Date of Filing : 17.07.2009
Date of Order : 25.01.2016
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU. B. RAMALINGAM M.A.M.L., : PRESIDENT
TMT. K.AMALA, M.A. L.L.B., : MEMBER I
DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II
C.C.NO.776/2009
MONDAY THIS 25TH DAY OF JANUARY 2016
A.Arichandran,
S/o. Arunachala Archuthiar,
13, 72 ND Street,
R.V.Jafferkhanpet,
Chennai – 83. ..Complainant
..Vs..
Mr. Murali,
S/o. Mr. Doraiswamy,
Plot No.51, Kuberan Nagar,
Velacherry,
Chennai 600 042. ..Opposite party.
For the Complainant : M/s. S.N.Ravikumar.
For the Opposite party : M/s. S.Muthuvenkataraman & another
Complaint under section 12 of the Consumer Protection Act 1986. Complaint is filed seeking direction against the opposite party to pay a sum of Rs.1,50,425/- towards the replacement cost and repair charges and also to pay Rs.3,00,000/- as compensation and cost of the complaint to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
The case of the complainant is briefly as follows:-
1. The complainant states that as the owner of the premises be entered into a building construction agreement with the opposite party. Accordingly the opposite party has started the construction and the complainant also paid construction cost part by part. The said building was after some dispute between them and also police complaint and the comprise arrived thereon the building construction was completed and handed over in the month of June 2007 and house warming ceremony was also conducted by the complainant. As per construction agreement the original rate of construction per one square feet is Rs.540/- agreed by both parties. Whereas, subsequently when compromise was arrived in the police station as per letter of undertaking entered by the complainant as well as the opposite party dated 16.3.2007, the construction cost per square feet is enhanced from Rs.540/- to Rs.580/-.
2. According to the complainant though the complainant paid entire amount as agreed by him with the opposite party, the opposite party has not constructed the complaint mentioned house in proper manner in accordance with the specification mentioned in the construction agreement entered by them and the opposite party has not used the quality materials but used poor quality materials for construction and also entire construction work have not been completed as agreed by the opposite party. Despite of complainant request the opposite party has left out the building without completion, as such the opposite party has committed deficiency of service which caused mental agony and hardship to the complainant. As such the complainant sought for claims to pay a sum of Rs.1,50,425/- towards the replacement cost and repair charges and also to pay Rs.3,00,000/- as compensation and cost of the complaint Hence the complaint.
Written version of opposite party is as follows:-
3. It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The opposite party states that the opposite party has completed the construction as agreed in the construction agreement and same was handed over to the complainant and the complainant also has conducted house warming ceremony and also moved to the house with his family in the month of June 2007 itself. Whereas other extra construction made at the request of the complainant with the assurance of extra payment were not paid by the complainant to the opposite party. Apart from that the total construction of the building is of Rs.2373 sq. ft. for which as per construction agreed rate of construction cost at the rate of Rs.580/- per sq. ft total cost of construction of Rs.13,76,340/-. Whereas on the date of handing over the possession of the building the complainant has paid a s um of Rs.13,13,340/- only and the balance of Rs.63,000/- is still to be paid by the complainant towards the cost of construction. Despite of the demand made by the opposite party to the complainant the complainant has not paid the said amount and also the other extra construction made at the request of the complainant with the assurance of extra payment were not paid by the complainant to the opposite party, such as a sum of Rs.2760/- towards building charges and Rs.3500/- extra construction. As such the complainant alone is liable to pay a sum of Rs.69,260/- to the opposite party. In order to avoid the said payment, the complainant has come forward with baseless allegation against the opposite party and filed this complaint. Hence there is no deficiency of service on the part of the opposite party. Therefore this complaint is liable to be dismissed.
4. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A8 were marked on the side of the complainant. Proof affidavit of Opposite parties 2 & 3 filed and Ex.B1 to Ex.B7 were marked on the side of the opposite party.
5. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to the reliefs asked for?.
6. POINTS 1 & 2 : -
Perused the complaint filed by the complainant, written version filed by the opposite party, proof affidavit filed by the complainant and the opposite party and Ex.A1 to Ex.A8 filed on the side of the complainant and Ex.B1 to Ex.B7 filed on the side of the opposite party and also considered the both side arguments.
