By. Smt. Beena. M, Member:-
This is a complaint filed under section 35 of the Consumer Protection Act 2019.
2. Brief facts of the complaint:- While the Complainant and his family were residing in Pulpally at Pakkam, they had decided to construct a house in their property situated in Pulpally at Thannitheruvu. Then the Opposite Party, who was introduced by the friend of the Complainant’s children, contacted by the Complainant’s children through phone from abroad and according to what the children said, the Opposite Party assured the Complainant that the house would be built on the 31st day of December 2019, as per the plan provided by the Complainant. As per the assurance of the Opposite Party, the Complainant entered into a building contract with Opposite Party on 02.07.2019 and the Complainant paid Rs.10,000/- on the same day. As per the agreement, the Opposite Party has to construct a 1220 square feet building with specifications stated in the agreement and after completion of entire work, the key of the house to be handed over to the Complainant before 31st day of December 2019. The Complainant should be provided water and electricity required for the construction, handrail for the staircase and pipe for the design work for the parapet and the Opposite Party shall take materials and tools required for the work at his cost not less than Rs.60/- for tiles, wash basin not less than Rs. 3,000/-, closet not less than Rs.5,000/- and the said works shall be done using quality materials only and the said works shall be done cleanly and neatly. At the rate of Rs.1,600/-per square feet for works was calculated. The Opposite Party received from the Complainant Rs.2,00,000/- on 04.08.2019, Rs.1,00,000/- on 11/08/2019, Rs.2,00,000/- on 04.11.2019, Rs.1,00,000/- on 23.11.2019, Rs.2,00,000/- on 06.12.2019 and one lakh on 23.12.2019. But within the contract period of 31.12.2019, the Opposite Party did not complete the work of the house and extended the time. The Opposite Party had received total amount of Rs.19,00,000/- without completion of all finishing works such as plastering works, plumbing ,wiring, floor tiling, sanitary works, window and door polishing, putty, primer, epoxy works, construction of pillars shown in the plan as per the contract. At that time, the entire finishing work including polishing of the bed and window, paving of granite floor, construction of wall pillars, painting of the house, some electrical work, plumbing work and plastering work was left unfinished. As the Complainant’s son was to be married in a new house and the Opposite Party did not paved the tiles/ granite at the time specified, the Complainant had to spend her own money to purchase the tiles. Then the Complainant went in to the house and carried out the finishing work left by the Opposite Party with other workers.
3. When the children of the Complainant came from abroad and inspected the construction of the building, it was found that very low quality materials used by the Opposite Party. It was realized that the house was built in a very poor manner and without any quality, with the ratio of cement, sand, stone, wire and metal. There are cracks and ups and downs in many parts of the building. In this way, when it started raining, water stagnated on the rocks and the terrace and when the water began to leak down after the water stagnated, the Complainant asked the Opposite Party to immediately rectify the defects in the defects in the construction and that the defects that occurred due to not using water proofing materials on the terrace and not plastering properly, to rectify the defects that caused the water to stagnate, seep down, etc., or it was also said that legal action will be taken on behalf of the Opposite Party. The Opposite Party was requested to give the bill, warranty card, guarantee card etc. of the goods purchased by the Opposite Party several times to the Complainant, but the Opposite Party did not give a single bill or warranty/guarantee card to the Complainant. Thereafter, a lawyer notice dated 07.07.2021 was sent by making a false demand to pressurize the Complainant to withdraw from the legal proceedings while the Complainant was about to take legal proceedings against the Opposite Party. In the notice the Opposite Party stating that the Complainant has to pay the remaining amount of Rs.50,000/- and a compensation of Rs.5 lakhs.
4. Notice served to the opposite parties, but opposite party not turned to appear. Opposite Party’s name called absent and set him ex parte
5. Though the Opposite Party remained ex-parte, this Commission considered to decide this case on merits.
6. The Complainant filed proof affidavit and produced two documents, which were marked as Ext A1 and A2. The report of the expert commissioner was marked as Ext.C1. The Complainant’s allegation is that he had entrusted the construction work of his house to the Opposite Party. As per the agreement, the term for completing the work is 5 months. But the Opposite Party received excess amount from the Complainant and not finished the work in time. The works done are also defective. Hence this Complaint filed for getting the excess amount collected by the Opposite Party along with cost and compensation. Without completing the work, the Opposite Party stopped the work. Opposite Party received Rs.2,00,000/- excess from the Complainant for the unfinished work.
7. Ext A1 shows that the Complainant and Opposite Party entered into an agreement on 02.07.2019. On the same day the Complainant made advance payment of Rs.10,000/-. It is made clear that the Opposite Party would complete the work within 31st day of December 2019. Since the Opposite Party is ex-parte, we find no reason to disbelieve the allegations of the Complainant and hence the Complainant’s case stands unchallenged. The Complainant claimed a compensation of Rs.3,00,000/-. As there is no contra evidence, we are inclined to accept the case of the Complainant as stated above and hold that there is deficiency in service on the part of the Opposite Party. Here, the Commissioner reported in detail about the uncompleted works and the defects of the work. As per the report, in order to rectify the defects Rs.1,25,000/- is required, so the Complainant is entitled to amount required for rectifying the defects as well as compensation. Considering all the circumstances of the case, we are of the view that Rs.1,50,000/- will be a reasonable for rectifying defect and compensation . In light of above findings the Complaint has to be allowed with a cost of Rs.5,000/.
In the result, the complaint is allowed and the Opposite Party is directed to return the excess amount of Rs.2,00,000/- (Rupees Two Lakh only) received from the Complainant along with Compensation of Rs.1,50,000 /- (Rupees One Lakh Fifty Thousand only) and costs of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant. The Opposite Party is hereby directed to comply the order within 30 days from the date of receipt of this Order. Failing which, the Complainant is allowed to realize the whole amount with 8% interest per annum from the date of order till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 19th day of December 2023.
Date of Filing:-24.11.2021.
PRESIDENT : Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant:-
PW1. Sheeja. B. S. Housewife.
Witness for the Opposite Party:-
Nil.
Exhibits for the Complainant:-
A1. Agreement. Dt:02.07.2019.
A2(Series). Tax Invoices (4 documents).
C1. Expert Commission Report. Dt:24.07.2023.
Exhibits for the Opposite Party:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
Kv/-
