By Smt. Beena. M,  Member:

            This is a complaint filed under section 12 of the Consumer Protection Act 1986.

2.  The case of the Complainant in brief is as follows:-   The Complainant  decided to construct a house in his property at Kaniyambetta and knowing the same the Opposite Party who himself claimed a renowned builder, approached the Complainant and tempted the Complainant that if the Complainant entrust the building work to the Opposite Party he is ready to construct a new modern house in the property at a reasonable cost and he showed some building plans and the photographs of some houses which were claimed to be constructed by he himself, to the Complainant and being fascinated by the sweet words, promises and temptations of the Opposite Party, the Complainant entrusted the construction of his new residential house to the Opposite Party at the rate of Rs.1,450/- per square feet according to the plan, estimate and 3D image approved by Kambalakkad Grama panchayath under an agreement executed between the Complainant and the Opposite Party dated 02-11-2018.  As per the terms of the agreement the Opposite Party had to complete the entire residential building having the extent of 1543 sq. feet within ten months from the date of agreement in a ready to occupy condition and the total amount to be paid to the Opposite Party was fixed as Rs.22,37,350/-.  But even though the Opposite party was in receipt of total amount of Rs.22,50,000/- from the Complainant, the Opposite Party failed to complete the construction work within the stipulated period.  Moreover, the works done by the Opposite Party is below quality.  During the entire period of construction, the Opposite Party caused enormous difficulties, hardships and discomfort to the Complainant.  The Opposite Party constructed the building by varying the approved plan and the 3D image.  The Opposite Party has extended the total area of the residential building even against the approved plan with a specific intention to extract huge amount on that account.  The Opposite Party used low quality building materials for the construction of the building even though the assurance of the Opposite Party was that standard quality building materials would be used for the construction works. The sand and cement combination were also disproportionate and the same has affected the quality of the building.  Due to this, the entire residential building is rendered useless.  The Complainant had entered into the agreement with the Opposite Party to get the ready to occupy residential building at the earliest, before 02-09-2019, since the marriage of the elder brother of the Complainant was fixed to 10-11-2019 and the engagement party was proposed to be solemnized on 27-10-2019.  After undertaking the contract, the Opposite Party sub contracted the works in pieces to some other persons who were not experts in the work.  Neither the Opposite Party nor the persons thus appointed by the Opposite Party were regular or punctual in their work.  Even though the Complainant has enquired the Opposite Party about the subcontracting of the works and the appointment of unqualified and un-expert workers, the Opposite Party threatened the Complainant to face with unwanted consequences.  Due to the negligence and lagging of the works of the Opposite Party and his men, the entire construction work is delayed.  Immediately after purchasing of the landed property, the Complainant had laid foundation for the compound wall and while the building construction was going on, the Opposite Party had requested the Complainant to entrust him the future works of the compound wall and the work area which Complainant was proposed to construct subsequently.  But since the Complainant was not satisfied with the works and attitudes of the Opposite Party, he entrusted those works to some other persons.  This provoked the Opposite Party and thereafter, he behaved in rude and rough manner to the Complainant.   When the Complainant requested the Opposite Party to complete the works at the earliest to celebrate the engagement of his brother, the Opposite Party abused the Complainant and other family members with filthy and indecent words even in front of the relatives of the proposed bride.  Even after repeated demands on the side of the Complainant and intervention of mediators, the Complainant was compelled to complete the bathroom fitting works and painting of two rooms and a hall with the help of the workers engaged for the construction of compound wall and work area for which he incurred Rs.49,000/-. The Complainant and his family felt much disgrace and mental agony due to the above said acts of the Opposite Party since the Complainant and his family were compelled to celebrate the engagement and later the marriage in an untidy surrounding of an incomplete house. The same has caused much inconvenience and difficulties to the Complainant and his family. Moreover, the works completed by the Opposite Party is having numerous defects and damages and though it is impossible to list all of them, the Complainant is describing some of them below.

(a) Low quality cement, sand, bricks, tiles and carbonates, steel bars, red stone,          

     wiring & plumbing materials, doors, windows and wood are used

(b) The width of the foundation and the wall is disproportionate.

3. The plastering works of the walls are broken and damaged.
4. The plastering works are not done on the open terrace, flat and slop slabs.
5. Water connection fittings to the water closet are not proper.
6. Water cutting for every flat-slabs, sunshade etc are not completed.
7. The joint filling in the kitchen floor and toilet wall is not properly completed.
8. The floor and wall tiles are broken and damaged.
9. No sunshades are constructed for open terrace door and front window of 1^stfloor.
10. The roofing pattern (slop/flat) is changed according to the whims and fancies of the Opposite Party against the building elevation.
11. The balcony and parapet wall on open terrace is not done perfectly.

