COMPLAINT FILED ON:10/06/2022

DISPOSED ON:31/03/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:100/2022

DATED: 31^st  March 2023

PRESENT:  Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                   Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                              

                  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER

:: ORDER ::

By Smt. B.H.YASHODA, B.A., LL.B., LADY MEMBER.

       The complaint filed by complainant Under Section 35 of the Consumer Protection Act 2019 for seeking relief/s to direct the opponent to come and complete the work as for agreement with replacement of substandard material as per the specification and to direct the opponent to make good of the financial loss, in terms of Rs.10,00,000/- lakh with interest of 12% till its realization from the date of commencement of work and towards mental agony, loss of time and energy, cost of legal proceedings for deficiency in service, dereliction of duties and done unfair trade practice towards the complainant and to grand such other reliefs as this Hon'ble Commission.

The Brief facts of the complaint:-

        That the complainants are the lawful owner and in possession of the vacant site bearing Khatha Number:49/48/42 measuring 46."5" x 35."0" fts, situated at near  Jyothi Talkies Vijaya Nagar, Badavane, Hosadurga Town.  The complainant intends to construct the residential house with shops in there vacant site.  In this regard on 17/02/2020 the complainants have approached the opponent for construction of the building.  For that the opponent has also agreed for the same. On that itself the complainant and the opponent have entered into an formal residential house/ shops construction agreement by receiving Rs.1,00,000/- (Rupees one Lakhs) as on advance.  For the said agreement the opponent has consented and accepted the performance of contract on his part as for the agreement.  That be opponent being a contractor / party to the agreement is bounded the terms and conditions of the agreement, but the opponent has completely failed to abide by the conditions as laid down in the agreement.  In this regard the opponent has received Rs.19,30,490/-  in cash / cheque in different dates from the complainant.  It is very abnormal amount that the opponent has received so much of amount for the work executed by him.

2. The complainant has agreed to deliver the key within a November 2020 from the date of entering of agreement, but the opponent has failed to do so.  It clearly goes to shows the part of deficiency in service, unfair trade practice and declaration duties to his customer by the opponent.  That the opponent has not complied the terms and conditions as mutual agreement.  Even though the complainants have performed his part of duly by paying requisite amount as and when the opponent demands and all necessary help in submitting documents.  In this regards the complainant has approached one Civil Engineer to inspect the building and to give opinion about the what are the work has been done and what are the works remaining to be done by the opponent.  Likewise, the Civil Engineer has given his opinion about the defaults or in complete works observed in the building and it costs.  After receipt of the about detailed report,  the opponent has given in writing that all the pending works will be completed within a stipulated period of 05/08/2021 or at the earliest.  Till now the work has not been completed and not handed over the possession or keys to the complainant.  This is a serious lapse on the part of the opponent for a execution of work as per agreement.  Further, that the opponent has not used quality material for the building as agreed upon in the agreement.  The opponent has used substandard materials furnitures, fixtures, usage of cement, bricks still and sand, due to this, walls, floors are cracking and finishing works has not been done.  The granites for the floor is already cracking and scratches are appeared, plumbing work is not been done properly.  The electricity works is not properly  and used sub standard materials.  Moreover, painting work is in very low grade.  From this illegal act, delay in execution work, the complainant has incurred heavy financial loss and mental agony and pain, loss of time and energy.  Further, the complainants have incurred Rs.1,34,000/- (One lakhs thirty four thousands) for painting works excluding of contract rates.  That the complainant has entered into agreement with the complainant pertains to the contract to construct a residential house / shops as per specification terms and conditions of agreement.  That the complainant has got much ambition to construct her house / shops as per choice, but it is not fulfilled.  That the complainants have invested huge amount by borrowing loan Gramin Bank, Hosadurga.  For all these facts the opponent is strictly liable to pay the compensation for his defective and uncompleted construction work.  Hence the complainants filed this complaint before Hon'ble Commission.

3. After registering the complaint, the Hon'ble Commission has issued the notice to the OP and the same has been duly served  and OP was absent and hence OP was placed exparte.

4. Complainant has filed his affidavit evidence by one T.K.Nagarathnamma got marked the documents as exhibits A-1 to A-10 and M0.1 C.D and closed their side evidence.  Heard the argument of complainant.

5. After perusal of the complainant and evidence and all documents, the points that arise for our consideration for decision of above complaint are that.

