Date of Filing:       20.09.2018

                                                                                                                       Date of Disposal:  30.10.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:    THIRU.  J. JUSTIN DAVID, M.A., M.L.                           .…. PRESIDENT

                      TMT.      K. PRAMEELA, M.Com.                                    ….. MEMBER-I

                      THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.            ..… MEMBER-II

CC.No.45/2018

THIS  WEDNESDAY THE 30^th  DAY OF OCTOBER 2019

1.Mr.C.S.Baskaran,

    S/o.C.G.Subraminian,

    Represented by its Power Agent Mrs.B.Amutha,

2.Mrs.B.Amutha,

    W/o.C.S.Baskaran,

Both are resident at

Door No.5/1, Rangu Lane (Ranga Pillai Street)

Choolai, Chennai - 600 112.                                                                 …..Complainant.

                                             //Vs//

Mr.Kumar,

Proprietor of M/s.SKR Builder and SKR Foundation,

No.1, 24^th Street,

“B” Sector,

Sivasakthi Nagar,

Annanur,

Chennai -600 109.                                                                                …..Opposite party.

This Complaint is coming on for final hearing before us on 27.09.2019 in the presence of M/s.P.S.Devarai, counsel for complainants, opposite party called absent for non appearance and set ex-parte, perused complainant’s side documents, and hearing the arguments on the side of the complainant, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU. J. JUSTIN DAVID,  PRESIDENT

This complaint has been preferred by the complainants Under Section 12 of the consumer protection Act, 1986 against the opposite party for seeking direction to pay a sum of Rs.2,56,000/- towards cost involved in the pending work and to pay a sum of Rs.2,88,000/- towards not handing over the possession of constructed building as per the oral agreement and to pay a sum of Rs.5,00,000/- towards compensation for mental agony and to pay a sum of Rs.10,000/- towards cost of this litigation to the complainant.

2.The brief  facts of the complaint is as follows:-

 The 2^nd complainant is the absolute owner of the vacant house site property measuring about 2306 square feet land situated at Door No.13, Palli Vinayager Kovil Steet, Thirumullaivoyal, Chennai 600 109.  Since the complainants are residing in the leased portion bearing New No.36, old No.23/1, Avadhana Pappaiya 2^nd Street, Choolai, Chennai 600 112, the 1^st complainant planed to construct a house measuring about 676 square feet in the larger extent of the above said vacant land.  One Mr.Sankar, relative of the complainants had approached the complainants and introduced the part as a builder.  Believing their words of the opposite part and on recommendation of the complainant’s relative Mr.Sankar was agreed to give the construction contract to the opposite party.  The opposite party agreed to construct the house measuring an extent of 676 square feet in the rear side of the said larger extent including materials contract for a sum of Rs.10,53,000/- and which is exclusive of extra work and inclusive of extra work is Rs.12,19,000/- within the period of six months from the date of commencement of the work. As per the said oral agreement made with opposite party, the 1^st complainant had paid the payment out of his savings towards construction stage by stage from 17.01.2014 to the opposite party’s bank account. The complainant paid a sum of Rs.9,90,000/- towards construction cost.  The opposite party had not completed the work as per the oral agreement.  When the 1^st complainant questioned about non completion of the construction work, the opposite party had requested some more time to complete the work.  The 1^st complainant had accepted the request of the opposite party and waited some more time as requested by the opposite party.  As the 1^st complainant is employed in abroad, the opposite party utilized the situation in his favour by stating some other reasons by postponing of completion of construction work.  Further in the presence of Mr.Sankar, the opposite party had promised to complete the building as per the oral agreement within a period of 10 days.  But no process happened so far.  Hence the 1^st complainant had preferred police complaint on 29.09.2016 before the Inspector of Police, Thirumullaivoyal.  In turn, the opposite party appeared before the police authority and assured to complete the unfinished building within a time of one week. Thereafter when the 1^st complainant inspected the unfinished building work, the 1^st complainant came to know that the works not yet completed in the said unfinished building work and was pending which comes to the tune of Rs.3,90,548/-.  Therefore the complainants had issued a legal notice on 25.04.2017 calling upon the opposite party to complete the pending work. The complainants had engaged a qualified civil engineer to measure what were all the pending works not yet completed in the said unfinished building work. The complainants have spent about Rs.4,85,000/- towards completion of the pending work.  Hence after deducting a sum of Rs.2,29,000/- the net loss incurred by the complainants for the deficiency caused by the opposite party is Rs.2,56,000/-.  Therefore the complainants prayed before this forum to direct the opposite party to pay a sum of Rs.2,56,000/- towards cost involved in the pending work and to pay a sum of Rs.2,88,000/- towards not handing over the possession of constructed building as per the oral agreement and to pay a sum of Rs.5,00,000/- towards compensation for mental agony and to pay a sum of Rs.10,000/- towards cost of this litigation to the complainant.

