Date of Filing     : 21.11.2022

                                                                                                                        Date of Disposal: 28.07.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law)                           .…. PRESIDENT

                 THIRU.P.VINODH KUMAR. B.Sc., BL.,                                                               …..MEMBER-I

                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L.,                                           ....MEMBER-II

CC. No.184/2022

THIS FRIDAY, THE 28^th DAY OF JULY 2023

Mr.Senthil Ganesh,

S/o.V.Ramalingam,

No.64, Cosmoss Street,

VGN, Phase-4, Melpakkam,

Chennai 600 055.                                                                                     ……Complainant.

                                                                               //Vs//

M/s.Redfort Builders,

Rep. by its Authorized Signatory,

Mr.M.Santhosh,

S/o.Muthusamy,

Having its office at

No.46, Arafath Nagar,

Arikambedu, Chennai 600 062.

And also having address at

No.11/140, South Street, Algappappuram,

Tenkasi Taluk – 627 805.                                                              ..........Opposite party.

Counsel for the complainant                             :   M/s.S.T.Muthamilselvi, Advocate.

Counsel for the opposite party                         :   M/s.M.Pragadeeswaran, Advocate.

This complaint is coming before us on various dates and finally on 17.07.2023 in the presence of M/s. S.T.Muthamilselvi, counsel for the complainant and M/s.M.Pragadeeswaran, counsel for the opposite party and upon perusing the documents and evidences of both sides, 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 undertook by them along with a prayer to direct the opposite party to pay a sum of Rs.15,14,025/- towards compensation for the mental agony and hardship caused to the complainant along with cost.

Summary of facts culminating into complaint:-

It was the case of the complainant that the opposite party voluntarily approached the complainant to construct a new house at No.64, Cosmoss Street, VGN, Phase-4, Melpakkam, Chennai 55. An agreement was entered between the complainant and the opposite party on 11.03.2021 and the date of delivery of possession of new house was scheduled to be in the month of October 2021. The actual construction cost was fixed at Rs.68,60,499/- as per the construction agreement for constructing the residential building with a built up area of about 3265square feet and slit 287 square feet, spread over the ground floor as per the specifications and plan.  Apart from that the complainant agreed to pay Rs.2,05,900/- for the purpose of Balcony of 116 square feet. The complainant totally paid Rs.70,22,475/- till date on various occasions through online payment and Rs.64,672/- paid to the opposite party by way of cash. But the opposite party did not hand over the newly constructed house in time. The complainant had made several reminders to the opposite party to complete the work, but there was no response. The opposite party asked more money from the complainant and showed wrong Accounts. The opposite party left incomplete the balcony hand rail work, wash basin works, kitchen counter top, sump-inlet water work, waste water chamber, plumbing works, toilet gas outlet pipe, second coat paint, grill fixation, car park tiles, etc. The opposite party stopped further works and come with antisocial elements with a malafide intention to threaten the complainant and tried to extract Rs.4,63,000/- to complete the work.  But the complainant refused to pay the additional amount. Afterwards the complainant engaged other labourers to complete the project works which leads to an additional expenses of Rs.3,50,000/- and the cost incurred by the opposite party was Rs.3,00,000/-. Under these circumstances the complainant issued statutory notice to the opposite party on 24.09.2022 to pay the expenses and a compensation of Rs.14,93,025/- for the mental agony caused to the complainant.  The same was received by the opposite party on 08.10.2022 but he did not reply till date. Thus aggrieved by the acts of the opposite party the present complaint was filed to direct the opposite party to pay a sum of Rs.15,14,025/- towards compensation for the mental agony and hardship caused to the complainant along with cost.

The crux of the defence put forth by the opposite party:-

The opposite party filed version disputing the complaint allegations contending interalia that the complainant only had personally approached the opposite party after visiting the previous work sites done by the opposite party in the nearby area. Un-registered agreement entered between the complainant and the opposite party by fixing the initial construction cost to construct the building as requested by the complainant on 11.03.2021. The delay in construction work was a false interpretation of facts. The complainant had paid only Rs.68,12,729/- on various dates by way of online payment such as IMPS, UPI & RTGS. Further the complainant had paid additionally Rs.2,00,000/-.  The delay of one month in completing the project was only because of the non-availability of workers due to COVID-19 “FULL LOCKDOWN” which could not be constrained to be the deficiency of service on the part of the opposite party. It has been agreed by complainant on oral basis to extend the time for period of two months due to COVID-19 situation. Delay of one month in completing the project was neither the carelessness nor deficiency of service on the part of the opposite party and it was purely because of “Act of God” which is not under the hands or control of the opposite party. Only as per the need and willingness of the complainant the materials were purchased. The opposite party does not make the building plan and the complainant had given the plan which was obtained from Third party and insisted the opposite party to construct his house. The opposite party already completed 95% of the work and remaining work was postponed by the complainant stating that “Housing Warming” ceremony has to be completed and that further works could be completed after House Warming ceremony. Only toilet gas outlet pipe, second coat paint, compound wall and grill fixation was pending. The said works usually kept pending because during the House Warming ceremony there would be chances of “DESTROYING/DAMAGING” the original quality of the work and hence after the House Warming ceremony the final “Touch-Up” work would be done by the builder side. Other basic works were all made on time and the same was acknowledged by the complainant and the complainant has still need to pay for the above mentioned pending works.  Moreover, as per construction agreement, the scope of work was very much limited but the complainant had forced the opposite party to do many extra works and the same was done by the opposite party for which payment was not made by the complainant. The opposite party has been always ready and willing to complete the project on time, but the complainant always had a rude attitude towards the work contractor. Furthermore going a level ahead had even harassed and beaten the workers and even treated them worse in-terms of abusing them and making them work for his personal needs apart from construction of the house. Admittedly there was only one month delay to complete the project that was also due to the COVID lockdown. Therefore at no stretch of imagination delay period caused loss to the complainant as exaggerated by him in the complaint. Thus they sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.6 was submitted.  On the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B3 was submitted.

