Tamil Nadu

StateCommission

FA/296/2014

V.R. SUBRAMANIAN, PROPRIETOR - Complainant(s)

Versus

P. PUSHPAKANTHAM - Opp.Party(s)

03 Jul 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,CHENNAI

BEFORE :   THIRU.A.K.ANNAMALAI                          PRESIDING JUDICIAL MEMBER

                                                      TMT.P.BAKIYAVATHI                               MEMBER                                                                                  

F.A.NO.296/2014

(Against the order in CC.No.508/2007, dated 13.11.2013 on the file of DCDRF, Chennai (South)

DATED THIS THE 3^rd DAY OF JULY 2015

Mr.V.R.Subramanian,

Proprietor,

M/s.V.R.S.Builders,

Head Office at,

21/43, Sai Nagar, 1^st Main Road,                              M/s.D.Jawahar

Virugambakkam,                                         Counsel for Appellant / Opposite party

Chennai 600 092.

Site Office at

S-17 & 18, ‘I’ Block,

S.S.L.Green Park,

Madhanadapuram, Porur,

Chennai 600 116.

-vs-

Smt.P.Pushpakantham,

W/o.Sri L.Sakthi Mohan,

205, Rajarajachozen Street,                                   M/s.K.Ganesan

Kumaran Nagar,                                         Counsel for Respondent /Complainant

Padi, Chennai 600 050.

          The Respondent is the complainant filed a complaint before the District Forum against the opposite party praying certain relief.  The District Forum allowed the complaint.  Against the said order, the appellant / opposite party filed this appeal praying for to setaside the order of the District Forum in CC.No.508/2007, dated 13.11.2013.    

          This appeal coming before us for hearing finally on 10.06.2015, upon hearing the arguments on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.

A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

                    The opposite party is the appellant.

2.       The complainant entered into an agreement with the opposite party on 3.11.2004 for the house plot bearing No.39 measuring an extent of 1869 sq.ft situated at No.71, Chettipuniyam Village for the construction of ground floor to an extent of 675 sq.ft at a total construction cost of Rs.3,71,000/-.  In addition to the above said amount, a further sum of Rs.7000/- towards rain harvesting, Rs.20,000/- towards borewell and motor, Rs.7000/- towards overhead tank and Rs.15,000/- towards electricity connection and in all a sum of Rs.4,35,000/- has been mutually agreed to the complainant and the opposite party.  On the date of signing of the agreement dated 3.11.2004 the complainant paid a sum of Rs.10,000/- as advance and agreed to pay the balance amount within 4 months in installments subject to progress in the construction for availing loan from the Union Bank of India and obtained a loan of Rs.4,25,000/- and executed necessary documents.  The complainant’s banker had released a total sum of Rs.4,15,000/- directly to the opposite party for the construction and the opposite party had agreed to complete the construction on or before 15.10.2005.  But the opposite party failed to do so.  After issuing legal notice, the complainant filed a consumer complaint claiming for direction to hand over the completed flat on receipt of balance construction cost of Rs.10,000/- from the complainant to alleging deficiency in service and unfair trade practice and to pay a sum of Rs.5,00,000/- as compensation for mental agony and to pay costs.

3.       The opposite party denied the allegation stating that due to the delay in payment by the complainant the building could not be completed within the time and because of that the material costs for construction was increased in three folds and thereby the opposite party ready to willing to refund the amount paid by the complainant and the construction work was stopped due to the nonpayment of the amount by the complainant.

4.       Based on both sides materials and after an enquiry and on the basis of Advocate Commissioner Report under Ex.C1 the District Forum allowed the complaint by directing the opposite party to complete the pending works as per the report of the Advocate Commissioner under Ex.C1 on receipt of Rs.1,50,000/- from the complainant towards balance amount and also to pay a sum of Rs.25,000/- as compensation for mental agony and to pay Rs.5000/- as costs.

5.       Aggrieved by the impugned order the appellant / opposite party contended that the District Forum erroneously allowed the complaint without considering Ex.A2 Construction agreement regarding the specific time frame for payment which was not complied by the complainant and Ex.C1 was not accepted by the complainant and raised objection.  Hence it cannot be accepted and thereby the appeal is to be allowed.

6.       We have heard both sides arguments and carefully considered the materials and documents including Ex.C1 in this regard.  It is the admitted case of both sides that the complainant had entrusted the construction work as per construction agreement to the opposite party to construct the building and to hand over within the  time frame  agreed  upon and  the same  was not done by the opposite party alleging that there was delay in subsequent payments and thereby construction work was not completed.  After filing the complaint the complainant come forward to settle the balance amount payable to the opposite party on completion of work and to hand over the same and thereby the District Forum pointed out the defects to be rectified and to complete the building work as per Ex.C1 Advocate Commissioner report on receiving the payment of Rs.10,000/- from the complainant.  On perusal of Ex.C1 is concerned the Advocate Commissioner pointed out works yet to be completed with the construction and thereby the District Forum by accepting the same given such directions for rectification.  As far as the contention of the appellant / opposite party regarding Ex.C1 is concerned since the complainant herself objected the Advocate Commissioner report  it cannot  be acted upon while perusing the  objection filed by the complainant regarding the report the complainant alleged that the Advocate Commissioner has not asked for the approved plan and not noted down the usage of unfinished construction work by miscreants in the absence of occupation and these objections are nothing to do with the prayer of the complainant and the Advocate Commissioner’s work is only to ascertain the details of incompleted work in order to give directions for completion of the same and to know actual physical features found on the date of inspection by the Advocate Commissioner.  In those circumstances the contentions of the appellant in this regard cannot be accepted.  Hence in view of the foregoing reasons and discussions the findings of the District Forum in this regard is acceptable and as far as the quantum  of   compensation  is  concerned since  there is a delay on payment at the final stage by the complainant also and as per the Advocate Commissioner report  and  as  per the  pleadings  of the opposite  party since there was nearly completion of building a sum of Rs.25,000/- as compensation for mental agony is somewhat on the higher side and we are inclined to reduce the same to Rs.15,000/- and in other respects the order of the District Forum has to be sustained and accordingly

          In the result the appeal is allowed in part by modifying the order of the District Forum to reduce the compensation from Rs.25,000/- to Rs.15,000/- and in other respects confirming the order of the District Forum.

          The directions shall be complied within a period of 6 weeks from the date of this order.

          No order as to costs in the appeal.

 

P.BAKIYAVATHI                                                       A.K.ANNAMALAI

    MEMBER                                                     PRESIDING JUDICIAL MEMBER

INDEX; YES / NO

VL/D;/PJM/CONSTRUCTION