Chandigarh

StateCommission

A/171/2024

NEELAM BANSAL - Complainant(s)

Versus

M/S DEV CONSTRUCTIONS - Opp.Party(s)

PAWAN BANSAL

11 Sep 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

==================

Appeal No.	:	A/171/2024
Date  of  Institution	:	22/04/2024
Date   of   Decision	:	11/09/2024

 

 

 

 

 

Neelam Bansal wife of Sh. Pawan Bansal, through her Special Power of Attorney Sh. Pawan Bansal, Advocate son of Late Sh. H.R. Bansal, Resident of House No. 1206, Sector 44-B, Chandigarh.

….Appellant

Vs.

 

1.     M/s Dev Constructions, through its Proprietor/ Partner Sh. Raj Verma son of Sh. Ram Chander.

 

2.     Dev Dutt Verma son of Sh. Raj Verma.

 

        Both residents of Flat No. 001, Suncity, Sector 20, Panchkula.

 

        2^nd Address: H.No.1281, Sector 26, Panchkula.

 

…. Respondents

 

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

PREETINDER SINGH      MEMBER

       

PRESENT	:	Sh. Pawan Bansal, Advocate for the Appellant.
		Respondents ex-parte vide order dated 22.07.2024.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

1.         The present appeal has been filed by the Appellant impugning the order dated 05.03.2024 vide which the Learned District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), partly allowed the Consumer Complaint bearing no.CC/701/ 2021, in the following terms:-

“9.     In the light of above observations, the present Complaint deserves to succeed against the Opposite Parties No.1 & 2. Accordingly, the present Complaint is partly allowed against OP No.1 & 2. The OPs No.1 & 2 are directed to refund to the Complainant an amount of Rs.29,000/- along with interest @9% per annum from the date of filing the present Complaint till its actual date of refund with interest. The OP is also directed to pay lump-sum compensation of Rs.21,000/- for harassment and litigation expenses. 

          The above said order shall be complied with by the OPs No.1 & 2 within a period of 90 days from the date of receipt of copy of this order.”

 

2.         For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.

 

3.         Before the Ld. District Commission, it was the case of the Complainant that in order to raise construction on her Plot No.367, Sector 77, Mohali (Punjab), the complainant contacted Opposite Parties/ respondents and entered into an Agreement on 27.11.2019.  The total cost of construction was settled in lump sum of Rs.15,50,000/- and the building was to be completed in all respects within 04 months latest by 31.03.2020. The complainant made advance payments to the Opposite Parties and till 31.12.2019 paid an amount of Rs.4,91,000/- for purchase of building material etc., whereas work done by them at the site was negligible. Though the OPs failed to complete the construction within the stipulated time, yet on their request, the complainant still paid an amount of Rs.2,90,000/- to the opposite parties from 03.06.2020 to 10.07.2020.  It was averred, before laying the lintel, the OPs raised demand for more amount, whereas the complainant was required to pay  55% of the total agreed amount upto the stage of lintel, which comes to Rs.8,52,000/- and against  the said amount, the complainant had already made payment to the tune of Rs.7,81,000/-  including Rs.40,400/- paid to GMADA and as such, the complainant was required to pay only  Rs.1,11,400/-  to the Opposite Parties upto the stage of lintel and not Rs.3 lacs as per their demand. Accordingly, the complainant paid an amount of Rs.1,00,000/- to the OPs through NEFT.  It was alleged that after taking payment, the OPs did not place any order for shuttering and even the walls upto the stage of lintel were not completed at all.  It was further averred, the OPs have obtained money from the complainant in excess of the work done by them to the tune of Rs.3.50 lacs.  The OPs have not handed over the complete documents obtained from the office of GMADA to the Complainant i.e. demarcation of the plot, certificate of completion of plinth level etc. despite repeated requests made by her.  It was also alleged that the quality of construction made by the OPs at the site was of very poor quality, walls of the rooms were not rectangular; pillars erected were also not straight and of square shape, as such, the complainant had to get the wrong construction made by OPs dismantled after spending huge amount of money.  Ultimately, the complainant got the building completed by engaging the services of another contractor i.e. Mehraj Constructions on 05.03.2021 and made all payments.  It was asserted that as per valuation obtained by the complainant from approved valuer on 18.08.2020, the total cost of construction incurred by the OPs on the site of the complainant was Rs.4 lacs approx.; even the brick wall work upto the slab level was not complete; no rain water and sewerage water pipes of four inches size were affixed in the walls which were required to be affixed before construction and casting the slab.  However, the OPs instead of completing the project, served legal notice on the complainant on 25.07.2020, which was duly replied on 06.08.2020.  Hence, the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

4.         The Opposite Parties No.1 & 2 failed to file their written version despite ample opportunities and therefore, the defence of Opposite Parties No.1 & 2 was struck off vide order dated 12.12.2023.

 

5.         On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. District Commission dismissed the Complaint of the Complainant as noticed in the opening para of this order.  

 

6.         Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellant/Complainant.

 

7.         Even during the present proceedings, the Respondents did not appear before this Commission despite due service and hence, they were proceeded against ex-parte vide order dated 22.07.2024.     

 

8.         We have heard the Learned Counsel for the Appellant and have gone through the evidence and record of the case with utmost care.

 

9.         The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

10.         After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.
11.         It is the case of the Appellant/Complainant that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding. Also, the impugned order was passed without taking into consideration the facts of the case and without appreciating the correct legal position, which resulted into gross miscarriage of justice and thus deserves to be set aside. The learned counsel further argued on the similar lines and prayed for acceptance of the present appeal.

 

12.         Learned Counsel for the Appellant argued that as against the amount of Rs.26,50,000/- claimed by the Appellant/Complainant, the Ld. District Commission vide impugned order had granted a paltry sum of Rs.50,000/- only i.e. Rs.29,000/- on account of deficiency in service and Rs.21,000/- as costs), which is patently illegally and against law & facts on the record.

 

13.         Record shows, an agreement dated 27.11.2019 was duly executed between the Appellant and the Respondents for raising construction of the building on Plot No. 367, Sector 77, S.A.S. Nagar, Mohali for a lump sum amount of Rs.15,50,000/-. The construction was to be completed in all respects within four months and latest by 31.03.2020. Indisputably, the Respondents failed to complete the construction within the stipulated period. Per findings recorded by the Ld. District Commission, it is evident, upto the stage of lanter, 55% of the amount i.e. Rs.8,52,000/- was to be paid by the Appellant; whereas, she had paid Rs.8,81,000/- to the Respondents. Pertinently, there is a valuation report obtained by the Appellant/Complainant from the approved valuer (Annexure C-5), which showed the total cost of construction incurred by the Respondents/Opposite Parties on the site of the Complainant was Rs.4,00,000/- and even the brick work upto the slab level was not complete, no rain water & sewerage pipes were laid down in the walls which were required to be affixed before construction and casting the slab. This valuation report goes unrebutted. The cost of the construction made by the Opposite Parties/Respondents was assessed at Rs.4,00,000/- only against the payment of Rs.8,81,000/- made by the Appellant. In this manner, there was a difference of Rs.4,81,000/-. Although this fact has duly been noticed by the Ld. District Commission, yet it wrongly came to the conclusion that the Respondents had received excess amount of Rs.29,000/- from the Appellant and that in view the terms & conditions, the Complainant was required to pay Rs.8,52,000/- till the completion of lanter stage and not the cost of construction as per report.  To our mind, the Respondents are liable to return the excess amount of Rs.4,81,000/- to the Appellant and not the amount of Rs.29,000/- as wrongly ordered by the Ld. District Commission.           

    

14.         The Appellant has claimed cost of escalation of material and labour charges @ Rs.100/- per sq. ft. of the covered area, loss of income on account of rent to be received @ Rs.20,000/- per month from April 2020 onwards, charges for dismantling the wrong construction made by the Opposite Parties. However, the Appellant did not adduce any cogent, convincing and reliable evidence to prove her claim. In the absence of which, we cannot grant the reliefs sought for by the Appellant; as such, the same are declined.  Besides this, the Appellant has also claimed a sum of Rs.2,50,000/- towards extension fee and other charges paid/payable to GMADA. However, we are not inclined to grant such relief to the Appellant. Per material available on record, the Complainant paid extension fee of Rs.2,49,666.24 to GMADA and Rs.22,255/- for obtaining water connection with penalty for regularization of water connection of the plot. Admittedly, Respondents could not start/complete the construction on the plot of the Appellant due to which the Appellant had to pay the aforesaid fee. Nonetheless, to our mind, such fees are always payable by the owner of the plot and not by the builder.  Furthermore, there is no recital in the Agreement dated 27.11.2019 executed between both the parties to the effect that in case of delay in start/completion of the construction, the aforesaid fee payable to the GMADA shall be paid by the Respondents. As such, the claim made by the Appellant in this regard also stands rejected. One can well imagine the plight of the Appellant, who hired the contractor with a view to construct her house as per the specifications/sanctioned plans and despite receiving considerable amount from her, the Respondents left her in limbo and in fact, abandoned the work, which led to the engagement of other agency/contractor by the Appellant/Complainant to carry out the pending construction work, which certainly aggravated her pain & harassment.

 

15.         Learned Counsel for the Appellant argued that the Ld. District Commission failed to grant proper compensation and the compensation awarded is highly inadequate. It is well settled that the word ‘Compensation’ is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors., (2000) 7 SCC 668 are also apposite:-

 

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

 

16.         In Lucknow Development Authority v. M K Gupta, (1994) 1 SCC 243 also, the Hon’ble Supreme Court held that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the Consumer Protection Act observed that  “…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done”. Under these circumstances, the complainant is entitled to get, special, exemplary and aggravated damages.  So on account of inconvenience, physical & mental harassment suffered by the Appellant at the hands of the Respondents and towards costs of proceedings, Rs.1,00,000/- would be just and reasonable to be awarded as lump-sum compensation. In this view of the matter, the orders passed by the Ld. Lower Commission, granting meagre compensation needs modification. 

 

17.         No other point was urged, by the Learned Counsel for the Appellant.

 

18.         In view of above, the present appeal stands partly accepted. The orders of the Ld. District Commission are modified and respondents/opposite parties, are directed to refund to the Appellant/Complainant the excess amount of Rs.4,81,000/-. The Respondents/ Opposite Parties are also directed to pay lump-sum compensation of Rs.1,00,000/- to the Appellant/ Complainant for causing mental agony & harassment to her and towards litigation expenses.            

 

19.         The above order shall be complied with by the Respondents/Opposite Parties, within thirty days from the date of receipt of copy of this order, failing which, they shall make the payment of the amounts aforesaid with interest @ 9% p.a. from the date of filing of the Complaint, till realization. 

 

20.         All the pending application(s), if any, also stands disposed off accordingly.

 

21.         Certified Copies of this order be sent to the parties, free of charge.

 

22.         The file be consigned to Record Room, after completion.

Pronounced

11^th Sept., 2024                                                                 

                                         Sd/-                         

                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”