7. There is no dispute that the complainant has engaged the opposite party as the builder for construction of complaint mentioned house for his residence and construction agreement was entered between them under Ex.A1. Accordingly the opposite party has started the construction and the complainant also paid construction cost part by part and necessary endorsement receipt of the amount also entered by the opposite party in Ex.A1. The building was after some dispute between them and also police complaint and the comprise arrived thereon the building construction was completed and handed over in the month of June 2007 and house warming ceremony was also conducted by the complainant. As per Ex.A1 construction agreement the original rate of construction per one square feet Rs.540/- agreed by both parties. Whereas subsequently when compromise was arrived in the police station as per Ex.A4 the letter of undertaking entered by the complainant as well as the opposite party dated 16.3.2007, the construction cost per square feet is enhanced from Rs.540/- to Rs.580/-.
8. According to the complainant though the complainant paid entire amount as agreed by him with the opposite party, the opposite party has not constructed the complaint mentioned house in proper manner in accordance with the specification mentioned in the construction agreement entered by them and the opposite party has not used the quality materials but used poor quality materials for construction and also entire construction work have not been completed as agreed by the opposite party. Despite of complainant request the opposite party has left out the building without completion, as such the opposite party has committed deficiency of service and the complainant has valid the defective construction and completed construction as per Rs.1,50,425/- and claim the same to the opposite party and also claims compensation.
9. Whereas the opposite party has raised objection that the allegation made in the complaint by stating that the opposite party has completed the construction as agreed in the construction agreement and same was handed over to the complainant and the complainant also has conducted and also move to the house for his family in the month of June 2007 itself. Whereas other extract construction made at the request of the complainant with the assurance of extra payment were not paid by the complainant to the opposite party. Apart from that the total construction of the building is of Rs.2373 sq. ft. for which as per construction agreed rate of construction cost at the rate of Rs.580/- per square feet total cost of construction of Rs.13,76,340/-. Whereas on the date of handing over the possession of the building the complainant has paid a s um of Rs.13,13,340/- only and the balance of Rs.63,000/- is still to be paid by the complainant towards the cost of construction. Despite of the demand made by the opposite party to the complainant the complainant has not paid the said amount and also the other extract construction made at the request of the complainant with the assurance of extra payment were not paid by the complainant to the opposite party, such as a sum of Rs.2760/- towards building charges and Rs.3500/- extra construction. As such the complainant alone is liable to pay a sum of Rs.69,260/- to the opposite party. In order to avoid the said payment, the complainant has come forward with baseless allegation against the opposite party and filed this complaint. Hence this complaint is liable to be dismissed.
10. Before filing of this complaint there was an exchange of notice by the complainant and the opposite party which reveals from that of Ex.A5 & Ex.A6 and the estimate for rectification of work calculated by the complainant Ex.A7. On going through the pleadings and the documents filed on the side of the complainant there is no proper mentioning of the total square feet of the entire construction of the complaint mentioned house constructed by the opposite party for complainant. Whereas the opposite party has offered and stated that the total measurement of the entire house constructed is of 2373 sq ft. but it is neither denied nor given any varied measurement on the side of the complainant. Therefore the complaint mentioned construction of the building of 2373 sq ft. as contended by the opposite party is acceptable. Further the agreed rate for the cost of said construction is Rs.580/- per sq. ft. As such the total cost of the construction is calculated comes to Rs.13,76,340/- as contended by the opposite party is acceptable.
11. The complainant though contended that he has paid a construction amount as agreed by him as per Ex.A4 mutual understanding dated 16.3.2007 the complainant has not proved that he has paid the above said total construction cost of Rs.13,76,340/- to the opposite party. Further the opposite party has stated that the complainant has paid only Rs.13,30,340/- towards the total construction cost and balance of Rs.63,000/- is due by the complainant. In the proof affidavit filed by the opposite party, the opposite party has admitted that on the date of handing over the possession of the building the complainant has paid total sum of Rs.13,30,340/- only and balance amount of Rs.63,000/- is due to be paid by him to the opposite party. Whereas the said amount of Rs.20,000/- was also paid afterward by the complainant to the opposite party. As such in the payment of total construction cost the complainant is due to the opposite party for a sum of Rs.63,000/- - Rs.20,000/- = Rs.43,000/- only. This has not been specifically denied by the complainant in his pleading as well as in his proof affidavit. Therefore the contention of the opposite party that the complainant is due a sum of Rs.43,000/- towards the agreed total cost of construction of the said house is acceptable. However the other amounts said to have been due by the complainant to the opposite party a sum of Rs.42,960/- for the extra constructions said to have been constructed on the assurance given by the complainant that it will be paid as additional charges are not acceptable, since there is no valid and acceptable evidence and cogent pleadings on the side of the opposite party for the same.
