Date of Filing : 30.12.2015
Date of Disposal: 30.06.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU P.MURUGAN, B.Com., .....MEMBER-II
CC. No.02/2016
THIS THURSDAY, THE 30th DAY OF JUNE 2022
S.Nandakumar,
S/o.S.R.Subramanian,
No.5/9, 5th Street, Annamalai Nagar,
Avadi, Chennai -600 054. …Complainant.
//Vs//
S.Gajendran,
S/o.D.Shanmugam,
10/246, 5th Street, West Balaji Nagar,
Ambattur, Chennai – 600 053. …..opposite party.
Counsel for the complainant : Mr.A.R.Poovannan , Advocate.
Counsel for the opposite party : Mr.S.Ravichandran, Advocate.
This complaint is coming before us on various dates and finally on 31.05.2022 in the presence of Mr.A.R.Poovannan Advocate, counsel for the complainant and the opposite party remaining absent for oral argument and upon perusing the documents and evidences, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant U/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite party seeking direction to direct the opposite party to handover original key of the house, to refund the amount of Rs.80,522/- excessively collected from the complainant along with 18% interest until realization, to pay a sum of Rs.91,400/- on account of the extensive losses suffered by the complainant due to the negligence and deficiency in service committed by the opposite party along with 18% interest per annum and to pay a sum of Rs.2,00,000/- towards mental agony and hardship to the complainant.
Summary of facts culminating into complaint:-
It is submitted by the complainant that the opposite party agreed to construct 200 square feet house at Rs.1450/- per square feet for an amount of Rs.2,90,000/- and an additional amount of Rs.10,000/- for Septic Tank. It is agreed to complete the construction in three months from the date of agreement. The plan was revised by the opposite party and the construction order was increased to 242 square feet and also additional construction of parapet wall over the ceiling and a platform measuring 21ft x 2 ½ ft in front of the entrance was made and the revised specifications were written down in the agreement itself on 27.11.2014. The opposite party used improper and inferior construction materials and failed to provide sunshades, lintel beams and a shed as per the agreement. It is submitted that an additional amount of Rs.4422/- for another one feet for the compound wall of 66 feet was collected from the complainant. The opposite party also failed to give two and half feet height parapet wall to the new house as promised by him. Thus the opposite party had collected 4,45,900/- excess cost towards construction from the complainant. Aggrieved by the act of the opposite party the present complaint was filed alleging deficiency in service for the reliefs as mentioned above.
Defense of the Opposite Party :-
The opposite party filed version stating that the sale deed in favour of the complainant is not a registered document and hence the complaint itself is not maintainable. Further it is stated that opposite party never promised to handover the construction within three months from the date of agreement. The specification of construction of wall regarding height and length also denied. It is submitted that the additional construction has been added for 42 square feet as agreed by the complainant from 200 square feet to 242 square feet at the rate of Rs.1450/- per square feet in addition to the agreed amount of Rs.2,90,000/-. It is submitted by the opposite party that the additional payment was claimed on the ground that some ancillary process towards the cost of the some contingency works like Septic Tank, Sintex Tank, Shed work , Motor Pump installation and compound wall etc. The opposite party also denied that Sub-standard and inferior quality of building materials were used for construction and there is no deficiency in service in construction by the opposite party. Merely the delay in completion of building cannot be hold negligent. The negligent must be established and substantiated with the documentary evidence and not presumed, surmise, conjecture and imaginary. It is submitted that the complainant received the house key in front of Police Officials after accepting payment of Rs.5,15,000/-. In such circumstances the opposite party sought for the dismissal of the complaint.
On the side of the complainant proof affidavit was filed documents Ex.A1 to Ex.A5 were marked and on the side of the opposite party proof affidavit was filed but no documents filed on their side.
Point for consideration:
1. Whether there is any deficiency in service on the part of the opposite party in delivery of possession of the constructed building and constructing the building with inferior materials?
2. If so to what other relief the complainant is entitled?
Point No.1&2
On the side of the complainant the following documents were filed in proof of his complaint allegations;
The construction agreement entered into between both parties dated 22.11.2014 was marked as Ex.A1;
Letter of additional agreement entered into between both parties dated 24.07.2015 was marked as Ex.A2;
Police complaint given by the complainant against the opposite party dated 01.08.2015 was marked as Ex.A3;
Legal notice issued by complainant to the opposite party dated 03.10.2015 was marked as Ex.A4;
Acknowledgement of legal notice by the opposite party dated 09.11.2015 was marked as Ex.A5;
Heard both counsels. It is submitted by the learned counsel for the complainant that the initial construction agreement was made on 22.11.2014 with the opposite party for construction of 200 square feet at the rate of Rs.1450/- per square feet. Further for every additional work the same was mentioned in the agreement itself and accordingly revised construction area of 242 square feet was written down in the agreement itself on 27.11.2014.
The learned counsel for the complainant submitted that the opposite party failed to construct the compound wall as per the agreed specifications due to which the complainant was made to spend excess amount. The possession of the house was also not given by the opposite party as per the agreed terms and there was a delay of six months which caused loss of rental income of Rs.24,000/-. Further there was loss of 84 square feet land on the southern side amounting to Rs.50,400/- and the opposite party also made excess collection of Rs.4422/- with regard to the construction in the compound wall. The sun shades, lintel beams at the cost of Rs.30,000/- was also not provided by the opposite party. Thus the learned counsel for the complainant sought for the complaint to be allowed and also to direct the opposite party to refund the excess amount and also to award compensation for the deficient construction made by the opposite party.
The learned counsel for the opposite party argued that there is no delay in the construction of the house as the delay was only due to non payment of instalment amounts as agreed by the complainant in terms of the construction agreement. Hence it is argued that there is no question of any breach of terms or payment of damages in the present complaint. With regard to the excess amount of Rs.80,522/- made by the complainant the opposite party denied the same that the excess construction work was made only as per the request made by the complainant.
Further it is argued that there is no clause in the agreement for any compensation to be paid for the delay in handing over the house. It is submitted that as per the agreement or letter of additional agreement dated 24.07.2015 entered between the parties for the purpose of extra work of 7 feet height and 7 feet length compound wall, gate entrance, entrance steps and shed work, the complainant has agreed to totally pay Rs.1,38,500/- for the excess work through the 3rd agreement. As per the agreement or letter the complainant paid Rs.89,000/- out of 1,38,500/- to the opposite party. In addition, the opposite party had specifically stated that in addition to Rs.49,500/- plus purchasing of plumbing Material for Rs.5,500/- both the parties have signed and agreed without any protest and objection. Thus as per the mutual agreement the complainant was to be pay the pending amount of Rs.55,000/- to the opposite party. It is further contended that the complainant has given false information with regard to the excess amount claimed from him. It is further submitted that the complainant when lodged a complaint before Ambattur Police Station against the opposite party for the reason that the key of the house was not handed over, an enquiry was conducted by the Police official who came to conclusion that the complaint was false and thereafter a compromise was entered between the parties by which the complainant accepted to pay Rs.40,000/- to the opposite party and also a consent letter was given to the police and the same day the key was handed over to the complainant in the presence of Police Officials. But the complainant till date did not pay the balance amount of Rs.40,000/- to the opposite party. Thus denied that there was no excess collection of amount or deficiency in service by them, the opposite party sought for the complaint to be dismissed.
We have perused the evidences produced by both the parties. The construction agreement and the receipt of money paid by the complainant were not disputed by the opposite party. The Police complaint given by the complainant shows that there were some disputed issues between the complainant and the opposite party with regard to the payment of money and the construction to be carried out by the opposite party. Ex.A2 is the additional agreement dated 24.07.2018 which shows that the complainant has agreed to pay Rs.55,000/- to the opposite party to complete the construction. On perusal of regards we could see that the application for appointment of Advocate Commissioner was taken by the complainant and the same was allowed but due to fact that the fees fixed to be paid to the Advocate Commissioner was less the Advocate Commissioner refused to carry out the inspection along with the PWD Engineer to find out the defects in the building, after which no effort was taken by the complainant to seek for any inspection of the building through court. However he has produced on his own a report by some private consultants who had assessed the estimation for the repair and reconstruction of the building as Rs.1,72,000/-. We are not inclined to accept the said report for the reason that the inspection was not made by any independent surveyor and hence for the reason that the said report is an one side report the same is not evident worthy. Further we could see that through Ex.A2 the complainant had admitted that has to pay certain amounts to the opposite party and that the complainant was bound to pay certain amount as agreed before the Police Officials but the complainant failed to do so. In such circumstances we are of the view the alleged dispute cannot be resolved in a summary manner before this commission for the reason that it requires lot of evidence and materials to be produced by both the parties. On that scope we hold that the present complaint is liable to be dismissed holding that the complainant had failed to prove that the opposite party has committed deficiency in service in handing over delivery of the construction and had constructed the building with interior materials. The complainant has to approach competent Civil Court to solve out his grievances. Thus these points are answered accordingly.
In the result, this complaint is dismissed. No order as to cost.
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 30th day of June 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 22.11.2014 Construction agreement Xerox
Ex.A2 24.07.2015 Letter of additional agreement. Xerox
Ex.A3 01.08.2015 Police complaint against the opposite party. Xerox
Ex.A4 03.10.2015 Legal notice of the complainant. Xerox
Ex.A5 09.11.2015 Acknowledgement of legal notice by opposite party. Xerox
List of documents filed by the opposite party;
Nil
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MEMBER-II MEMBER-I PRESIDENT
