SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of Consumer Protection Act 2019 for getting an order directing the opposite parties to refund Rs.16,16,430/- with 12% interest to complainant as per the agreement the amount already received by the opposite party from the complainant along with Rs.1,25,750/- as the replacement value of woods works for doors, windows and ventilators for the attack of termites, Rs.64,000/- as loan interest, Rs.1,00,000/- as compensation for mental agony caused to the complainant, Rs.50,000/- as litigation cost to the complainant for the deficiency of service and unfair trade practice on the part of opposite parties.
The brief of the complaint
The complainant and his mother are residing in one relatives house at Kannur. He is intending to construct a new residential house at Koothupramba, Ambilad. Then the complainant is entered into an agreement with OPs for the construction of the house. On 28/09/2022 the complainant and OP entered into a written agreement and executed the agreement by both parties. According to the conditions of the agreement the OP has agreed to complete the construction of a single storeyed residential building with plinth area of 1200 square meters for a total consideration of Rs.21,00,00/-(including additional area of 20 Sq.feet) and completed the construction of the house within the period of 8 months from the date of execution of the agreement, ie. on or before 30/06/2023. But after receiving Rs.16,16,460/- from the complainant the OP is not completed the structural work of the proposed construction. On 28/09/2022 the complainant paid Rs.50,000/- as advance payment to OPs, on 01/11/2022 the complainant paid Rs.2,65,000/- to opposite parties on 03/12/2022 the complainant paid Rs.2,10,000/- to OPs, on 02/01/2023 the complainant paid Rs.3,15,000/- to OP. The rate of construction is fixed Rs.1750/- per square feet and the OP received additional 20 Sq.feets value of Rs.35,000/- from the complainant. Thereafter on 09/02/2023 the OPs received Rs.2,10,000/-, on 01/06/2023 OPs received Rs.1,05,000/-, on 03/07/2023 they received Rs.3,15,000/-, on 15/08/2023 received Rs.71,630/- respectively. Even though the amount of Rs.16,16,430/- has received by the OPs and they are not done any substantial work of the house. After the month of August 2023 none of the employees of OPs have turned up and the entire construction work remained stand still. The complainant has availed a house in loan of Rs.17 lakhs from Canara bank, Kuthuparamba branch during the year 2022 and he is bound to pay penal interest 2% per annum over and above the existing rate of interest. Then the complainant constrained to file a complaint before Kuthuparamba Police dated 26/10/2023. But the OPs are not amenable to settle the matter. The complainant had entrusted the work to OPs with an expectation that they would be complete the work within the period of 8 months as agreed in the contractual agreement. Moreover he expected that he would be able to shift his residence to newly constructed house at the earliest. But the OPs have failed to perform their part of contract. The act of OPs the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the complaint.
After filing complaint notice issued to both OPs. Both OPs received the notice and not appeared before the commission and not filed their version. Ultimately the commission had to hold that the OPs have no version as such this case came to be proceed against the OPs are set ex-parte. Then the complainant filed a petition before the commission to appoint an expert commissioner to inspect the petition schedule property and to submit a detailed valuation report for the work conducted and remaining work as per agreement between the parties. The petition allowed by the commission and Mr. Karunakaran pola is appointed as the expert commissioner. The expert inspected the petition schedule property with due notice and detailed report with photos produced before the commission and marked as Ext.C1 (series).
Even though the OPs have remained ex-parte it is for the complainant to establish the allegations made by him against the OPs. Hence the complainant was called up on to produce evidence in the form of affidavit and documents. Accordingly the complainant has chosen to produce his affidavit along with 17 documents marking them Ext.A1 to A17 documents and Ext.C1(series) report with photos. The complainant was examined as Pw1. So the OPs remain absent in this case. At the end the commission heard the case on merit.
Let us have a clear glance at the relevant documents of the complainant. Ext.A1 is the written agreement between the complainant and OPs dated 28/09/2022. As per the agreement the OP admits that within the period of 8 months the construction was completed. But they fails to do. Ext.A2 is the cash receipt dated 01/11/2022 for an amount of Rs.2,65,000/-, Ext.A3 is the cash receipt dated 03/12/2022 for an amount of Rs.2,10,000/-. Ext.A4 is the cash receipt dated 02/01/2023 for an amount of Rs.3,15,000/-, Ext.A5 is the cash receipt dated 23/01/2023 for an amount of Rs.35,000/- Ext.A6 is the cash receipt dated 09/02/2023 for an amount of Rs.2,10,000/- Ext.A7 is the cash receipt dated 01/06/2023 for an amount of Rs.1,05,000/-, Ext.A8 is the cash receipt dated 03/07/2023 for an amount of Rs. 3,15,000/-, Ext.A9 is the cash receipt dated 15/08/2023 for an amount of Rs.71,630/-, Ext.A10 is the complaint filed by the complainant before SHO Kuthuparamba dated 26/10/2023. Ext.A11 is receipt issued by SHO. Ext.A12 is the copy of lawyer notice issued to OP No.1, Ext.A13 (series) Returned acknowledgment-OP No.1 and 2 (2 in numbers) Ext.A14 is Quotation receipt dated 04/06/2024, Ext.A15 is the bank account statement, A16 is the permit and plan issued by Kuthuparmaba Municipality dated 03/12/2022. Ext.A17 is the loan account statement. Ext.C1 (series) is the expert commission report with photos.
