SMT. MOLYKUTTY MATHEW : MEMBER

This is a complaint filed by the complainant U/S 35 of Consumer Protection Act 2019 for an order directing the opposite party to pay an amount of Rs.8,39,163/-  to the complainant as per  the agreement that amount already received by the opposite party from the complainant along with Rs.5,00,000/-  as compensation for mental agony caused to the complainant for the deficiency of service and unfair trade practice  on the part of opposite party.

The case of the complainant in brief

            The complainant is presently resided in a rented house and paying rent of Rs.5,000/- per month.  Then the complainant is intending to construct a new house at Cherukunnu.  The complainant entered in to a contract with OP for the construction of the house.  On 17/02/2023 the complainant and OP entered in to a written agreement and executed the agreement by both parties.  According to the condition of the contract the OP has agreed to complete the construction of the house within a period of 8 months from the date of execution of agreement.  The rate of construction is fixed Rs.1750/- per square feet.  Since, the OP has not given the plan of the house.  On 17/02/2023 the complainant paid Rs.50,000/- as advance payment to OP.  Thereafter on 23/03/2023 the complainant paid Rs.2,00,000/- to OP advance amount 15% and on 25/03/2023 paid Rs.1,26,163/- advance amount 15% (balance amount).  Then on 02/06/2023 the complainant paid Rs.1,50,000/- to OP as  belt formation (10%).  On 08/06/2023 the complainant paid Rs.1,13,000/-  to OP.  Thereafter on 09/08/2023 the complainant paid Rs.2,00,000/-  to OP as wall and  Lintel formation 10%.  Even though an amount of Rs.8,39,163/- has received by the OP and he has not done any substantial work and the work of the house was completed only up to part of wall.  After 1^st week of August 2023 none of the employees of OP has turned up and the entire construction work remained stand still.  When the complainant enquired at Kannapuram Grama Panchayath Office the OP has not even submitted a site plan is in order to get permit which is statutory requirement under the provision of law.  The complainant had entrusted the work to OP with an expectation that he would be complete the work within the period of 8 months as agreed in the contractual agreement.  Moreover he expected that he would be able to shift his residence to newly construct house at the earliest.  But the OP has failed to perform his part of contract.  The act of OP the complainant caused much mental agony and financial loss.  So there is deficiency of service and unfair trade practice on the part of OPs, hence the complaint.

            After filing the complaint notice issued to OP.  Then the OP received the notice and not appeared before the commission and no version filed.  Ultimately the commission had to hold that the OP has no version as such in this case came to be proceed against the OP as set ex-parte.    Then the complainant filed a petition before the commission to appoint an expert commissioner to inspect the petition schedule properly and to submit a detailed valuation report before the commission.  The petition allowed by the commission and Mr.Karunakaran pola is appointed as the expert commissioner.  The expert inspected the plaint schedule properly with due notice and report filed.

            Even though the OP has remained ex-parte it is for the complainant to establish the allegations made by him against the OP.  Hence the complainant was called up on to produce evidence in the form of affidavit and documents.  Accordingly the complainant has chosen to produce his affidavit along with 5 documents marking them as Ext.A1 and A5 and the Ext.C1 is the expert commission report.  The complainant was examined as Pw1.  So the OP remains absent in this case.  At the end the commission heard the case on merit.

Let us have a clear glance at the relevant document of the complainant.   Ext.A1 is the written agreement between the complainant and OP   dated 17/02/2023.  As per agreement the OP admits that within the period of 8 months the construction work was complete. On 17/02/2023 itself the complainant paid Rs.50,000/- as advance payment.   In Ext. A2 is the cash receipt issued by OP dated 23/03/2023 for an amount of Rs.2,00,000/- as advance amount 15%.  In Ext.A3 is the cash receipt issued by OP dated 25/03/2023 for an amount of Rs.1,26,163/- as advance amount 15% (balance amount).  In Ext.A4 is the cash receipt issued by OP dated 02/06/2023 for an amount of Rs.1,50,000/- and on 08/06/2023 for an amount of Rs.1,13,000/-as bet formation 10%. In Ext. A5 is the cash receipt issued by OP dated 09/08/2023 for an amount of Rs.2,00,000/- as wall and listed formation 10%.  As per Ext.A1 to A5 the complainant paid a total amount of Rs.8,39,163/-  to OP.  The expert commissioner also inspected the petitions schedule properly and filed the report before the commission.  As per Ext.C1 report it clearly shows that the foundation work of the building has completed by using laterite mansonry. The masonry work of the basement has completed by using laterite masonry is cement mortar Belt concrete also completed.  Super structure wall of the building only constructed up to lintel level.  The doors and windows already fixed in super structure walls are not much good in quality as per the normal appearance.  Moreover the expert commissioner reported that the valuation statement the total amount spend for the work of the building incurred Rs.4,18,283/-.  So the balance work is remaining and the OP is not ready to complete the work as per the agreement.  Hence the OP is liable to refund the excess amount Rs.4,20,880/- to  complainant. Under this circumstances we are of the considered view that the OP is directly bound to redressal the grievance caused to the complainant.  Therefore we hold that the OP is  refund Rs.4,20,880/- to the complainant along with Rs.75,000/- as compensation for mental agony caused to the complainant and Rs.10,000/- as litigation cost.

In the result the complaint is allowed in part directing the opposite party to refund Rs.4,20,880/- to the complainant for the excess amount already collected by opposite party along with Rs.75,000/- as compensation for mental agony caused to the complainant and Rs.10,000/- as litigation cost  within 30 days of receipt of this order.  In default the amount of Rs.4,20,880/- carries 12% interest  per annum  from the date of order till realization.  Failing which, the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019. 

Exts.

A1  - Agrement dated 17/02/2023

A2- Receipt issued by OP to complainant dated 23/03/2023

A3– Receipt issued by OP to complainant dated 25/03/2023

A4– Receipt issued by OP to complainant dated 02/06/2023

A5– Receipt issued by OP to complainant dated 09/08/2023

C1-Expert report.

     Sd/                                                                                  Sd/                                                        Sd/

PRESIDENT                                                                 MEMBER                                              MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

/Forwarded by order/

Assistant Registrar