BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1350/2014

DATED ON THIS THE 2^nd December 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act, against the opposite party alleging deficiency in service and seeking a direction to refund Rs.10,30,000/- towards damages, loss, mental agony and hardship caused with cost and other reliefs.
2.     The complainant entered into a construction agreement on 03.12.2013 with opposite party, the total cost of construction was fixed at Rs.20,40,000/- for a total built up area of 24 square feet.  Payments of Rs.18,30,000/- made on various dates by cheque and also cash.  The opposite party agreed to complete the work within five months from the date of agreement.  But, failed to comply.  In the meanwhile, complainant raised objection noticing use of substandard material and also for poor construction.  A legal notice caused on the opposite party calling upon to pay a sum of Rs.10,30,000/- for the damages, mental agony, loss suffered but in vain.  Hence, complaint seeking reliefs.
3.     The opposite party filed its version denying the allegations as false and admits the execution of agreement for construction on 03.12.2013.  He submits that, he agreed construction at Rs.95,000/- per square (i.e. 10 ft. x 10ft.).  The delay was caused due to non-obtaining the building license from the competent authority by the complainant, and because of which the authority have seized the construction material from the work spot.  He also denies the use of sub-standard material and poor construction work.  As such, there is no lapse and deficiency in service on his part and prays for dismissal of the complaint with costs.
4.     To prove the facts, both parties filed their respective affidavits and placed several documents.  Written arguments filed and heard the oral submissions of both counsels.  Perusing the material on record, matter posted for orders.
5.     The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service on the part of opposite party in not executing the construction work as per the agreed terms and thereby he is entitled for the reliefs?
2.  What order?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

7.    Point No.1:- The complainant intended to demolish the existing building and to construct a new commercial building, entered into an agreement with the opposite party on 03.12.2013, who agreed to construct the 24 square feet of building at a total cost of Rs.20,40,000/-, within five months period from the date of agreement.  The complainant made the payment of Rs.18,30,000/- by cash and also through cheques on various dates.  The complainant objected for the use of substandard materials for construction and also for poor construction.  Aggrieved by the act of opposite party, the complainant issued a legal notice calling upon to refund a sum of Rs.10,30,000/- including the excess amount paid and damages for the loss suffered and also cancelled the agreement on 03.12.2013.  But, opposite party not complied, despite of several reminders.
8.   Subsequently, the complainant got completed the pending work with the help of another person and by an agreement on 16.06.2014 and incurred an additional expenditure of Rs.9,00,000/- and also incurred an additional expenditure of Rs.2,35,000/- to finish the incomplete work carried by the opposite party.  Thereby, the complainant suffered the loss of Rs.11,35,000/- due to deficiency in service committed by the opposite party.  The complainant also got assessed the value of the work completed, quality and construction, and the cost of construction by a registered valuer and who reported the cost of additional expenditure at Rs.12,00,000/- incurred to complete the construction work.
9.    The court commissioner appointed for assessment of the work done as on 22.05.2014, who after inspection and assessment, reported that the building work was already completed, as such he could not make a proper assessment of the work, and hence, reported the work was satisfactorily.  Aggrieved by the deficiency in service, the complainant filed the complaint and sought for the reliefs.
10. The opposite party admitted himself as a building contractor, and had agreed to carry out the construction work at Rs.95,000/- per square (10 ft. x 10 ft.) of building, but not at Rs.85,000/-.  He denied the payment of Rs.18,30,000/-.  He admitted the agreement and to execute the same within 5 months from the date of agreement.  The opposite party contended that, the complainant failed to obtain the required licence from the competent authority for construction of building as such, the authorities seized the material brought for construction work, thereby he could not complete the work as agreed.  Further, he denied the use of sub-standard material and poor work as false and contended that such allegation was made only to make unlawful gain.  As such, contended that there were no lapses on his part and not liable to pay any compensation and hence prayed for dismissal of the complaint.
11. The complainant established the agreement for construction of building with opposite party on 03.12.2013.  The complainant obtained the licence for the construction from the competent authority on 26.11.2013.  The notice dated 04.02.2011, 25.02.2014 and 11.03.2014 confirms the order of the Mysuru City Corporation for stoppage of construction work immediately, for violation of the conditions. However, the complainant failed to establish that a sum of Rs.18,30,000/- has been paid to the opposite party on various dates and also use of substandard material for construction and poor construction work done by the opposite party.  The photographs placed on record, appears to be taken during the process of construction, as such, the same does not support the complainant’s allegation of poor construction work by opposite party.  Further, the commissioner report also does not support the contention of the complainant, regarding the use of substandard material and poor construction work.  Since, the building has already been utilized for commercial and dwelling purpose after completion of the construction work, hence, the allegation of deficiency in service on the part of opposite party is not accepted.  As such, the complainant is not entitled for any reliefs as sought for.   Accordingly, point No.1 is answered in the negative.   
12. Point No.2:- In view of the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 2^nd December 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER