DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  6^th day of February, 2023

Present      :   Sri. Vinay Menon V.,  President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 23/01/2019    

                         CC/19/2019

Rajasekharan Nair,

S/o.Sekharan Nair,

Chinnuvinte Veedu,

Palappuram – Ottapalam,
Palakkad – 679 103                                                    -                       Complainant

(By Adv. C.Madhavankutty)

Sanjeev P.P.

Managing Director,

Bounteous Builders & Developers,

II Floor, NP Tower,

West Fort, Thrissur – 680 004                                                -                       Opposite party  

(By Adv.T.S. Rajeshkumar)

O R D E R

By  Sri. Vinay Menon V., President

1. Pleadings to retain essence of the complaint pertain to alleged deficiency in service on the part of opposite party in construction of a residential building as well as delay in handing over of the constructed building. Agreement dated 31/1/2018 was entered into between the complainant and opposite party for a residential building having an area of 2124 sq.ft.  The total construction amount was fixed at 37,20,000/-. Thereafter additional construction was decided to be carried out for Rs.4,83,600/-. Construction was to be completed by 31/5/2018.  The construction was for letting out of the construction for hostel purposes of students. There was a delay in construction and the complainant had to suffer a loss of Rs.2,42,000/- which he would have earned by way of rent, which was his sole source of livelihood. The materials were found to be defective and the entire construction work did not live up to the agreed quality as in the terms and conditions of the agreement. This complaint is filed seeking the amounts for demolition and reconstruction of the residential building alongwith compensation and incidental reliefs.
2. The opposite party vehemently denied the complainant’s pleadings. Other than denial there are no other fresh aspects that were brought up for consideration in the version.
3. The following issues arise for consideration 

1. Whether the complainant has proved that there is defect in construction carried out by the opposite party.

2.         Whether there is   deficiency in service/unfair trade practice on the part of the opposite party?

3.         Whether the complainant is entitled to any of the reliefs sought for?

4.         Reliefs, if any?

4. (i)                            Complainant filed proof affidavit and marked Ext.A1 & A2.
An expert commissioner was taken out at the instance of the complainant and his report was marked as Ext.C1.

   (ii)                             Opposite party did not file proof affidavit or mark any documents. Opposite party had filed an application as IA 38/2021 seeking to cross-examine the complainant. This IA was allowed and the matter was posted for cross examination of complainant to 29/3/2021. Even though there were a number of postings, the case went on being adjourned for one reason or another. The opposite party made repeated statements that the complaint would be settled. But the complaint was not settled. They had failed to file proof affidavit even after granting continuous chances since 22/01/2020. Hence, evidence was closed on 11/8/2022. 

(ii)                                The case was posted for argument notes and hearing to 20/9/2022 and 27/12/22. While so, at the behest of the parties, the matter was taken for settlement in the adalath of 25/11/22. But nothing transpired and the matter was called on 28/11/2022. On that day also it was posted to 30/12/2022 for settlement. Then also there was no settlement between the parties and the case was called on 25/1/23.

(iii)                               On that day the opposite party filed 3 IAs, IA 622/2022 to reopen evidence, IA 623/2022 to recall the complainant and IA 624/2022 seeking to cross examine the complainant. Since, the opposite party had not been meticulous in the conduct of the case all through the proceedings, the 3 IAs were dismissed.

Issue No.1

5. Crux of the complainant’s case is that the opposite party had carried out construction of the building using materials that were subpar to that what was agreed by the parties. He also has a case that the construction was not completed within time, causing him monetary losses. In order to substantiate his case the complainant took out an expert commissioner to take stock of the condition of the building.    Report of the expert commissioner was marked as Ext.C1.  The opposite party had filed detailed objection to Ext.C1. Even though they have filed objection they had not sought to disprove the contents of Ext.C1. The complainant has no objection whatsoever to the said commission report. Hence, we hold that contents in Ext.C1 as well as the calculation made by the expert commissioner is a clear depiction of the ground realities and status-quo as on 16/8/2019. We, therefore, are not going further deep into the facts and circumstances of the case.
6. Thus the complainant has proved that the construction is defective.

Issue No.2

7.         Resultantly,  we hold that there is deficiency in service on the part of the opposite party.

            Issue No.3

8.         The complainant had sought for a total of over Rs.18,00,000/- for demolition and  reconstruction of the building along with Rs.1,00,000/- as compensation towards mental agony and damages.

9.         The complainant has not filed any objection to the estimate arrived at by the expert commissioner. Hence, the relief sought for by the complainant is excessive. But as the amount shown in Ext.C1 is of 2019, we believe an annual escalation of 20%  in labour charges and cost of products  would be reasonable.

10.       The complainant has not adduced any documents to prove that he suffered losses due to the delay in construction. Hence to that extent, the  complainant is not entitled to any reliefs.

Issue No.4

11.       Resultantly we allow this complaint as follows:

1. The complainant is entitled to an amount of Rs.4,17,500/-  (Rupees Four lakhs seventeen thousand five hundred only).
2. The complainant is entitled to receive an  escalation of @20% per annum on this amount compounded annually from 16/8/2019 till date of payment.
3. If the work of the building is already carried out, the O.P. need to pay the aforesaid amount of Rs. 4,17,500/-(Rupees Four lakhs seventeen thousand five hundred only) along with interest at the rate of 10% from the date of filing of this complaint till date of repayment.
4. The complainant is entitled to a compensation of Rs.30,000/- (Rupees thirty thousand only)
5. The complainant is entitled to a cost of Rs.20,000/- (Rupees Twenty thousand only)
6. The opposite party shall pay the aforesaid amounts to the complainant within 45 days of receipt of a copy of this order failing which the opposite party shall pay a solatium of Rs.250/ per month or part thereof from the date of this order till the date of payment of the amounts ordered above.

Pronounced in open court on this the 6^th   day of  February, 2023.        

                                                                                  Sd/-

                                                                                             Vinay Menon V

                                                      President

                                                            Sd/-

   Vidya.A

                       Member        

         Sd/-                                                                   Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 – Copy of construction agreement

Ext.A2 – Copy of lawyer’s notice dated 13/11/2018 alongwith postal receipt and AD card

Exhibits marked on the side of the opposite party: Nil

Court Exhibit: 

C1 – Commission report dated 16/8/19

Third party documents:  Nil

Witness examined on the side of the complainant: Nil

Witness examined on the side of the opposite party:  Nil

Court Witness: Nil

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.