This case is coming for final hearing on 25-06-2014 in the presence of Sri Smt.P.Nagini Advocate for the Complainant and Opposite Parties called absent and set exparte and having stood over till this date, the Forum delivered the following.                                                                                                                                             

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

1.       The case of the complainant is that the opposite parties have made wide publicity of construction of flats, under the name and style of Amrutha Sai Residency covered by S.No.98/19,98/20 situated at Rajupalem Village, Anakapalli Mandal, Lankelapalem SRO, Visakhapatnam.  The complainant impressed by the advertisements made by the opposite parties, he joined as a member for obtaining a flat in the first floor (Unit No.FF6) measuring 900sft., and he paid an amount of Rs.2,00,000/- to the opposite parties and obtained receipt for the said amount on 04.05.2009.  Subsequently, both the opposite parties entered into an agreement on 23.07.2009 for construction of residential flat.  As per the terms of the agreement with the complainant, the opposite parties have to handover possession of the residential unit within 12 months from the date of agreement.  The complainant stated that he visited the said site several times and found no development.  Then, the complainant approached the opposite parties and enquired about the development, but there was no proper reply from them and tried to avoid the complainant.  The complainant vexed with the attitude of the opposite parties, he gave a complaint in the Malkapuram P.S on 26.08.2012 praying the police to take action against the opposite parties, but the police did not registered the complaint and they represented that that matter was purely in the civil in nature, hence they issued a receipt to the complainant to that extent.  Though the police did not registered the complaint they called the opposite parties and enquired about the in-complete construction.  Then the opposite parties agreed about the incompletion of construction and gave assurance letter to the complainant agreeing to refund the total amount with interest within a week i.e., 25.08.2012 but failed to do so.  The complainant stated that he made repeated requests and demands, but the opposite parties did not pay the amount which clearly shows their deficiency in service, hence, this complaint;

a) to direct the opposite parties to refund the amount of Rs.2,00,000/- with 24% interest from the date of payment.

b) to pay Rs.25,000/- towards compensation

c) to pay Rs.25,000/- towards damages besides costs.

2.       On the otherhand, the opposite parties 1 & 2 even after issuance of notice by way of publication, called absent and set exparte. 

3.       At the time of hearing, the complainant filed evidence affidavit and written arguments along with documents which are marked as Exhibits A1 to A5 and the counsel for the complainant represented treated it heard.  The originals of Exhibits A3, A4 & A5 are filed in C.C.No.309/2012 which are necessary documents herein to pursue the matter. 

4.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

5.       As per Ex.A1 i.e., receipt for Rs.2,00,000/- issued by the 2^nd opposite party on 04.05.2009 clearly mentioned as towards Amruth Sai Residency.  Ex.A2 is the Construction Agreement between the complainant and both the parties on 23.07.2009, wherein, the opposite parties agreed to construct in the said Residential unit and hand over the possession within 12 months from the date of this agreement and the owner shall pay the total amount of Rs.5,40,000/-.  The complainant paid Rs.2,00,000/- towards part payment and after that he made enquiry about the development of said construction and he found that there was no development in the construction and then he approached the police station and gave a complaint on 26.08.2012 i.e., Ex.A3 but the police did not register the complaint as the matter was in civil nature, but issued a receipt to that extent i.e., Ex.B4 and also called both the opposite parties and opposite parties also agreed for the incompletion of the construction and agreed to refund the payment to the complainant with interest on 25.08.2012 but failed to do so.  Ex.A4 is the receipt issued by the Station House officer, Malkapuram Police Station on 26.08.2012, wherein, it mentioned that “the matter is civil in nature, hence, the complainant solve their problem in the court”.  In Ex.A4 the names mentioned on behalf of Anand constructions as T.Thamminaidu & Y.Appalasuri, Y. Appalasuri is the husband of the 1^st opposite party.  Ex.A5 is the assurance letter given by the opposite parties, second signature is ‘for signature’ in that Exhibit which was made by the 1^st opposite party’s husband on behalf of 1^st opposite party. 

6.       In our view, the complainant paid Rs.2,00,000/- to the opposite parties and both the parties entered into agreement, but opposite parties are failed to complete the construction.  Then, the complainant approached the police station, all these are established by Ex.A1 to A4.  Subsequently, both the opposite parties issued assurance letter regarding the balance amount to fail to do so.  Hence, the acts of the opposite parties clearly shows deficiency in service on their part, as such they are liable to refund the amount of Rs.2,00,000/- to the complainant with 9% interest from the date of agreement. 

7.       In view of the non completion of the construction of the flat by the opposite parties, there cannot be any dispute, the complainant would be put to mental agony and suffering and in order to compensate it, it would be just and proper that the opposite parties shall have to pay Rs.5,000/- towards compensation to the complainant.

8.       Though another claim of Rs.25,000/- towards damages for committing breach of agreement is made, in our view in the light of awarding interest and also compensation for mental agony, the complainant is not entitled for any damages for breach of agreement. 

9.       Accordingly, this point is answered, holding that both the opposite parties are directed to pay Rs.2,00,000/- with 9% interest from 23.07.2009 till the date of payment to the complainant and also to pay another sum of Rs.5,000/- as compensation besides costs of Rs.1,500/- within one month from the date of this order. 

10.     In the result, the complaint is allowed directing the opposite parties 1 & 2 to pay Rs.2,00,000/- with interest at 9% p.a. from 23.07.2009 till the date of payment to the complainant and also to pay another sum of Rs.5,000/- as compensation besides costs of Rs.1,500/- within one month from the date of this order. 

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 7^th day of July, 2014.

  Sd/-                                                                                   Sd/-

Member                                                                          President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam

Consumer Complaint No:311/2012

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

NIL

    Sd/-                                                                                Sd/-

  Member                                                                         President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam