Date of Filing : 31.12.2020
Date of Disposal : 28.02.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN, M.COM.,ICWA (Inter),B.L., ......MEMBER-II
CC. No.05/2021
THIS TUESDAY, THE 28th DAY OF FEBRUARY 2023
Mr.M. Dhanusu, S/o.Manoharan,
No.1383, 2nd Block, TNHB, Tirur,
Thiruvallur - 602 025. ……Complainant.
//Vs//
Mrs.R.Dhanalakshmi W/o.Mr.Rajasekar,
Mr.Rajasekar, S/o.R.Chellappan,
Residing at 164A, Jagajeevanram Street,
Tirur Village,
Thiruvallur Taluk & District 602 025. …..opposite parties.
Counsel for the complainant : Mr.S.Muthukumaravel, Advocate.
Counsel for the opposite parties : exparte
This complaint is coming before us on various dates and finally on 20.02.2023 in the presence of Mr.S.Muthukumaravel counsel for the complainant and the opposite parties were set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY THIRU.P.MURUGAN, MEMBER -II
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in construction along with a prayer to provide the III phase Electricity Board connection to the complainant’s house or else directing the opposite party to pay a sum of Rs.25,000/-, to complete and rectify the work or to pay a sum of Rs.2,08,940/- being the cost to rectify the defects, to pay a sum of Rs.5,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service and unfair trade practice along with cost of the proceedings.
Summary of facts culminating into complaint:-
The Complainant has entered into an agreement on 10.04.2019 with Opposite Party for construction of building at Plot No.1/1383 in Survey No.81/3 part B Type 2nd Block, TNHB, Sevvapet, Tirur, Thiruvallur Taluk & District. This was duly registered as document No.1299/2019. The total cost was mutually fixed at Rs.15,54,900/- and the full amount of Rs.15,54,900/- was paid by the Complainant to Opposite Party sourcing by pledging of the same Plot with the Bank. The building work has to be completed within 6 weeks from the date of agreement. The Cost of the building / the construction expenses should have been paid periodically but paid in one lump sum by the Complainant. The building was handed over to her in the month of June 2019 without finishing work and without providing III Phase EB connection which was agreed in construction agreement. Though the payment of building was in phased stage, the Opposite Party has taken the entire agreement cost in one lump sum and while pointing out the lapses on finishing of the building and EB connection, the Opposite Party has cited the Grahapravesham date and the Complainant to accept the temporally EB connection but without doing the finishing work on the building. It is alleged by the complainant that even after the Gragapravesam the Opposite Party has not applied for the EB service connection and not deposited the amount for EB connection, besides there is lot of defects found in construction and the Opposite Party has deviated from the terms of the construction agreement and used alternative quality in Tiles, wiring and the floors of lavatories were not property pasted and walls of all the rooms were not completely finished and there are several cracks in the walls of the Home within a year. The main door and other doors are in a poor condition and affected with pest. On several time the Opposite Party was requested to complete the said pending work but the Opposite Party has not turned up. The complainant put further that there is no due of payment payable to Opposite Party either. This act of Opposite Party is a gross deficiency in service and unfair trade practice and therefore the complainant has sent a legal notice dated 31.07.2020 to Opposite Party which was received by Opposite Party but no reply received. The opposite party has provided a single phase EB connection after the Legal notice. To rectify the undone work estimation was obtained by the Complainant which is amounting to Rs.2,08,940/-.The Complainant has approached this Commission to direct the Opposite Party to provide III phase EB connection or to pay a sum of Rs.25000/- in lieu of such connection default, directing the Opposite Party to complete the work as stated in the estimation arrived for finishing of the work in the building else to pay Rs.2,08,940/- being the cost to rectify the defects as per the estimation arrived and to direct the Opposite Party to pay Rs.5,00,000/- compensation for gross deficiency in service and unfair trade practice with litigation cost.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A5. In spite of sufficient opportunities and notice the opposite parties did not appear before this Commission and hence they were called absent and set ex-parte on 22.12.2022 for non appearance and for non filing of written version within the period of statute.
Points for consideration:
Having paid the full amount as per agreement and taken possession of property the Complainant’s prayer is considerable to rectify the construction?
And on what basis the claim is payable?
Does the deficiency in service proved?
Point No.1:-
The following documents were filed on the side of complainant in support of her contentions;
Mode of payment done by cheque dated 04.04.2019 was marked as Ex.A1;
Construction agreement dated 10.04.2019 was marked as Ex.A2;
Legal notice issued by the complainant dated 31.07.2020 was marked as Ex.A3;
Building damages photo copies was marked as Ex.A4;
Quotation for the renovation of work dated 14.12.2020 was marked as Ex.A5;
Advocate Commissioner’s Report dated 01.11.2022 was marked as Ex.C1;
As further, in this case Advocate Commissioner was appointed as prayed in CMP 31/2022 and ordered as on 26.09.2022. The report of the Advocate Commissioner date 01.11.2022 was filed before this Commission on the development made with additional report on the estimation of renovation for the said building on 20.02.2023. The Advocate Commissioner has put further the estimation to complete the renovation at Rs.2,05,750/-.
The whole issue of entering into an agreement to construct a building which is duly registered before authorities’ vide documents No.1299/2019 and the full payment of Rs.15,54,900/- as paid by the Complainant and received by the Opposite Party is crystal clear. The building was constructed by the Opposite Party and handed over half way thru without providing EB connection, under finishing of construction is evident which is supported by the Advocate Commissioner report supported by a construction Company review. The way the construction is handled by Opposite Party and left the Complainant in lurch is once again proved when the Opposite Party has not chosen to defend the case. Therefore, this Commission has to conclude the version on the basis of the Advocate Commissioner report supported by civil construction company estimation. In short, the Opposite Party is found in gross deficiency of service and dealt unfair trade practise in total. Though the property has been taken possession by the complainant the condition of the building calls for rectification / renovation and to assess the rectification Advocate commissioner has been appointed and his recommendation is on record for consideration.
Point No.2:-
As explained in Question No.1 the Advocate Commissioner report is the base for consideration.
Point No.3:-
With the report of Advocate Commissioner and supported by a Civil construction company estimation, it is very evident that the building does require rectification and although the full payment for the construction paid as early as agreement entered, the construction of the building is half way thru’. This clearly indicates the deficiency in service and ultimate motive of the Opposite Party on unfair trade practise which requires compensation.
In the result, the complaint is partly allowed against the opposite parties 1 & 2 directing them jointly and severely
a) to pay a sum of Rs.2,05,750/- (Rupees two lakhs five hundred seven hundred fifty only) to the complainant towards costs for rectification of the building within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.25,000/- (Rupees twenty five only) towards III phase Electricity connection which has not been done so far by the opposite parties;
c) to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;
d) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
e) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28th day of February 2023.
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MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 04.04.2019 Mode of payment done by cheque. Xerox
Ex.A2 10.04.2019 Construction agreement. Xerox
Ex.A3 31.07.2020 Legal notice issued by the complainant. Xerox
Ex.A4 ................ Building damages photo copies. Xerox
Ex.A5 14.12.2020 Quotation for the renovation of work. Xerox
Court Document:-
Ex.C1 01.11.2022 Advocate Commissioner’s Report. Original
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MEMBER-II PRESIDENT
