BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.18/2012

Dated this the 10^th day of February 2015.

Ms.R.Rama, D/o.Ramesh

No.5, Indira Gandhi Street,    

Isravel nagar, Gorimedu

Puducherry.                                                                           … Complainant

Vs.

Jayakumar,

S/o.Ramasamy,

11, T.B. Quarters,

Gorimedu, Puducherry.                                                       ...  Opposite Party

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT           :  Tvl.M.Senbaga Uma Bharathi and

                 Mohan Keerthi Kumar, Advocates.

FOR THE OPPOSITE PARTY     :  Exparte

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed under section 13 of the Consumer Protection Act, 1986 for directing the opposite party

(1) to rectify the repairs of the house or in the alternative pay to the complainant Rs.2,80,000/- for the rectification and repair works,

 (2) to  pay interest on the said amount at the rate of 24% per annum from the date of this complaint till the payment of the claim amount to the complainant,

 (3) to pay the complainant Rs.50,000/- as compensation for the hardship and mental agony suffered by the complainant and

 (4)to pay the complainant the sum of Rs.10,000/- as cost.

2.  The case of the complainant is as follows:

            She has purchased the schedule mentioned property for the sum of Rs.22,50,000/- and the sale was executed between her and the opposite party on 20.09.2010 and the said sale was duly registered before the competent authority on the same day.  When she took possession of the schedule mentioned property on 18.11.2010, she noticed the following defects in the house.  The steps require to be fixed with tiles. The entire ground floor ceiling, rain water is leaking. Water is leaking through the glass pane fixed in the ceiling of the dining room.  The building has developed cracks everywhere and the plumbing work and the electrical work are incomplete.  The main gate discharges electricity and the rain water seeps through electrical installations.  The ceiling over the stairs has been fixed with asbestos sheet and this required plastering.  All these defects were brought to the notice of the opposite party and he agreed set right things on the complainant agreeing to pay Rs.80,000/-  The complainant insisted that she would pay the extra amount on the completion of the work and towards this complainant has handed over a cheque as a security for payment.   The opposite party had not rectified the defects in the house but has misused the cheque to make unlawful gain for him and unlawful loss to the complainant.  The opposite party has issued a legal notice dated 29.07.2011 alleging that that the cheque issued by the complainant was returned with the note payment stopped by drawer and demanded the payment of cheque amount of Rs.80,000/-.  The complainant tendered a reply notice dated 16.08.2014 denying the claim of the opposite party and stating that the cheque was issued as security for payment to the opposite party to rectify the defects in the house.  The complainant is a consumer as per provision of consumer protection Act.  Mr.Vishnu Raman, a registered engineer has assessed the incomplete work, the rectification and the repair works for the above said house as Rs.2,80,000/-.  The certificate issued by the Engineer is enclosed with this complaint.

3.         The opposite party remained absent and was set exparte.

4.         On the side of the complainant, Exs.C1 to C6 were marked on consent and Ex.X1, the report is also marked on consent.  

5.         The points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite party has sold defective house and committed deficiency in service?
3. To what relief the complainant is entitled for?

6.         Point No.1:

            The complainant has purchased a constructed house, described in the schedule of property, from the opposite party on 20.09.2010 for the valid consideration of Rs.22,50,000/-. Hence the complainant is the consumer under section 2(1)(d)(i) of the Consumer Protection Act.

7.         Point No.2:   

            The averment of the complainant is that she has purchased a constructed house from the opposite party on 20.09.2010 which is described in the schedule of property of the complaint for the valid consideration of Rs.22,50,000/- and the said sale was duly registered vide Ex.C1.

8.         The complainant further alleged that during hand over the said building to the complainant by the opposite party on 18.11.2010, the complainant noticed the defects in the house i.e. the steps require to be fixed with tiles, rain water leakage in the entire ground floor ceiling of the dining room.  The building has developed cracks everywhere.  The plumbing work and the electrical work are incomplete.  .  The main gate discharges electricity and the rain water seeps through electrical installations.  The ceiling over the stairs has been fixed with asbestos require to be plastered.  The complainant alleged that the opposite party has agreed to attend the incomplete works and to rectify the defects.  To that effect the complainant agreed to pay a sum of Rs.80,000/- and more on completion of the work.  It is submitted by the complainant that as a security for the payment she handed over the cheque for the sum of Rs.80,000/- to the opposite party.  But the opposite party has not rectified the defects in the house wherein he has misused the cheque to make unlawful gain and unlawful loss to the complainant.  The complainant further submits that she advised her bank to "stop the payment".  To that effect the opposite party has sent legal notice to the complainant, Ex.C2 dated 29.07.2011 and reply notice given by the complainant Ex.C3, dated 16.08.2011.  The complainant filed the photographs and CD showing the defects in the above said building vide Ex.C4 and C5.  The complainant assessed the value of the work to be done in the building as Rs.2,80,000/- vide Ex.C6, dated 03.04.2012.

9.         Even after service of summons to the opposite party, has not chosen to appear before this Forum and not filed any reply version as directed by the Hon'ble State Commission in FA No.01/2014.  Enough opportunity was given to the opposite party and set exparte on 15.05.2014.           

10.       This Forum has not relied the assessment made by the complainant in Ex.C6 and appointed an Expert,  an Engineer from the Public Works Department, Government of Puducherry to assess the defects and value for rectifications.  The expert inspected the property after tendered due notice to both the parties and assessed the value in the presence of both the parties and filed the detailed report, Ex.X1.  As per Ex.X1, the abstract of the repair works, the expert assessed the value of the work to the tune of Rs.97,000/-.

11.       It is pertinent that the complainant agreed to pay a sum of Rs.80,000/- to the opposite party for repairing work.  As on the date the engineer assessed the estimation as Rs.97,000/-.  If the opposite party has rectified the work within the time no escalation in the said price will accrued.  Now, due to non-performing the work in time as agreed by the opposite party at the earliest, the complainant should not suffer loss and injury and mental agony.  Now the complainant has to incur the escalation price of Rs.17,000/- for the unfair trade practice of the opposite party.  The opposite party is solely liable to compensate the loss and injury sustained by the complainant.  To meet the ends of justice, this Forum is inclined to direct the opposite party to bear the escalation price of Rs.17000/- and ordered to pay the said amount to the complainant.  This point is answered accordingly.

12.       Point No.3:

            In view of the decision arrived in point no.2, the opposite party is directed to pay a sum of Rs.17,000/- to the complainant and to pay a sum of Rs.20,000/- as compensation to the complainant for the loss and injury suffered by the complainant for the unfair trade practice and for deficiency in service of the opposite party.  The opposite party is directed to pay a sum of Rs.5000/- as cost of the proceedings.

Dated at Pondicherry on this the 10^th day of February 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANT’S WITNESS:  Nil

OPPOSITE PARTIES’ WITNESS:  Nil

 COMPLAINANT’S EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:    Nil

COURT EXHIBITS:

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER