SMT.MOLYKUTTY MATHEW : MEMBER

     This is a  complaint filed by the complainant  U/S 35 of the Consumer Protection Act 2019 for an order directing the OP to  refund Rs.6,00,000/-  as the excess amount already collected by the OP from the complainant  and to pay Rs.2,00,000/- as  the compensation for mental agony and cost  of the complaint  for the  deficiency of service on his part.

  The brief of the complaint :

     The complainant along with the family resides in the house and now the complainant is employed at abroad.  The wife of the complainant, Vidya Rani is managing the property.  The complainant is the owner in possession of the house building No.XVIII/496 of Kannur Muncipal Corporation along with the property in which the building  situates.  The complainant wants to construct a first floor to the existing ground floor of building (house) and he entered into the agreement with this OP on 21/3/2021.  As per the terms  of the agreement the complainant has to pay an amount of Rs.18,32,800/- to the OP to complete the  construction  of the  first floor building on the ground floor.  The complainant agreed to pay the cost of the additional modification on the agreed plan.  As such the complainant paid entire consideration of Rs.18,32,800/- to the OP within time but the OP failed to  complete the construction work within the  agreed period of 6 months stipulated in the agreement.  The complainant suggested some modifications in the agreed plan and the cost towards such additions are paid then and there.  In spite of the receipt of the  entire consideration amount and even after  repeated request the OP abandoned work without reason.  The OP failed to carry out plumbing and sanitary work, electrical work, fixation of switches, supply of materials and fixation of  pagoda and varanda glasses, sit out railings, additional roofing , 3 bed room doors, 2 bathroom doors, painting and putty work, wood polish  work etc.  The materials required for the work are not purchased or brought to the work site.  The consideration  amounts are  paid  through bank. The amount transfer from Vipin Prakash  A/C SBI 10643380361 and the amount transfer from Vidyanarani Thavodiyil Account SBI 20223099778. Then the complainant repeated phone calls and efforts to contact the OP.  But the OP failed to respond it.  Thereafter the complainant is constrained to issue lawyer notice to OP dtd. 16/8/2022, which was returned unclaimed  dtd.18/8/2022. 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 OP.  Hence the complaint.

           After filing the complaint, notice  issued to  OP . The OP’s notice returned as left.  Then the OP’s called and set exparte.  The OP not appeared before the commission and not filed the version also.   Then the commission had to  hold that the OP’s have  no  version as such this case came to be proceed against the  OP  as set  exparte.

    Even though the OP had remained ex-parte it is for the complainant to establish the allegations made by them against the OP.  Hence the complainant (power of attorney) was called upon to produce evidence in the form of affidavit and documents.  

  On 2/3/2023 the complainant(power of attorney)  filed a petition to appoint an expert commissioner to report and to ascertain, evaluate the stage at which  the OP abandoned the work and the works the OP supposed to  complete  as per the  agreement and the amount required to complete the same as per  contract between the complainant and the present  cost required. Moreover the expert noted the estimated cost of the works remained uncompleted as per bilateral agreement and the amount required at present  for completion of the work.   The expert petition is allowed by the commission and Mr. Pranav.C.K, Civil Engineer is appointed as the expert commissioner.  After inspection the expert filed the report before the commission and marked as Ext.C1.  Accordingly the complainant has chosen to produce her affidavit along with  documents  marked as  Exts.A1 to A4 and Ext.C1 also.  The complainant  was examined as PW1. She also filed an amendment petition  to amend  the pleadings in the complaint as expert civil engineer appointed by this Hon’ble  commission  found that works remained  uncompleted is for the amount of Rs.11,50,000/- only as per the bilateral agreement executed by the parties and parties to the complainant.  Hence the petition is also allowed as IA NO.169/2023.  So the opposite party remain absent in this case.  At the end the Commission heard the case on merit.

    Let us have a clear glance at the relevant documents of the complainant.  Ext.A1 is the agreement executed between the complainant and OP.  On 21/3/2021 to construct  first floor to the existing  ground floor of the house.  As per the terms of the agreement, the complainant paid an amount of Rs.18,32,800/- to OP and the construction work completed within the agreed period of 6 months. The complainant transferred the amount to OP through bank statement and produced before the  commission and marked as Ext.A4,  But the OP failed to do so.  Then the complainant send Ext.A3 notice to OP.  Moreover in this case the expert commissioner’s report  marked as Ext.C1 through  the complainant .  The report of the expert brings out the details of the works are remaining on the plaint  schedule  house. (1) The PCC (plain cement concrete) work and flooring work with  tile are remaining  in bath rooms.(2) pillars and show wall cladding works(3) plumbing works including water closets, CP fittings, shower , wash basin, water tank(750 liter) and also conduit work are remaining in both  the bathrooms . (4) electrical works(5) painting works(6) Bath room fiber door work (7) pergoda glass works (8) laying of shingles in roof(9) inside membrance door work-3 Nos.  As per Ext.C1 report  an amount of Rs.11,50,000/- required for the completion of work.    So the OP is liable to pay Rs.11,50,000/- to the complainant for the completion of the work of the house.  The act of OP  the complainant caused much mental agony and  financial loss.  So we hold that there is deficiency in service and unfair trade practice on the part of  opposite party.

            In the result, the complaint is allowed in part directing  the opposite party  to pay Rs. 11,50,000/- to the complainant  for  completion of the work of the first floor  along with Rs.80,000/- as compensation for mental agony of the complainant and Rs.10,000/- as litigation cost within 30 days of receipt of this order.  In default, the amount of Rs.11,50,000/- carries interest@ 9% 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- Agreement

A2-Unclaimed notice

A3-lawyer notice

A4- Bank statement for an amount of Rs.18,32,800/-

C1- Expert report

PW1-Vidya Rani P.A holder of complainant.

Sd/                                                                       Sd/                                                       Sd/ 

PRESIDENT                                               MEMBER                                                MEMBER

Ravi Susha                                               Molykutty Mathew.                                   Sajeesh K.P

eva                                                  /Forwarded by Order/

                                                    ASSISTANT REGISTRAR