3. Since most of the works are left incomplete the Complainant and his family is not in a position to stay satisfactorily in the house. Moreover, the marriage of       the Complainant is also fixed   and   is   decided to   celebrate     on   31-01- 2020 and due to the low quality and negligent works of the Opposite Party,  the Complainant is not in a position to continue with the service of the Opposite Party. The plastering works done by the Opposite Party is to be demolished and new plastering works to be done since the said work of the Opposite Party is completely damaged. The remaining works of the house to be completed immediately and for which the Complainant has to seek the assistance of some other building workers. The Complainant has to pay escalated prices for the materials and labour costs. Further the other building workers or contractors are not willing to take the remaining works since the construction is started and abandoned half way by the Opposite Party herein.  Moreover, the Opposite Party is also threatening other persons to whom the Complainant approached to take over the work in this matter. It is also come to the notice of the Complainant that the value of the construction already done by the Opposite Party is up to the maximum of Rs.15,00,000/-. So, the Opposite Party is liable to return the balance amount of Rs.7,50,000/- in addition to the amount of Compensation for the deficiency of service and mental agony caused to the Complainant. The Complainant has to spend another Rs.15,00,000/- to complete the house construction perfectly. In order to revenge the Complainant, the Opposite Party is retaining the entire electrical paper works of the house and therefore the Complainant is not in a position to obtain the domestic electricity connection. The Complainant at present is paying electric charges at an exorbitant rate, for which the Opposite Party is liable.  Hence,  this complaint.

4. The Commission issued notice to the Opposite Party.  After   accepting notice,  the Opposite Party    failed to appear before   the   Commission    and hence, on 20.01.2020, the Opposite Party was called absent and set   ex party. Thereafter, the Opposite Party filed petition to    set aside ex party order, the  petition was allowed and version was accepted.

5.  The Opposite Party in his version submitted that an agreement was entered into between the Complainant and Opposite Party   on 29.04,2016 regarding the terms and conditions of the construction work of the building. The building contract does not contain any service decisions, service charges or service terms.  So, it does not come under Consumer Protection Act.  The  building contract is with Building India Developers Kalpetta, Wayanad.   In a case where, the Managing Director is made as a party without making the above Firm as a party is legally unsustainable.  The dispute between the parties relating to the construction contract is not within the jurisdiction of  the Commission and liable to be dismissed.  The Opposite Party stated that  after coming to know about the Opposite Party and the works done earlier,  the Complainant approached the Opposite Party for constructing the house on  his property.  The Complainant also assigned responsibility for the construction  of the new building as per the    agreement    dated  2^nd November 2018.   Although the Opposite Party took over the contract for construction of the  building from the Complainant, he repeatedly made various changes in the  plans and estimates and had not paid the amount for the completed work.   The Complainant also promised to pay extra for additional work but not paid  full amount as per agreement. The Complainant has made many changes from what was stated in the agreement and the construction has been carried out by the Opposite Party.  The Complainant’s father had assured that his son’s  marriage would be on 10^th December 2019 and after that he would pay the amount due to the Opposite Party.  The materials for the house construction  were borrowed from the shops known to the Opposite Party.  The Opposite  Party denied that the allegation of the Complainant that the Opposite Party sub contracted to inexperienced persons and that there was delay on the part of the Opposite Party for completing construction work.  According to the  Opposite Party, the complaint was filed only for non-payment of Rs. 8 lakhs  due by the Complainant to the Opposite Party.  The Opposite Party denied the statement of the Complainant that the construction work of the compound wall and the construction of the work area of the building were done by  another person. The Opposite Party has not left any work for Rs 10 lakhs.  When the Opposite Party asked the Complainant to pay 8 lakhs rupees, the  Complainant and some people attacked and blackmailed the Opposite Party. The things mentioned in the expert commission report are not correct and  only nominal works are left.  The complaint is filed for causing hardship to the  Opposite Party, hence should be dismissed with costs.   The Complainant filed IA 532/22 to appoint an Expert Commissioner which was allowed and posted for Commission Report.  On 10.11.2022, the Expert Commissioner informed through letter that when he sent inspection notice to the Complainant, the same was returned.  On enquiry, it was learned that the Complaint was died.  Thereafter, the legal heirs of the Complainant were impleaded as per order in IA 193/23 dated 16.03.2023.  When the case was posted for evidence of the Complainant, the counsel of the Opposite Party reported no instruction. So, Commission issued notice to the Opposite Party for his appearance on 09.02.2024.  Even though the Opposite Party received notice, he was absent.  The brother-in-law of 1^st Complainant filed proof affidavit with authorisation letter and examined as PW1. Through PW1 the documents were marked as Ext A1 to A8.  Here, the Opposite Party failed to cross examine the Complainant to adduce any defence evidence.  He raised his objections in his version but failed to substantiate his case by adducing evidence.  