As per Ext.A1 to A9 the complainant paid a total amount of Rs.16,16,430/- to OPs. The expert commissioner Mr. Karunakaran Pola also inspects the petition schedule property and filed the detailed valuation report with photos. As per Ext.C1 report it clearly shows that the foundation work of the building has completed by using laterite masonry. Some variations occurred in the depth of foundation. Some portion below 60 Cm. and some portion more than 60cm. Basement constructed by using 2nd quality laterite stone of 40 Cm. height and 35 Cm. wide. . Belt concrete also completed with 25 Cm.width & 15 Cm. thick. The total height of basement with belt is 55 cm. Super structure wall of the ground floor of the building almost complete, stair room only completed up to lintel level. The opening like doors, window and ventilators not fully fixed in the position of super structure wall, and provide some gapes in position of Toilet Doors and some doors and windows. The doors, windows and ventilators already fixed in superstructure walls are not much good in quality as per the normal appearance. Termite attacks starts in some area. Moreover the expert stated that the pending works are the structural part of the building is not yet completed, full finishing work still pending, such as portion of masonry work, plastering, flooring, shuttering of doors, windows and ventilators, fixing of toilet doors with frame, electrical installation, sanitary and plumbing work, construction of septic tank & soak pit, waste water tank, percolation pit, kitchen and work area slabs, etc. It also stated that Maharashtra Irul is used instead of Anjali wood for frames of door, windows and ventilators in some portion it has started the attack of termites. Ext. A14 the quotation also provided to change the termite articles. As per the quotation the value of the article noted as Rs.1,25,750/-. But as per theC1 report, complainant will incur an amount of Rs.1,02,311/-. The expert commissioner reported the valuation statement the total amount spend for the work of the building incurred Rs.12,53,768.17. So the balance work remaining and the OPs are not ready to complete the work as per agreement. The complainant already paid Rs.16,16,430/- to OPs. Hence the OPs are liable to refund the excess amount Rs.3,62,662/- to complainant. In addition to the CI report the expert stated that the doors, windows and ventilators already fixed in superstructure walls are not much good in quality as per the normal appearance, termite attack starts in some areas. So the complainant is constrained to change the termite article and he will incur an amount of Rs.1,02,311/- as the value of the wood articles. Under these circumstances we are of the considered view that there is deficiency of service and unfair trade practice on the part of OPs. The OPs 1 and 2 are jointly and severally bound to redressal the grievance caused to the complainant. Therefore we hold that the OPs 1 and 2 are jointly and severally liable to refund Rs.3,62,662/- the excess mount already collected by the OPs to complainant and the complainant will also incur an amount of Rs.1,02,311/- as the value of the new wood articles instead of destroyed by termite, along with Rs.1,00,000/- as compensation for mental agony caused to the complainant and Rs.10,000/- as litigation cost.
In the result the complaint is allowed in part directing the opposite parties 1 and 2 jointly and severally liable to refund Rs.3,62,662/- to the complainant for the excess amount already collected by the opposite parties and Rs. 1,02,311/- as the value of replacing the new wood articles instead of destroyed by termite woods, along with Rs.1,00,000/- as compensation for mental agony caused to the complainant and Rs.10,000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs. 4,64,973/- (3,62,662+1,02,311) carries 12% interest per annum from the date of order till realization. Failing which, the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exhibits for complainant
A1- Agreement dated 28/09/2022.
A2 - Cash receipt dated 01/11/2022
A3 - Cash receipt dated 03/12/2022
A4 - Cash receipt dated 02/01/2023
A5- Pay tm
A6-Cash receipt dated 09/02/2023
A7-Cash receipt dated 01/06/2023
A8-Cash receipt dated 03/07/2023
A9- Payment schedule
A10- Complaint filed by the complainant before SHO Kuthuparamba dated 26/10/2023.
A11-Receipt issued by SHO Kuthuparamba dated 26/10/2023.
A12 - Copy of lawyer notice issued to OP No.1,
A13 – Returned acknowledgment OP No.1& 2 (2 in number)
A14- Quotation receipt dated 04/06/2024
A15(series)-Bank account statement
A16-Permit and plan issued by Kuthuparmaba Muncipality dated 03/12/2022.
A17-Loan account statement
C1 (series) - Expert commission report with photos.
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
/Forwarded by order/
Assistant Registrar