3. When notice duly served to the opposite party from this Forum, on behalf of the opposite party Mr. BASKAR, Advocate undertake to file vakalat for him and thereafter neither appeared nor represented through counsel.  Hence the opposite party was set ex-parte.

4. On the side of the complainant, the complainant filed proof Affidavit and in order to substantiate his case Exhibit A1 to A10 were marked on his side. Written arguments filed and oral arguments also adduced on the side of complainant.

5. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents put forth before this Forum though the opposite party was set Ex-parte.

6. At this juncture, the points for determination before this Forum are as follows:-

(1) Whether there is any deficiency in service on the side of the opposite party as alleged in the complaint?

(2) Whether the opposite party is liable to pay Rs.2,56,000/- towards cost f pending works to the complainant?

(3) Whether the opposite party is liable to pay Rs.2,88,000/- towards not handed over the possession of the building to the complainant?

(4) Whether the complainant is entitled for compensation for mental agony and loss of work?

(5) To what other reliefs, the complainant is entitled

7.Point No:1 to 3:-

The case of the complainants is that the 1^st complainant has entered in to a  oral agreement with the opposite party to construct a house measuring an extent of 676 square feet inclusive extra work at a total cost of Rs.12,19,000/-.  The opposite party agreed to construct a house within a period of 6 months from the date of commencing the work.  The complainant paid a sum of Rs.9,90,000/- towards construction cost from 17.01.2014 to 07.05.2016.  But the opposite party has not completed the construction work. Hence the complainant filed a police complaint before Inspector of police, Thirumullaivoyal Police Station on 29.09.2016, there the opposite party agreed to complete the building work within a week but the opposite party filed to complete the construction work.  The opposite party has not completed the pending tiles work, door work, etc., The cost of the remaining works comes to Rs.3,90,000/-.  The complainants have spent a sum of Rs.4,85,000/- towards pending works.  Hence the complainant suffered financial loss and mental agony.

8. The complainant filed Ex.A1 copy of estimate and Ex.A2 is the copy of unsigned agreement.  In Ex.A1 and Ex.A2 there is no signature of the opposite party and the complainant.  Therefore this forum is unable to accept Ex.A1 and Ex.A2 as documents. According to the complainant there was an oral agreement between the complainant and the opposite party to construct a house measuring extent of 676 square feet for a total cost of Rs.12,19,000/- inclusive of extra work.  The complainant has not stated the date of alleged oral agreement in the complaint.  On the other hand, the 1^st complainant had given a police complaint before the Inspector of Police, Thirumullaivoyal Police Station on 29.09.2016.  Ex.A5 is the copy of the complaint and the receipt issued by the Thirumullaivoyal Police Station.  In the complaint the 1^st complainant clearly stated that on 17.1.2014 the 1^st complainant and the opposite party have entered in to an oral agreement to construct a house.  Thereafter the police enquired the above matter and the opposite party agreed to complete the remaining work within a week. The opposite party has given a letter to the complainants that he will complete the remaining works from 15.09.2016 to 31.09.2016.  Ex.A4 is the copy of letter issued by the opposite party, in Ex.A4 the opposite party has written as follows:-

15.09.2016 Kjy; 31.09.2016 Njjp tiu kPjk; cs;s Ntiyfs;

1) Main thrf;fhy;: 1, Main Door :1.

2) Bed Room thrf;fhy; ,uz;L, Bed Room Door - ,uz;L+ Door.

3) Tiles. 4)  Painting.

9. Therefore the opposite party accepted the pending work and agreed to complete the remaining work before 31.09.2016.  But the opposite party failed to complete the remaining work.  Therefore the 1^st complainant sent a petition to the Commissioner of Police, Chennai to take action against the opposite party.  Ex.A7 is the copy of complaint. The Police commissioner has forwarded the complaint to the Assistant Commissioner, Ambattur Police station.  The opposite party even after police complaint failed to complete the construction work and therefore the complainant issued a legal notice to the opposite party on 25.04.2017.  Ex.A8 is the copy of legal notice and same was returned by the opposite party as unclaimed and the postal cover has been marked as Ex.A9.

10. The complainants through oral and documentary evidence proved that there is an oral agreement between the 1^st complainant and the opposite party to construct a house at a total cost of Rs.12,19,000/-.  The 1^st complainant paid a total sum of Rs.9,90,000/- from 07.01.2014 to 07.05.2016.  The opposite party also received the amount.  The opposite party agreed to complete the construction within 6 months but the opposite party has not completed the construction within the period and there is delay in completing the construction.  Further the opposite party agreed there are pending works therefore the opposite party is liable to complete the construction work.  At the same time, the complainant agreed to pay Rs.12,19,000/- to the complainant but he has paid only Rs.9,90,000/- for the construction work and remaining amount of Rs.2,29,000/- is payable by the complainant to the opposite party for completing the construction work as per the oral agreement.

