Tamil Nadu

StateCommission

FA/390/2013

TRINITY DEVELOPERS, MANAGING PARTNER - Complainant(s)

Versus

K.G. MANOJ - Opp.Party(s)

S. NATARAJAN

25 Jan 2023

ORDER

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI – 600 003.

                         Thiru.S.KARUPPIAH                           PRESIDING JUDL MEMBER

                      Thiru. R VENKATESAPERUMAL                                     MEMBER

 

F. A. No.390/2013 & FA.No. 413/2013

 

(Against the Order dt.24.9.2010 made in C.C. Nos. 187/2007 & 188/2007  on the file of

D.C.D.R.C., Chennai(North)

DATED THE   25^th DAY OF JANUARY 2023

 

F. A. No.390/2013

M/s Trinity Developers

Rep.by its Managing Partner,

S.Natarajan,

#W. 365 North Main Road,

Anna Nagar West Extension,

Chennai – 101                                                             ..Appellant/1^st opposite party

 

                                                  Vs

 

1.K.G.Manoj,

S/o  K.SGopalakrishnan,

Flat # A3 plot # 19 & 32,

Sanmathi avenue paruthipattu,

Avadi Chennai -71                                                        ..1^st Respondent/complainant     

 

2. The Executive Engineer,

The Tamilnadu Electricity Board,

Kamarajar Nagar,

Avadi, Chennai 71                                                     ..2^nd Respondent/2^nd opposite party

 

Counsel for the  Appellant/1^st opposite party      : M/s A.Sheik Peer

Counsel for the 1^st Respondent/complainant       : M/s J.Ranjani Devi

2^nd Respondent/2^nd op                                         : Given up

 

           

FA.No. 413/2013

 

M/s Trinity Developers

Rep.by its Managing Partner,

S.Natarajan,

#W. 365 North Main Road,

Anna Nagar West Extension,

Chennai – 101                                                             ..Appellant/1^st opposite party

 

                                                  Vs

A.Sreedharan,

S/o ayyakutti,

#21, Sri Ramulu Street,

Mathiyalagan Nagar,

Saligramam, Chennai -93                                        ..1^st Respondent/complainant     

 

2. The Executive Engineer,

The Tamilnadu Electricity Board,

Kamarajar Nagar,

Avadi, Chennai 71                                                         ..2^nd Respondent/2^nd op

 

Counsel for the  Appellant/1^st opposite party      : M/s A.Sheik Peer

Counsel for the 1^st Respondent/complainant       : M/s J.Ranjani Devi

2^nd Respondent/2^nd op                                     : Given up

 

            Both these appeals are arising from the common order passed in C.C.No. 187/2007 and CC.No.188/2007 by the District Commission, Chennai(North) on 24.9.2010. Since the facts involved and the points for determination are one and the same, both appeals were taken together and we passed this common

ORDER

THIRU. S. KARUPPIAH, PRESIDING JUDICIAL MEMBER.    

1.   The complainant filed a complaint in C.C.No.187/2007 stating that the complainant had entered into a construction agreement with the opposite party M/s Trinity Developers on 20.9.2006. The total cost agreed is Rs. 8,02,601/-  Time for completion is six months. The complainant paid Rs.7,55,000/- including Registration cum 3 phase service connection. And yet to pay Rs.47,601/- to the 1^st opposite party. Likewise the complainant A.Sridharan in C.C.No. 188/2007 entered into the construction agreement with the Trinity Developers on 7.9.2006. The cost was fixed at Rs.5,25,054/- for additional work recurred by the complainant paid only a sum of Rs.5,07,000/- to the opposite party and he had yet to pay Rs.18,054/- as balance.

2.       The common facts alleged by the complainants are that, in the month of January itself, they requested the opposite party to permit them to conduct house warming ceremony in respect of their houses. The permission was granted and it was handed over to them by the opposite party. After celebrating the ceremony, they requested the opposite party to complete the remaining unfinished work for which the opposite party requested them to occupy the house and assured them to complete the remaining work within 2 or 3 weeks. Inspite of repeated requests, the unfinished works were not completed by the opposite parties. Moreover the opposite party has not constructed the house with quality products and therr were lot of defects such as wall cracks, wooden cracks and gap between kadappa sink and the platform damaged tiles etc.,. There were exchange of notices between the complainant and the opposite party builder company, as the builder company committed deficiency in service,  both filed complaints claiming compensation for unfinished works and for mental agony.

3.       The opposite party in their written version has stated that he constructed the work with quality materials as per the agreement. Moreover he has constructed additional works required by the complainant. but the complainant Manoj was still liable to pay Rs.47,601/- and another complainant A.Sridharan was liable to pay Rs. 18,054/- towards cost of the building, Registration charges, tax etc.. since they failed to pay entire construction cost, they  cannot file consumer complaint before this court,  hence this case are liable to be dismissed.  Moreover he filed original suit claiming the balance amount against the complainants.

4.       The District Commission, after consulting the evidence and documents found deficiency in service and directed the opposite party to pay a sum of Rs.1,25,000/-        (Rs.1,00,000/- towards unfinished works, Rs.20,000/- towards compensation for mental agony suffered by the complainant and Rs.5,000/- cost) to the complainant K.G.Manoj and Rs.1,00,000/- (Rs.75,000/-  towards unfinished works and Rs.20,000/- towards compensation for mental agony and Rs.5,000/- towards cost of the proceedings) to the another complainant A.Sridharan.

