Date of Filling     :  03.05.2016.

                                                                                           Date of Disposal :  03.02.2017.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.21/2016

(Dated this Friday the 03^rd day of February 2017)

Mr. R. Gnanagurusamy,

S/o. Mr. K. Rakkappan,

No.70 A, 4^th Street, Bharathi Nagar,

Avadi,

Chennai - 600 071.                                                                      … Complainant.

                                                          / Versus /

Mr. J. Amuthanesan,

M/s. Nesan Promotors,

No.18, First Street, Ramalingapuram,

Chennai - 600 071.                                                                  … Opposite party.

This complaint is coming upon before us finally on 27.01.2017 in the presence of Mr. X. Selvam Sounder, Counsel for the complainant and the  opposite party is set Exparte for non appearance and upon hearing the oral arguments, having perused the documents and evidences and written arguments of the complainant, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking refund of Rs.4,78,881/- along with interest at the rate of 18% p.a. towards the excess amount collected from the complainant and Rs.15,00,000/- towards compensation as damages for mental agony caused to the complainant due to deficiency in service on the part of the opposite party with cost.

2.      The brief averments of the complaint as follows:-

The complainant entered into a construction agreement with the opposite party on 19.05.2015 and the opposite party assured to construct a residential building at 1^st Floor at No.70 A, 4^th Street, Bharathi Nagar, Avadi, Chennai -71 for the construction cost of Rs.13,41,000/- as per payment schedule and assured to handover the building within 4 months from the date of construction agreement.  The opposite party has collected construction cost of Rs.12,50,000/- from the complainant and the remaining amount is Rs.91,000/- only.  Though the opposite party has received 93% of construction cost and partly constructed the building after that the opposite party has stopped the construction work without any reason from 07.10.2015 and not constructed the building as per the specifications of the construction agreement and not handed over the physical possession of the building in time.

3.       That, on 07.10.2015, the complainant had approached the opposite party and intimated that the complainant and his family members have decided to fix the house warming ceremony function on 25.10.2015 and requested to complete the construction work as per the specifications of the construction agreement but to the complainant’s dismay the opposite party has demanded Rs.2,00,000/- as an additional amount and evaded to act as per the construction agreement.  Again on 25.11.2015, when the complainant had approached the opposite party and requested him to complete the construction work as per the specifications of the construction agreement, the opposite party has threatened the complainant for dire consequences.   Due to the opposite party’s act, the complainant had sustained acute mental agony tension and huge financial loss.  Therefore, the complainant has sent the Advocate notice to the opposite party and inspite of receipt of the same the opposite party has not complied with the notice.  Hence this complaint.

4.       In spite of sufficient time and opportunities given, the opposite party did not appear before this Forum and therefore, the opposite party was set Exparte. 

5.       In order to prove the case of the complainant, the complainant has filed the proof affidavit as his evidence and the documents from Ex.A1 to Ex.A4 and the Commissioner’s Report from Ex.C1 to Ex.C4 are marked on his side.

6.      At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

     2.  To what other reliefs, the complainant is entitled to?

7.       Written arguments filed and also oral arguments adduced on the side of the complainant.  Though the opposite party remained Ex-parte, this Forum wants to dispose the case fully on merits.

8.       Point no.1:-

On perusal of the evidence of the complainant, it is learnt that on belief of the opposite party’s words, the complainant had entered into construction agreement, Ex.A1 with the opposite party to construct the said residential building for the total cost of Rs.13,41,000/- and the opposite party assured to handover the building within 4 months from the date of Ex.A1.  Further, it is learnt that the opposite party had collected Rs.12,50,000/- towards construction cost and the remaining amount is only to the tune of Rs.91,000/- and thereby, the opposite party had received 93% of the construction cost.  Eventhen, the opposite party had only completed a part of construction work of the residential building and had stopped the work without any reason from 07.10.2015.

9.       It is further stated by the complainant that the construction work was not completed as per the specification mentioned in the Construction Agreement.  Therefore, the complainant had approached the opposite party on 07.10.2015 and asked to complete the full construction work within 25.10.2015 in which date they have fixed house warming ceremony function.  But the opposite party had demanded  an additional sum of Rs.2,00,000/- and again on 25.11.2015 the complainant had approached the opposite party and  requested to complete the construction work, the opposite party has threatened him for dire consequences and thereby caused mental agony, hardship and huge financial loss.  Hence the complainant was constrained to issue the Advocate notice dated 21.04.2016 to the opposite party which is marked as Ex.A3.  Moreover, it is stated by the complainant that he has appointed a Surveyor to access the estimation for the incompletion of the construction work and to obtain the Estimation Surveyor Report which reveals the fact that the construction cost of the completion of work is only of Rs.7,71,118/- which is marked as Ex.A2.  It is further deposed that inspite of receipt of the notice, the opposite party has not come forward to comply the demand in Ex.A3, legal notice.  The postal status report regarding the dispatch of the Ex.A3, legal notice, downloaded from www.indiapost.gov.in is marked as Ex.A4.

10.     On further perusal of the evidence of the complainant on taking steps before this Forum, for appointment of the Advocate Commissioner along with the qualified PWD Engineer to inspect the alleged building for ascertaining the physical features, the present condition of the building in respect of the completion of work and the estimation cost of completion work of the construction and the incompletion work to be carried over etc. and the same was allowed and appointed the Advocate Commissioner.   In turn, the Advocate Commissioner filed his Report along with the PWD Engineer’s report along with the photographs and sketch.  The Advocate Commissioner’s Report is marked as Ex.C1.  The Engineer’s Report with estimation is marked as Ex.C2, the photos of the complainant’s residential building and the CD is marked as Ex.C3 Series and the sketch showing the pending works in the complainant’s residential building is marked as Ex.C4.

11.     From the foregoing evidence and documents submitted on the side of the complainant, it is crystal clear that on execution of Ex.A1, the opposite party had accepted for the construction of the residential building as alleged in the complaint for the total cost of Rs.13,41,400/-.  Further, the opposite party had collected the total amount of Rs.12,50,000/- towards 93% of the construction cost on different dates viz. 19.05.2015, 11.06.2015, 27.06.2014m 14.07.2015, 12.09.2015 and 04.10.2015.  It is further seen that as per Ex.A1, the opposite party ought to have completed the entire construction work on or before 07.10.2015.   Though the opposite party had received 93% of the construction cost but had completed a part of construction work only and stopped the remaining work without any reason and even approached by the complainant to build the remaining house construction work, the opposite party has not come forward to proceed with the construction work as per Ex.A1.  But per contra, the opposite party had demanded an additional amount of Rs.2,00,000/-  which is against the contract made in Ex.A1.   In such circumstances, though the opposite party received the legal notice, Ex.A3 he has neither replied nor chosen to complete the remaining construction work which clearly reveals the fact that the opposite party had committed deficiency of service on his part which certainly had caused mental agony, hardship and financial loss since  the complainant and his family members could not celebrate the house warming ceremony which have already been decided to celebrate the same on 25.10.2015.

12.     Such being so, inspite of sufficient time and opportunity provided to the opposite party, he has neither appeared before this Forum, nor adduced any evidence to rebut the evidence put forth on the side of the complainant.  Therefore, this Forum can easily be drawn an adverse inference against the opposite party.  Hence, it goes without saying that the complainant has proved that there is deficiency of service on the part of the opposite party with available evidence and documents.  Thus, point no.1 is answered accordingly.

13.     Point no.2:-

As per the evidence of the complainant and the averments made in the complaint, he has claimed for the refund of Rs.4,78,881/- as  excess amount collected by the opposite party.  In order to show the same, the complainant has filed Ex.A2, Survey Report.  Whereas, the Ex.C1 and Ex.C2 clearly established the fact that the construction cost of the completion work is of Rs.7,43,761/- and thereby, the proposed estimated cost to complete the remaining construction of the alleged building is only of Rs.3,41,544/-.  Therefore, on taking the entire facts along with the Ex.C2 and Ex.A2 into consideration, this Forum has conveniently come to conclusion that the complainant is entitled only for the amount of Rs.3,41,544/- along with the interest at the rate of 12% p.a. and reasonable compensation with cost for litigation expenses.  Thus, the point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to refund a sum of Rs.3,41,544/- (Rupees three lakhs forty one thousand five hundred and forty four only) with interest at the rate of 12% p.a. from the date of filing of this complaint (03.05.2016) till the date of this order and also to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for causing mental agony and hardship to the complainant due to deficiency of service on the part of the opposite party with cost of Rs.5,000/- (Rupees five thousand only) for litigation expenses.

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% p.a.  till the date of payment.

Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 03^rd February 2017.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-             

List of Commissioner Report filed on the side of the complainant:-

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT