Tamil Nadu

StateCommission

A/404/2023

A. Boopathi, S/o Alagappan - Complainant(s)

Versus

Tr.S.Lakshmanan, S/o Sokkan Chettiyar & Anr. - Opp.Party(s)

M/s M.Sivavarathan

26 May 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU JUSTICE R. SUBBIAH  : PRESIDENT

                 THIRU R  VENKATESAPERUMAL          :    MEMBER

 

F.A. No.404 of 2023

(Against the Order passed in C.C. No.46/2019 dated 07.07.2022 on the file of the D.C.D.R.C., Tiruppur)

 

Dated the 26^th day of May 2023

A. Boopathi,

S/o. Mr. Alagappan,

Licensed Building Surveyor,

Srimathi Jewellery &

Sakunthala Oil Store Buildings,

2^nd Floor, P.N. Road,

No.92, Avinashi Road,

Gandhi Nagar,

Tiruppur – 641 603.                         .. Appellant / Opposite Party.

 

- Versus –

1. Thiru. S. Lakshmanan,

S/o. Sokkan Chettiyar,

 

2. Tmt. L. Vanjikodi,

W/o. Mr. Lakshmanan,

 

Both are residing at:

Site-3, VIP Nagar,

Near Mugil Kids School,

Koonthanpalayam East,

Neruperichal Village,

Pooluvapatti Road,

Tiruppur District – 641 602.    

                                  .. Respondents 1 & 2 / Complainants 1 & 2.

 

Counsel for Appellant / Opposite Party    :  M/s. M.Sivavarthanan

Counsel for Respondents 1 & 2 /

Complainants 1 & 2                               :  M/s. K. Kumaran

                The Respondents 1 & 2 as complainants 1 & 2 have filed a complaint before the District Commission against the opposite party praying for certain directions.  The District Commission had passed an ex-parte order, allowing the complaint.   Against the said ex-parte order, this appeal is preferred by the opposite party praying to set aside the order of the District Commission dt. 07.07.2022 in C.C. No.46/2019.

 

                This petition came before us for hearing finally, today.  Upon hearing the arguments of the counsels appearing for both parties, perusing the documents, lower court records and the order passed by the District Commission, this Commission made the following order in the open court.

 

ORDER

 

JUSTICE R. SUBBIAH ,  PRESIDENT  (Open court)

 

1.     The opposite party before the District Commission is the appellant herein.

 

2.     The case of the complainants before the District Commission is that in the year 2013, they have purchased a land measuring an extent of 4410 ½ (10 ¼) cents in Neruperichal Village, Tiruppur Taluk vide Document No.9884/2013.  They sold 6 cents of land to a third party.   After selling 6 cents of land, the complainants have planned to construct a house in the remaining 4 cents of the land.   The respondent herein is a building contractor.   Hence, for the purpose of constructing a house, the complainants had entered into a Construction Agreement on 22.08.2018 with the opposite party who is a building Contractor by profession.  The opposite party had also prepared a construction plan for the ground and first floors.  The complainants had also paid a sum of Rs.16,00,000/-  for construction of the house.  On completion of construction, the complainants have occupied the house.   But within a span of 2 weeks period, the complainants found that there was a crack which developed upstairs and they were unable to use the steps to reach the 1^st floor.  Further, there were cracks on the roof and walls.  The complainants made repeated requests and demands to the opposite party to rectify the defects.  But he has not come forward to rectify the defects.   At one point of time, he threatened the complainant stating that if they come and disturb him he will lock and seal the house.  The complainants had also engaged one Mr. N. Raghuraman, MRICS, ME. (Struct) to inspect the house to find out and assess the defects.  The said Mr. N. Raghuraman on inspection, prepared a report dt 01.11.2019 stating that the construction was sub-standard and the foundation was only 3 feet but to construct a first floor the foundation should be minimum of 6 feet.  The act of the opposite parties had caused great mental agony to the complainants.   Hence, alleging deficiency in service on the part of the opposite party, the complainants had filed a complaint before the District Commission claiming refund of the amount of Rs.16,00,000/- along with interest at the rate of 24% till realization, Rs.2,00,000/- towards compensation for mental agony and deficiency in service with cost to the complainants. 

3.     Though notice has been served on the opposite party he has not chosen to appear before the District Commission and hence, the opposite party was set exparte.  Consequently, the District Commission passed an ex-parte order directing the opposite party to pay a sum of Rs.2,50,000/- towards compensation for construction of the substandard building and to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainants.

 

4.     Aggrieved over the said order, this appeal is preferred by the opposite party praying for setting aside the order and for a chance to contest the case on merits.

 

5.     Before this Commission, the counsel for the appellant/ opposite party submitted that there is no deficiency of service on the part of them and that they have got valid defence and a fair chance of succeeding in the complaint.  Further, the appellant / opposite party submitted that the appellant was set exparte on 27.12.2019 and thereafter, he was not able to follow the case due to the Covid-19 pandemic lockdown and the District Commission decided the case based on the complaint.  Therefore, he sought to set aside the order of the District Commission and prayed for an opportunity to contest the case on merits.

 

6.     When the case had come up before this Commission on 22.05.2023, after hearing the submission of the both parties, this Commission had felt that there is some force in the arguments of the counsel for the appellant /opposite party and therefore, in order to give a chance to the opposite party to agitate their right on merits, was inclined to allow this appeal by remanding the matter to the District Commission, to dispose of the case on merit.   However, considering the lethargic attitude of the opposite party, in not appearing before the District Commission, we imposed a cost of Rs.3,000/- to be paid to the Legal Aid Account of the State Commission on or before 25.05.2023.   Today, when the matter appeared in the list it was reported that the condition imposed by this Commission has been complied with.    Hence, this appeal is allowed today by remanding back the complaint to the District Commission for fresh disposal according to law.

 

In the result, the appeal is allowed by setting aside the order of the District Commission, Tiruppur in C.C. No.46/2019 dt.07.07.2022, and the matter is remanded back to the District Commission, Tiruppur for fresh disposal according to law and on merits after hearing both sides.

 Both parties are directed to appear before the District Commission, Tiruppur on 26.06.2023 for further proceedings.  The appellant / opposite party is directed to file Vakalath, Written Version, proof affidavit, written arguments and documents if any on the same day itself.

 The District Commission is directed to dispose of the complaint on merits within three months after hearing both parties as expeditiously as possible as per law.  

 Both parties shall abide by the order of the District Commission regarding the mandatory deposit already made by the appellant / opposite party before this Commission.

 

 

 

   R  VENKATESAPERUMAL                                                                                                                        R. SUBBIAH

                 MEMBER                                                                                                                                       PRESIDENT

 

 

Index :  Yes/ No

 

KIR/SCDRC/Chennai/Orders/May/2023