DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Friday the 16th day of June 2023
CC No. 262/2019
Complainants
1. K.C Venugopal,
S/o Raghavan Nair,
Neelambarai (H), Chelavoor (PO),
Kozhikode -673 008.
2. K.Chithradevi,
W/o Venugopal,
Residing at Kalathil House,
Lakshmi Marasimgha Temple Road,
Kuttikkattoor (PO),
Kozhikode – 673 008.
(By.Adv.Sri. M.Vinod Kumar & Adv.Sri.Pavithran.K)
Opposite Party
Santhosh A.P,
S/o A.P Apputty,
Aripparapurath polyilil,
Perumanna (PO),
Calicut.
(By.Adv.Sri. P.K.Narayanan)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainants, in brief, is as follows:
The first complainant is the husband of the second complainant. The opposite party is a building contractor. The complainants wanted to construct a house in 3.442 Ares of property comprised in resurvey 14/1 of Kuttikkatoor village, Mavoor Thaluk, kozhikode district, which is in the ownership and possession of the second complainant as per sale deed No.3140/2015 of Mavoor SRO. For that purpose, the first complainant, on behalf of the second complainant, entered in to a construction agreement with the opposite party on 09-03-2018. The mutually agreed amount for the construction was Rs.29,80,000/-. It was orally agreed that the work would be completed within 9 months. As on 25-04-2019 a total sum of Rs.27,62,500/- was given to the opposite party in instalments, including the cost of the jack timber provided by the complainants for the construction. But after 25-04-2019, no work was done by the opposite party.
3. The materials used including timber were of inferior quality and several works are yet to be completed. The total value of the work done by the opposite party comes to Rs.18,00,000/- only. The work is not completed even after 16 months. The complainants were put to gross mental agony and hardship due to the irresponsible and negligent attitude of the opposite party. They are residing in a rented house paying monthly rent of Rs.7,000/-. On 25-07-2019 the complainants issued a lawyer notice to the opposite party, to which, a reply was sent by the opposite party stating untenable contentions. The opposite party filed OS 582/2019 before the Munsiff’s court, Kozhikode with false allegations. The opposite party has not completed the work so far. Hence the complaint to direct the opposite party to refund the excess amount received by him which amounts to Rs.9,62,500/- along with compensation of Rs.5,00,000/-.
4. The opposite party has resisted the complaint by filing written version wherein he has denied all the allegations and claims made against him in the complaint. The construction agreement is admitted by the opposite party. The agreement is executed by the first complainant and the second complainant is a witness in the agreement. In fact, the owner of the site was the second complainant and this fact was supressed at the time of executing the agreement. While the construction was going on, on 12-07-2019 at about 11.AM the second complainant came to the work site and asked him to stop the work and remove the construction materials from the site. Hence he was constrained to stop the work from 12-07-2019 onwards. He was cheated by the complainants and thereby he has sustained loss to the tune of Rs.3,00,000/-. He has instituted OS 582/2019 before the Munsiff’s court, Kozhikode and there is an injunction order in IA No.2906/2019 against the complainants. He has also lodged a police complaint. All these aspects were supressed in the complaint. With the above contentions, the opposite party prays for dismissal of the complaint with a direction to the complainants to pay him compensation of Rs.3,00,000/-.
5. The points that arise for determination in this complaint are;
(1). Whether there was any deficiency of service on the part of the opposite party, as alleged?
(2). Reliefs and costs.
6. Evidence consists of the oral evidence of PW 1 and Exts A1 to A10 on the side of the complainant. At the time of the evidence, the opposite party remained absent. The report filed by the expert commissioner was marked as C1.
7. Heard the complainants.
8. Point No. 1: The complainants have approached this Commission alleging deficiency of the service on the part of the opposite party. The specific allegation is that there was neglect on the party of the opposite party to complete the construction work as per the agreement in spite of having received major portion of the agreed amount.
9. In order to substantiate their case, the second complainant got herself examined as PW1, who has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the sale deed No.3140/2015, Ext A2 is the copy Tax receipt dated 19-07-2019, Ext A3 is the copy of the building permit and plan, Ext.A4 is the copy of the construction agreement dated 09-03-2018, Ext A5 series are the photographs of the construction, Ext A6 is the rent agreement dated 01-04-2018, Ext A7 series are the rent receipts, Ext A8 series are the copy of the lawyer notice dated 25-07-2019, postal receipt and postal acknowledgement card, Ext A9 is the copy of the reply notice dated 07-08-2019 and Ext A10 series are the certified copies of the judgment and decree dated 15-03-2021 in OS 582/2019 of the Principal Munsiff’s court, Kozhikode.
10. Ext. C1 is the report filed by the Assistant Executive Engineer, Kerala State Housing Board, after inspecting the site. The Inspection and the valuation were conducted in the presence of both the parties. In Ext.C1, a detailed valuation of the works completed by the opposite party and the remaining work to be completed are vividly stated. According to Ext. C1, the total amount of work completed by the opposite party comes to Rs.18,25,000/. The total amount received by the opposite party from the complainants is Rs.27,62,500/-. The balance in hand with the opposite party is Rs.9,37,500/-.
11. It may be noted that PW1 was not cross examined and her evidence stands unchallenged. Even though the opposite party has filed written version denying the allegations, he chose to remain absent at the time of evidence and did not cross examine PW1. No contra evidence is there. The opposite party has not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on side of the complainant. Ext A4 construction agreement is admitted by the opposite party. The endorsement on the reverse side of Ext.A4 shows that a total amount of Rs.27,62,500/- was received by the opposite party as on 25-04-2019 against the agreed amount of Rs.29,80,000/-. The receipt of the amount as stated above is not denied by the opposite party in the written version.
12. PW1 has deposed that after 25-04-2019, no work was carried out by the opposite party and several works are pending. No valid reason is stated by the opposite party for the non-completion of the work as per Ext.A4. The opposite party in his version is trying to put all the blame on the complainants stating that there was dispute between them. His allegation is that on 12-07-2019 the second complainant came to the work site and asked him to stop the work and remove all the building materials from the site stating that she is the owner of the property and hence he was forced to stop the work. But in this context, it may be noted that the complainants have jointly approached this Commission with the present complaint against the opposite party. It is their definite case that it was on behalf of the second complainant that the first complainant entered in to Ext A4 agreement with the opposite party. It is pertinent to note that the second complainant is a witness in Ext.A4. The further allegation of the opposite party that the fact that the second complainant was the real owner of the property was supressed from him at the time of executing Ext A4 can be believed only with a pinch of salt because Ext.A3 permit and the plan is in the name of the second complainant. The applicant for the permit and the name and signature of the owner in the plan is that of the second opposite party. It cannot be believed that the opposite party, who is a building contractor, has not seen and verified the permit and plan before entering in to Ext.A4 agreement. All these would indicate that there is no merit or bonafides in the contentions of the opposite party and that such contentions are raised only to suit the occasion and to wriggle out of the situation.
13. The suit filed by the opposite party as OS 582/2019 was rejected by the court under Order 7 Rule 11 (c) CPC since no balance court fee was remitted. This is evidenced by Ext.A10 series.
14. Ext.C1 proves that the work is not completed. This is further fortified by Ext.A5 series photographs. The opposite party has also no case that the work as per Ext A4 was done by him. Ext.C1 reveals the works to be completed by the opposite party and it is reported that the balance amount in hand with the opposite party is Rs.9,37,500/- Neither the complainants nor the opposite party has filed any objection to Ext.C1. There is no reason to disbelieve or discard Ext.C1.Ext C1 can be relied on and acted up on. Gross deficiency of service on the part of the opposite party stands proved through the testimony of PW1 coupled with Exts A1 to A10 and C1. The complainants are entitled to get Rs.9,37,500/- from the opposite party, as stated in Ext.C1.
15. Undoubtedly, the complainants were put to intense mental agony, hardship and inconvenience due to the act of the opposite party. They are residing in a rented house paying Rs.7,000/- as monthly rent. This is evidenced by Ext.A6 and A7 series. The complainants are entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs.1,00,000/- will be reasonable compensation in this case. They are also entitled to get Rs.7,000/- as cost of the proceedings.
16. Point No.2: In the light of the finding on the above point, the complaint is disposed of as follows;
a) CC.262/2019 is allowed in part.
b) The opposite party is hereby directed to pay a sum of Rs. 9,37,500/- (Rupees Nine Lakh thirty seven thousand and five hundred only) to the complainants.
d) The opposite party is directed to pay a sum of Rs. 1,00,000/- (Rupees One Lakh only) to the complainants as compensation.
e) The opposite party is directed to pay a sum of Rs. 7,000/- (Rupees Seven Thousand only) as cost of the proceedings to the complainant.
f) The payment as aforestated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs.9,37,500/- shall carry an interest of 6% per annum from the date of this order till actual payment.
Pronounced in open Commission on this, the 16thday of June, 2023.
Date of Filing: 21-08-2019
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PRESIDENT MEMBER MEMBER
APPENDIX
Exhibits for the Complainant :
Ext A1 - Copy of the sale deed No.3140/2015.
Ext A2 - Tax receipt dated 19-07-2019.
Ext - Copy of the building permit and plan,
Ext.A4 - Copy of the construction agreement dated 09-03-2018.
Ext A5 series are the photographs of the construction.
Ext A6 - Rent agreement dated 01-04-2018.
Ext A7 series are the rent receipts.
Ext A8 - Copy of the lawyer notice dated 25-07-2019, postal receipt and postal acknowledgement card.
Ext A9 - Copy of the reply notice dated 07-08-2019.
Ext A10 series are the certified copies of the judgment and decree dated 15-03-2021 in OS 582/2019 of the Principal Munsiff’s court, Kozhikode.
Exhibits for the Opposite Party
Nil
Commission Exhibits
Ext C1 - Report filed by the Assistant Executive Engineer, Kerala State Housing Board.
Witnesses for the Complainant
PW1 - K.Chithradevi
Witnesses for the opposite parties
Nil
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PRESIDENT MEMBER MEMBER
True Copy
Sd/-
Assistant Registrar
