D.O.F : 15/03/2024
D.O.O : 30/10/2024
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC 79/2024
Dated this, the 30th day of October 2024
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Ammini P K
Nediyakala Veedu
Balal P O, Parappa (via)
Kasaragod district – 671533. : Complainant
And
- The Manager
Digibis build on quality
Rating Pvt Ltd
Highlite Mall
-
- Dhanesh N K
S/o Sunildas K N
Naripramel Veedu
Thoovakkunnu P O
Kannur district. : Opposite Parties
ORDER
SMT.BEENA.K.G : MEMBER
The facts leading to controversy are as follows;
The complainant who is a permanent resident of Balal Panchayath, Kasaragod district was planning for construction of upstairs for her house in connection with the marriage of her son. In the meanwhile opposite party representatives one Musthafa and Dhanesh approached her and described the quality of their work and service experience described, offered help in construction of unpstairs of her house. The complainant who belongs to ST category was not aware of legal formalities agreed to give the work of upstair construction of her house on their assurance of quality materials, speedy completion etc. On 31/01/2023 one of the representative of opposite party one Mr. Dhanesh approached the complainant and informed that if she pay Rs. 50,000/- and sign the agreement that day itself, she will avail an offer of 20% discount in total amount. Thus she paid Rs. 50,000/- and signed the agreement which is prepared by them then and there inspite of reading the agreement. Thereafter while going through the agreement she came to know that it was not prepared for her, instead it is prepared for construction of ground floor of a house. The terms and conditions of the agreement are entirely different from the instructions given by her. When she raised objection, opposite party assured to complete the work in the first week of September 2023. The opposite party’s representative made her believe that there is no problem in mentioning ground floor instead of upstair as they are supervising the work. As per the agreement the plinth area of ground floor is 750 square feet and first floor is ‘0’. The complainant was residing in the ground floor of aforesaid house since 22 years and there is no need to construct ground floor to the said building. On 05/04/2023 the complainant was constrained to transfer Rs. 1,00,000/- to the account of opposite party company as per their direction. Even after paying the said amount also, opposite party was not ready to bring materials or workers in the aforesaid site or to start the work. The complainant tried to contact opposite parties through phone. After the repeated requests of the complainant one load M sand and laterite stones were brought to the site. Thereafter opposite parties are not bringing workers even after 5 months of agreement also. As per the requests of the opposite party representatives the complainant collected mobile number of workers in the same locality. Even after starting the work also, the essential materials like cement, iron rods etc. are not brought by opposite party representative. The opposite party again approached the complainant for the materials and offered to refund through their account. But opposite party never refunded the said amount. Fed up with the negligent attitude of opposite party, the complainant was constrained to send a registered letter to the manager of opposite party company that the remaining work will be done by them only by giving wages to local workers, that amount has to be refunded through account. A portion of the house is demolished to construct stair case, so the house was unable to close. Hence the house was not secure to live; the said fact was mentally weakened them. The opposite party was not given coolie to local workers and so local workers are not ready to work for the opposite party company. Instead they did not allow the complainant to complete the work with other workers. At this time one Akhil was assumed charge as District Manager and he assured the complainant to complete the work on payment of next instalment of Rs. 1,64,989/-. Even after paying the said amount also there was no improvement and it is known that the Akhil was terminated from the company. As per the direction of opposite party, the complainant has given an application to opposite party to cancel the agreement and contacted the Finance department for refund, the opposite party offered refund within 3 months. The complainant had given compliant in police department, ST department etc., but so far no relief is availed. As per the direction of opposite party, the complainant had paid Rs. 3,14,989/- to opposite party company. But they brought materials below Rs. 50,000/-. Moreover opposite party had not supervised the work or arranged workers. As the construction work is still pending the local people are blaming her and declared that she was cheated by opposite parties. This made severe mental agony to her inspite of monitory loss. Hence the complainant is seeking refund of Rs. 4,25,000/-. After deducting of Rs. 50,000/- from the total paid amount with a compensation of Rs. 1,00,000/- along with litigation cost.
Notice of opposite party returned stating no such addressee. So notice issued to the complainant, she informed that opposite parties are there in the same address itself.
The complainant filed proof affidavit in lieu of chief examination and the documents produced are marked as Ext. A1 to A5. Heard the complainant. The main issues raised are;
- Whether the complainant is a consumer?
- Whether there is any deficiency in service/unfair trade practice from the part of opposite parties in connection with construction of the upstair of the complainant’s house?
- If so, what is the relief?
