BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 249/2011 Filed on 03.08.2011
Dated : 15.05.2012
Complainant :
Abdul Majeed, S/o Haneefa, T.C 46/1126, Azad Nagar, Manikkavilakam, Poonthura, Thiruvananthapuram.
(By adv. Ashraf)
Opposite party :
Jose Mathew, T.C 3/1424, Chaithanya, LNH No. 2, LIC Lane, Lakshmi Nagar, Pattom, Pattom P.O, Thiruvananthapuram.
(By adv. K. Karunakaran)
This O.P having been heard on 14.05.2012, the Forum on 15.05.2012 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
Facts of the case are follows: Complainant is the absolute owner in possession and enjoyment of the property having the extent of two cents comprised in Suvey No. 2615/15 of Muttathara Village, Thiruvananthapuram Taluk. Complainant proposed to construct a single storied building in the said property for him and his family members' residential purpose. On knowing the proposal of the complainant, opposite party approached the complainant and made believe the complainant that he would construct the said building for and on behalf of the complainant and complainant availed the service from the opposite party. Complainant entrusted with the opposite party to do the construction work and opposite party, being a contractor, has agreed to undertake the work on the specific conditions for the construction and accordingly at first, opposite party orally agreed on 18.01.2010 with the complainant to complete the construction within 3 months from 18.01.2010 for a rate of Rs. 900/- per square feet and the aforesaid building comprised 650 sq. ft. On 18.01.2010 itself, opposite party collected a sum of Rs. 5,75,000/- from the complainant and agreed to complete the work within the period stated above. Even though the opposite party has started the construction work, the construction works were going on very slowly. Even after the expiry of 8 months, opposite party has not completed the construction work as agreed by him. Since the opposite party did not complete the work, the complainant approached the opposite party and demanded him to complete the said construction within three months. Then the opposite party demanded 45 days more for completing the work and accordingly an agreement was entered into between the opposite party and the complainant in writing on 20.09.2010. By means of the said agreement, the opposite party promised to complete the following works within 45 days as stipulated in the agreement. (1) Paving of tiles 40 numbers, (2) Fitting of doors and windows, (3) Shuttering works, (4) Laying of granite slabs in kitchen, (5) Electrical works, (6) Plastering works (7) Construction of tower having the height of 10 feet with 4 inch thickness in the head room and plastering the same and fitting a door therein, (8) Paving of step granite and fitting of steel hand rail, (9) Plumbing works (10) Sanitary fitting in bath room inclusive of two European closet and two Orissa Pan (11) painting of white cement (one coat). Despite the assurance, the opposite party did not do the aforesaid works within 45 days as agreed by him and stipulated in the said agreement. Thereafter on several occasions approached the opposite party and requested to complete the construction of the said building immediately. But the opposite party has been procrastinating the construction by saying one or other reason. Thereafter on 09.03.2011 the opposite party approached the complainant and requested for further more time of 45 days for completion of the construction work and accordingly an agreement dated 09.03.2011 was entered into between the complainant and the opposite party, whereby the opposite party agreed to complete the construction and hand over the key of the completed building to the complainant within 45 days from the date of the said agreement, and the complainant agreed to pay the balance amount of Rs. 10,000/- to the opposite party at the time of handing over the key of the completed building to the complainant and the opposite party further agreed that in case he fails to hand over the key within the period stipulated above, he shall pay a compensation of Rs. 2,00,000/- to the complainant. Believing the said assurance given by the opposite party, the complainant bonafide expected the completion of work and to pay the balance amount of Rs. 10,000/- and take the key of the completed building from the opposite party as per the aforesaid agreement but to the utter surprise and shock of the complainant, he has failed to fulfill his part of contract and has not completed the work as promised nor has he paid the fixed amount as compensation to the complainant as promised by him. The acts and omissions of the opposite party by not completing the construction as per the agreement and by not paying the amount as agreed by him amounts to deficiency in service and unfair trade practice. Complainant is a consumer coming under the opposite party. All the above facts show that the opposite party has committed grave deficiency in service. The opposite party has failed in providing proper service to the consumer. Opposite party has utterly failed in his duty towards the complainant. No proper explanation was given by the opposite party to the complainant for his failure in completing the construction as stipulated in the agreement. It is further to be noted that because of the deficiency in service and negligent of the opposite party and on failure of the opposite party in performing his part under the aforesaid agreement, the complainant's reputation among his family members, relatives, and in the public ridiculed and defamed and thereby the complainant sustained heavy mental agony, pain and hardship occasioned to the complainant cannot be estimated in terms of money, it is limited to Rs. 50,000/- and the opposite party also liable to pay the said amount by way of compensation to the complainant. Complainant through his lawyer sent notice dated 21.06.2011 to the opposite party calling upon him to pay an amount of Rs. 2,00,000/- as agreed by him in the aforesaid agreement and to pay a sum of Rs. 50,000/- as compensation to the complainant within 15 days from the date of receipt of the notice. Even after the receipt of the said notice the opposite party neither sent reply nor did he come forwarded to cure the deficiency in service caused by him to the complainant. Hence this complaint is necessitated.
Opposite party accepted notice of this complaint and entered appearance and submitted before us that he is ready to settle the matter, but thereafter he never appeared before this Forum and not turned up to contest the case. Hence opposite party remained ex-parte.
Points to be ascertained are:-
Whether there is deficiency in service occurred from the side of opposite party?
Whether the complainant is entitled to get the reliefs sought for ?
Costs.
Points (i) to (iii):- Complainant and opposite party have entered into an agreement that the opposite party shall complete the construction within three months from 18.01.2010 for a rate of Rs. 900/- per sq. ft and the aforesaid building comprised of 650 sq. ft. On 18.01.2010 itself opposite party collected a sum of Rs. 5,75,000/- from the complainant. Even though opposite party has started the construction work, the work was going on very slowly. Even after the expiry of 8 months, opposite party has not completed the work as agreed by him. Since opposite party did not complete the work, complainant approached the opposite party and demanded to complete the said construction within three months. Then the opposite party requested 45 days time for completing the work and accordingly an agreement was entered between the opposite party and complainant in writing on 20.09.2010. Ext. P4 is the original agreement. Through this document, complainant has proved his contention. Ext. P1 is the agreement for the remaining works. Opposite party agreed to complete the works specified in Ext. P1 agreement within 45 days from the date of agreement i.e; 20.09.2010. But the opposite party did not do the works specified in Ext. P1 document within 45 days. Thereafter on 09.03.2011 opposite party approached the complainant and requested for further more time of 45 days for completion of the construction work and accordingly an agreement dated 09.03.2011 was executed. Ext. P2 is the original agreement. As per this agreement opposite party agreed to complete the construction and hand over the key of the building to the complainant within 4 days from the date of agreement and the complainant agreed to pay the balance amount of Rs. 10,000/- to the opposite party at the time of handing over of the key of the building to the complainant and the opposite party further agreed that in case he fails to hand over the key within the period stipulated, he shall pay a compensation of Rs. 2,00,000/- to the complainant. But the opposite party failed to fulfill his part of contract and has not completed the work as promised nor has he paid the fixed amount as compensation. Complainant alleges that the act of the opposite party amounts to deficiency in service and unfair trade practice.
To prove his contentions complainant has filed proof affidavit and produced Exts. P1 to P5 documents. Opposite party never turned up to contest the case and not settled the case as per their submission. Hence the affidavit and documents filed by the complainant stands unchallenged. To assess the balance construction work and its costs as per the application filed by the complainant, this Forum appointed Mr. Murukesan, Retired Chief Engineer PWD as the expert commissioner. He visited the site, examined and assessed the costs of construction and balance work. His report is marked as Ext.C1. As per Ext. C1 report total cost of balance work is Rs. 1,70,000/-. From the above mentioned discussions and documents we find that there is unfair trade practice and deficiency in service from the side of opposite party. Opposite party failed to perform his part as per the contract of agreement and thereby complainant has suffered too much inconvenience, mental agony and financial loss. Hence we allow the complaint.
Complainant has filed an application to allow him to complete the further work of the building (I.A. No. 184/2011). This Forum allow the IA also. Complainant has the right to complete the further work of the building from the date of this order.
In the result, opposite party is directed to pay Rs. 1,70,000/- to the complainant for the balance work and the opposite party shall pay Rs. 25,000/- as compensation and Rs. 4,000/- as costs to the complainant. Complainant shall have the right to complete the further work of the building from the date of order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of May 2012.
Sd/- BEENAKUMARI. A : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
S.K. SREELA : MEMBER
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C.C. No. 249/2011
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - M. Abdul Majeed
II COMPLAINANT'S DOCUMENTS :
P1 - Agreement dated 20.09.2010
P2 - Agreement dated 29.03.2011.
P3 - Copy of legal notice dated 21.06.2011
P4 - Postal receipt
P5 - Acknowledgement card
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
V COURT EXHIBIT:
C1 - Commission Report
Sd/-
PRESIDENT
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