5.      In both complaints, the relief against the 2^nd opposite party Executive Engineer of TNEB was given up. Aggrieved by the above order, the opposite party filed these appeals  on the following grounds that the order of the District Commission is not sustainable in law. The District Commission failed to note that the complainant are liable to pay still more cost towards construction and they cannot file consumer complaint alleging deficiency in service. The District Commission further failed to give due weightage to the admission of the complainants, that they are liable to pay balance amount, hence he prayed to set aside the order.

6.       We heard both sides arguments and the learned counsels reitrated  the facts stated in the respective complaint and written version :

Now the point for consideration are:

1. Whether there is any deficiency in service committed by the appellant/opposite party?

2. Whether the order of the District Commission is sustainable in law?

7.       Point No. 1 and 2 :-   As already stated that it is an admitted fact that the complainants and the opposite party entered into the construction agreement. It is also another admitted fact apart from the agreement, the complainants wants to made some additional features for which they agreed to pay the additional construction cost apart from the cost mentioned in the construction agreement.  As from the admitted case, the complainant Manoj is liable to pay Rs. 8,02,601/- for which he paid Rs.7,42,500/-. The balance amount of Rs.47,601/- was not paid by him. This was admitted in Ex.A.8 and Ex.A.9 itself. Similarly, it is the case of the opposite party that the complainant Sridharan is liable to pay Rs.18,054/-, so the learned counsel appeared for the appellant would argue that when the complainants are not paid the agreed cost of construction, they have no right to allege deficiency in service or complaints of any unfinished works. Though the arguments to be good, we did not accept the same, because as per the calculation made by the opposite party, the total cost included, the amount for Registration, Sales tax, 3 phase EB connection.  So apart from the construction cost, the complainants are liable to pay some extra amount towards Registration, Sales Tax etc. On verifying the pleadings and accepted payments, we conclude that both complainants paid the entire cost towards construction of the building even though if there is any balance amount still to be paid is not for the construction but for miscellaneous charges such as Registration, tax etc., Moreover, the opposite party clearly stated in his written version as well as proof affidavit that he has already filed original suits to realise the balance amount from the complainants.

8.       So the mere liability of the complainant to pay some amounts to the opposite party cannot prevent them from alleging deficiency in the construction as well as expecting the builder to complete all the agreed works. In the written version as well as proof affidavit, the opposite party clearly admitted that there are some defects in the construction and he also admitted that 90% of the work has been completed. So in the proof affidavit and in the written version, though he denied the entire defects mentioned in the complaint, but admitted certain defects.

9.       Similarly by admitting that he completed 95% of the works, he impliedly accepted 5% of the work was not carried out. Apart from that the commissioner report, clearly depicts the sorry state of affairs in the construction. The valuer visited along with Commissioner clearly stated that all the defects mentioned in the complaint are true in nature. When the complainant prove the deficiency in work and other unfinished construction work through Commissioner report which was also accepted in the written version, then we come to the conclusion that the builder committed deficiency of service.

10.     It is also true, the time of building handing over is only March 2007, but before the completion and agreed date, both complainants entered and took possession of the respective house in the Month of January itself. Even these aspects will not prevent  the consumer from expecting,  to complete the remaining unfinished works. Hence keeping the balance amount with them and occupying the house before the aggrieved date will not disentitle the complainant from seeking the compensation and file a complaint before this Commission. Hence we concurred with the findings of the District Commission with regard to deficiency committed by the opposite party.

11.     At this juncture, the learned counsel for the appellant further submitted that without ascertaining the cost of unfinished works, the District Commission fixed their own estimate which is not sustainable and request this commission to consider the same.

12.     It is true that the complainants as well as the valuer did not fix any amount for the cost of unfinished works as well as cost to repair the defective construction portion. However, the learned District Commission rightly fixed and directed the opposite party to pay a sum of Rs.1,25,000/- (Rs.1,00,000/- towards unfinished works, Rs.20,000/- towards compensation for mental agony suffered by the complainant and Rs.5,000/- cost) to the complainant K.G.Manoj and Rs.1,00,000/- (Rs.75,000/-  towards unfinished works and Rs.20,000/- towards compensation for mental agony and Rs.5,000/- towards cost of the proceedings) to the another complainant A.Sridharan.  Hence we don’t want to interfere the order of the District Commission and the District commission  awarded very reasonable amount towards compensation for mental agony, Since there is no error in conclusion and award of the District Commission, we don’t want to interfere with the findings of the District Commission and hence we uphold the order and these appeals are liable to be dismissed. However we don’t want to impose cost in these proceedings.

13.    F. A. No.390/2013

 

          In the result,

          1.  The appeal is dismissed.

2.  The order passed by the Learned District Commission,

    Chennai (North), made in C.C.No.187/2007, dated 29.09.2010 is

      hereby confirmed.

          3.  There shall be no order as to cost in this appeal.

 

14.    F. A. No.413/2013

 

          In the result,

          1.  The appeal is dismissed.

2.  The order passed by the Learned District Commission,

     Chennai (North), made in C.C.No.188/2007, dated 29.09.2010 is

      hereby confirmed.

          3.  There shall be no order as to cost in this appeal.

 

 

 

R.VENKATESAPERUMAL                                                             S.KARUPPIAH

            MEMBER                                                     PRESIDING JUDL MEMBER

 

 

Corrected