Date of Filing      : 19.04.2022
                                                                                                                 Date of Disposal: 25.05.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                      .....MEMBER -I
                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-II
 
CC. No.186/2022
THIS THURSDAY, THE 25th DAY OF MAY 2023

Mrs.R.Rajani,
W/o.S.Paul Murugan,
Residing at Door No.120-A,
Thayuman Chetty Street,
Ponneri Taluk, Thiruvallur District.

Now Presently residing
at Door No.18, Sri Ganesh Nagar,
Anuppambattu, Minjur – 601 203,
Ponneri Taluk, Thiruvallur District.                                                  .......Complainant.
                                                                          //Vs//
Mrs.Desarani, W/o.K.Gandhi,
Redising at Door No.39,
Sri Ram Nagar, Anuppambattu Village,
Minjur Post, Ponneri Taluk,
Thiruvallur District.
Also at
Door No.11,
Ernavoor Kuppam, Thiruvottiyur
 Chennai 600 019.                                                                              ...Opposite party.
 
Counsel for the complainant                                :  M/s.R.Dinesh Kumar, Advocate.
Counsel for the opposite party                            :  Mr.A.Naveen Kumar, Advocate.
                        
This complaint is coming before us on various dates and finally on 12.05.2023 in the presence of M/s.R.Dinesh Kumar counsel for the complainant and Mr.A.Naveen Kumar counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in construction along with prayer to direct the opposite party to refund a sum of Rs.17,86,430/- paid by the complainant and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony and torture suffered by the complainant and to pay a sum of Rs.20,000/- as cost of the complainant.
Summary of facts culminating into complaint:-

