Tamil Nadu

South Chennai

CC/285/2007

Sivaganga Manohar - Complainant(s)

Versus

Namasivaya - Opp.Party(s)

N.Varadharajan

01 Aug 2016

ORDER

   Date of Filing :   19.02.2007

                                                                      Date of Order :   01.08.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd 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

                

C.C.NO.285/2007

MONDAY THIS  1^ST  DAY OF AUGUST 2016

 

Mrs. Sivaganga Manohar,

W/o. Mr.Manohar,

No.7/18, Ponniamman Koil

3^rd Street,

Alapakkam, Chennai – 116.                                ..Complainant

 

                                         ..Vs..

 

Mr. Namasivayam,

S/o. Mr.Sambasivam,

New No.48, Old No.41,

Vedhagiri Street,

Chintadripet,

Chennai – 2.                                                      ..Opposite party    

 

 

For the Complainant        :   M/s. N.Varadha Rajan & another         

For the opposite parties   :   M/s. C. Rajan & others.     

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to refund a sum of Rs.1,40,000/- being the excess amount with interest and also to pay a sum of Rs.50,000/- as compensation  for mental agony and torture and Rs.5,000/- towards the cost of the complaint.  

 

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that  the opposite party was engaged as a contractor / builder and has entered into an oral contract / agreement, with her during the month of May 2003 for the proposed construction of residential building measuring 786.25 sq.ft at the rate of Rs.490/- per sq. ft,  for the total cost of Rs.3,85,262.50.   Accordingly the specification of the construction of the building and the payment schedule prepared and agreed by both.   The complainant further submit that the construction of the said building was started in the month of May 2003 and payment were also made by the complainant to the opposite party on several dates from  01.05.2003 to 14.02.2005  totaling a sum of Rs.3,64,500/-.    Thus the opposite party has agreed to complete the construction within 4 months from 01.05.2003, even on the date of 21.02.2005, when the complainant celebrated the house warming ceremony, the opposite party has not completed the entire constructions as agreed.   The complainant also submit that she engaged a mason, carpenter and a painter and executed all pending works by spending a sum of Rs.1,40,000/-.  Further stated that in spite of several demands the opposite party has not come forward to complete the works of the constructions or not returned the excess amount of Rs.1,40,000/- as such, the opposite party has committed deficiency of service   which caused mental agony and hardship to the complainant.  As such the complainant has sought for a sum of Rs.1,40,000/- being the excess amount with interest and also to pay a sum of Rs.50,000/- as compensation  for mental agony and torture and Rs.5,000/- towards the cost of the complaint.    Hence the complaint.    

Written Version of opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The opposite party states that  complainant is not a consumer and complaint filed is not maintainable under Consumer Protection Act 1986 and further stated that the total cost of construction of 786.23 sq.ft was fixed at Rs.3,85,262.50 without any profit motive, apart from completing the work of construction of 786.25 sq.ft, as agreed the opposite party has put up the additional constructions as per the complainant’s instructions, such as construction of Portico 84.50sq.ft, main door carving  and extra teak wood differences,  staircase constructions, drill and hand rail, construction of compound wall with  pile foundation, plinth beam base  and 4½ inch brick wall above base including plastering, colour washing pillars, brick etc., grill above compound wall 2 numbers,  double gate and extra colour wash etc., all of which were written and given to the complainant with corresponding costs, after deducting basic cost for tiles, which the complainant wanted to put separately.  The total actual cost of construction incurred by the opposite party is Rs.3,88,619/- and hence there is a balance of Rs.24,119/- to be payable by the complainant for the work already completed and delivered to the complainant.   As such there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A13 were marked on the side of the complainant.   Proof affidavit of opposite party filed and Ex.B1 series  to Ex.B6 filed on  the side of the  opposite party.  

4.      The points that arise for consideration are as follows:-

 

1.   Whether the opposite party  has committed  deficiency of

 service  as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

5.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite party, proof affidavits  filed by both the parties  and the documents Ex.A1 to Ex.A13  filed on the side of complainant Ex.B1(series) to Ex.B6  filed on the side of opposite party and considered the arguments of both sides.

6.     Considering the both side pleadings and the affidavits, there is no dispute that the complainant’s family and the opposite party are known to each other for the long period as neighbours, for the construction of residential building for the complainant, opposite party was engaged as a contractor / builder and have entered into an oral contract / agreement, during the month of May 2003 for the proposed construction of residential building measuring 786.25 sq. ft at the rate of Rs.490/- per sq. ft,  for the total cost of Rs.3,85,262.50.    The specification of the construction of the building and the payment schedule prepared and agreed by both was  filed as Ex.A1 and Ex.A2.  The construction of the said building was started in the month of May 2003 and payment were also made by the complainant to the opposite party on several dates from  01.05.2003 to 14.02.2005  totaling a sum of Rs.3,64,500/- as mentioned in the Ex.A2. 

7.     Whereas the complainant has raised grievance, though the opposite party has agreed to complete the construction within 4 months from 01.05.2003, even on the date of 21.02.2005, when the complainant celebrated the house warming ceremony, the opposite party has not completed the entire constructions as agreed, not even to the valid of the amount received from the complainant, but some of the works were kept incomplete, the opposite party had left the building abruptly.  Further stated that in spite of several demands the opposite party has not come forward to complete the works of the constructions or not returned the excess amount of Rs.1,40,000/- as such, the opposite party has committed deficiency of service and complaint filed by the complainant claiming refund of the said amount with interest and compensation against the opposite party.

8.     Whereas the opposite party has resisted the said complaint by saying that complainant is not a consumer and complaint filed is not maintainable under Consumer Protection Act and further stated that the total cost of construction of 786.23 sq.ft was fixed at Rs.3,85,262.50 without any profit motive, apart from completing the work of construction of 786.25 sq. ft, as agreed the opposite party has put for additional constructions as per the complainant’s instructions, such as construction of Portico 84.50sq.ft, main door carving  and extra teak wood differences,  staircase constructions, drill and hand rail, construction of compound wall with  pile foundation, plinth beam base  and 4 ½‘ brick wall above base including plastering colour washing pillars, brick etc., grill above compound wall 2 numbers double gate and extra colour wash etc., all of which were written and given to the complainant with corresponding cost, after deducting basic cost for tiles, which complainant wanted to put separately.  The total actual cost of construction incurred by the opposite party is Rs.3,88,619/- and hence there is a balance of Rs.24,119/- to be payable by the complainant for the work already completed and delivered to the complainant.  As such the complaint filed by the complainant is on the false ground and complaint is liable to be dismissed.

9.     In respect of the contention raised by the opposite party that the complainant is not a consumer and the complaint filed by the complainant is not maintainable is concerned it is not acceptable because the complainant in order to construct the residential house the opposite party was engaged as constructor / contractor, as such, the complainant has engaged the opposite party to avail the service of the opposite party by paying necessary construction cost.  Therefore the complainant is considered to be a consumer within the purview of the Consumer Protection Act.  Therefore the said objection raised by the opposite party is rejected as not sustainable. 

10.    The complainant’s main grievance in the complaint against the opposite party is that the opposite party have been received a sum of Rs.3,64,500/- out of the total cost of Rs.3,85,262.50  have not completed the construction and have left the building in an incomplete  condition, on receipt of the excess amount of Rs.1,40,000/-.  In support of the said contention the complainant has filed the copies of the telegram sent by her to the opposite party dated 20.02.2005  mentioning that “You handed over incomplete building on 20.02.2005 (Sunday) I made excess payment of Rs.90,000/-  / pay compensation of Rs.60,000/- agreed by you and the excess payment on or before 01^st March 2005” as Ex.A4 and another telegram  dated  21.04.005,  in which he stated that “ Refer my telegram dated 21.02.2005 repay excess payment of Rs.90,000/- along with compensation of Rs.60,000/- on or before 24.04.2005….”. filed as Ex.A5 The complainant   also filed the list of completed work with cost in respect of for Rs.2,25,000/- estimated by one civil engineer dated 25.5.2005,   and the list of incomplete work with cost in respect of for Rs.1,36,000/- prepared by the civil engineer dated 23.03.2005 as Ex.A3 and  the civil engineer bill of cost for the work executed in respect of the work order for Rs.1,36,000/- dated 27.12.2005 as Ex.A6 in this proceeding.   On the above said document complainant claims that the opposite party have received a sum of Rs.3,64,500/-, whereas the opposite party has done construction work for the value of Rs.2,25,000/- only as such the opposite party has received a sum of Rs.1,39,500/- as excess.  The opposite party is liable to return the same to the complainant.  Whereas the opposite party by denying the above claim of the complainant stated that  he has completed the construction as per the agreement, with additional constructions as required by the complainant for the total value of Rs.3,88,619/-, whereas the complainant has paid only 3,64,500/- the balance of Rs.24,119/- is due by the complainant to the opposite party.  As such the opposite party has contended that he is not liable to pay any refund as claimed by the complainant, but on the other hand the complainant himself has to pay due a sum of Rs.24,119/-.  Though the opposite party has filed a document Ex.B1 series which contains several bills for the construction of the materials, the opposite party neither proved the contention that he has completed the construction of the building for the value of Rs.3,88,619/-  nor filed any document to prove the same.

11.    However considering the facts and circumstances of the case, we are of the considered view that it is the burden on the side of complainant to prove his claim of refund of Rs.1,40,000/- against the opposite party.  Whereas the complainant, as a first instance in his telegrams Ex.A4 and Ex.A5 has claimed a sum of Rs.90,000/- alone as refund towards excess payment. The complainant has not specifically mentioned in the complaint, about the detail particulars of the incomplete portions of the building. Further the estimated value of already completed building and the value of incomplete construction under Ex.A3 cannot be  taken as true values, since it has not supported necessary other particulars  and the way  in which the values are calculated by the civil engineer, even the civil engineer has not been examined or his affidavit was obtained and filed in support of the said document.  If the said constructions are valued as it is it may not be proper, since the opposite party has constructed the said construction as a contractor, with profit motive at the rate of fixed  Rs.490/- per sq. ft.  There is no particular attached with Ex.A3 to show that the said constructed building and incomplete building are valued or estimated at the rate of Rs.490/- per sq. ft.  Therefore we are not in a position to take the value mentioned in Ex.A3 are correct and on the basis the claim of refund made by the complainant is to be ordered.  Considering all the aspects and the material available on record, we are of the considered view that the opposite party have left the building with incomplete  construction, which can be considered for the value of a sum of Rs.50,000/- as just and reasonable.  Therefore the complainant is entitled to a sum of Rs.50,000/- as refund towards the excess amount paid to the opposite party.   Contrary to this the claim of the complainant i.e. the refund of Rs.1,40,000/- is exorbitant and the complainant is not entitled to that extent of refund.  Further considering the facts and circumstances of the case for the said refund of Rs.50,000/-,  the  complainant is entitled with interest at the rate of 9% p.a. from the date of his complaint to till the date of payment from the opposite party.   Since interest for the refund amount has been ordered, we are not inclined to grant compensation claimed in the complaint against the opposite party.  The opposite party is also liable to pay a sum of Rs.5,000/- as litigation charges to the complainant.  Accordingly the points 1 & 2  are answered.

          In the result,  this complaint is partly allowed.  The opposite party is directed to refund a sum of Rs.50,000/- (Rupees fifty thousand only) with interest at the rate of 9%  per annum from the date of complaint i.e. 19.2.2007 to till the date of payment and also to pay a sum of Rs.5000/- (Rupees five thousand only) as cost to the complainant, within six weeks from the date of this order.  

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  1^st   day  of  August   2016.

 

 

MEMBER-I                                                                                                     PRESIDENT.

Complainant’s Side documents :

Ex.A1-                    -        - Copy of opposite party’s estimation for construction.

Ex.A2-                    -        - Copy of opposite party’s 2^nd estimation for construction and

                               Receipt of payment by the opposite party.

Ex.A3- 25.5.2005      - Copy of complainant’s Engineer Report.

Ex.A4- 20.2.2005      - Copy of Telegram by the complainant to opposite party.

Ex.A5- 21.4.2005      - Copy of Telegram by the complainant to opposite party.

Ex.A6-                    -        - Copy of cost of incomplete work and its respective cost

                                Acknowledgment of receipt by Police.

Ex.A7-                    -        - Copy of Ack. of receipt by police.

Ex.A8- 12.10.2005     - Copy of opposite party’s lawyer notice to the complainant.

Ex.A9- 4.1.2006        - Copy of complainant’s reply advocate.

Ex.A10-                 - Copy of complainant’s private complaint before 6^th MM Egmore.

Ex.A11- 12.2.2007     - Copy of lawyer notice to the opposite party.

Ex.A12-         -        - Copy of Ack. singed by the opposite party.

Ex.A13- 3.3.2007      - Copy of opposite party’s reply notice.

 

Opposite party’s side documents: - 

 

Ex.B1-                    -        - Copy of Details of Material bills for the construction of

                               Residence for Smt.Sivagangai at Alapakkam.

Ex.B2-  12.10.2005    - Copy of opposite party’s lawyer notice.

Ex.B3-                    -        - Copy of ack. Card.

Ex.B4- 4.1.2006        - Copy of reply notice by the complainant’s advocate.

Ex.B5- 12.2.2007      - Copy of legal notice by the complainant to the opposite party.

Ex.B6- 3.3.2007        - Copy of reply notice by the opposite party.

 

 

 

MEMBER-I                                                                                                  PRESIDENT.