Tamil Nadu

StateCommission

A/136/2019

A.Ponnaiyah, - Complainant(s)

Versus

P. Anandakannan, And another. - Opp.Party(s)

M/s. P. Ayyamperumal

30 May 2023

ORDER

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R   VENKATESAPERUMAL           :      MEMBER

 

F.A. No. 136 of 2019

[Against the order passed in C.C. No.55 of 2017 dated 03.04.2019 on the file of the D.C.D.R.F., Chengalpattu, Kanchipuram District].

 

Tuesday, the  30^th day of May 2023

 

A. Ponnaiyah

S/o. Azhagan

Plot No.24, Nangooram Nagar

Nandhivaram, Guduvanchery

Kanchipuram -603 202                                ..  Appellant/Complainant 

             

 

- Vs –

 

1. P. Anandakannan D.C.E

    Nadupalani Road

    Vengadasapuram

    Kanchipuram 603 301

 

2. P. Karunanithi

    Maistry

    Plot No.70 Mahalakshmi

        Nagar Extension 7

    Nandhivaram, Guduvanchery

    Kanchipuram -603 202                                   ..Respondents/

Opposite parties                                  

Counsel for the Appellant /Complainant:  M/s.Ayyamperumal

                1st Respondent/ 1st Opposite party:  Absent

 

                2nd Respondent/ 2nd Opposite party:  Dismissed

 

 

This appeal came before us for final hearing on 10.02.2023, and on hearing the arguments of the counsel for the appellant and on perusing the material available on records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

 

                This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 03.04.2019 passed by the District Consumer Disputes Redressal Forum, Chengalpattu, Kanchipuram District in C.C. No.55 of 2017, dismissing the complaint filed by the Appellant herein.

 

        2.  The case of the complainant, as given in the complaint filed before the District Forum is that the opposite parties had entered into a construction agreement with the complainant on 18.07.2016 for construction of a portico at stilt floor and 1st floor, totally measuring to an extent of 624 sq.ft approximately, viz. stilt floor 252 sq.ft, 1st floor 252 sq.ft and head room 120 sq.ft., by demolishing the existing portico.   Both the opposite parties agreed to complete the construction work within a period of 3 months.  Based on the assurance given by the opposite parties, the complainant paid a sum of Rs.2,50,000/- on 18.07.2016.  But, the opposite parties, though not completed the work as agreed upon in the construction agreement, received a total sum of Rs.11,55,000/- on various dates, as against the agreed sum of Rs.11,80,000/-.  But, the opposite parties failed to complete the work in time and they did not use quality materials as agreed upon in the Construction Agreement.  They agreed to provide 2 Gana Teak windows of first quality but they provided only one window of second quality.  The opposite parties also told the complainant that they would make teak wood doors out of raw wood, which would be purchased in the presence of the complainant.  But they provided only ready-made doors of 2nd quality.  Though they agreed to provide Johnson tiles in the living and common area, they provided unbranded local quality tiles.  The opposite parties disconnected the power connection leading to bed room with the assurance that the same would be restored.  But they failed to do so.  They removed the cupboard in the dressing room on the first floor and assured to re-fix the same but it was not done by the opposite parties.  The demolished debris and mud kept inside the garden were not removed, which polluted the entire house.  Though the opposite parties received Rs.11,55,000/- as against the total agreed amount of Rs.11,80,000/-, they failed to complete their work even after a lapse of 9 months.  Hence the complainant sent a legal notice dated 27.04.2017 asking the opposite parties to complete the left out works immediately, within a maximum period of 15 days.  But the opposite parties did not respond to the said legal notice.  Thus the opposite parties have committed deficiency of service, which had caused mental agony to the complainant .  Hence, he has filed the complaint for the following directions to the opposite parties:-

1. To pay a sum of Rs.2,50,000/- towards deficiency of service;
2. to pay a sum of Rs.2,00,000/- as compensation towards mental agony;  and
3. To pay a sum of Rs.20,000/- towards the cost of the complaint.

  

                3.  Resisting the complaint the 1st opposite party filed a written version stating that they admit the fact that the complainant and the opposite parties entered into an Agreement for demolishing the existing car park and to construct a new portion.  The opposite parties have done construction work for more than the area agreed upon and have also done additional work.  It is true that the opposite parties received a sum of Rs.11,55,000/- on various dates but had completed the work accordingly.  As per the construction agreement a total sum of Rs.11,80,000/- was fixed for construction and other works but the opposite parties have done the work for more than the agreed amount, i.e., nearly about Rs.13,30,000/-.  The 1st opposite party had provided only quality materials as agreed by them and have done the job to their best.  Only after confirming the quality of the material with the complainant, the opposite parties had fixed the same.  The opposite parties have used the tiles, costing Rs.45/- per tile.  The opposite parties have done their work only as per the instructions given by the complainant. As per the construction agreement, the head-room has to be constructed for 120 sq.ft. but after commencing construction the complainant had requested the opposite parties to construct for 171 sq.ft., and the same was done by the opposite parties.  Apart from the construction schedule, the complainant requested the opposite parties to do additional work for his old building, which was also done by them.  Further, the opposite parties have done painting work for the complainant's old building.  In fact it is the complainant who is liable to pay amount for the additional work done by the opposite parties.  When the opposite parties requested for payment, the complainant refused to pay the same but went to the extent of issuing legal notice and only in order to avoid payment of the balance amount to the opposite parties, complainant has filed the present complaint and hence sought for dismissal of the complaint. 

 

                4.  In order to prove the case, the complainant has filed his proof affidavit and 5 documents have been marked as Exhibits A1 to A5.  On the side of the 1st opposite party, proof affidavit was filed but no documents were marked.   The 2nd opposite party was set ex-parte for non-appearance. 

 

                5.   The District Forum, after analyzing the entire evidence on records had observed that the complainant has not taken any steps to appoint an Advocate Commissioner to inspect the property and file a report regarding the quality of goods/wood used in the building.  Further, there is no Engineer's report on the side of the complainant to prove that there are defects in the construction.  Whereas, according to the 1st opposite party, they have used good quality material and wood and the same were used with the consent of the complainant.  Though the photos filed on the side of the complainant shows that there are some crack and leakage in the building, the photographer was not examined to prove the photos in connection with the building.  Thus, the District Forum had come to a conclusion that there is no deficiency of service on the part of the opposite parties and dismissed the complaint.  Aggrieved over the same, the complainant has come forward with the present appeal. 

 

                6.  Keeping the submissions made by the counsel for the appellant/complainant in mind, we perused the entire material available on records. 

 

                7.  We are also of the opinion that mere pleadings cannot be construed as an evidence unless the same is proved in the manner known to law.  In the instant case, though the complainant had made several allegations on the opposite parties, he has not substantiated the same by producing tangible evidence.  As observed by the District Forum, he has not chosen to take out any application for appointment of an Advocate Commissioner to inspect the building premises.  No Engineer's report has been obtained.  Whereas, according to the opposite parties, they have constructed the building with quality materials and since they insisted payment for the additional work done by them, the complaint has been filed by the complainant.  Therefore, we find there are disputed question of facts involved in this case and the same cannot be decided in a summary manner by this Consumer Forum, by merely relying upon the pleadings put forth by the complainant.   The appropriate remedy for the complainant is only to approach a civil court where the complainant can mark the documents, cross examine the other side and adduce elaborate evidence to substantiate his claim.   Hence, we do not find any infirmity in the order passed by the District Forum.

 

                8.  In the result, the Appeal is dismissed and the order dated 03.04.2019 passed in C.C. No.55 of 2017, by the District Consumer Disputes Redressal Forum, Chengalpattu, Kanchipuram District, is confirmed.    No costs.

 

 

 

 

R  VENKATESAPERUMAL                                                                                               R.SUBBIAH

         MEMBER                                                                                                                     PRESIDENT

 

 

Index :  Yes/ No

 

AVR/SCDRC/Chennai/Orders/May/2023