This is a case under section 12 of Consumer Protection Act, 1986.
Brief facts of the complainant’s case is that, the complainant is the exclusive owner of a land measuring about 3 kathas, having plot no. 415, recorded in R.S. Khatian No. 2735, situated within Mouza Binnaguri, J.L. No. 3 Touzi No. 2, Sheet No. 3, Pargana- Baikunthapur within Gram Panchayat area, P.S. Bhaktinagar now New Jalpaiguri, District-Jalpaiguri, since the year 2016. The O.P. was a builder and complainant had given a contract to the O.P. for constructing a building measuring 1207s.q.f.t.in the above mentioned land, on the basis of the verbal agreement on 02.04.2018, along with the condition, that the total consideration would be Rs. 1740000/-(Rupees Seventeen Lakh Forty Thousand Only), as per the sanctioned building plan, provided by the complainant. It was also agreed that the complainant that the O.P. would complete the construction within nine (9) months from 02.04.2018. It was further agreed that the complainant would pay the amount of Rs. 1740000/-(Rupees Seventeen Lakh Forty Thousand Only), as per payment schedule and the O.P. would permit the complainant and his representatives to access the work and inspect the same. On the basis of the above agreement, the O.P. was handed over a sum of Rs. 2,00,000/-(Rupees Two Lakh Only), as per payment for the construction. The O.P. started the construction and took Rs. 2,00,000/-(Rupees Two Lakh Only) on 03.09.2018, Rs. 60,000/- (Rupees Sixty Thousand Only), on 04.10.2018, 2,00,000/-(Rupees Two Lakh Only), on 06.11.2018, Rs. 1,40,000/- (Rupees One Lakh Forty Thousand Only) on 19.12.2018, Rs. 50,000/- (Rupees Fifty Thousand Only ) on 05.01.2019, Rs. 3,00,000/-(Rupees Three Lakh Only) on 20.01.2019, Rs. 1,00,000/-(Rupees One Lakh Only) on 23.02.2019, Rs. 2,50,000/-(Rupees Two Lakh Fifty Thousand Only) on 18.03.2019, Rs. 1,00,000/-(Rupees One Lakh Only) on 16.04.2019 and Rs. 1,00,000/-(Rupees One Lakh Only) on 27.04.2019, from the complainant.
During the period of construction, the O.P. usually restrained the complainant and his family members to inspect the work and on protest the O.P. used to threaten the complainant. On 02.01.2019 after the lapse of the agreement period, the O.P. failed to complete the construction work. Suddenly on 25th March 2019, the O.P. produced a written agreement, on the basis of the previously executed oral agreement made on 02.04.2018 and forced the complainant to sign the same. On 28.04.2019, the O.P. handed over the physical possession of the constructed building, to the complainant. After taking physical possession the complainant found:-
a) Full crack in the floor and wall of the building.
b) Sanitary pipe and outside accessories are fully damaged.
c) Marble & tiles are found cracked and of low quality.
d) Windows and doors are made by low quality plywood.
e) Water outlet and covering are fully damaged.
On 28.04.2019, the complainant asked the O.P. for repair of the same and again on 13.08.2019, but the O.P. did not pay any heed. The complainant was thus, forced to file this complaint. Hence this case.
The O.P. did not appear to contest the claim, inspite receiving the Notice and therefore, the case was heard ex-parte, against him.
The complainant examined himself on affidavit, but ultimately abandoned his claim and the case was thus, taken up for disposal on merits.
The complainant has supported his case on affidavit, but his bald statement would not be enough to assess the damage and deficiency of service, by the O.P. Although, the complainant filed an application under order XXVI rule 9 read with Section 151 of the C.P.C., at the time of the filing of the complaint, but the same was kept in the record, with a direction to dispose the same, after the appearance of the O.P. But the O.P. never appeared and the application under order XXVI rule 9 read with Section 151 of the C.P.C. was never moved by the complainant and the same stands rejected. Hence in the absence of any technical evidence it would be difficult to be rely only on the statement of the complainant. Moreover, it would be difficult to assess the deficiency in service by the O.P. and the subsequent damages. As a result the instant case is bound to fail.
It is therefore,
O R D E R E D
That the case be and the same is dismissed on merits but without costs.
Copy of the Judgement/ Final Order be handed over to the parties free of cost.