6. Perusing the complaint, version and affidavit of the Complainant the following points are raised for consideration.

1. Whether there is any deficiency in service on the part of Opposite Party?

2. Whether the Complainant is entitled to get any relief?

7. Point No.1 and 2:- On the basis of the available materials on record, it is found that the parties have no dispute with regard to the execution of the building construction agreement.  On perusal of Ext. A2 agreement, it is seen that the Opposite Party had agreed to construct a building for the Complainant within 10 months for a total amount of Rs.22,37,350/-.  It is further seen that the Complainant has paid an advance amount of Rs. 1,00,000/-.  As per the IA 116/20, Commission permitted the Complainant to complete the work of the building and to rectify the defective work.  It is clear from the available materials that the Complainant was constrained to incur additional expenses due to lapse, latches and negligent acts of the Opposite Party for the construction of the building.  Therefore, it is clear that there is deficiency in service and unfair trade practice on the part of the Opposite Party.  On going through the Ext. A2 every endorsement of receipt of payment are made by the Complainant in backside of Ext A2 and signed by the Opposite Party.  No doubt the Opposite Party received the amount as per the endorsement made in backside of Ext A2, and he received total amount of Rs. 22,50,000.  Now it is to be seen whether the construction was made up to the amount received by the Opposite Party from the Complainant. 

8. Here the Expert Commissioner filed a detailed report along with an estimate of balance work and curing the defect.  No evidence adduced from the side of Opposite Party, except the filing of reply version.  No objection is filed for commission report and the Complainant was not cross examined even though sufficient time was given to him.  The expert commissioner ascertained the defects of the building and filed a detailed report clearly stating that the present condition of the building.  On a joint reading of the Commission Report, and pleadings in the complaint, it seen that defects stated in the complaint and defects noted by the Commissioner are the same.  Along with the Commission report commissioner filed an estimate and expecting cost for curing the defect of the building.  In this report, commissioner assessed the estimate amount of balance works to complete as Rs.2,81,888/-.  The amount estimated by the expert Commissioner is not challenged by the Opposite Party. As per the complaint, though the Opposite Party has received Rs.22,50,000/- the Opposite Party has completed only works costing about Rs.16,00,000/-.  The Opposite Party has failed to produce any evidence by way of documents or by way of a deposition to counter the allegation levelled against him by the Complainant.  As per Ext. A4 to A7 the agreement and bills of materials produced by the Complainant, he had incurred for the remaining work and for curing the defect Rs.3,61,218/-.  So the Complainant is entitled to get the above amount.   In our view, the act of Opposite Party in not completing the works as agreed, even after accepting the entire agreed amount of Rs.22,50,000/- amounts to deficiency in service and unfair trade practice.  So the Complainant is also entitled to get the compensation and cost.  On the basis of the above discussion, the Commission is of a considered view that the allegation against the Opposite Party is proved by the Complainant.

   In the result the complaint is partly allowed, and

1. The Opposite Party is directed to pay Rs.3,61,218/-(Rupees Three Lakhs Sixty One Thousand Two Hundred and Eighteen only) being the cost of work done by the complainant for the completion of the building construction.
2. The Opposite Party is directed to pay Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) towards compensation.
3. The Opposite Party is directed to hand over the documents related to electricity connection of the Complainant’s building to the Complainant.
4. The Opposite Party is also directed to pay Rs. 15,000/- (Rupees Fifteen

Thousand only) as cost of the proceedings.

The above order shall comply within 30 days from the date of receipt of copy of this order, failing which the Complainant is entitled to get recover the same with interest @ 9%p.a.from the date of this order till realisation.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the  4^th  day of September  2024.  

  Date of filing:06.12.2019.                                                                                                                                                

                                                                          PRESIDENT:  Sd/-       

                                                                             MEMBER   :   Sd/-  

APPENDIX.

Witness for the Complainants:

PW1.           Vishnu. J. Mattathil.                 Government Employee.          

Witness for the Opposite Party:

Nil.   

Exhibits for the Complainants:

A1.        Authorisation.                                dt:26.11.2023.

A2.        Copy of Agreement.                       dt:02.11.2018.

A3.        Copy of Building Plan.                          

A4.        Photograph.

A5.        Agreement.

A6 series.       Agreement and Bills.

A7sereis.         Agreement and Bills.

A8.        Agreement.                                    dt:13.05.2020.

Exhibits for the Opposite Party:

Nil.                 

                                                                                                PRESIDENT:  Sd/-

                                                                                               MEMBER    :  Sd/-