DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 12th day of December, 2022
Present : Sri.Vinay Menon V., President
: Sri.Krishnankutty N.K., Member
Date of filing. 29/06/2022
CC/62/2020
Shajudeen,
S/o Jameesh,
Kannampara, Puthukode, P. O.
Thayyil veedu, Vaniyampara,
Kannambra 1 Village, Palakkad - Complainant
(By Adv.C.Nandakumaran)
V/s
Saithumuhammed ,
S/O Abdulkhader, Karuvapadam,
Mangalam, Palakkad - Opposite party
(By Adv.M.G.Krishnanandan)
ORDER
By Krishnankutty.N.K., Member.
1. Pleadings of the Complainant
The complainant entered into an agreement with the opposite party for the construction of a two storied RCC building @1500/-per square meter. The approximate area of construction was 2300 sq. meter and the complainant paid an amount of Rs. 1065000/- as advance at the time of signing the agreement.
The allegation of the complainant is that the opposite party though executed some preliminary work, failed to complete the construction work as per the agreement.
Hence he approached this Commission with the following prayers.
A. Directing the opposite party to refund Rs. 980000/- out of the
advance amount of Rs. 1065000/- paid.
B. Rs. 500000/-towards financial loss & mental agony, and
C. Cost.
2. The complainant filed IA 99/20, & 100/20 seeking appointment of Advocate Commissioner for inspecting the construction work in dispute and report. Accordingly, Adv. Kanakaraj was appointed as Commissioner.
3. Notice was issued to opposite party. He entered appearance and filed his version. According to him, this construction agreement was signed as part of a property transaction deal between them and part of this advance amount is the compensation due to him from the complainant. Further, he has already spent Rs.175000/- for digging a bore well, installation of pump set and other preliminary works at the construction site.
4. Issues involved.
A. Whether the opposite party failed to fulfill his contractual
obligations of construction as per the Agreement signed?
B. Whether there is any deficiency in service or unfair trade practice
on the part of opposite party.
C. Whether the complainant is entitled for the reliefs claimed?
D. Reliefs if any.
5. The complainant filed Proof Affidavit and marked documents as Ext.A-1 & A-2. Commission report was marked as C-1. Ext.A-1 is the Construction agreement signed by the complainant and the opposite party, A-2 is the copy of legal notice issued to the opposite party on behalf of the complainant. The opposite didn't file proof affidavit and was continuously absent throughout the proceedings. Hence declared ex-parte.
6. Issue A
The agreement for the construction marked as Ex. A-1 is the basic evidence in this case, which clearly shows that the opposite party has received an advance amount of Rs. 1065000/- from the complainant towards the construction work. As per the version filed, the opposite party has claimed that the works conducted by him at the site amounts to Rs. 175000/-. No evidence was adduced to prove this contention. The Advocate Commissioner, in his report, has certified that the foundation work done and materials available at the site is valued Rs. 30000/-only. However he has expressed his inability to calculate the cost involved in digging the bore well without the help of an expert. The opposite party has adduced no concrete evidence. Hence with regard to the matter reported by commission, the Ext.C-1 can be relied on. In the absence of any evidence or any attempt on the part of the complainant to assist the commission to arrive at a conclusion as to the cost involved in digging of a bore well we tentatively place the value at Rs. 35000/- From these evidences adduced, it can be concluded that the opposite party failed in fulfilling his contractual obligations as per the agreement.
7. Issue B&C
Failure to meet the contractual obligations as explained above is a clear case of deficiency in service or unfair trade practice and hence the complainant is entitled to reliefs under Consumer Protection Act. 2019.
8. Issue D
In the result, the complaint is allowed ordering the following reliefs.
a) Opposite party to pay Rs.980000/- along with interest @10%pa
from the date of Agreement till the date of payment.
b) Opposite party also to pay Rs. 200000/- as compensation for
deficiency in service and mental agony and
c) Rs. 50000/- towards cost.
Pronounced in the open court this day on the 12th December, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Documents marked from the side of the Complainant
Ext. A1- Agreement signed between the complainant and opposite party
dated. 25/07/2019.
Ext.A2 - Legal notice issued by Adv. Nandakumaran Dated. 05/06/2020
along with the returned envelope with endorsement
"Not claimed".
Ext. C1- Advocate Commissioner's report Dated. 30/06/2020.
Documents marked from the side of opposite parties - Nil
Witness examined -Nil
Cost - 50000/-
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
