Date of Filling     :  29.07.2015.

                                                                                           Date of Disposal :  31.08.2016.

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.37/2015

(Dated this Wednesday the 31^st day of August 2016)

1. Anthonisan,

S/o. Mr. Arockiasamy,

No.3A, KNR Flats,

Thiruvallur 1^st Cross Street,

Gandhi Nagar, Avadi,

Chennai - 600 054.                                                                   … Complainant.

                                                          - Versus -

M/s. Ramani Prabha Constructions,

Rep. by its Proprietor Mr. M. Rajendran,

No.2, O.P. Raman Street,

Gandhi Nagar, Avadi,

Chennai - 600 054.                                                        … Opposite party.

This complaint is coming upon before us finally on 30.03.2016 in the presence of Thiru. X. Selvam Sounder, Counsel for the Complainant and the   opposite party is Set Exparte for non appearance and upon hearing arguments, having perused the documents, 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 relief to direct the opposite party to complete the construction work as per the agreement dated:17.06.2009, to rectify the defects in the complainant’s flat at Block 1 F-2, to pay a sum of Rs.50,000/-, which was spent by the complainant with 18% interest  and to pay a sum of Rs.5,00,000/- towards compensation for mental agony suffered by the complainant with cost.

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

The opposite party is the Building Construction Contractor who approached the complainant to construct a flat for the complainant and believing the representation the complainant has entered into construction agreement with the opposite party on 17.06.2009 and the opposite party assured to construct the flat in Block-1 F2 as per the approval plan from the Avadi Municipality and assured to handover the flat on or before 17.06.2010.  The opposite party collected entire construction cost of Rs.14,00,756/- from the complainant but the opposite party has not handed over the possession of the flat to the complainant as per the construction agreement. 

2.       The opposite party has not constructed the flat as per the approved plan and not handed over the physical possession of the flat in time.  Hence, the complainant approached the opposite party requesting him to complete the construction and handed over the flat.  The opposite party handed over the falt to the complainant on 05.03.2014 and promised the complainant to complete the construction within short span of time.  Believing the opposite party’s representation and assurance the complainant took possession of the flat and residing in the flat along with his family.  The opposite party has not yet constructed weathering course (as per specifications), Bore well, compound wall, Gate and Metro water tank (sump) into the flats, car parking, EB Service Boards, Safety wall.

3.       The opposite party used inferior materials in the construction and on account of which the complainant flat’s bed room, door and window were broken and there are some vertical and horizontal cracks are found in the flat further there is a leakage of water from the roof and in this connection the complainant had spent a sum of Rs.50,000/- to rectify the same for some extent.   Due to the attitude of the opposite party that the complainant has sustained acute mental agony tension and huge financial loss.  The act of the opposite party using inferior quality of materials in construction and not completing the construction work after receiving the full construction cost is a clear case of deficiency in service and unfair trade practice.  It will come under the purview of Consumer Protection Act.   Therefore, the complainant on 07.04.2015 wrote a letter to the opposite party called upon him to complete the works as agreed earlier but the opposite party without complying with the said letter, the opposite party had issued the Lawyer’s notice dated 15.04.2015 with untenable allegations with ulterior motive in order to escape from his liability.  Hence the complaint.

4.       In order to prove the case of the complainant, the complainant has filed the proof affidavit as his evidence Ex.A1 to Ex.A5 are marked.

5.    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?

6.       Written arguments filed by the complainant though sufficient time given to adduce oral arguments on the side of the complainant, he has not come forward to adduce his oral arguments.  Hence it is closed.  Though the opposite party remained Ex-parte, this Forum wants to dispose the case fully on merits.

7.       Point no.1:-

According to the case of the complainant, the opposite party had not constructed the complainant’s flat as per the construction agreement and not yet constructed as per specification and in fact the opposite party used inferior  materials in the construction work and on account of that, there are some vertical and horizontal cracks found and due to that the complainant has sustained acute mental agony and huge financial loss which leads to unfair trade practice and deficiency of service on the part of the opposite party.

8.       In such circumstances, the complainant is having bounden duty to prove the allegations made against the opposite party by means of reliable and consistent evidence.  At the outset, on careful perusal of the averments of the complaint as well as the proof affidavit submitted by the complainant, it is learnt that the complainant has made the construction agreement on 17.06.2009 with the opposite party for the purchase of a Flat in Block -1 F2 for the cost price of Rs.14,00,756/-, the Construction Agreement is marked as Ex.A1.  Further, it is seen that the opposite party has collected the entire amount from the complainant and in order to prove the same Ex.A2 Series have been marked.  It is further narrated by the complainant that the opposite party handed over the flat to the complainant only on 05.03.2014 instead on 17.06.2010 as per Ex.A1 which is the delay of nearly 4 years and promised the complainant to complete the construction within span of time.  But the opposite party had failed to do so.  Moreover, since the opposite party had used inferior material in the construction and on account of which the complainant flat’s bed room, the doors and window were broken and there are some vertical and horizontal cracks are found in the flat and also there is a leakage of water from the roof and in order to rectify the same to some extent, the complainant had spent a sum of Rs.50,000/-.  The attitude of the opposite party clearly amounts to deficiency of service and unfair trade practice due to that the complainant had sustained acute mental agony and huge financial loss.  Therefore, the complainant had written Ex.A3, letter to the opposite party.  The opposite party without complying the demand of the complaint and other flat owners the opposite party had issued Ex.A4, legal notice as reply with unturnable allegations.   Furthermore, the complainant had produced Ex.A5 inorder to prove the defective works to be rectified which extent to the cost of Rs.7,10,660/-

9.       In such circumstances, on careful perusal of the proof affidavit and the documents produces on the side of the complainant, it is clear that the complainant has proved the allegations made against the opposite parties.  While so, the opposite party has not come forward before this Forum to rebut the evidence of the complainant, in order to disprove the allegations of the complainant.  Therefore, it is crystal clear that there is no contra evidence and thereby, this Forum can easily presume to draw an adverse inference against the opposite party.  Thus, point no.1 is answered accordingly.

10.     Point no.2:-

As per the decision arrived in point no.1, the complainant is entitled for rectification of defects found in his flat, which is to be done by the opposite party with reasonable compensation and cost but not entitled for other reliefs as prayed in the complaint since, they have not been proved by means of acceptable evidence.  Thus, point no.2 is answered accordingly.

11.     In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to rectify the defects if any, found in the flat at Block 1 – F2 as per the terms and conditions in the Ex.A1, Construction Agreement within two months from the date of this order and to pay Rs.25,000/- (Rupees twenty five thousand only) towards compensation for causing mental agony to the complainant due to the deficiency of service on the part of the opposite party with cost of Rs.5,000/- (Rupees five thousand only), totally of Rs.30,000/- (Rupees thirty thousand only).  Regarding other reliefs, this complaint is dismissed.

The above amount 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% 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 31^st August 2016.

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MEMBER - I                                                                             PRESIDENT             

List of documents filed by the complainant:-

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MEMBER - I                                                                             PRESIDENT