IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 27th day of September, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.189/2022 (Filed on 01/09/2022)
Complainant : Jessymol P.R,
W/o Late Anilkumar,
Pathinanchilchirayil House,
Near Sadanam School,
Kuzhimattom P.O,
Panachickadu, Kottayam - 686 533.
(By Adv: Akash K.R)
Vs.
Opposite party : Selvin C.Chelladurai,
Kizhakedathu House,
Sachivothamapuram P.O,
Kurichy, Changanassery,
Kottayam – 686 532.
O R D E R
Sri.Manulal.V.S, President
Case of the complainant is as follows:
1. The father of the complainant P.R. Raman was the absolute owner and possessor of an extent of 12.50 Ares of property in Resurvey No.518/2 in Block No.20 of Panichikkadu Village. The said Raman died intestate and is succeeded by the complainant and her brother. The complainant and her brother, after the death of father entered a family settlement and agreed to construct a house in the said property for the residence of the complainant.
2. The opposite party contacted the complainant personally and introduced himself to be a contractor having several years of experience. The opposite party promised to construct a house on their property as wished by the complainant within a given time. On 2/06/2022 complainant and opposite party entered into an agreement to construct the house for the complainant. It is agreed that the opposite party would complete the construction of the house with good workmanship and work should be completed as per the approved plan. As per the terms of the contract the opposite party agreed to construct the building having a total plinth area of 1261 square feet for a labour contract of Rs.390/- per square feet using the construction materials supplied by the complainant. The total labour charges for the construction of the house is Rs.4, 91,790/-. An amount of Rs.1,47,537/- is to be given to the opposite party on completion of foundation work as the first instalment. Rs.1,22,947/- is to be given to the opposite party on the completion of the shade concrete as second instalment. After concreting of the roof Rs.1,22,947/- is to be given as the third instalment. An amount of Rs.49,179/- is to be given after the completion of plastering of interior walls and floor concrete. After the completion of plastering of external wall, parapet and inner roof Rs.49,179/- is to be given to the opposite party.
3. It is submitted in the complaint that the opposite party has started the construction on 7/02/2022 and the complainant has paid all four instalments as demanded by the opposite party. It is alleged in the complaint that though the opposite party started the construction they have not completed the work as agreed. Even the structure work of the ground floor is not completed. Not only that the construction is not completed, the standard of the work carried out by the opposite party is poor. The structural work carried out are deviated from the approved plan. The opposite party is not showing any interest in completing the work as agreed and is demanding Rs.49,179/- which is only to be given after the completion of the entire work. On 12/08/2022 the opposite party assaulted the complainant and used filthy words against the complainant and her son. For the criminal act committed by the opposite party Chingavanam police has registered a crime vide number 1612/2022 under Section 451, 294((b) and 324 of the IPC. Now opposite party has abandoned the construction site. The complainant has done her part as agreed and required by the opposite party. The opposite party have received an amount of Rs.4,42,611/- from the complainant but that much work is not carried out.
4. The act of the opposite party in not completing the work as agreed, in carrying out inferior quality work against the basic principles of the construction and receiving amount from the complainant in advance on false promise amounts to unfair trade practice and is shortcoming, inadequacy and imperfection in the quality of service which is to be maintained by a service provider. The act of the opposite party has put the complainant in much loss, irreparable injuries and hardships and the opposite party is liable to compensate for the same. So, this complaint is filed by the complainant praying for an order to direct the opposite party to refund Rs.49,179/- which is the excess amount paid by the complainant to the opposite party along with a compensation of Rs.3 lakhs and Rs.15,000/- as the cost of this litigation.
After the admission of the complaint notice was duly sent to the opposite party. The notice was returned as no such addressee. Thereafter the notice to the opposite party served through alternative mode of service i.e., the newspaper publication on 6/05/2022. But the opposite party did not care to appear before the Commission and to file version. So, the opposite party was declared as exparte.
In this case the complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A4 from the complainant’s side.
On evaluation of complaint, version and evidence on record we would like to consider the following points:
- Whether the complainant has succeeded to prove deficiency in service or unfair trade practice on the part of the opposite party ?
(2)If so, what are the reliefs and cost ?
POINT NOS. 1 & 2
The specific case of the complainant is that on 2/06/2022 she entered into an agreement with the opposite party for the construction of a residential building in the property situated in Resurvey No.518/2 in Block Number 20 of Panachikkadu Village. Exhibit A2 is the agreement dated 2/06/2022 which is entered by the complainant and the opposite party. As per the agreement, the opposite party agreed to construct a building having a total plinth area of 1261 square feet for a labour contract of Rs.4,91,790/-. As per the agreement the complainant was bound to pay the opposite party specified sums at various stages of the construction. It is further stated in Exhibit A2 that the opposite party had received Rs.1,47,537/- that is the 30% of the contractual amount after the completion of foundation work. On going through the Exhibit A2 we can see that the opposite party had received Rs.1,22,947/- that is the 25% of the contractual amount after the completion of the concreting of the shade of the building.
As per the conditions of the agreement the complainant is liable to pay Rs.1,22,947/- to the opposite party that is the third instalment after the completion of the concreting of the roof of the house. An amount of Rs.49,179/- is to be given to the opposite party by the complainant after the completion of plastering of interior walls and floor concrete. The balance amount of Rs.49,179/- is to be given after the completion of plastering of external wall, parapet and inner roof.
According to the complainant the opposite party did not carry out the work as agreed but he has started to threaten the complainant for the remaining payment. Exhibit A4 is the copy of the FIR in Crime No. 1612/22 of Chingavanam Police Station. It is proved by Exhibit A4 that the police have registered a case against the opposite party u/s 451, 294(b) and 324 of the IPC.
It is alleged in the complaint that the opposite party abandoned the work after receiving Rs.49,179/- more than the work which was carried out by him. On a close reading of Exhibit A2 we can see that the opposite party has received Rs.4,42,484/- from the complainant. The receipt for Rs.1,72,000/- was endorsed by the opposite party on the reverse side of the Exhibit A2.
In the absence of any contradicting evidence, we have no hesitation to accept the case of the complainant.
On a close evaluation of the above discussed evidence, we are of the opinion that the complainant had succeeded to prove deficiency in service and unfair trade practice from the part of the opposite party.
In these circumstances and evidence on record we are inclined to allow this complaint and pass the following order.
We hereby direct the opposite party to refund Rs.49,179/- the excess amount paid by the complainant to the opposite party together with 9% interest per annum from 1/09/2022 that is the date on which this complaint is filed till realization.
We hereby direct the opposite party to pay Rs.1,00,000/- (Rupees One Lakh only) to the complainant as compensation for the deficiency in service on the part of the opposite party and to pay Rs.3,000/-(Rupees Three Thousand only) as cost of this litigation.
The order shall be complied within 30 days from the date of receipt of the copy of this order failing which the compensation amount will carry 9% interest per annum from the date of this order till realization.
Pronounced in the Open Commission on this the 27th day of September, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Exhibits from the side of the Complainant :
A1 - Copy of Sale Deed No.4331/1986 of Kottayam SRO
A2 - Copy of Agreement dated 02/06/2022 entered between the
complainant and the opposite party
A3 - Copy of the site approval and building permit dated 24/03/2022
issued by the Secretary, Panachikkadu Grama Panchayath
A4 - Copy of FIR in Crime No.1612/2022 of Chingavanam
Police Station
Exhibits from the side of Opposite Party :
Nil By Order,
Sd/-
Assistant Registrar
