BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.15/2013

Dated this the 31^st July, 2018.

(Date of Institution: 04.04.2013)

A.Thilagavathy, D/o.Arputharaj

Plot No.9, 2^nd Cross,

West Sundarraj Nagar, 100 feet road,

Mudaliarpet, Puducherry-605 004.                                              ….       Complainant

Vs.

K.Purushothaman,

Proprietor

KPS Building Designer and Contractor

Rajaji nagar, Lawspet Post,

Puducherry-605 008.                                                           . . .     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 COMPLAINANT         :           Tvl. S. Vimal and K. Ashok Kumar,

FOR THE OPPOSITE PARTY:               Thiru T. Gunasekaran

O R  D  E  R

(by Tmt. D. Kavitha, Member)

This is a complaint filed by the complainant praying to direct the opposite party to pay a sum of Rs.2,17,000/-  to the complainant towards the pending work left to be carried out by the opposite party, to pay a sum of Rs.4,00,000/- to the complainant as compensation for the deficiency of service and towards the continuous mental agony and to pay a sum of Rs.Rs.5,000/- towards the cost of the proceedings.

2.         The case of the complainant is as follows:

            The complainant submit that she entered into an agreement with the opposite party on 06.03.2012 for renovation of a building at the cost of Rs.5,50,000/- and the time schedule for completion of work was fixed as three months from 06.03.2012. Though the opposite party received amount beyond the agreed amount, he has not completed the work even after expiry of seven months from the date of agreement.  Whenever the complainant made request to complete the work, he has given evasive reply.  It is further submitted that the attitude of the opposite party is to cheat the complainant as she is an aged lady.   On inspection of work done by the opposite party, another builder gave an estimation of Rs.2,17,000/- required for completion of the balance work.  She has sent a notice to the opposite party with an instruction to complete the pending work within seven days from the date of receipt of notice.  Though the opposite party received the notice, he has neither chosen to complete the pending work nor to repay the amount, which caused mental agony and stress to the complainant.  The attitude of the opposite party by not completing the work even after receiving the excess amount leads to deficiency in service.   Hence this complaint. 

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

            On 6.3.2012 he has entered into a construction agreement with the complainant for the additional renovation work and new construction of a staircase, new room, weathering on the open terrace, new compound wall, bathroom, flooring and painting and for that a sum of Rs.5,50,000/- was fixed.  He has received the part amount out of the agreed amount and started work in the complainants building.   First he demolished the existing staircase to two floors and the bath room and other structures and then removed the debris.   He has constructed a room in the first floor in the place old stair case and also constructed two column pillars on the eastern side and with the help of two pillars he constructed a new staircase for two floors.   He has also constructed a new bath room in the room at the ground floor and another bath room in the first floor and another one on the back side of the house.   The complaint has given some new works on oral agreement as not stated in the agreement.   He has also constructed a new compound wall to the house to the height of 6 feet with column pillar.  He has laid ceramic tiles on the open terrace and completed the weathering works.    He has also completed wall tiles in the kitchen room, filled sand upto 4 feet around house.   Thus the opposite party completed most of the works upto 90% and new additional works he left flooring and painting works only due to his health condition, as he met an electrical accident on 28.4.2012 and sustained 40% grievous injuries on right hand, stomach, abdomen and both legs.  He got first aid treatment at the General Hospital, Pondicherry and then he was shifted to Chennai Life Lime Hospital, Perunkudi and admitted on 28.4.2012 itself and discharged from the hospital after treatment.   The opposite party took continuous medical treatment as outpatient till the month of June 2013.   He recovered from his grievous injuries after 14 months, however he has completed 90% of contract work and he also done additional work to the tune of Rs.3,95,000/- with his continuous illness.    The complainant and opposite party have orally agreed to construct a room with plastering and flooring at the rate of Rs.1400/- per square feet to the tune of Rs.1,40,000/-.   Further, the opposite party agreed to build a compound wall together with column post and she agreed to pay the amount at the rate of Rs.1350/- per running feet totally Rs.1,00,000/- and to lay of tiles together with tiles cost on the top of the floor at the rate of Rs.60/- per square feet to the tune of Rs.75,000/- .   The Opposite party has completed all the three works, but she has not paid even a single rupee for the same.   More over the opposite party has demolished three roof and removed the debris and for that the complainant has to pay the charge at the rate of Rs.15,000/- for each floor.  The opposite party constructed a kitchen table with concrete and laid titles on the wall side completely with kitchen plumbing at the expenses of Rs.35,000/-.   Thus he has done additional work at the cost of Rs.3,95,000/- and she has to pay the same opposite party.   In fact, the opposite party has completed 90% of his agreed work and he left flooring and painting only for the reason stated above.   Hence the complainant is liable to pay the balance amount to the opposite party after deducting her 10% of amount left in the work.  Since there is no merit in the complaint, he prayed for dismissal of complaint with costs.

4.         The Points for determination are:

1. Whether the complainant is a consumer as per Consumer Protection Act?
2. Whether the OP has committed any deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

5.         The complainant was examined as CW1 to confirm the case.   She marked Ex.C1 to Ex.C5.   The opposite party was examined as RW1 and no document was marked.

6.         Point No.1:

            On perusal of Ex.C1 this Forum has observed that the complainant has entered into a construction agreement with the opposite party on 6.3.2012 and paid Rs.5,61,300/-, to the opposite party towards to carry out the work mentioned in the agreement Ex.C1.   Hence the complainant is considered to be a consumer to the opposite party.  

7.         Point No.2    

            The contention of the complainant is that she has entered into a construction agreement with the opposite party on 6.3.2012 to carry out the renovation work in her house as mentioned in the agreement at a cost of Rs.5,50,000/- vide Ex.C1.   The opposite party was agreed to complete the work within three months from the date of agreement.   As such, the opposite party did not complete the work fully.  But the opposite party has received Rs.5,61,300/- on various dates till 24.9.2013 more than the amount what he charged in the agreement by promising to complete the work.

8.         On contrary he has stopped the work as incomplete even after seven months.   The opposite party did not attend the phone calls of the complaint.   Therefore the complainant is caused to issue letter vide Ex.C2 to the opposite party on 15.10.2012.   The Ex.C5 is the copy of delivery slip for the service of Ex.C2.   Even after that, the opposite party did not come forward either to give reply or to complete the pending works.   The complainant further submitted that she has no other way except to engage another builder as she stated in Ex.C2 to complete the remaining work left by opposite party.   Therefore the complainant approached one Vetri Construction to complete the remaining work left by the opposite party and she has obtained a detailed estimation and abstract of cost vide Ex.C4.   Ex.C3 is the photographs and C.D shows that the real position of the unfinished disputed building of the complainant.   Subsequently the complainant paid Rs.2,17,000/- to Vetri construction to complete the entire work listed in Ex.C4.   Therefore the complainant approached this Forum to redress her grievance as against the opposite party who has attributed deficiency in service and unfair trade practice and caused mental agony to the complainant.  

9.         On the other hand the opposite party has contended that he has completed 90% of works as mentioned in the agreement and some new additional works.   The opposite party has left only flooring and painting works as incomplete due to his ill health.  Apart from that the opposite party has completed some additional new works given by the complainant.   For the same, the complainant agreed to pay the cost of the additional work, upon oral agreement, but she has not paid till date.   The opposite party submitted that he has incurred Rs.3,95,000/- to complete the additional work.   In the meantime on 28.4.2012 the opposite party met with an electrical accident at shree Ulaganayagi Amman Temple, Orleanpet, while erecting roof centring and he sustained 40% of burn injuries.   The opposite party was immediately admitted in Government Hospital, Pondicherry and then shifted to Chennai Life Line Hospital, Perunkudi on the very same day and discharged from there after treatment.   The opposite party has taken treatment as out patient till the month of June 2013.   The complainant also visited the opposite party in his house and she know very well about the accident then the opposite party asked three months time to attend the work and she also accepted for the same.   Unfortunately the opposite party has recovered from his injuries only after fourteen months.   Therefore opposite parties denied that in the meantime the complainant has completed the remaining work left by the opposite party at the cost of Rs.2,17,000/- because he has left only 10% of work as incomplete.   Further the opposite party denied that he has received excess amount of Rs.11,300/-.   Infact the opposite party has done some additional work on an oral agreement for a cost of Rs.3,95,000/-.   Therefore the opposite party prayed to dismiss the complaint.   

10.       This Forum has gone through the complaint, reply version, arguments and the documents filed by the complainant.   On perusal of Ex.C1 it is very clear that the complainant and the opposite party entered into a construction agreement on 6.3.2012 and paid Rs.5,61,300/- to the opposite party to carry out the work mentioned in the agreement.   The opposite party has received Rs.5,61,300/- instead of Rs.5,50,000/- with an excess amount of Rs.11,300/-.   As per the agreement the payments should be made on completion of the work.   The complainant stated in her cross examination, though the opposite party has not completed the work as per column mentioned in the agreement the complainant paid full amount out of sympathy, since he claimed sick.   The opposite party himself admitted in his reply, he met with an electrical accident on 28.4.2012 and he was under outpatient treatment till the month of June 2013.   During the time of his ill health the opposite party has received the amount of Rs.5,61,300/- i.e. from 6.3.2012 to 24.9.2012.   It is proved by Ex.C1 without any doubt.   Complainant stated that the opposite party has completed only 50% of work, to prove the same she has marked Ex.C3 (photos and C.D.).   The complainant has approached Vetri Construction only after due notice to opposite parties vide Ex.C2.   The opposite party never come forward to give reply or to complete the pending works.   Under these circumstances the complainant engaged one Vetri Construction and completed the remaining work which has been left by opposite party at a cost of Rs.2,17,000/-.    To substantiate her case the complainant examined one S. Balaji the proprietor of Vetri Construction as CW2.   He deposed that

"I am the proprietor of Vetri Construction.   I issued Ex.C4 dated 20.10.2014.   ex.C4 is the quotation for the additional work undertaken by me to the tune of Rs.2,17,000/-.   I have completed the entire work listed in Ex.C4.   I have done the work which the earlier constructor omitted to carry out as per agreement made between the complainant and the opposite party".

The opposite party stated that he has completed 90% of work and he has done some additional work to the tune of Rs.3,95,000/- which is not listed in agreement Ex.C1.   If it is really so, he should have given reply to Ex.C2.   Further opposite party stated that he has completed the item No.5&7 in Ex.C4 and also opposite party admitted that he has not completed the weathering course work but had purchased and laid the tiles on open terrace.   For the same the opposite party has not produced any documents or purchase bill.  On failure to give reply notice to Ex.C2 and rebut his case leads to take adverse inference against the opposite party.

11.       From the above discussion, this Forum finds that both the parties failed to make out the exact amount of their claim.   But any how the complainant has proved that the opposite party has committed deficiency in service by not complying the terms and conditions of Ex.C2.   To meet the ends of justice, this Forum inclined to allow this complaint.   The opposite party is liable to compensate the loss and injuries sustained by the complainant due to deficiency in service, unfair trade practice and for the negligent act of the opposite party.  

12.       Point No.3:

            In view of the decision taken in point No.2, the complaint is hereby allowed and the opposite party is directed:

1. To pay the complainant a sum of Rs.1,25,000/- as compensation towards loss and injuries and mental agony sustained by her due to the deficiency in service, unfair trade practice and negligent act of the opposite party.  
2. To pay a sum of Rs.5000/- as cost of the litigation.

Dated at Pondicherry on this the 31^st day of July, 2018.

1. ASOKAN)

PRESIDENT

             (V.V. STEEPHEN) 

                               MEMBER

                (D. KAVITHA) 

                              MEMBER

COMPLAINANT’S WITNESS:

OPPOSITE PARTIES’ WITNESS:

COMPLAINANT’S EXHIBITS:

OPPOSITE PARTY EXHIBITS:  Nil

1. ASOKAN)

PRESIDENT

           (V.V. STEEPHEN) 

                               MEMBER

                (D. KAVITHA) 

                              MEMBER