Date of Filing      : 29.12.2021

                                                                                                                               Date of Disposal : 10.08.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                             .…. PRESIDENT

                 THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                    ….MEMBER-I

                 THIRU.P.MURUGAN,  M.COM.,ICWA (Inter),B.L.,                                            ......MEMBER-II

CC. No.04/2022

THIS THURSDAY, THE 10^th DAY OF AUGUST 2023

Mrs.C.Tamilselvi,

W/o.A.Saravanan,

No.30, Melnallathur,

Manavala Nagar,

Thiruvallur District.                                                                                   ……Complainant. 

                                                                                 //Vs//

Mr.Jaisankar,

Proprietor of Retro Tech Constructions,

No.10/43/258,

Vivekanandha 1^st Street,

Rajajipuram,

Thiruvallur 602 001.                                                                              …..Opposite party.

Counsel for the complainant                                     :   M/s.R.Siva Kumar, Advocate.

Counsel for the opposite party                                 :   Mr.A.R.Poovannan, Advocate.

This complaint is coming before us on various dates and finally on 17.07.2023 in the presence of M/s.R.Siva Kumar counsel for the complainant and Mr.A.R.Poovannan counsel for the opposite party and upon perusing the documents and evidences of the complainant this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with regard to construction made by the opposite party along with a prayer to direct the opposite party to pay a sum of Rs.5,82,510/- to rectify the defect as mentioned in the Engineer’s Report and to pay a sum of Rs.2,20,000/- towards loss of rental paid for 11 months and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and torture suffered by the complainant and to pay a sum of Rs.15,000/- towards cost of litigation expenses to the complainant.

Summary of facts culminating into complaint:-

That the complainant filed the complaint against the opposite party alleging deficiency in service in constructing the house at No.30, Melnallathur, Manavala Nagar, Dhiruvallur District.  The opposite party agreed to construct a house measuring 840 square feet built up area except over tank, stair room and sump.  Based on oral understanding the total cost of the construction is fixed as Rs.25,00,000/-.  The period of construction is six months with one month grace period.  The construction was commenced by the opposite party after receipt of advance amount of Rs.5,00,000/- on 09.12.2019.  The opposite party had received Rs.7,00,000/- as advance on 19.02.2020 and on 20.02.2020.  The complainant paid the amount to the opposite party frequently to complete the construction.  But the opposite party insisted to pay additional amount and the total amount comes around Rs.27,50,000/-.  The opposite party had not completed the construction within the stipulated period of six months.  More over the opposite party had constructed the building with poor quality materials.  There are lot of defects in the construction and incomplete works of the opposite party.  The details of defects and incomplete works as follows;

1. Cracks all over the walls inside and outside,
2. No proper septic tank as per agreement of approved plan,
3. Kitchen granite table not properly polished,
4. The compound wall was neither leveled nor cleaned and broken.  Cracks within 10 feet in all over the compound wall,
5. Soak pit was not constructed as requested by local administration,
6. Furnishing was not completed, fitting left undone.

After taking possession, the complainant asked the opposite party to rectify the above defects.  But the opposite party never turned up to rectify the defects.  The complainant obtained an estimate from the another Civil Engineer to carry out rectification works which comes around Rs.5,82,510/-.  The complainant issued a letter to the opposite party on 11.02.2021 narrating the entire defects. The complainant issued a legal notice dated 26.03.2021 to the opposite party and reminder was sent on 03.05.2021.  Inspite of repeated demands and requests from complainant the opposite party has not come forward to rectify the defects in the construction.  The act of the opposite party amounts to deficiency in service and hence the complaint.

The crux of the defence put forth by the opposite party:-

The opposite party denies the averments contained in the complaint as false.  The cost of construction is Rs.1700/- per square feet.  The said cost is only for plinth area and the complainant has to pay for the additional cost for the construction of septic tank, Sump, Head room, water tank and compound wall.  The said construction cost consists of standard materials of good quality in the market.  It is the usual procedure that the payment will be made at the rate of 40% at the basement level, 30% at initial level and 30% at the final stage. The materials used for construction were selected only by the complainant and her family.  During the pandemic situation, the construction could not proceed as expected.  Further it is very difficult to get workmen even after some relaxation and thus it was not completed within time.  There is no specific plan provided by the complainant.  The complainant and her family used to alter the construction on several occasions till the end of constriction.  As per complainant’s instruction, the opposite party demolished and reconstructed several structures.  The total cost of the construction is Rs.30,19,076/-.  The complainant paid Rs.26,00,000/- only and he is liable to pay Rs.4,19,076/- to the opposite party.  Due to lock down, there was scarcity of sand and therefore opposite party utilized M Sand to complete the construction as requested by the complainant.  The alleged defect in the plastering due to quality of M Sand and not because of the workmanship of the opposite party. The complainant engaged some other work men for other works which might have caused damage to the building and compound wall.  The defects pointed out by the complainant are not the fault on the part of opposite party and they might have occurred due to the quality of materials used.  Further, it is learnt that the complainant to blow up the issue had voluntarily caused some damages.  The defects pointed out by the engineer are only due to the locality of the building area and the quality of the sane. At the instance of the complainant with their knowledge and the consent the materials were used.  The opposite party is not aware of its quality.  Due to improper maintenance the building got damaged.  There is no deficiency in service and prays to dismiss the complaint.