1. Whether the complainant proves that the OPs have committed deficiency of service in not completing the construction work?
2. Whether the complainant is entitled to get any relief as sought in the complaint?
3. What order?

6. Our findings on the above points are as follows:

1. Negative
2. Negative
3. As per final order

:: REASONS ::

         7. POINT NO: 1 & 2 :- That on 17-02-2020, the complainants have approached the opponent for construction of building.  For that the opponent has also agreed for the same.  On that itself, the complainant and the opponent have entered in an formal "Residential House / shops construction agreement by receiving Rs.1,00,000/-(Rupees one Lakhs) as an advance.  For the said agreement, the opponent has consented and accepted the performance of contract on his part as per the agreement.  That the opponent being a contractor /party to the agreement is bounded by the terms and conditions of the agreement, but the opponent has completely failed to abide by the conditions as laid down in the agreement.  The opponent has received Rs.19,30,490/- in cash / cheque in different dates from the complainant.  It is very abnormal amount that the opponent has received so much of amount for the work executed by him.  But as per the Indian contract act, any agreement made between two parties should be there, but the complainant produced Exhibit A-3 is only opponent and advocate Shanmukappa have signed but the complainant has not signed the above agreement, so the agreement Exhibit A-3 is not authenticated document hence, the said agreement is not taken into consideration.

8. The complainant has approached one Civil Engineer to inspect the building and to given opinion about the what are the work has been done and what are the works remaining to be done by the opponent.  Likewise, the Civil Engineer has given his opinion about the defaults or incomplete works observed in the building and its costs prepared as per Exhibit. A-7.  Moreover the opponent has not used materials for the building as agreed upon in the agreement.  The opponent has used sub-standard materials, furnitures, fixtures, usage of cement, bricks, steel and sand.  Due to this, walls, floors are cracking and finishing work has not been done.  The granites for the floor is already cracking and scratches are appeared, plumbing work is not been done properly.  The electricity work is not properly done and used sub-standard materials. Moreover, painting work is in very low grade.  But in addition in this, the complainant has not examined the work through the expert Civil Engineer before the Hon'ble Commission with regard to OP not completed the building work and used the low quality materials.

The complainant produced one authority CPJ 2015 (NC) page 498 Orissa State Housing Board V/s Santhosh kumar Nando BNR Patnaik and others. 

9. Consumer protection Act 1986 Sections 2(1) (g), 2 (1) (g), 2 (1) (r), 14 (1) (d), 21 (a) (ii)-Housing-defective construction delay in handing over of possession-deficiency in service-unfair trade practice-state commission allowed complaint-Hence appeal poor and sub-standard quality of construction low percentage of cement, inadequate curing and lack of supervision at the site of houses constructed and allotted by housing board.  Bald statement of appellant that all defects has been removed before delivery of possession, is not sufficient to rebut the existence of specific defects pointed out by complainants-valuer had quantified the expenditure incurred in respect of each defect as corroborated by defect rectification register maintained by appellant-state commission justified in awarding compensation along with interest @ 9% p.a. Appeal dismissed.

The Hon'ble commission is observed the Para No. 10 (c) & (d) of this judgment "the occupants of EWS quarters complained that there was written agreement between the Board and the allottees to pay 7% interest on defaulted dues but later the Board arbitrarily raised the same to 9% without any reasons or justification.  The committee expressed its dissatisfaction on this issue and recommend that interest be limited to the percentage contemplated in the agreement to win the faith of allottees.  But in this present complaint as per Exhibit A-3 there is not a valid agreement between the complainant and not expert evidence of Civil Engineer has been adduced, with regard to the OP used low quality materials.  Hence the above authority is not applicable in this case.

10. On perusal of the complaint and documents submitted by the complainant, it shows that the complainant has no valid agreement and not any Expert Civil Engineer evidence to prove her case.  As such, the complaint filed by the complainant before this Hon'ble Commission is not maintainable and there is no deficiency in service on the part of opponent.  As such, the point No.1 & 2 taken in to consideration as negative.  

11. As discussed on the above points and nor the reasons stated therein we pass the following.

:: ORDER ::

        The present complaint filed by the complainants Under Section 35 of Consumer Protection Act 2019 against the opponent is hereby dismissed.

       Communicate the order to both the parties.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and

then pronounced in the open commission by us on 31^st March 2023.)

                  Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1: T.K.Nagarathnamma  W/o Late G.Neelakantappa, by way of affidavit of evidence.

Witness examined on behalf of Opponent:

Nil

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

Nil

                Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT