By Sri. A.S. Subhagan, Member:
This is a complaint filed under Section 12 of the Consumer Protection Act 1986.
2. Facts of the case in brief:- The Complainant had entered into a contract for the construction of a building on 21.11.2019 with the Opposite Party. The Contract was for the construction of a two storied building having 1420 sq.ft area to be completed within six months with 31 other conditions, payment conditions, nature of construction, details of materials to be used etc. The rate of consideration agreed upon between the parties was Rs.1,315/- per sq.ft and on 21.11.2019 itself, the Opposite Party had received Rs.50,000/- as advance from the Complainant. The balance amount was agreed to be paid, stage by stage, as agreed in the contract. But, violating the terms of agreement, without any valid reasons and without doing the work timely and properly, the Opposite Party delayed the work and frequently demanded excess money than the cost of work completed and thereby, the Opposite Party accepted Rs.6,36,598/- from the Complainant after doing some part of the concreting of the lintel costing only about Rs.4,00,000/-. The Complainant had to conduct the opening ceremony of the house on 30.06.2020 and as the Complainant was residing in a rented house, had regularly used to tell the Opposite Party to complete the construction. Even though, without any responsibility to the Complainant, the Opposite Party committed severe deficiency in service causing financial loss, inexplicable unconvenience, loss and injury, mental agony and unnecessary expenses to the Complainant and his family. On 20.08.2020, the Complainant had given a direct notice to the Opposite Party, showing all these facts. The Complainant had intimated the Opposite Party that, as the period of contract expired, the Complainant should complete the remaining work by himself and had directed the Opposite Party to refund the balance amount available in Rs.6,36,598/- received by the Opposite Party, after deducting the amount eligible to the Opposite Party. Due to the negligent attitude, of the Opposite Party, the Complainant was constrained to do the work using others and for that purpose the Complainant had to borrow money for interest, from many others. And moreover, the Complainant is spending at the rate of Rs.10,000/- per month for house rent for his residence. The quality of construction work is not good, as low quality materials are used. For all these, the Opposite Party alone is responsible and liable. So a lawyer’s notice was forwarded to the Opposite Party by the Complainant on 25.09.2020. Though the lawyers notice was received by the Opposite Party, he had not responded to it. Hence this complaint with prayers.
- To direct the Opposite Party to refund the excess amount of Rs.2,36,598/- received from the Complainant with 12% interest from the date of the complaint.
- To direct the Opposite Party to pay Rs.1,00,000/- as compensation.
- To direct the Opposite Party to pay Rs.5,000/- as cost of this complaint and
- To grant any other relief that the Complainant may pray as to the circumstances of this case.
3. Notice was served upon the Opposite Party for appearance. Opposite
Party appeared and filed version but he did not appear for giving evidence and hence, he was declared ex-parte. The Complainant filed proof affidavit, Exts.A1 to A7 were marked from his side and he was examined as PW1. Ext.A1 is the Copy of the signed agreement executed between the parties, Ext.A2 is the lawyer’s notice forwarded to the Opposite Party by the Complainant, Ext.A3 is the postal receipt, Ext.A4 is the postal acknowledgment card, Ext.A5(a) and Ext.A5(b) are the copies of account statement of the Complainant with the Union Bank of India, Kalpetta Branch, Ext.A6 is the photo of the building under construction referred in the contract and Ext.A7 is the statement of quantity of work with expenses.
4. On scrutiny of the document marked as Ext.A1, it is seen that the parties to the complaint had entered into a contract for the construction of building for the Complainant on the basis of the terms and conditions specified in the contract. Ext.A5(a) and A5(b) documents reveal that an amount of Rs.5,86,598/- have been paid to the Opposite Party and the Complainant contented that he had given Rs.50,000/- as advance to the Opposite Party at the time of signing the contract. That is the Opposite Party has received a total contract money of Rs.5,86,598 + 50,000= 6,36,598 from the Complainant. The Ext.A7 document produced by the Complainant reveals that the total cost of work done is Rs.3,56,816/-. So the excess amount received by the Opposite Party from the Complainant comes to Rs.6,36,598-3,56,816 = 2,79,782. But in the complaint, the Complainant has stated that the Opposite Party has done works costing about Rs.4,00,000/-. Moreover the Complainant has prayed to get refund of Rs.2,36,598/- as the excess amount received by the Opposite Party.
5. The Opposite Party had the opportunity to contest his case but he did not do so and hence we have no other option than to believe the allegations of the Complainant. From the complaint filed, proof affidavit, Exts.A1 to A7 marked and the oral deposition of the Complainant, Commission find that the Opposite Party had failed to perform his part in the contract which is deficiency in service from the part of the Opposite Party for which he is responsible and liable to compensate the Complainant. Therefore, the Complainant has the right to get relief as prayed for in the complaint.
In the result, the complaint is allowed and the Opposite Party is directed:
- To pay Rs.2,36,598/- (Rupees Two lakh Thirty Six thousand Five hundred and Ninety Eight only) to the Complainant being the excess amount received than the cost of works done with 12% interest from the date of this complaint.
- To pay Rs.1,00,000/- (Rupees One Lakh only) to the Complainant as compensation for deficiency in service and
- To pay Rs.5,000/- (Rupees Five thousand only) as cost of this complaint.
The above amounts shall be paid to the Complainant by the Opposite Party
within one month from the date of this order failing which the amounts will carry interest at the rate of 8% per annum from the date of this order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me
and pronounced in the Commission on this the 6th day of January 2023.
Dated of filing:06.11.2020.
PRESIDENT (I/C) : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the complainant:
PW1. Nitheesh. N.H. Complainant.
Witness for the Opposite Party:
Nil.
Exhibits for the complainant:
A1. Copy of Agreement. dt:21.11.2019.
A2. Copy of Lawyer Notice. dt:25.09.2020.
A3. Postal Receipt. dt:25.09.2020.
A4. Acknowledgement.
A5 (a) Statement of Account for the period from 01.01.2020 to 30.09.2020.
A5 (b). Report for the period from 01.01.2020 to 30.09.2020.
A6. Photo.
A7. Statement of Quantity of work with expenses.
Exhibits for the Opposite Party:
Nil.
PRESIDENT (I/C): Sd/-
MEMBER : Sd/-
