BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD
F.A.No.1113/2005 against C.D.No.189/2003 DISTRICT CONSUMER FORUM, Anantapur.
Between:
Dr.V.Ramakrishna
S/o.V.Hanumanthappa,
Aged about 62 yrs., Occ: Retired Employee ,
R/o.D.No.13/2-11,
Ramachandra Nagar, Anantapur. ....Appellant/
Complainant And
M.Vijaya Kumar Naidu, S/o.Muniswamy,
Occ:Prop.Hima Arcade, 2nd cross,
Aravinda Nagar Anantapur. ... Respondent/
Opp.party
CORAM:HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
SMT.M.SHREESHA, HON’BLE MEMBER
AND
SRI G.BHOOPATHI REDDY, HON’BLE MEMBER.
FRIDAY, THE FIFTEENTH DAY OF FEBRUARY,
TWO THOUSAND EIGHT.
ORAL ORDER: (Per Sri G.Bhoopathi Reddy, Hon’ble Member)
***
This is an appeal filed by the appellant/complainant under Section 15 of Consumer Protection Act,1986 to set aside the dismissal order passed by the District Forum, Anantapur in C.D.no.189/2003 dt.28.6.2004.
The appellant herein is the complainant before the District Forum . He filed a complaint under Section 12 of Consumer Protection Act,1986 to direct the opp.party to pay a sum of Rs.1,83,000/- towards the return of the balance amount with interest @ 15% p.a. from 30.8.2002 to 10.9.2003 i.e. one year and one month, Rs.25,000/- towards payment for municipal approval and Rs.6000/- towards mental agony.
The case of the complainant is as follows:
The complainant wanted to settle down at Anantapur and has purchased a plot measuring 90’ x 44’ at Azadnagar, Kalyandurg road, Anantapur . The complainant has entered into negotiations with M.Vijaya Kumar Naidu Proprietor of M/s.Hima Architects, Builders and Contractors, Anantapur.. The total estimated cost of the building agreed is Rs.6,50,000/-. The amount is to be paid to the contractor in 3 equal instalments of 6 months duration. . Each instalment payment has to be made to the contractor @ Rs.2.25 lakhs each. The contractor has to complete the building within 1 ½ years in complete shape . The complainant has paid an advance of Rs.2,25,000/- on 30.8.2002 and obtained receipt. The complainant paid Rs.25,000/- for getting the plan approved. without obtaining any receipt.. Contrary to the rules without the approval of the municipality the opp.party laid foundation and commenced construction work on 30 8.2002 and abruptly stopped construction after one month The complainant approached Consumer Council who has issued notice to the opp.party but there was no response The complainant submits that non refunding the balance amount by the opp. party amounts to deficiency in service and prayed to direct the opp.party to refund the balance amount of Rs.1,83,000/- and Rs.25,000/- towards municipal plan approval and interest at 15% from 30.8.2002 to 10.9.2003 i.e. Rs.33,800/- and Rs.6000/- for mental agony suffered.
The opp.party filed counter stating that the complainant has not paid any amount for getting plan approved nor he paid the amounts agreed as per the agreement. After agreement the complainant has requested the opp.party to start work. At that time the opp.party advised the petitioner to get the municipal plan approved . The opp.party started the work . The complainant used to inspect the site daily. The opp.party has completed the work upto plinth level. He purchased construction material upto slab level and kept the steel and cement in the site premises, which is to be used for further construction by spending about Rs.4 lakhs. The opp.party asked the complainant to pay the second instalment, but he has not paid the amount. The opp.party has already spent about Rs.4 lakhs. He was paid only Rs.2,25,000/- .The complainant taking advantage intentionally evading the opp.party to go on with the future construction. The opp.party has given representation to the Addl.Superintendent of Police, Anantapur and also filed a petition before the District Legal Services Authority. The opp.party also paid amount to the labour contractor , rod bender, centering and shuttering contractor to work at the premises. He incurred heavy expenditure. Moreover the steel and cement that has been purchased for the sake of construction are in the possession of the complainant . On account of failure in getting the building plan approval from the Municipality and with malafide intention to have the benefit of the construction made by the opp.party and also with malafide intention to procure the material worth about Rs.4 lakhs which is in custody of the complainant, he filed the complaint . There is no deficiency in service on the part of the opp.party .The complaint may be dismissed
In support of the complainant claim, he examined himself as PW.1 and filed Exs.A1 to A7. Mr.Riazuddin is examined as PW2 The opp.party himself is examined as RW.1 . The District Forum based on the evidence adduced and pleadings put forward by both parties, held that there was no deficiency in service, and dismissed the complaint.
Aggrieved by the dismissal order of the District Forum, the complainant has filed this appeal contending that order of the District Forum is not maintainable either under law or facts. The District Forum ought to have allowed the complaint on the ground that the respondent himself admitted that he has entered into an agreement with the appellant and also received an advance amount of Rs.2,25,000/- . The District Forum failed to observe that as the respondent did not choose to file an application for appointment of Commissioner to assess the progress of the construction it would prove that there was no construction. The District Forum committed error in dismissing the petition. The Dist.Forum has failed to observ that the respondent failed in obtaining permission from Municipality, even though he has received an amount of Rs.25,000/- for the said purpose. He prayed that the order passed by the District Forum be set aside and appeal be allowed.
It is an admitted fact that Ex.A1, the contract/agreement dt.30.8.2002. was executed between the complainant and opp.party . In the said agreement it is stated that the owner is proposed to construct a residential house (area 32’ x 40’ =1280 sft.) at Azad Nagar, Anantapur and the contractor has agreed in turn to construct the house completely in all respects as per mutually agreed upon as per plan and specifications for a lumpsum amount of Rs.6,50,000/-. The mode of payment shall be in three equal instalments. The duration of construction is six month . Ex.A2 is the specifications . Ex.A3 is the receipt issued by the opp.party for an amount of Rs.2,25,000/- . As per the said receipt the complainant paid Rs.2,25,000/- to the opp.party towards the construction of residential building. Ex.A4 is the copy of the plan.. Ex.A5 is the estimation for construction of the work at Rs.42,000/- . Ex.A6 is the office copy of the notice issued by the Dist.Consumer Council to the opp.party. As per the said notice the opp.party has to construct the house upto ground level incurring expenditure of Rs.42,000/- . In the said notice the opp.party was requested to return back the balance amount, after deducting the expenditure incurred for construction . The appellant submits that Rs.25,000/- is paid to the opp.party to obtain sanctioned plan from Municipality . The complainant has not filed any receipt to show that an amount of Rs.25,000/- is paid to the opp.party. The District Forum has elaborately discussed and given finding that the complainant has not paid Rs.25,000/- to obtain sanctioned plan . On the other hand the opp.party without approval of sanctioned plan, completed the construction work upto basement level, incurring expenditure of Rs.42,000/-. This fact was also mentioned by the Consumer Council in the notice issued to the opp.party .
The appellant submits that he has paid Rs.2,25,000/- to the opp.party , after deducting the expenditure incurred for the construction , Therefore the opp.party is liable to refund the balance amount . Non refunding the said amount, amounts to deficiency in service . As per the contract/agreement, the complainant has not paid amount in installments. As such the opp.party stopped construction of the building. It is mentioned that the opp.party has carried the work upto ground level by incurring expenditure of Rs.42,000/- .
. The District Forum has elaborately discussed the documentary evidence and oral evidence given finding that there was no deficiency in service on the part of the opp.party. The opp.party has commenced construction and completed the work upto ground level. As the complainant has not paid remaining amount the work was stopped . The complainant has not obtained municipal sanction for carrying construction of house. The complainant himself admits that the opposite party has carried the construction upto ground level incurring expenditure of Rs.42,000/- and after one month of construction, he abruptly stopped construction . RW.1 has asserted in his evidence that the municipal authorities did not allow him for carrying construction. Admittedly there is no plan, approved by municipality. RW.1 stated that he has incurred expenditure for carrying construction . He also purchased the material worth Rs.3,50,000/- and stored in the premises of the complainant. We do not find any deficiency in service on the part of the opp.party. We do not see any merits in the appeal warranting interference with the order of the District Forum.
In the result Appeal is dismissed. In the circumstances no costs.
.
PRESIDENT LADY MEMBER MALE MEMBER
DT.15.2.2008
