Date of Filing      : 25.02.2022
                                                                                                                 Date of Disposal : 05.06.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                                    .....MEMBER-I
                 THIRU.P.MURUGAN,  M.COM.,ICWA (Inter),B.L.,                                                ......MEMBER-II

CC. No.10/2022
THIS MONDAY, THE 05th DAY OF JUNE 2023

Mr.M.Stalin Babu,
S/o.Mr.M.Malayappan,
No.126/1, Malayambakkam Village,
Chennai 600 122.                                                                                 ……Complainant. 
                                                                                 //Vs//
M/s.Build Max Properties,
Rep. by its Proprietor Mr.Sundaram,
No.15, Muthu Nagar,
Poonamallee, Chennai 600 058.                                                    …..opposite party.
 
Counsel for the complainant                        :   Mr.R.Hariramkrishnan Advocate.
Counsel for the opposite party                    :   exparte
                        
This complaint is coming before us on various dates and finally on 08.05.2023 in the presence of Mr.R.Hariramkrishnan counsel for the complainant and the opposite party was set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in the matter of construction done by them  along with a prayer to direct the opposite party to refund the full consideration amount of Rs.22,60,000/- paid by the complainant and to pay a sum of Rs.27,00,000/- towards compensation for the mental agony and hardship caused to the complainant.
Summary of facts culminating into complaint:-
Having dissatisfied and aggrieved by the construction work made by the opposite party the present complaint was filed.
Construction agreement was entered between the parties on 05.04.2019 to construct 600 square feet at the rate of Rs.2000/- per square feet.  The building materials was assured to be of first quality as per the agreement. Materials like Ultra tech cement, double washed M sand, wire cut bricks, TATA Steel rod was promised to be used by the opposite party.  On 10.01.2020 the complainant moved to the new house and within three months found cracks on the wall and huge damage in the ceiling.  Immediately one Mr.Edvin was called and informed who temporarily cleared it with cement.  However, within few days during the rain, cracks started and water leaked from walls and terrace and water entered the house.  When opposite party was informed he did not respond and used un-parliamentary words.  When the complainant approached the Police they insisted the complainant to go for a consumer complaint. The complainant was unable to stay in the house due to the low quality materials used by the opposite party which resulted in huge damage monetarily and mentally to the complainant.  Hence the complaint was filed to direct the opposite party to refund the full consideration amount of Rs.22,60,000/- paid by the complainant and to pay a sum of Rs.27,00,000/- towards compensation for the mental agony and hardship caused to the complainant.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A3. Inspite of sufficient notice and opportunities the opposite party did not appear and hence was called absent and was set exparte on 14.11.2022 for non appearance and for non filing of written version within the mandatory period as per the statute. CMP.No.16/2023 was filed and allowed for appointment of Advocate Commissioner with Chartered Engineer. Report dated 18.04.2023 was filed which was marked as Ex.C1.
Points for consideration:
Whether the alleged deficiency in service in the matter of construction done by the opposite party has been successfully proved by the complainant by admissible evidence?
If so to what reliefs the complainant is entitled?
  Point:1
The following documents were filed on the side of complainant in support of her contentions;
Construction Agreement dated 05.04.2019 was marked as Ex.A1;
House damaged photos was marked as Ex.A2;
House damaged CD was marked as Ex.A3;
Advocate Commissioner’s Report was marked as Ex.C1 as Court Document;
Heard the oral arguments and perused the written arguments filed by the complainant along with other pleadings and materials.
The crux of the oral arguments made by the complainant was due to poor workmanship and substandard materials the house was constructed by the opposite party due to which cracks started and water entered the walls and terrace causing heavy damage to the complainant.  Relying upon the Advocate Commissioner’s Report it was argued by the complainant that as the cracks are dangerous it is unsafe for the complainant to live in that house.  Thus the complainant sought for refund of the amount paid towards the purchase of the house by the opposite party and to take back the house. 
We perused the Report filed by the Advocate Commissioner and Engineer appointed by this Commission to inspect the building.  Both the Advocate Commissioner and Engineer had opined that cracks and dampness occurred throughout the building due to poor workmanship in plastering, improper bricks joints, cement mortar packing and pointing.  The Engineer has concluded as follows;
CONCLUSION:-
The materials used in this building are not in Good Quality.  Bricks and M. Sand & P. sand is not in Good Quality and found very bad workmanship.
Brick work not done in proper bonding in very layers;
The brick joints were not packed;
There never done proper groove cutting in every brick lines;
No proper cement mortar packing in every column joints and not proper hacking column surface;
No proper curing work;
In all windows area there never did the skill level RCC beam concrete;
Cement mortar mixing ratio was not in standard ratio;
Window and door frames were not fixed in proper concrete packing and proper level;
Electrical concealed pipe packing and steel mash fixing were never one before plastering;
Plastering work:-
Very bad workmanship in all areas;
In plastering, the cement mortar was not in standard ratio and good quality of P. sand was not used;
No proper finishing work made at all edges and joints;
Water proofing:-
No water proofing used in terrace areas.
Though the Engineer had concluded that the construction services provided to the owner is very poor by the builder and had opined that rectification could be done in the presence and supervision of a qualified Civil Engineer, the complainant is of the decision that he no longer required the house and wanted only the money back.  In these facts and circumstances we hold that when the opposite party failed to disprove the complaint allegations by appearing before this commission by producing any rebuttal evidence, we hold that the complainant had successfully proved the complaint allegation with admissible evidence that the opposite party had constructed the house in a deficient manner thereby committing deficiency in service.  Thus we answer the point accordingly in favour of the complainant and as against the opposite party.
Point No.2:-
 With regard to the relief, the complainant had sought for the refund of the entire amount paid to the opposite party a sum of Rs.22,60,000/- along with compensation of Rs.27,00,000/- towards mental agony suffered by him.  However, in the facts and circumstances we direct the opposite party to refund Rs.22,60,000/- to the complainant and to take back the home at the expenses of the opposite party along with a compensation of Rs.5,00,000/-awarded for the mental agony and hardship suffered by the complainant. Inspite of purchasing the house for a higher amount with fond hope of living peacefully in that home, the complainant could not live safely in the house even for months together.  We also award Rs.10,000/- towards cost of the proceedings. On opposite party refunding the amount of Rs.22,60,000/- complainant is directed to cooperate for retransfer of the property.
In the result, the complaint is partly allowed against the opposite party directing him
a) To refund the sum of Rs.22,60,000/-(Rupees twenty two lakhs and sixty thousand only) to the complainant and to take back the building at the expenses of the opposite party within eight weeks from the date of receipt of copy of this order;
b) To pay a sum of Rs.5,00,000/- (Rupees five lakhs only) towards compensation for the mental agony caused to the complainant;
c)  To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
d) Amount in clause (a) if not paid within eight weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 05th day of June 2023.

      

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MEMBER-II                                              MEMBER I                                    PRESIDENT

List of document filed by the complainant:-

Ex.A1 05.04.2019 Construction Agreement. Xerox
Ex.A2 ................. House Demaged Photos. Xerox
Ex.A3 ................ House Damaged CD. Xerox

List of document filed by this commission:-

Ex.C1 18.04.2023 Advocate Commissioner’s Report. Original

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MEMBER-II                                          MEMBER I                                     PRESIDENT