On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.A7 was submitted.  On the side of opposite party proof affidavit was filed but no document was filed on their side.

Points for consideration:-

1. Whether there is any deficiency in service on the part of the opposite party?
2. To what relief the complainant is entitled?

Point No.1:-

It is the case of the complainant that engaged the service of the opposite party to construct the house.  The total cost of construction is Rs.25,00,000/- and the period to complete the construction is 6 months with one month grace period.  Even after receipt of entire construction cost, the opposite party demanded additional sum of Rs.2,50,000/-.  The opposite party had not completed the construction within six months and certain defects were found in the said construction.  Inspite of repeated demands and requests from complainant, the opposite party had not rectified the defects. The Engineer appointed by the complainant had estimated the value of the rectification works to be carried out to the tune of Rs.5,82,510/- and hence the complaint.

To prove the case the complainant deposed proof affidavit with 7 documents which were marked as Ex.A1 to Ex.A7.  Ex.A1& Ex.A3 are the legal notice issued by the complainant to the opposite party, Ex.A2 & Ex.A4 are the acknowledgement card for proof of delivery, Ex.A5 is the Engineer’s opinion, Ex.A6 is the Statement of Accounts and Ex.A7 is the copy of amounts paid to the opposite party.

Per contra, the opposite party disputing all the allegations in the complaint interalia contended that there is no deficiency in service on the part of the opposite party.   The construction cost is for plinth area only and the complainant is liable to pay for the additional construction cost.  Due to pandemic the construction could not be preceded as expected.  The complainant and her family used to alter the construction on several occasions.  The complainant had not provided approval plan to the opposite party.  The total cost of the construction is Rs.30,19,076/- and the complainant is liable to pay Rs.4,19,076/- to the opposite party.  The materials used for construction were chosen by the complainant and her family.  Hence, opposite party prays to dismiss the complaint.

It is an admitted fact that the complainant engaged the opposite party to construct residential house.  However, no written agreement was executed between the parties.  Based on the oral understanding, the complainant paid the advance amount and the opposite party commenced the construction.  The complainant paid the amount to the opposite party as and when demanded by him.  The complainant had Bank Statement vide Ex.A6 to substantiate her contentions.  Moreover, in the written version opposite party himself admitted that he had received Rs.26,00,000/- from the complainant as on date.

Ex.A1 and Ex.A3 are the legal notices issued by the complainant.  Even after receipt of legal notices, the opposite party had not come forward to rectify the defects.  Ex.A5 is the Civil Engineer’s Report engaged by the complainant to ascertain the estimation for the rectification works.  The said Civil Engineer in his report stated that estimation cost is Rs.5,87,510/- to carry out the rectification works.

On perusal of Ex.C1 Advocate Commissioner’s Report, the qualified Civil Engineer inspected the property with the Advocate Commissioner opined that estimated value to carry out renovation works comes around Rs.4,47,915/-.  Both the parties had not filed any objections to the report of Advocate Commissioner.

The counsel for opposite party argued that the defect in the construction due to quality of materials used and further stated that the materials used for construction were chosen by the complainant.  The arguments put forth by the opposite party cannot be accepted.  Construction of own house is a life time achievement for every human and no one can compromise the quality of the construction.  Everyone wants to be in the house which lasts long with superior quality.  Hence, the argument of the opposite party is not acceptable that the complainant purchased the poor quality materials for construction. Moreover being the builder, the opposite party would have refused to construct the building with poor quality material.  The opposite party had not filed any documents to show that he had informed the complainant about the quality of the materials.

More over the opposite party had not denied the receipt of construction cost from complainant.  Having received the entire construction cost from the complainant, the opposite party had not delivered the building to the satisfaction of the complainant and moreover he had not rectified the defects in the construction even after repeated demands and requests from the complainant. The opposite party had not chosen to reply the legal notice and reminder issued by the complainant. The written version itself the opposite party admitted that there are defects in the construction.  It is the bounden duty of opposite party to rectify the defects in the construction.

We have perused the documents and pleadings filed by both the parties.  We have heard the arguments of both the sides.  We have come to the conclusion that the opposite party committed deficiency in service.  This point is answered accordingly.

Point No.2:-

Since we have held that the opposite party had committed deficiency in service, it is the duty of the opposite party to carry out the rectification works besides compensating the complainant for her mental agony and loss.  Hence, we have decided that it is appropriate to direct the opposite party to pay Rs.4,47,915/- to the complainant towards the expenses to be incurred in carrying out the rectification works by the complainant as per the report submitted by the Advocate Commissioner and a sum of Rs.1,00,000/- towards compensation for mental agony and deficiency in service together with cost of Rs.5,000/-.  This point is answered accordingly.

In the result, the complaint is allowed against the opposite party directing him

a) To pay a sum of Rs.4,47,915/- (Rupees four lakhs forty seven thousand nine hundred fifteen only) towards the expenses to be incurred in carrying out the rectification works by the complainant as per the report submitted by the Advocate Commissioner;

b) To pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the mental agony and deficiency in service  and to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.

c) The above order shall be complied within six weeks from the date of receipt of this copy of the order, failing which, the said expenses amount and compensation amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this the 10^th day of August 2023.

   Sd/-                                                  Sd/-                                                                Sd/-

MEMBER-II                                  MEMBER-I                                               PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite party:-

-NIL-

Court documents:-

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MEMBER-II                                         MEMBER-I                                         PRESIDENT