IN THE CONSUMER DISPUTES REDRESSAL COMMOSSION, ALAPPUZHA
Friday the 21st day of January, 2022
Filed on 1.10.2020
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma. BA,LLB(Member)
In
CC/No.240/2020
Between
Complainant:- Opposite party:-
Sri.Vinodkumar.S Sri. Prince Dicruze
S/o Sukumaran Manager, We One Homez Online
Kochuthara House Solutions Pvt. Ltd
Colony No. 18, Thekkekara.P.O 2nd Floor, Vadakkethu Building
Onnamkara, Champakulam Village Vennala, Palarivattom, Ernakulam
Alappuzha (Exparte)
(Adv. Rojo Joseph)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainant’s case are as follows:-
The complainant has entered into an agreement of construction with the opposite party for constructing his residential building on 25/10/2019. As per the agreement 1st installment of Rs.1,80,000/- has been received by the opposite party. But the construction was started only on 13/1/2020.
The opposite party has violated the provisions of the contract and he did not use the materials for construction as per the agreement. Against the terms of the agreement the foundation was finished only on 13/2/2020 and the opposite party received an amount of Rs.3,95,000/- and issued receipt for the same.
Further, without any reason the construction has been delayed. Finally it was restarted on June 2020. The construction is up to the lintel level the work was stopped by the opposite party. As per the terms of agreement, the entire work would be finished in April 2020 and would be handed over to the key. Thereafter several times complainant tried to contact the opposite party over the phone but did not care to attend his calls.
Due to the said acts of the opposite party, the complainant has suffered heavy financial losses since all his electronics products, wooden furniture, other house hold items including books of his children etc worth Rs.1,53,000/- were kept in a temporary shed, that were destroyed due to flood and the heavy rain.
It was alleged that opposite party has violated the construction agreement and received excess amount of Rs. 1,25,000/- from the complainant. The said acts of the opposite party has suffered severe mental agony and monitory loss which attribute deficiency in service. Hence complaint is seeking following reliefs.
1. Direct the opposite party to refund Rs. 1,25,000/-, the excess amount received from the complainant by the opposite party with interest.
2. Compensation for deficiency in service.
3. Direct the opposite party to pay Rs. 1,53,000/- for the monetary loss suffered due to the loss of belongings and cost of the proceedings.
2. Points for consideration are:-
1. Whether the complainant is entitled to get Rs. 1,25,000/- from the opposite party?
2. Whether the opposite party has committed deficiency in service? If so what would be the quantum of compensation?
3. Whether the complainant has suffered monetary loss as he claimed.?
4. Reliefs and Cost?
The complainant appeared through the counsel and adduced documentary evidence Ext.A1 to A5 and Ext.C1 were marked. Opposite party remained absent and declared exparte.
3. Points No. 1 to 3:-
The complainant alleged that even though he has acted upon the agreement and had paid the amount in time the opposite party delayed the construction and thereafter stopped construction without finishing the entire work. It was a violation of the terms of the agreement and caused heavy monetary loss to the complainant. Ext.A1 is the agreement for construction dtd. 25/10/2019. For proving the defective construction and incomplete work a Commission report was taken with the help of the Advocate commissioner and an expert. The same was marked as Ext.C1. In Ext.A1 agreement it is specifically mentioned about the construction, materials used for and the period of payment. For all the pages in Ext.A1 agreement both parties were affixed their signature. Ext.A2 including 2 receipts, both receipts contain the seal of the opposite party and signature of both parties. As per said receipt dtd. 25/10/2019 revealed that the opposite party had received Rs. 1,80,000/- and another receipt dtd. 1/2020 as per the said receipt opposite party received amount of Rs. 3, 95,000/-.
Ext.C1 report contains the report of an expert also. As per both reports the construction of the building was completed only up to the lintel level. It seems that the construction is not finished as per Ext.A1 agreement. Both, the Advocate commissioner and the Expert reported on various defects of the construction. Both of them estimated the construction cost of Rs.4,50,470/-(Rupees Four lakh fifty thousand four hundred and seventy only). In which it is reported that some building materials like solid blocks and iron bars worth Rs. 3,660/- are kept on the premises. The said report is remained unchallenged.
It is to be noted that as per Ext.A2 receipts opposite party had received altogether (3,95,000 + 1,80,000) Rs. 5,75,000/- from the complainant on various dates. In Ext.C1 report the total expense comes at Rs.4,50,470/- after deducting the amount of materials is Rs.3,660/- from said amount. (4,50,470 – 3660) the amount comes at Rs.4,46,810/-. It seems that the opposite party had received Rs.5, 75,000/- from the complainant. So the difference between said amounts is Rs.1,28,190/-. Therefore, it seems that the opposite party had received excess amount of Rs.1,28,190/-(Rupees One lakh twenty eight thousand one hundred and ninety only) from the complainant for the construction cost. In the absence of any contrary evidence we are of the firm opinion that the complainant is entitled to get said amount as a refund from the opposite party.
Nothing is before us to substantiate the loss of house hold things has been estimated by the complainant in Ext.A5. Therefore we are refrained from ordering any amount to that effect.
The Complainant is well sustained his case with sufficient evidence. Despite the receipt of notice opposite party remained absent and set exparte. The evidence of the complainant remained unchallenged. It seems that opposite party has failed to substantiate his case with cogent evidence. Nothing is before us to disprove the case of the complainant. We have already discussed about the present stage of the construction is reported in Ext.C1. It is no doubt that the said unexpected experiences causes severe mental agony to the complainant and which attributes to deficiency in service. So on that count complainant is entitled to get compensation from the opposite party. In view of the above circumstances the complainant is also entitled to get cost of the proceedings from the opposite party.
4. Point No. 4:-
In the result, complaint is allowed in part and directed as follows:-
1) Opposite party is liable to refund Rs.1,28,190/- (Rupees one lakh twentyeight thousand one hundred and ninety only) being the excess amount received from the complainant, with interest @ of 9% per annum from the date of compliance of this order till realization.
2) Opposite party is liable to pay Rs.50,000/-(Fifty thousand only) towards compensation for deficiency of service. Failing which the said amount shall carry interest @ of 9% per annum from the date of receipt of the copy of this order till realization.
3. Opposite party is also liable to pay Rs. 10,000/-(Rupees Ten thousand) as litigation cost to the complainant.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 23rd day of January, 2022.
Sd/-Smt. C.K.Lekhamma (Member)
Sd/-Sri.S.Santhosh Kumar (President)
Appendix:-Evidence of the complainant:-
Ext.A1 - Agreement
Ext.A2 - Receipts
Ext.A3 - Treatment Certificate
Ext.A4 - Plan & Elevation
Ext.A5 - Estimate (Damage in flood)
Ext.C1 - Commission Report
Evidence of the opposite parties:- NIL
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