The complainant entered into a construction agreement with the oppostie party for constructing 783 square feet individual house on 22.05.2019. In accordance to the construction agreement dated 22.05.2019 the entire cost of the construction was fixed at Rs.18,65,000/-. Even though in the construction agreement the entire cost of construction was fixed at Rs.18,65,000/- promising that the construction would be completed within a period of one year orally from the date of construction agreement under the gist of carrying out some additional work,  the opposite party had collected more than the consideration amount a total sum of Rs.36,51,430/- from the complainant on various dates. After excess amount was received from the complainant, the opposite party gauranteed good quality of construction including plumbing, electrical, drainage, painting, doors, windows, tiles etc.  The opposite party had assured that the complainant could construct three floors in total i.e. they could put up further two more floors over existing construction in future. The complainant inspected the building after their occupation on 18.12.2021 and they came to know all the defects in the building such as improper tile works, electricity connection, painting work, wall crakes, second quality doors, lying of pipe line. The same was informed to  the opposite party but they had refused to rectify. There are cracks in the concrete ceiling, which are 6 to 8 feet long, parallel and perpendicular.  Every long crack in the outer wall has an equivalent crack in the inner wall and the cracks are gradually increasing in length and width. It was submitted that the building was very weak in its construction since it seems that the opposite party had used substandard quality of building materials and thereby there were cracks all over the building and also in RCC concrete roof slabs.  The complainant duly informed these facts to opposite party but the opposite party refused to rectify the same. The wall was cracking structurally in between the columns.  Though the wall was not bearing load, this was due to plinth beam deflection in the middle.  The cracks also indicted that the plinth beam was not sufficiently designed to take up the wall and other loads coming on it. The opposite party has not used sufficient quantum of iron rods in ceiling and also the composition of cement used in concrete was that of inferior nature.  Thus the complainant was put on serious mental agony and torture by the opposite party. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to refund a sum of Rs.17,86,430/- paid by the complainant and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony and torture suffered by the complainant and to pay a sum of Rs.20,000/- as cost of the complainant.
Crux of the defence put forth by the opposite party:-
Opposite party admits that the she entered into a construction agreement with the complainant on 22.05.2019 and denied the allegation that the entire cost of the consideration was fixed as Rs.18,65,000/- and in pursuant to that the complainant had paid Rs.21,10,130, on 27.01.2020 and 4,56,300/- on 14.09.2021, 03.10.2021, 11.10.2021 and totally Rs.25,66,430/-. The opposite party denies the allegation that the opposite party was able to bare minimum expenses to rectify the defects which were not affecting the permanent nature of building and there are cracks in the concrete ceiling which are 6 to 8 feet long, parallel and perpendicular. The opposite party carried out additional work which comes around Rs.2,98,200/-.  As per the construction agreement it was agreed to construct 783 square feet for Rs.2,000/- per square feet in the year 2019.  Due to COVID situation the building material cost and labour cost got increased twice. In order to continue good relation with the complainant, since the complainant promised to recommend her friend, the opposite party incurred all the losses. When all the works were done the complainant wanted to change the main door from southeast to Northeast.  The opposite party informed that changing the main door will cost more money, but the complainant adamantly wanted to change it.  For that the existing entrance was closed and North east wall was demolished and new entrance was created at a cost of Rs.20,000/-.  If really there was any problem in the construction the complainant or her husband should have informed the opposite party. The whole building was constructed with bank loan.  The bank officials and technical persons inspected the house at every stage and they checked the quality and calculated the value of the work done and only after their satisfaction they released the amount.  This procedure followed till the final work.  When the quality of building was checked step by step there was no chance to construct a low quality building.  Further from the beginning till the end of the construction the complainant and her husband were in the construction site. The claim of the complainant against the opposite party was based only on averment in the complaint without any corroborative evidence which can never be allowed. Thus they sought for dismissal of the complaint.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to Ex.A8 on their side.  on the side of opposite party proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B9 on their side.
Points for consideration:-
Whether the opposite party had committed any deficiency in service as alleged by the complainant with respect to the construction made by them to the complainant?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Construction agreement dated 22.05.2019 was marked as Ex.A1;
Sale Deed dated 13.06.2019 was marked as Ex.A2;
Copy of loan repayment schedule dated 05.07.2019 was marked as Ex.A3;
Payment receipts was marked as Ex.A4;
Photo copies was marked as Ex.A5;
Legal notice issued by the complainant was marked as Ex.A6;
Acknowledgement card was marked as Ex.A7
Address proof of the opposite party was marked as Ex.A8;
On the side of opposite party the following documents were submitted in proof of thier defence;
Construction agreement dated 22.05.2019 was marked as Ex.B1;
Building approval copy dated 20.11.2019 was marked as Ex.B2;
2nd building approval copy dated 17.07.2021 was marked as Ex.B3;
Bills (series) was marked as Ex.B4;
Whatsapp conversation with the Bank Manager was marked as Ex.B5;
Bank Statement of opposite party was marked as Ex.B6;
Details of expenditure was marked as Ex.B7;
Complaint given by the opposite party to Minjur Police Station was marked as Ex.B8;
Photographs were marked as Ex.B9;
It is represented by the counsel appearing for the complainant that their written arguments may be treated as oral arguments.  Heard the oral arguments of the opposite party. 
The crux of the written arguments by the complainant is that he being an absolute owner of the property entered into construction agreement with the opposite party for construction of 783 square feet house.  Entire cost of construction was paid.  As the construction made by the opposite party was not satisfactory and consisted of various defects complainant approached the opposite party to rectify the same but they refused.  It is submitted by the complainant that the opposite party did not construct the house as per the provisions found in the construction agreement.  The opposite party did not use good quality materials as stated in the construction agreement.  The daily wages worker employed by the opposite party did not have any authorization to construct hence many neighbours complained against the worker of the opposite party.  The opposite party is not a qualified engineer and was cheating and extorting money from people by constructing house in a substandard manner, thus he sought for the complaint to be allowed.
The opposite party argued that the complaint itself is frivolous complaint and they were doing construction business in and around Minjur area for more than seven years and they were very well known the locality for quality construction with minimum price.  As per the agreement Rs.2,000/- for square feet was fixed for constructing the complainant’s building and Rs.3,65,000/- for additional works.  The house was constructed out of housing loan from the bank and hence the bank released payment only after completion of stage wise construction.  Due to COVID-19 the construction was stopped and could not be preceded.  As the complainant extended the construction area from 783 square feet to 1050 square feet again the opposite party applied for approval for extending the area of construction and it was obtained on 17.07.2021.  The construction materials were used only as per terms found in the construction agreement.  As per the construction agreement building materials, fixtures, electrical and plumbing items were used.  The complainant and her husband alone selected KAG branded Tiles, Kamatchi TMT Iron rods, Ramco Cement, Star and Ashirvad PVC pipes, Asian paints, Parryware bothroom fittings, Fibroz switches and for electrical wirings Orbit and Kundan wires were used.  All the brands are reputed brands and selected by the complainant and her husband. Due to COVID -19 the building materials cost and the labour cost increased twice but to maintain good relationship with the complainant the opposite party did not ask for any extra amount and incurred loss. As the complainant fought with the Bank Manager, the Bank Manager refused to issue cheque and this opposite party took steps for the cheque clearance.  When all the works were done, the complainant wanted to change the main door from South east to Northeast.  As the complainant wanted the opposite party to do the weathering work free of cost this opposite party refused, due to which the complainant compelled and obtained the house key on the guise of house inaugural function but even without given any information to the opposite party occupied the house and started living in the house.  When the opposite party asked for the balance amount the complainant wanted to do some touch up work which was also completed by the opposite party.  As the complainant informed the opposite party that someone would try to steal their house if the opposite party did not hand over the remaining keys, immediately this opposite party handed over the remaining keys without getting the balance amount.  As the opposite party could not get the amount they filed a police complaint in February 2022 before Minjur Police Station.  But the complaint was closed as it is civil in nature. To escape from the liability the present complaint was filed.  No corroborative evidence was submitted for the complaint allegations by citing decision rendered by the Supreme Court in Revneet Singh Bagga Vs Klm Royal Dutch Airlines and another reported in (2000) 1 SCC 66 and decision rendered by the Supreme Court in Sgs India Limited Vs Dolphin International Limited Reported in AIR 2021 SC 4849. Thus the opposite party sought for dismissal of the complaint stating that they did not committed any deficiency in service.
On appreciation of the entire pleadings and materials, the allegation of the complainant is that the opposite party did not construct the building in accordance with the terms found in the construction agreement.  Though the opposite party had raised some issue as to balance of money to be paid by the complainant, they did not produce any material evidence except a copy of complaint copy. No substantive proof was produced by the opposite party.  On the side of complainant when it is alleged that the construction was not made as per the agreement except producing the construction agreement, no material evidence was produced by the complainant in proof of the same.  The complainant had produced only the copy of construction agreement, Sale Deed, Loan repayment schedule, payment receipt, photograph and legal notice.  Merely by seeing the photograph produced as Ex.A5 this commission could not come to conclusion that the construction made was defective and not in accordance with the terms of the construction agreement.  In the absence of any expert opinion the complainant had failed to produce any supportive documents in proof of her allegations.  Further the defence raised by the opposite party that the house was built out of housing loan and the bank officials inspected the building at every stage before releasing the amount and hence there was no chance for deviation from the construction agreement also seems to be an acceptable version.  In the facts and circumstances and in the absence of any corroborative evidence in proof of the complaint allegations we are in a position to disbelieve the complaint allegations and resultantly no deficiency in service could be imposed upon the opposite party in the matter of construction.  If at all the complainant had come forward seeking for appointment of an Advocate Commissioner and inspection of the building by aChartered Engineer to bring out the defects, we could have believed the case of the complaint.  Thus we answer the point accordingly holding that the complaint allegations against the oppostie party was not proved by the complainant and that the opposite party had not committed any deficiency in service to the complainant.
Point No.2:-
As we have held above that the complainant had failed to prove that the opposite party had committed deficiency in service, she is not entitled any relief from the opposite party.
In the result the complaint is dismissed.  No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 25th day of May 2023.

   Sd/-                                                           Sd/-                                                  Sd/-
MEMBER-II                                            MEMBER-I                                     PRESIDENT

List of document filed by the complainant:-
Ex.A1 22.05.2019 Construction agreement. Xerox
Ex.A2 13.06.2019 Sale Deed. Xerox
Ex.A3 05.07.2019 Loan repayment schedule. Xerox
Ex.A4 ................. Payment receipts. Xerox
Ex.A5 ................. Photo copies. Xerox
Ex.A6 03.08.2022 Legal notice issued by the complainant. Xerox
Ex.A7 07.08.2022 Acknowledgement card. Xerox
Ex.A8 ................ Address proof of the opposite party. Xerox

List of documents filed by the opposite party:-

Ex.B1 22.05.2019 Construction agreement. Xerox
Ex.B2 20.11.2019 1st building approval copy. Xerox
Ex.B3 17.07.2021 2nd building approval copy. Xerox
Ex.B4 ……………. Bills (series). Xerox
Ex.B5 …………. Whatsapp conversation with the Bank Manager. Xerox
Ex.B6 …………… Bank Statement of opposite party. Xerox
Ex.B7 …………. Details of expenditure. Xerox
Ex.B8 05.02.2022 Complaint given by the opposite party to Minjur Police Station. Xerox
Ex.B9  Photographs  Xerox

 

   Sd/-                                                                Sd/-                                           Sd/-

MEMBER-II                                               MEMBER-I                                  PRESIDENT