11. The complainant alleged that he spent about 4,85,000/- towards completion of the pending works.  Ex.A10 is the copy of estimation given by consulting Engineer in which it is stated that the total estimate for pending construction work will be about Rs.3,90,548/-.  The complainant in the legal notice stated as follows:-

“Mdhy; Ntiyia Muk;gpf;fhjjhy; njhiyNgrpapy; njhlu;G nfhz;ljw;F rgupkiyf;F nrd;W tpl;L Ntiyia Muk;gpf;fjhf $wpdPu;fs;.  jhq;fs; $wpa gb Ntiyia Kbf;fhky; Nkw;gb tPl;by; ily;]; kl;Lk; Nghl;Ltpl;L gpsk;gpq; vyf;bf;fy; fjT xapl; th\; Nghd;w ve;j NtiyiaAk; Muk;gpf;fhky; mg;gbNa Nghl;Ltpl;L nrd;W tpl;Bu;fs”;  in the legal notice the complainant admitted that the opposite party  had laid the tiles but in the estimation the complainant has stated about the cost of laying tiles as Rs.75,000/- which cannot be acceptable.  Further the complainant has not filed any documents to show that he spent about 4,85,000/- for completing the pending construction works and therefore this forum after analyzing the evidence and documents finds that the cost of pending works is Rs. 2,79,000/- and the complainant as per oral agreement liable to pay the balance sum of  Rs.2,29,000/- to the opposite party. Therefore this forum came to conclusion that the opposite party is liable to pay the balance cost pending work Rs.50,000/- (2,79,000 - 2,29,000 = 50,000/-) to the complainant.

12. The complainant also prays for an order to pay a sum of Rs.2,88,000/- towards not handed over the possession to the complainant as per oral agreement.  For which the complainant has not filed any documents to show that the opposite party has to complete the construction works within a stipulated time.  Further there is no agreement between the parties for payment of interest in default of completing the pending works within a period.  Further the complainant has not paid the entire amount of construction within time as per the oral agreement.  Hence the complainant is not entitled for a sum of Rs.2,88,000/- not handed over the possession of the construction in the building as per the oral agreement.

13. The opposite party has not completed the construction within time and he also not handed over the possession to the complainant and there are many pending work and the opposite party accepted and agreed to the same through Ex.A4.  It is the duty of the opposite party to complete the construction as per the oral agreement but the opposite party failed his duty and committed deficiency in service.  In such circumstances, from the evidence of the complainant it is clear that the complainant has proved the allegations made in the complaint regarding deficiency in service against the opposite parties by means of acceptable and reliable documents.  Further in spite of Ex.A8 legal notice sent to the opposite party, the opposite party kept silent and not come forward to comply the demand of the complainant nor to sent any reply in order to deny the allegations made in Ex.A8.  Moreover, after filing of this complaint before this Forum, though the notice sent from this Forum to the opposite party and he has chosen neither to appear before this forum nor to represent through any person and therefore they were set ex-parte.  From the non appearance of the opposite parties it can be clearly understand that the opposite parties has no valid reason to rebut the claim of the complainant. Hence there is deficiency in service on the part of the opposite parties. Because of the deficiency in service the complainant suffered mental agony and financial loss. Therefore the complainant is entitled for compensation.  Under these circumstances there is deficiency in service on the part of the opposite party and the opposite party is liable to pay Rs.50,000/- towards cost of pending works. Thus the point Nos.1 to 3 are answered accordingly.

14. Point No.4:-

The complainant claimed a sum of Rs.5,00,000/- towards compensation for mental agony and Rs.10,000/- towards cost.  The complainant and the opposite party were made an oral agreement in the months of January 2014 to construct a house at the cost of Rs.12,19,000/-.  The opposite party agreed for the same and received a total sum of Rs.9,90,000/- between 01.08.2014 to 07.05.2016.  The opposite party had not completed the construction. Further there are many pending works and the opposite party also agreed there are many pending works.  The opposite party has not completed the construction work as per oral agreement and therefore the complainant suffered mental agony and financial loss.  Under these circumstances, the complainant is entitled for compensation and cost from the opposite party.  Thus the point No.4 is answered accordingly.

15. Point No.5:-

In the result, this complaint is allowed in part.  Accordingly the opposite party is hereby directed to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards pending construction works which was not done by the opposite party and to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for causing mental agony and financial loss to the complainants due to the deficiency in service on the part of the opposite party and also to pay sum of Rs.5,000/-(Rupees five thousand only) towards cost of litigation to the complainants. 

The above said amount shall be  payable by the opposite party within two months from the date of receipt of the copy of this order failing which, this said amount shall carry interest at the rate of 9% per annum 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 of this 30^th October 2019.

-Sd-                                                       -Sd-                                                       -Sd-

MEMBER-II                                       MEMBER-I                                         PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

(Ex-parte)

     -Sd-                                                    -Sd-                                                          -Sd-

MEMBER-II                                       MEMBER-I                                         PRESIDENT