For convenience all issues can be discussed together. Here the complainant entered into an agreement with the representatives of opposite party company for entrusting the construction work of the upstair of their house for an amount. That agreement is marked as Ext. A1. Through Ext. A1 document the complainant is seeking the service of opposite parties for a consideration fixed by them. So the complainant is a consumer. It is very important that prior to or at the least simultaneous to, getting a consumer to enter into an agreement and accepting the first payment towards the total cost of construction the builder company was required and expected to have the due pragmatic and realistic assessment and preparation of the project, planning execution and completion.
While discussing about the second point, opposite party are doing construction works and they explained their procedure terms and conditions to the complainant who was planning for the construction of upstair of her house in connection with the marriage of her son. Taking advantage of this situation the representatives of opposite party made her believe that they will do the construction work of upstair of her house in qualitative manner. Due to their undue influence, the complainant signed in the agreement brought by them and had given an advance amount of Rs. 50,000/- before reading terms and conditions in agreement. Thereafter the opposite party collected amount from her many times but were not interested to bring the materials for construction and arrange workers. Even after transferring the amount as per the direction of opposite parties the complainant again had undergone severe mental agony and hardships in arranging construction materials and workers in time. Due to the deficiency in service on the part of opposite parties, the complainant had undergone huge loss, severe mental agony and untold miseries. After grabbing money from the complainant, the representatives of opposite party protested the complainant from arranging local workers and by completing the construction work. The complainant’s family were in an unsafe condition as one side of the house is demolished for construction of staircase. So they are unable to close the house. When the relation between the complainant and opposite party were more worsened, one Akhil assumed charge and he also had given sweet offers to the complainant just like his predecessors. Thus the complainant again lost Rs. 1,64,989/- as next instalment. But after a long gap it is informed that the aforesaid Akhil was terminated from his post. The opposite parties exploited the complainant. Thereafter the complainant had given application for refund of the paid amount to the opposite party. But so far it is not refunded.
Ext. A1 is the agreement between complainant and opposite party dated 31/01/2023. Ext. A2 series is the statement of account of Nithin K N from 05/04/2023 to 20/06/2023. Ext. A2(b) is also statement of account of Nithin K N on 20/06/2023. Ext. A3 is the complaint given by the complainant in this regard to the Chief Minister. Ext. A4 is the reply to the aforesaid complaint. Ext. A5 is the total estimate given by opposite party to complainant. As per Ext. A4 an enquiry was conducted by local police as per Ext. A3. The complaint and the opposite party’s manager Twingle (mob: 9633787674) and the company advocate Mr. Subbire (mob: 9946565646) are agreed to refund the balance amount to the complainant within 3 working days. But so far it is not refunded. Ext. A1 proves the careless attitude of opposite party. At the time of entering into an agreement, the opposite party had no idea regarding completion of construction work within the reasonable period. It is the prime responsibility of the builder company to arrange materials for construction and labours in time. The opposite party had no planning about construction and labour in time. The opposite party had no planning about how to complete the work within the time assured in Ext. A1 planning, Execution and completion were opposite party’s responsibility and not of the consumers.
The gist of this complaint is that the complainant sought the service of opposite party for construction of upstair to her house. Both parties, the complainant and representatives of opposite party entered into a contract. But the terms and condition and the subject matter of the agreement was entirely different from the instructions given by the complainant. The opposite parties duped the complainant and grabbed her money in one or another pretex. In the absence of rebuttal evidence, there is serious dereliction of duty and unfair trade practice on the part of opposite parties which caused huge loss and severe mental agony and hardships, emotional insult to the complainant. The opposite parties are liable to compensate the loss and agony undergone by the complainant.
The relief sought by the complainant against opposite party is to refund Rs.4,25,000/- along with a compensation of Rs. 1,00,000/- with cost of litigation. The complainant is entitled for the refund of Rs. 4,25,000/- and the loss and agony undergone by her is actually more than Rs. 1,00,000/-. The complainant also entitled for cost of litigation of Rs. 5,000/- also.
Therefore the complaint is allowed directing opposite party to refund Rs. 4,25,000/- (Rupees Four lakhs Twenty Five thousand only) with 9% interest along with a compensation of Rs. 1,00,000/- (Rupees One lakh only) and cost of Rs. 5,000/- (Rupees Five thousand only) to the complainant within 30 days from the date of receipt of copy of this order.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1 – Agreement
A2 – Series of statement of account
A3 – complaint given by the complainant
A4 – Reply letter
A5 – Total estimate given by opposite party
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
JJ/
