Tamil Nadu

South Chennai

219/2006

V.Rajamani - Complainant(s)

Versus

P.Parthasarathy - Opp.Party(s)

party in person

21 Sep 2016

ORDER

   Date of Filing :   10.04.2006

                                                                      Date of Order :   21.09.2016

 

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

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

                

C.C.NO.219/2006

WEDNESDAY  21^ST  DAY OF SEPTEMBER 2016

 

V. Rajamani,

No.22, Lakshmi Nagar,

Alwarthirunagar Post,

Chennai 600 087.                                                       ..Complainant

                                         ..Vs..

 

P. Parthasarathy,

Civil & Sanitary Contractor,

No.8, Ramaiah Street,

Near Vadivelpuram,

West Mambalam,

Chennai 600 033.                                             ..Opposite party.     

 

 

For the Complainant         :   Party in person.

For the opposite party      :   M/s. A. Thirumaran  & others.    

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to carry out necessary repair works and also to pay a sum of Rs.5,00,000/- as compensation for deficiency in service and also to pay 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 being the civil contractor was engaged by the complainant for a construction of complaint mentioned house for the estimated cost of Rs.7,00,000/-.  Accordingly the opposite party has constructed the house and handed over to the complainant in the month of December 2002.    The opposite party has handed over the possession of the said house unfinished with the deficiency of constructions as mentioned in the complaint i.e  as follows:-

1. Plastering of walls raised over the inside compound wall.
2. Provision not done in the service room for water outlet.

iii.  Pooja room in the kitchen was not built as per the specification of the complainant.

iv.  Teakwood doors and windows used in complainant’s old building

were supplied by him for which sufficient reduction was not given to the complainant.

 

5. Staircase to be covered to prevent main water coming.
6. Provision for water outlet for washing machine.

Vii. From the beginning the opposite party had no intention to consult and discuss about the constructions to be carried on and did not allow the complainant to give his suggestion.  He did the work in his own way causing mental agony to the complainant.

The complainant further states that despite of several demands made by the complainant  but no proper response from the opposite party to resolve the complaint.   Accordingly the complainant also issued a legal notice to the opposite party to attend the repair works, the opposite party has not complied the said defects.   As such the act of the opposite party amounts to deficiency of service.   As such the complainant has sought for to carry out necessary repair works and also compensation of Rs.5,00,000/- against the opposite party.      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 submit that the actual constructed area after the completion of  the construction amounted to 765 sq. ft. in the ground floor and 860 sq. ft in the first floor.   Further additional work was provided by way of construction of overhead water tank, compound wall and installation of rotary switches for electrical purpose in both the floor the cost of construction had escalated to Rs.8,42,000/-.     The opposite party further submit that the work was completed as promised and the house duly handed over to the complainant.  The construction developed cracks at several points etc. are all false and fabricated.   The complaint filed by the complainant is barred by limitation, since  the complaint mentioned construction of house and handing over possession of the same were actually taken place in the year 2002, whereas the complaint is filed in the year 2006.  Hence this complaint is barred by limitation and therefore the complaint is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A4 were marked on the side of the complainant.   Proof affidavit of  opposite party filed and no documents was marked on  the side of the  opposite party.  

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

 

        1. Whether the complaint filed by the complainant  is barred by

            limitation as per Sec. 24-A of the Consumer Protection Act 1986?.

 

2.   Whether the Opposite party has committed any deficiency of service as alleged in the complaint by the complainant?

 

3.   Whether the complainant is entitled for any relief sought for against the opposite party? If so to what extent. ?.

 

5.   POINTS 1 to 3 :

 

Perused the complaint filed by the complainant, written version filed by the opposite party and the proof affidavit filed by complainant  and opposite party, the documents Ex.A1 to Ex.A4 filed on the side of the complainant and considered the arguments of the both side counsel.

6.     There is no dispute that the opposite party being the civil contractor was engaged by the complainant for a construction of complaint mentioned house for the estimated cost of Rs.7,00,000/-.  Accordingly the opposite party has constructed the house and handed over to the complainant in the month of December 2002. 

7.     The complainant has raised grievance in the complaint that the opposite party has handed over the possession of the said house unfinished with the deficiency of constructions as mentioned in the complaint i.e  as follows:-

1. Plastering of walls raised over the inside compound wall.
2. Provision not done in the service room for water outlet.

iii.  Pooja room in the kitchen was not built as per the specification of the complainant.

iv.  Teakwood doors and windows used in complainant’s old building

were supplied by him for which sufficient reduction was not given to the complainant.

 

5. Staircase to be covered to prevent main water coming.

    Vi Provision for water outlet for washing machine.

Vii. From the beginning the opposite party had no intention to consult and discuss about the constructions to be carried on and did not allow the complainant to give his suggestion.  He did the work in his own way causing mental agony to the complainant.

 

Complainant has further stated that despite of his legal notices issued dated 10.03.2004 and 07.04.2005, the opposite party has not complied the said defects as such it amounts to deficiency of service on the part of opposite party and filed this complaint claiming to carry out necessary repair works and also compensation of Rs.5,00,000/- against the opposite party.

8.     Whereas the opposite party has resisted the complaint by saying that the complaint filed by the complainant is barred by limitation, since  the complaint mentioned construction of house and handing over possession of the same were actually taken place in the year 2002, whereas the complaint is filed in the year 2006.  Further contended that the house was constructed on the instruction of the complainant and his family members and was handed over to the complainant, contrary to this the allegation of defect in constructions  made by the complainant in the complaint are not true and  the allegation of the materials said to have been taken by the opposite party are all false as such the complaint is liable to be dismissed as the complainant is not entitled  for any relief sought for in the complaint.

9.     The complainant himself has mentioned in this complaint that the opposite party was engaged for the construction of complaint mentioned house in the year 2002 and accordingly the opposite party has also constructed the house and handed over the same to the complainant in the month of December 2002.  Therefore the actual cause of action for the complaint mentioned transactions is of the year 2002, if any grievance over the construction of house such as defective construction and un finished work etc., as mentioned in the complaint those things would have been very well known to the complainant at the time of taking  possession of the house.  Further the nature of alleged defects of construction and unfinished work in the house and other allegations of the materials said to have been taken by the opposite party are all relating to the period of December 2002.  The complainant also not filed any petition under section 24-A of the Consumer Protection Act 1986 to condone the delay and get the delay condoned before filing of this complaint.  Therefore as contended by the opposite party with regard to the complaint mentioned grievances if any the complainant should have filed the complaint before this forum within 2 years from the above said actual cause of action as per sec 24-A of the Consumer Protection Act., 1986.   But this complaint is filed by the complainant  before this forum only on 10.04.2006.  Therefore this complaint filed by the complainant is barred by limitation as per sec 24A of Consumer Protection Act is acceptable.   Contrary to this the submission made by the complainant that the complainant has issued legal notice to the opposite party, dated  10.03.2004 on receipt of the same the opposite party has requested some more time to attend the work, but not kept the promise as such the complainant issued another notice dated 07-04-2005 to the opposite party, even on receipt of the same the opposite party has not complied the demand of the complainant as such the complaint filed by the complainant on 10.04.2006 is in time and not barred by limitation is not acceptable.  Since the limitation under section 24-A of the Consumer Protection Act 1986 is for filing complaint  within 2 years from the actual cause of action.  The actual cause of action for the complaint mentioned grievance of the complainant is of the year 2002, thus this complaint would have been filed by the complainant within two years i.e. December 2004.  Contrary to this, the complaint filed by the complainant on 10.04.2006 on the basis of issuance of  legal notice dated 07.04.2005 cannot be said that the complaint is filed in time. 

 

10.    Further it is pertinent to mention that as per the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi rendered in the case of

                  Richard Raja Singh (DR) and Ors.

                       – vs-

Ford Motor Company Ltd and another

 

reported in IV (2014) CPJ 509 (NC), it is held  that “the exchange of  notice or communications  will not save the limitation”, but the complaint under this Consumer Protection  Act 1986 should be filed within two years from the actual cause of action.  Therefore the said decision is squarely applicable to the present case in support  of the  contention raised by the opposite party that this complaint filed by the complainant is barred by limitation.

 

11.    Therefore we are of the considered view that, as discussed above the complaint filed by the complainant is barred by limitation under section 24-A of the Consumer Protection Act., 1986, as such the complaint is liable to be dismissed and the complainant is not entitled for any relief sought for in the complaint against the opposite party.  Considering the facts and circumstances of the case, the parties must bear their own costs.  Accordingly the points are answered in favour of the opposite party and against the complainant. 

In the result this complaint is dismissed.  No Costs. 

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  21^st   day  of  September   2016.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s Side documents :

Ex.A1- 5.12.2001      - Copy of estimate.

Ex.A2- 23.12.2003     - Copy of notice issued.

Ex.A3-           -         -        - Copy of Postal Ack. card.

Ex.A4- 6.4.2005        - Copy of letter informing the proposed legal action.

 

Opposite parties’ side documents: - 

 

.. Nil ..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.