja Street, Pondicherry-1 and opposite party also undertook to complete the said construction within a period of 6 months.  The opposite party has agreed to construct a brick built house at the cost of Rs.650/- per sq.feet with the terms and conditions set out in the agreement dated 12.02.2007.  That opposite party had charged for a sum of Rs.6,00,000/- and received a sum of Rs.5,96,000/- but he had not the work.  The complainants applied for a housing loan of Rs.5,00,000/- and with Rs.1,00,000/- in his hand.  The complainants got the housing loan sanctioned for amount of Rs.5,00,000/- and to pay interest at the rate of 10.5% per month from Jawaharlal Co-operative Housing Society, Pondicherry and thus the complainants should pay Rs.5,525/- as monthly installment for a period of 15 years in order to clear the loan.  It is the usual practice while opting for housing loan, the loan will be sanctioned in three stages the 1^st stage of sanction at the time of foundation, the 2^nd stage of sanction at the time of finishing the construction work and the 3^rd stage of sanction at the time of painting and the balance of sanctioned amount on completion of electrification to the constructed house.  As such the complainants states that the opposite party have received Rs.1,55,000/- on 24.02.2007 and Rs.1,16,000/- on 04.04.2007 and Rs.1,00,000/- on 14.05.2007 and Rs.1,50,000/- on 19.07.2007 and Rs.50,000/- on 04.10.2007 and Rs.25,000/- on 31.10.2007 altogether total Rs.5,96,000/-.  The complainants further submit that even after receipt of the entire amount of Rs.5,96,000/- the opposite party failed to complete the construction work.  The opposite party have not adhered to the terms of the said agreement in any manner.  The work done does not confront with the terms of the agreement dated 12.02.2007.  The materials used are also substandard and the complainants further submits that there are major works to be completed i.e. front grill gate, door, window, plastering, flooring, painting, electrical works, front door mosaic work, cupboards, kadappa stones, polish works and plumper works not yet completed in the ground floor and as well as in the first floor.  The above stated work has to be done by opposite party as per the terms of the agreement.  But opposite party have failed to do so.  That the complainants estimate the cost of work yet to be completed at Rs.1,00,000/-.  That there are deficiencies in the work done by the opposite party.  The flooring in the ground floor and in the first floor and in the second floor was not done by the opposite party.  Further the water store like a pond in the house because of opposite party deficiency of work and opposite party have not covered the first floor terrace it was kept open.  The flooring work was not at all done by the opposite party as agreed.  The complainants engaged an Engineer by name Sankar in order to complete the work of construction.  The complainants have purchased marble for Rs.20,000/- for flooring purpose and kadapa stone for Rs.10,000/- for making shelf in the cupboard in the ground floor and in the first floor.  The complainant purchased Blue stones, bricks and cement in order to do plastering work at the cost of Rs.15,000/-.  The complainants also purchased stair case hold both in wood and steel at the cost of Rs.7,000/-.  The complainants also purchased teakwood for the front door and Neam wood for windows and other doors at the cost of Rs.85,000/-.  The complainants also purchased other accessories which was not done by the opposite party at the time of construction at the cost of Rs.5,000/-.  The complainant also purchased electrical goods at the cost of Rs.30,000/- and engaged electrician Senthil to do electrification.  As the opposite party have not done the work properly thus the complainants has to compete the work as he resides in the rental building.  The painting work was not carried out by the opposite party, the plumping and the electrical works were not properly done by the opposite party.  The opposite party have not fixed wooden doors in the cupboard, opposite party have not finished the staircase work it was incomplete.  The opposite party only fixed the frames for door and window but the opposite party left it incomplete by not fixing door and windows.  The opposite party have assured the complainants that to fix the front door made up of American teakwood but the opposite party have not done so.  The opposite party have not completed the work, even the opposite party  have failed to finish the toilet, bathroom and plumper work.  The complainants estimates the cost of set-in right the deficiency of work done by the opposite party in order to complete the construction work at Rs.1,72,000/- use of substandard material and material deviation have also been made by the opposite party in the construction which spoils the aesthetic appearance of the building besides reducing its utility.  The complainants further stated that the opposite party is liable to pay a sum of Rs.1,00,000/- for damages and Rs.1,00,000/- representing the cost of work yet to be done and Rs.1,72,000/- the cost of setting right the deficiency respectively.   The opposite party also assured to the complainants that the opposite party will construct the full building as specified in the description of work stipulated in the agreement dated 12.02.2007 within a period of 6 months.  Therefore believing the opposite party words the complainants bonafidely agreed and also paid the entire amount as agreed.  The complainants living in a rental building and pay rent at Rs.2100/-.  But till 12.08.2007 and subsequent thereto till this date the opposite party have not completed the work and it is a clear case of deficiency of service on the part of the opposite party.  Therefore the complainants paid rent of Rs.21,000/- unnecessarily even after a period of specified time specified by the opposite party to finish the construction work.  The delay in constriction and usage of substandard materials by opposite party further proves the deficiency in service.  The complainant’s marriage was also stalled due to incompletion of construction work done by the opposite party and the complainant’s mother was also bed ridden because of this mental agony of incompletion of construction work done by the opposite party.  In view of the opposite party act of deficiency and incomplete work which the opposite party abruptly done in the complainant’s house the complainants had engaged Sankar the Engineer to finish the incomplete work which he needed to complete at the earliest.  For that the complainants also spend Rs.1,72,000/- unnecessarily estimates at the rate of Rs.1,00,000/-  That the complainants further submit that the complainant along with their old age mother and father put to severe suffering and mental agony and also suffered monetary loss on several accounts because of the various acts of commission and omission committed by the opposite party which the complainants estimate at Rs.1,00,000/- .  The complainants further submits that they have issued lawyer notice on 02.07.2008 and have receipt of the said notice the opposite party not even reply to that effect.  The complainants issued notice calling upon the opposite party to pay a sum of Rs.4,93,000/- together with interest thereon at Rs.18% per annum from 02.07.2008 till the date of payment.  The opposite party duly acknowledge the same on 03.07.2008 till date neither she paid the amount nor he caused reply to the notice dated 02.07.2008.  Therefore the act of the opposite party is malafide and admitting all the contents made in the notice date 02.07.2008. Hence, this complaint. 