12. Further even in the reply notice given by the opposite party Ex.A5 the opposite party has admitted that due to the dispute arise between the complainant and the opposite party for the non-payment of balance amount claimed by the opposite party some meager construction work were not completed and the opposite party was compelled to leave the spot. It is also pertinent to note that the complainant has made several allegations against the opposite party for the construction of the building that the opposite party has used inferior quality materials which caused damages, leakage of roof and tiles of wall in the both room have not been fixed and other problem in the building are all not properly proved by the complainant with production of necessary proof of documents or by production of relevant Engineer’s report at the time of taking over the possession of the building or immediate thereon. The estimate for reconstruction of repair works filed by the complainant as Ex.A8 is of the year 2011 only which taken place nearly four years after taking over possession of the said constructed building. The cost of the repair work mentioned in the complaint is Rs.1,50,425/-. Contrary to this the estimate of repair work done mentioned in Ex.A8 is for Rs.1,82,985/-. Further the complaint mentioned earlier notice said to have been given by the complainant to the opposite party dated 18.7.2008 has not been produced by the complainant, no valid reason for non production of the said notice is also not stated on the side of the complainant. Considering the above facts and circumstances of the case, we are of the considered view that the repair works done and estimated under Ex.A8 for Rs.1,82,985/- cannot be acceptable as a total cost entitled by the complainant from the opposite party as a repair work for incomplete works not completed by the opposite party at the time of handing over the possession of the building to the complainant. Therefore we are of the considered view that out of the estimate repair work under Ex.A8 said to have been spent by the complainant a sum of Rs.1,00,000/- can be considered to be a reasonable amount for the works like laying tiles in the wall of the bath rooms and plumber work and some carpenter repair works spent by the complainant towards the construction work completed which were omitted to be left without completion by the opposite party at the time of handing over the possession of the building. Therefore we are of the considered view that the complainant is entitled to a sum of Rs.1,00,000/- from the opposite party towards expense incurred by the complainant for completing the incomplete work omitted by the opposite party due to dispute at the time of handing over the possession of the building. Since on the relevant date towards the total construction cost, the complainant is due a sum of Rs.43,000/- to be paid to the opposite party as decided and mentioned by us above, therefore the opposite party is liable to pay a sum of Rs.57,000/- (Rs.1,00,000/ - Rs.43,000/- = Rs.57,000/-).
13. Further the opposite party has committed deficiency of service, which caused mental agony and hardship to the complainant is acceptable, as such the opposite party is liable to pay compensation to the complainant. However the compensation claimed in the complaint by the complainant for a sum of Rs.3,00,000/- is exorbitant. Considering the facts and circumstances of the case we are of the considered view that the opposite party is liable to pay a sum of Rs.30,000/- as just and reasonable compensation to the complainant and also to pay a sum of Rs.5,000/- as litigation expense to the complainant. Accordingly, the points 1 & 2 are answered in favour of the complainant.
In the result, the complaint is partly allowed. The opposite party is directed to pay a sum of Rs.57,000/- (Rupees Fifty seven thousand only) and also to pay a sum of Rs.30,000/- (Rupees thirty thousand only) as compensation and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) as cost of litigation to the complainant within six weeks from the date of this order failing which the above amounts (Rs.57,000/ + 30,000/) shall carry interest at the rate of 9% per annum from the date of order passed till the date of realization.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 25th day of January 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- 1.2.2006 - Copy of Construction Agreement.
Ex.A2- 15.3.3007 - Copy of the complaint.
Ex.A3- 15.3.2007 - Copy of the CSR.
Ex.A4- 16.3.2007 - Copy of the undertaking letter of opposite party.
Ex.A5- 27.7.2008 - Copy of the notice.
Ex.A6- 5.6.2008 - Copy of the notice.
Ex.A7- 3.7.2008 - Copy of the estimation report.
Ex.A8- 7.1.2011 - Copy of rectification work estimate.
Opposite party’s Exhibits:-
Ex.B1- 5.4.2007 - Copy of receipt No.20100
Ex.B2- 5.4.2007 - Copy of receipt No.20101.
Ex.B3- 2.5.2007 - Copy of receipt No.425.
Ex.B4- 5.5.2007 - Copy of receipt No.433.
Ex.B5- 5.5.2007 - Copy of receipt No.147.
Ex.B6- 15.5.2007 - Copy of receipt No.47.
Ex.B7- 15.4.2007 - Copy of receipt.
MEMBER-I MEMBER-II PRESIDENT.
