IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,               

 KOLLAM

                                                                                         C.C.No. 364/2023

                                                                                         PRESENT

      SMT. S.K.SREELA, B.A.L, LL.B, PRESIDENT

       SRI.  STANLY HAROLD, B.A.LL.B, MEMBER

                                                ORDER DATED:   30.12.2023.

BETWEEN

Sunny Varghese, 59 years,

S/o N.V.Varghese,

Nedumballil House,

Ottumala, Kattadi P.O.,

Pooyappally, Kottarakkara,

Kollam 691537.                                                   :         Complainant

AND            

S.Noble Raj,

Managing Director,

Heavenly Stars and Designers and

Builders Pvt.Ltd.,

TC 26/1910 (1), Mele Thampanoor,

Thiruvananthapuram 695 001.: Opposite Party

            ORDER

Stanly Harold, B.A.LLB, Member

          This complaint is filed U/s 35 of the Consumer Protection Act 2019.       

The averments in the complaint in short are as follows:-

Complainant is residing in the above mentioned address.  The opposite party is a building contractor who entered into a building contract with the complainant on 10.05.2023.  As per the terms of the contract it was agreed that the opposite parties shall construct and complete the construction within 4 months to 5.  As per the contract 1^st instalment of Rs.3,33,000/- was paid on 11.05.2023 to the account of the opposite party.  Thereafter two months construction works had no progress as the complainant expected.  There was no proper supervision for the construction work.  The intention of the opposite party was to complete the work without any bonafides.  Since the perfection of the work was not up to the standards the complainant on different occasion expressed his grievance to the opposite party.  The opposite party was not prepared to hear the complainant.  Moreover the constructed work were demolished and reconstructed.  In the meanwhile for the speedy construction work, the roof tress were removed and the opposite party again received Rs.10,500/- Thereafter again the opposite party had demanded Rs.50,000/- for the speedy completion.  Believing the words of the opposite party, complainant had given the money.  Thereafter also there was no progress in the construction and the act and contact was irresponsible.  Whenever the complainant expressed his grievances the opposite party was not prepared to hear the complainant.  Moreover when the complainant tried to communicate through telephone he often does not receive the calls.  In the meanwhile the monsoon season started and living in the house became very hard.  During the rain there was leakage from the roof of the constructed house, causing much mental distress and panic.  These details were communicated to the opposite party through whatsapp but he was not amenable to redress the grievance of the complainant.  Even though the opposite party received substantial amount in advance irrespective of the work done, adopted a lagging policy in the construction work due to the reasons known to him only.  When it was asked opposite party used to say flimsy excuses and prolonged without assigning any specific reason.   Thereafter the complainant contacted the opposite party through whatsapp and email.  But there was no response from the opposite party.  Complainant                    had also issued a registered letter but it returned as unclaimed. The                                        opposite party had acted in a very cunningly and intentionally manner by demanding and accepting excess amount irrespective of the work done and did not perform the work as envisaged in the contract.  In the circumstances, the complainant was constrained to believe that he was deceated by the opposite party due to the non-fulfillment of the obligation.  The act of the opposite party clearly amounts to deficiency in service and unfair trade practice.  Hence the complaint.

Though notice was issued from this Commission to the opposite party, he failed to appear before the Commission nor made any representation, hence he was set exparte.  The complainant filed proof affidavit by reiterating the averments in the complaint and got marked Ext.P1 to P7(3) documents.  Heard the counsel for the complainant and perused the records.  Ext.P1 is the photocopy of contract agreement.  Ext.P2 is the email communication to the opposite party in 7 sheets.  Ext.P3 is the G pay account details.  Ext.P4, P5 and P6 are the advertisement published by the opposite party.  Ext.P7 in 3 sheets is the picture of the construction done by the opposite party.

Ext.P1 agreement for construction would make it clear the details of the construction, total amount required for the construction of the building and the period in which the work to be completed.  But the opposite party failed to carry out the work as per the Ext.P1 agreement.  It is clear from the available materials including the Ext.P1 agreement that the opposite party has started and completed only ¼ of the construction work.  It is also clear from the available materials that the completion of the work was not upto the standards and on several occasions complainant had made complaints before the opposite party about the same.  But he was not prepared to hear the grievance of the complainant. 

The complainant had sent a registered letter demanding the opposite party to complete his construction work at the earliest which is evident from the letter appended with Ext.P1 agreement.  However the work was not fully carried out, the perfection of the work done was not even upto the minimum standards.  The grievance of the complainant was not at all cleared by the opposite party eventhough the opposite party received substantial amount in advance.  Irrespective of work done the opposite party adopted a lagging policy in the construction work due to the reasons known to him.

On evaluating the entire materials available on record, we hold that the opposite party had entered into a contract with the complainant and performed the construction work with a lagging manner and not in a minimum standard as per the agreement.  However the opposite party failed to complete the work.  The opposite party is under an obligation to perform the work in a perfect condition as per the terms of Ext.P1 agreement which he failed to do so.  The non-fulfillment of the obligation on the side of the opposite party amounts to deficiency in service .

On evaluating the entire materials available on record we find merit in the complaint and the same is only to be allowed.

          In the result complaint stands allowed in the following terms.

1. The opposite party is directed to refund Rs.3,90,500/- received by him in excess, with 9% interest from 10.05.2023 onwards.
2. The opposite party is directed to pay Rs.25,000/- as compensation for the mental agony inconvenience caused to the complainant due to the non-completion and defective construction of the building by the opposite party.
3. The opposite party is also directed to pay Rs.5,000/- as costs of the proceedings.
4. The opposite party is directed to comply with above directions within 45 days from the date of receipt of a copy of this order failing which the complainant can initiate execution proceedings.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 30^th  day of  December 2023.

Sd/-

STANLY HAROLD

MEMBER

Sd/-

S.K.SREELA

PRESIDENT

                                                                                                                                                                                       Forwarded/by Order                                  

Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1             : Photocopy of contract agreement

Ext.P2            : Email communication to the opposite party in 7 sheets

Ext.P3             : G Pay account details

Ext.P4             : Advertisement published by the opposite party

Ext.P5             : Advertisement published by the opposite party

Ext.P6             : Advertisement published by the opposite party

Ext.P7             : 3 sheets is the picture of the construction done by the opposite party

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil

Sd/-

    PRESIDENT