3. The reply version filed by the opposite party briefly discloses the following:

          The complainant miserably failed to prefer complaint to this Hon’ble court immediately after the opposite party left the construction incomplete after receipt of last payment as on 31.10.2007 but choose to issue legal notice only on 20.07.2008, after lapse of 6 months alleging that they occupied the house incomplete and completed thereafter incurring further costs.  Then there is no scope for the complainants to prove the state  of alleged incomplete construction.  In fact, the complainants state that they paid rent of Rs.21,000/- during the construction of the house by the opposite party i.e rent for 10 months only and the complainants occupied the house in or about January 2008 just within 2 months after the opposite party alleged to have left the constructions incomplete.  The complainants might have chosen the auspicious month of “Thai” for occupying the house.  Thus the allegation that the opposite party left the house construction incomplete is utter false.  The complainants without any technical expert opinion about the defects and lapses in the construction alleged to have been left in completed by the opposite party cannot maintain this complainant.  There is also allegation that materials used for the construction are substandard.  This sort of claim of compensation can be made in civil court rather than this Forum, on the ground of breach of contract rather than deficiency in service.  The complainant alleged that the opposite party did not fix the front door in American teak wood as per agreement of contract.  Whereas the complainants, having adjusted the costs of providing American Teak wood, of their own accord purchased Burma Teak wood for front door as well as other accessories for the value of Rs.85,250.55 on 22.05.2007 itself.  The complainants clearly narrated the stages of release of sanctioned housing  loan amount of Rs.5,00,000/-;  3^rd stage at the time of painting and the balance of sanctioned amount on completion of electrification to the constructed house.  Thus the complainants availed entire house loan amount of Rs.5,00,000/- according to the stages mentioned therein and there is no claim that due to the incompletion of the house constructed, the loan amount was stopped.  The payment of costs of construction was made to the opposite party according to the percentage and stages of construction contained in the agreement of contract dated 12.02.2007.  Both complainants and opposite party orally adjusted some of the costs to be incurred in providing cement floor instead of marble flooring and carried out other extra works.  The opposite party submits that the dispute arose in between the complainants and the opposite party is proving the grill gate in front of the house.  The complainants demanded to provide grill gate to the entire breadth of the house.  Whereas the opposite party told that he would provide, maximum grill gate for 6 feet.  The complainants threatened the opposite party stating that they would resort to legal action and spoil the name and fame of the opposite party.  Immediately, the opposite party retorted telling that he did the construction works at the low cost rate and if the construction works was valued then, the complainant would be liable to pay the difference amount in lakhs and told that  he did the work and completed the same being a staunch devotee of deity Mariamman and the complainants being the Gurukkal in the said temple.  The opposite party submitted that with ulterior motive to shirk the responsibility from paying excess amount spent by the opposite party, the complainants alleged that as if they occupied the house incomplete and after completion they resorted claiming completion alleging deficiency in services and using substandard materials.  Hence, prayed for dismissal of the complaint. 

4.       On the side of the complainant, the first complainant was examined as CW1 and Exs.C1 to C42 were marked.  One Saravanakumar was examined as CW2 and one Senthilnayagam was examined as CW3.  Exs. C1 to C42 were marked on the side of complainant.  The Opposite Party was examined as RW1.  However, no documents were marked.   

5.       Points for determination are :

1. Whether the Complainant is a Consumer?
2. Whether the opposite party attributed any deficiency in service?
3. To what relief the complainants are entitled to?

6. Point No.1:

          The complainants entered into an agreement for construction with the opposite party on 12.02.2007 for constructing a two storeyed house at the rate of Rs.650/- per sq. ft.  vide Ex.C1.   Since the complainant availed service from the opposite party for consideration to construct a house, he is construed as a Consumer to the Opposite party as per the Consumer Protection Act.

          7.  Point No.2:

We have perused the complaint, reply version, evidence of CW1 to CW3 and RW1 and Exs.C1 to C42 and the arguments advanced by both the Counsels of both parties.  The complainants alleged that they have entered into an agreement Ex.C1 dated 12.02.2007 with the opposite party to construct a two storeyed building within six months to the tune of Rs.6,00,000/-.  The complainants had  availed loan of Rs.5.00 lakhs from Jawaharlal Co-operative Housing Society, Pondicherry and the said Society released the amount in three stages and the opposite party had received the total amount on various dates to a tune of Rs.5,96,000/-.  The complainants further alleged that the opposite party did not adhere the terms of contract and used sub-standard materials and not completed the building as agreed and left out as unfinished.   The complainants stated that they engaged one Sankar, Civil Engineer and one Senthil, Electrician and completed the house by spending a sum of Rs.1,72,000/- for the purchase of construction materials vide Exs.C4 to C39 .  The complainants further alleged that they were resided in rental house by paying rent and also paid interest to the Housing Society for the loan availed by them.  The complainant issued a legal notice dated 02.07.2008 vide Ex.C2 to the opposite party and the same was acknowledged by the opposite party vide Ex.C3. 

          8. On the other hand, the opposite party alleged that the complainants filed this complaint with false allegations and the complainant has not opted any opinion from a Competent  Expert to establish that the materials used are substandard. The opposite party alleged that the complainant and the opposite party were adjusted the difference amount providing marble flooring instead of cement and the cost of the wood for front doors.   Further alleged that the complainants demanded grill gate to the entire breadth of the house, whereas, the opposite party is bound to provide maximum grill gate for six feet only and in order to avoid excess payment for the works done by the opposite party, the complainant has filed this complaint. 

          9. A plain reading of Ex.C1, this Forum found that in clause 1 of the agreement, it is mentioned that the opposite party agreed to construct the house as per the plan annexed at the rate of Rs.650/- per sq. ft.  But the said plan was not annexed along with the complaint to enable this Forum to ascertain the length and breadth and extent of the alleged construction.    The complainant also admitted in his cross examination that "In Ex.C1, there is no mention about the schedule of property for which the estimate is made.  There is no mention in Ex.C1, how the value of Rs.6 lakhs arrived at".  Further, the CW1 has stated in his cross examination that "It is true that for putting up of ground floor at the rate of Rs.650/- per sq. ft. to the extent of 13 ft x 66 ft. it would come to Rs.5,77,000/-.  It is true that for construction of two floors (Ground Floor and first floor), at the total cost would be Rs.6,00,000/-.   Further, the complainants alleged that they obtained loan of Rs.5,00,000/- from the Jawaharlal Co-operative Housing Society, if it is so, the complainants might have obtained permission from the Pondicherry Planning Authority and the building plan would have annexed in the Ex.C1.   Further, the complainants alleged in their complaint that the opposite party failed to do some works such as front grill gate, door, window, plastering, flooring, painting, electrical works, mosaic works, cupboards, kadappa stones, polish works and plumber works and the same left outs were completed by engaging a separate  Engineer and Electrician.    From the evidence of CW2 and CW3 and Ex.C41, this Forum could ascertain that only headroom was not completed by the opposite party.  The payments received by the opposite party which was endorsed on the reverse of the agreement Ex.C1 shows that there is a balance amount of Rs.4000/- yet to be paid by the complainants.    

          10. It is the duty of the complainants to clearly state and establish their case with necessary particulars.  But, the complainants were not clearly put forth and establish their case.  The agreement itself being vague and does not contain any specifications, measurement, quality and quantity.  The complaint filed by the complainants are also vague, uncertain, devoid of particulars and variance in the agreement, pleadings and evidence.  Moreover the approved plant as stated in Ex.C1 is not filed and no expert was examined in this regard.   In the absence of valid materials, the Exs.C4 to C40 are not taken into consideration and hence, this Forum is inclined to dismiss the complaint. 

          11. In the result, this complaint is dismissed. No costs.

Dated this the 6^th  day of March 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:

CW1           09.02.2012           S. Srinivasan 

CW2           15.07.2014           Saravanakumar

CW3           15.07.2014           Senthilnayagam

OPPOSITE PARTY'S WITNESS:

RW1           16.04.2015           Anand      

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER