BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 26^th DAY OF NOVEMBER 2020

CONSUMER COMPLAINT NO.1174/2016

PRESENT:                                                     

Sri.K.S.Bilagi, B.com, M.A., LL.M.….  PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.…   MEMBER

Sri. M.B.Seena, B.A., (Law), LL.B.….  MEMBER

S/o A.Balasundaram,

Aged about 48 years,

Pres R/at # 542, 1^st Floor,

Block-16, BDA Flats,

Austine Town,

 (Complainant In-person)

V/s

OPPOSITE PARTY:

Managing Director,

Magnum Developers and Builders,

No.198/6, BSR Arcade, 1^st Floor,

Gandhi Bazaar Main Road,

Opp to Shiva Sagar, Above G K Vale,

(OP is Rep. by Adv. Sri.Vijayakumar.S)

Author SRI K.S.BILAGI., PRESIDENT

******

//JUDGMENT//

1. The complainant by filing complaint under section 12 of the Consumer Protection Act 1986 (herein after referred as an act) seeks the following reliefs;

1. Direct the OP to pay an amount of Rs.10,00,000/- as compensation for physical, mental and financial stress caused by the OP especially to their daughter who is travelling 40 kms every day from 3^rd June 2015 till date. Due to more delay complainant has come forward to complete the pending work at his own cost.

2. The case of the complainant in brief is as under;

The complainant being the owner of the site measuring 30 x 40 feet had entrusted the work of construction of house therein to the opposite party for Rs.34,00,000/-.The complainant has paid Rs.34,00,000/- in following manner;

3. He also contends that it was the duty of the opposite party to construct the house for the complainant with full interior and structural.  The opposite party was supposed to complete the project by August 15, 2014.  But the opposite party failed to complete the agreed work even after lapse of 3 years.  Moreover, the complainant has raised Rs.25,00,000/- loan from Axis Bank.  The complainant who was forced to pay school fees of his daughter due to non completion of the construction work.  There is deficiency of service on the part of the opposite party.  There has been delay on the part of the opposite party to complete the work.  Therefore, he is entitle to Rs.10,00,000/- as compensation for physical, mental and financial stress.  Hence this complaint. 

4. After receipt of the notice, the opposite party appears and files objection.  He admits that on 14.11.2013 he gave estimation for Rs.29,00,000/- for entire construction measuring Ground Floor 520 Sq.Ft and First Floor 825 Sq.Ft.  The total cost of construction is Rs.34,00,000/-  the complainant has paid Rs.3,00,000/- on 14.11.2013.  The complainant has paid Rs.6,00,000/- on 15.12.2013 and further payment of Rs.7,00,000/- on 01.09.2014, Rs.2,00,000/- on 07.05.2015. 

5. The opposite party further submits that even though estimation of Rs.46,30,473/- was given to the complainant, but the cost of construction has been settled for Rs.41,90,000/-.  The complainant has not paid sum of Rs.14,40,000/-.  There is no deficiency of service.  The complainant has paid only Rs.27,50,000/- out of the earlier agreed amount of Rs.34,00,000/-.  The complainant is not entitle to any amount as there is no deficiency of service on the part of the opposite party.  He requests this Commission to dismiss the complaint. 

6. The complainant has filed affidavit evidence in support of his case and relies on documents.  The opposite party failed to file affidavit evidence.  Heard the argument of the complainant only.  Despite sufficient opportunity granted to the opposite party, no argument has been advanced on behalf of the opposite party.  Perused the records. 

7. The following points arise for our consideration;

1. Whether this Commission had Pecuniary Jurisdiction to entertain the complaint on the date of filing the complaint?

2. Whether complainant proves deficiency of service on the part of the opposite party?

3. Whether complainant is entitle to the relief of compensation if so what is the rate?

4. What order?

8. Our findings on the above points are as under;

POINT No.1: In the Negative,

POINTS NO.2 & 3: Do not survive for our consideration,

POINT NO.4: As per final order for the following;

9. POINT NO.1:   The complainant files this complaint alleging that the opposite party did not complete the entrusted work having received agreed amount of Rs.34,00,000/- and complainant claims Rs.10,00,000/- as compensation for delay in completion of work as well as mental and financial stress.  According to the averments made in the complaint more particularly in para 7, the complainant asserts that he has paid in all Rs.34,00,000/- to the opposite party by cash between 14.11.2013 to 10.12.2015.  Whereas, the opposite party contends that the complainant has paid only Rs.27,50,000/- only and due to change of work the cost of construction mutually enhanced for Rs.41,90,000/-.

10. The pecuniary jurisdiction on the date of filing of this complaint can be considered only on the basis of averments made in the complaint.  The complainant has reiterated in his affidavit evidence also that he has paid an consideration amount of Rs.34,00,000/- for the service i.e. construction of business by the opposite party.  It means, according to the complainant he has paid Rs.34,00,000/- as a value for the service of construction to the opposite party and also claims Rs.10,00,000/-.

11. Even though opposite party has not led evidence and not filed version, it is the duty of this Commission to ascertain whether the then this Forum had pecuniary jurisdiction to entertain this complaint.  Therefore, it is necessary to refer Section 11(1) of Consumer Protection Act 1986 which reads thus;

12. For the purpose of pecuniary jurisdiction, the complainant was supposed to show the valuation i.e. payment of Rs.34,00,000/- as value of the service and compensation of Rs.10,00,000/-.  If the contention of the complainant is taken into consideration, the total value is Rs.44,00,000/-.  It means on the date of filing this complaint, this Forum had no pecuniary jurisdiction.  As per Section 11(1) this Forum had pecuniary jurisdiction up to Rs.20 lakhs only on the date of filing this complaint on 25.08.2016.

13. Therefore, we are of the opinion that on the date of filing this complaint, this Forum had no pecuniary jurisdiction.  This reason of us is supported by decision of the larger bench of Hon’ble National Consumer Disputes Redressal Commission in the decision reported in I (2017) CPJ 1 (NC) in the matter between Ambrish Kumar Shukla & 21 Ors. vs. Ferrous Infrastructure Pvt. Ltd.  Wherein Hon’ble Commission held that;

“(i) Consumer Protection Act, 1986-Section 1291)(c)-Pecuniary Jurisdiction - Determination - Deficiencies pointed out in construction/development of property-It is the value of goods or services, as the case may be, and not the value or cost of removing the deficiency in service which is to be considered for the purpose of determining pecuniary jurisdiction.

(ii) Consumer Protection Act, 1986-Section 12(1)(c)-Pecuniary Jurisdiction-Interest has to be taken into account for the purpose of determining the pecuniary jurisdiction”.

14. In view of the facts narrated above and decision of Hon’ble National Commission this Forum had no pecuniary jurisdiction to entertain the complaint on the date of filing the complaint.  Therefore, we answer this point against the complainant.

15. POINTS NO.2 & 3:     It is settled proposition of law that when the particular Authority/Court/Forum has no pecuniary jurisdiction, the consideration of the case on merits is outside the scope of such Forum.  When this Forum had no pecuniary jurisdiction to entertain the complaint on 25.08.2016, the deficiency of service and the entitlement of the relief do not survive for consideration. Accordingly, these points have been answered.

16. POINT NO.4:    For the reasons stated in the supporting paragraphs and after assigning the reason that this Forum had no pecuniary jurisdiction on the date of complaint, the complaint requires to be dismissed.  The complaint with all the documents requires to be returned to the complainant for presentation of complaint before Hon’ble State Commission.  We proceed to pass the following;     

ORDER

    The complaint is dismissed as this Forum had no Pecuniary Jurisdiction on the date of filing the complaint.  Return the complaint to the complainant with documents for presentation of complaint before Hon’ble State Commission.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 26^th day of November 2020)                                            

• M.B. SEENA)            (L.MAMATHA)                   (K.S.BILAGI)    
•  

//ANNEXURE//

Witness examined for the complainants side:

• , who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Bills for the purchase of the materials for the left over works,
2. The payment made for the remaining work being taken over by complainant towards the labour charges paid to the labourers for electrical works, plumbing works etc.,
3. Purchase of Cement, Sand, Granite, Kitchen Sink, Electrical, plumbing, mason work, glasses and mirrors, sanitary work,
4.  Labour charges for the above said works,
5. Sms copies,
6. Xerox copy of the total estimations with final value up to the completion construction work delivering the house agreed by the builder,
7. Xerox copy of the payment schedule given by Roshan.B.Shetty on % wise,
8. Receipts of receiving only cash payments as requested by Roshan.B.Shetty for Rs.34,00,000 10 in Nos.,
9. Copy of the home loan statement from Axis Bank and IT Certificate of Site and Construction from March 2012 till dated,
10. Copy of the building plan sent by Abacus Design Excellence thru. Roshan.B.Shetty,
11. Final Image of Home image after completing and while handover, which was committed by Roshan.B.Shetty,
12. Commitment letter given by Roshan.B.Shetty for completion of work and handing over the building with signature letter dated 18.12.2014 and 05.05.2016,
13. Copy of the quotation for purchasing Tiles and other material from Neeladri Ceramics given on November 2014 and receipt of excess amount which was paid by complainant in purchasing tiles dated 11.02.2016 ,
14. Copy of the complaint copy against Roshan.B.Shetty before Jago Grahak Jago and acknowledgement by Roshan.B.Shetty at both office address and residence address dated 17.03.2016,
15. Copy of mail communications between complainant and Roshan.B.Shetty from January 2014 till date requesting to complete the construction,
16. Present incomplete building photographs,    

Witness examined for the opposite party side:                        

Documents marked for the opposite party side:

1. Building plan, measuring GF=520 Sq.ft., FF=825 Sq.Ft,
2. Building plan, Ground Floor=1011.50 Sq.ft, First Floor=1011.50 Sq.ft, Second Floor=46.014 Sq.ft,
3. Estimation dated 14.02.2014.

     (M.B. SEENA)                   (L.MAMATHA)                (K.S.BILAGI)