Points for consideration:-

1. Whether the allegations raised in the complaint against the opposite party in the matter of construction undertook by them has been successfully proved by the complainant by any admissible evidence?
2. To what reliefs the complainant is entitled?

Point No.1:-

On the side of complainant the following documents were filed for proving the complaint allegations;

1. Memorandum of Agreement dated 10.03.2021 was marked as Ex.A1;
2. Photographs of incomplete house was marked as Ex.A2;
3. Complaint before the Avadi Police Station dated 23.03.2022 was marked as Ex.A3;
4. CSR issued by Avadi Police Station dated 19.06.2022 was marked as Ex.A4;
5. Legal notice issued by the complainant to the opposite party dated 24.09.2022 was marked as Ex.A5;
6. Acknowledgement card was marked as Ex.A6;

On the side of opposite party the following documents were filed for proof of their defence;

7. COVID Guidelines issued by Tamil Nadu Government dated 14.05.2021 was marked as Ex.B1;
8. Current CSR status was marked as Ex.B2;
9. Working building plan was marked as Ex.B3;

The learned counsel appearing for the complainant represented that the written arguments may be treated as oral arguments and hence considering the written arguments filed by the complainant as oral arguments and oral arguments adduced by the opposite party and on perusing the written arguments, pleadings and other material evidences produced by both the parties the complaint is decided on merits.

The crux of the written arguments is that the opposite party entered into an construction agreement with the opposite party dated 11.03.2021 for construction in the complainant’s premises for a sum of Rs.68,12,729/- which was duly paid by the complainant.  Apart from that an additional amount of Rs.2,00,000/- was also paid.  However, the construction was not handed over as per the terms of agreement and in the agreement it was admitted that for delay in delivery the complainant has a right to less 5% on the project value until the delivery of possession. Further the opposite party cheated the complainant in the measurements of car parking area, Balcony, Water Sump, Septic Tank and also used poor materials for Water Sump and Septic Tank etc. Incomplete works such as Balcony hand rail work, water basin works, kitchen counter top, plumbing works toilet gas outlet pipe etc., were also not finished by the opposite party. To complete the same an amount of Rs.3,50,000/- was spent by the complainant by engaging some other person.  Thus complainant sought for the complaint to be allowed.

On the other hand, the learned counsel appearing for the opposite party argued that there was only one month delay in delivery of possession and even as per the agreed terms and conditions the opposite party could not be held liable as the delay was due to the restrictions imposed by the Government due to COVID-19 lock down.  The pending works was also denied and the counsel for the opposite party sought for the complaint to be dismissed.

On perusal of the pleadings and materials, the factum of entering into agreement on 11.03.2021 between the parties and the construction works done by the opposite party was admitted by both the parties. Only dispute is that there was delay in delivery of the constructed premises and that the opposite party had kept many pending works without completing the same.

When the complainant had raised the allegation with regard to defective construction made by the opposite party, it is imminent for him to get inspected the construction and to find out the status and defects of construction and to get a report on the same.  However, no effort was made by the complainant to get an Advocate Commissioner appointed to inspect the premises along with a Chartered Engineer.  Merely filing photos could not be considered as conclusive proof for the pending works when the pending works cited by the complainant was specifically disputed by the opposite party.

The reason cited by the opposite party for the delay in handing over the possession of premises also seems to be acceptable as at that particular period of time restriction was imposed by the Government to employ workmen for construction purpose.  Also the defence raised by the opposite party that certain pending works were kept unattended for the reason that after the House Warming ceremony there is a chance for certain works to get damage like compound wall, grill paint works etc.  Such defence also seems to be acceptable.  In the facts and circumstances this Commission concludes that the complainant though raised allegations against the opposite party has miserably failed to substantiate and prove the same by any adequate admissible evidence.  Thus we answer the point accordingly in favour of opposite party and against the complainant.

Point No.2:-

As we have held above that the deficiency in service on the part of opposite party was not proved by the complainant, no relief as claimed by the complaint could be granted. Thus we answer the point accordingly.

In the result, the complaint is dismissed.  No order as to cost.

 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 28^th day of July 2023.

     Sd/-                                                        Sd/-                                                              Sd/-

MEMBER-II                                        MEMBER-I                                               PRESIDENT

List of document filed by the complainant:-

List of documents filed by the complainant:-

    Sd/-                                                                 Sd/-                                                        Sd/-

MEMBER-II                                                 MEMBER-I                                      PRESIDENT