BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
FRIDAY, the 9th day of November, 2017
FIRST APPPEAL No. 14/2017
D.Vazhumuni, S/o Devparasu,
No.67, Periathope, Sellipet,
Mannadipet Commune,
Puducherry. ………. Appellant
Vs.
1. Venkatachalapathy, S/o Govinda Reddiar,
2. Latha, W/o Venkatachalapathy,
Both are residing at Plot No.32,
First Main Road, Ganapathy Nagar,
Oulgaret Commune, Puducherry. ……… Respondents
(On appeal against the order passed in C.C.No.17/2012, dt.03.05.2017 by District Forum, Puducherry)
C.C.No.17/2012
1. Venkatachalapathy, S/o Govinda Reddiar,
2. Latha, W/o Venkatachalapathy,
Both are residing at Plot No.32,
First Main Road, Ganapathy Nagar,
Oulgaret Commune, Puducherry. ……… Complainants
Vs
D.Vazhumuni, S/o Devparasu,
No.67, Periathope, Sellipet,
Mannadipet Commune,
Puducherry. ………. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
THIRU. S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Thiru V.Govindaradjou,
Advocate, Puducherry.
FOR THE RESPONDENTS:
Tvl.G.Krishnan, R.Rajavelu & D.Sundar,
Advocates, Puducherry.
O R D E R
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry, dated 03.05.2017 made in C.C.17/2012.
2. The Opposite Party before the District Forum is the appellant herein and the complainant therein is the respondent.
3. The parties are referred in the same position as they have been referred before the District Forum for the sake of convenience.
4. The case of the complaints before the District Forum is that they purchased a housing plot at No.32, First Main Road, Ganapathy Nagar, Oulgaret Commune, Puducherry by a registered sale-deed, dt.27.01.2005. They have approached the opposite party though one of their relatives by name Mr.Mohan Sundar for construction of house in the said plot. The construction agreement, dated 25.06.2009 was entered into between them. In and by which, a sum of Rs.15,13,000/- has to be payable by the complainants in nine installments. The said agreement was signed by both parties on 28.06.2009 and on the said date, the opposite party received a sum of Rs.1,50,000/- from the complainant. However, construction was started only on 25.01.2010. The opposite party started the construction work very slowly. Instead of 4 months, it has taken nine months. Meanwhile, the opposite party received the balance amount of Rs.14,95,000/- and endorsed on the back of the agreement, dt.25.06.2009. Apart from that, the opposite has also received a sum of Rs.20,000/- from the second complainant's father V.Ramadass and in all, a sum of Rs.15,15,000/- has been received by the opposite party. Since the opposite party undertaken several projects, he could not complete the construction. Believing the representation that he will complete the construction within 15 days from the first week of October, 2010, the complainants celebrated the house warming ceremony on 12.09.2010. However, in spite of several requests made by the complainant to finish the remaining construction, the opposite party deliberately postponed the construction work. Therefore, the complainant has requested one Mr.P.Sathiyamoorthy, registered civil engineer to inspect the building on 10.10.2010. He inspected the building and found that the construction was made only to the extent of 1,161 sq.ft. instead of 1,513 sq.ft. as per the agreement. The complainant even thereafter did not complete the construction and the complainant has no other go except to complete the work by engaging another contractor. A sum of Rs.3,50,000/- has been spent to complete the remaining construction. The complainants made several requests to the opposite party to refund the amount. He has also lodged police complaint. However, the opposite party, instead of making payment, sent a false and frivolous notice in order to escape from his liability. Therefore, the complainant filed complaint before District Forum.
5. Reply version has been filed on behalf of the opposite party, which in brief, are set out hereunder:
Entering into agreement by the opposite party with the complainant is admitted. As per the agreement, the complainant has to pay a sum of Rs.3,00,000/- as first installment, but, he has paid only Rs.1,50,000/- and failed to pay the balance amount. Since the complainants have not complied with the terms of agreement regarding payment, the opposite party could not complete the work as per the schedule. The delay in construction is due to the delay in payments. Further, the complainants have been often changing their minds and instructed to demolish the constructed portion and put up new construction by altering the plan. Further, the complainant insisted the opposite party to do extra works which were not contemplated in the agreement. In view of the same, the opposite party is not a position to complete the work. The allegation that the opposite party has put up only to the extent of 1,161 sq.ft. and not 1,513 sq.ft. as agreed, is not correct. The complainant deliberately suppressed certain facts regarding construction of portico, water tank, stair case and stair case head room. A joint agreement was entered in to between the complainant and opposite party on 19.09.2010 on account of modifications took place between the parties. As per the said agreement, opposite party was required to complete certain work. It is also agreed that painting has to be undertaken by the complainant themselves. In the said undertaking, the complainant has to pay a sum of Rs.1,11,200/- for the extra work. However, the complainant failed to honour the said undertaking. Legal notice that has been issued on behalf of complainant, was replied. There is no negligence on the part of opposite party. Thus, the reply version sought for the dismissal of the complaint.
6. On behalf of the complainant, one witness was examined as CW1 and Exs.C1 to C8 have been marked. Two witnesses were also examined on the complainant's side apart from CW1. On behalf of opposite party, O.P. himself was examined as RW1 and Exs.R1 to R3 were marked.
7. The District Forum framed the following three points for determination:
1. Whether the complainant is a consumer?
2. Whether the O.P. has attributed any act of deficiency of service
towards the complainant?
3. Whether the complainant is entitled for any relief?
8. On point No.1, the District Forum found that the complainants are consumers under the Act. On point No.2, the District Forum found that the opposite party has to pay Rs.3,50,000/- for the monetary loss incurred by the complainant; a sum of Rs.25,000/- was awarded as compensation for mental agony and sufferings and also awarded a sum of Rs.5,000/- towards costs of the proceedings.
9. As stated already, the present appeal is laid by the opposite party against the said order of the District Forum.
10. As regards the question whether the complainants are consumers, as per the Consumer Protection Act, it has to be seen that the complainant No.1 alone has entered into agreement with the opposite party for construction of the house in the plot. On the basis of the said agreement, the opposite party received amounts from the complainant. It is the case of the complainant that he has engaged a third party to finish the construction, which has been left over by the opposite party. However, it is denied by the opposite party. In such circumstances, we are of the view that the first complainant alone could be considered as consumer under the Act as against the opposite party and the second complainant is not a consumer. This point is held in favour of the first complainant. Therefore, we confirm the order of the District Forum in this regard.
11. On the second point, the District Forum has found that deficiency in service towards the complainant is attributable against the opposite parties. We are unable to accept the said view taken by the District Forum. In Para 10 of the order, the District Forum has held that the complainant has to be blamed for the delay in completing the construction and also further held that the delay in the construction of the house by the opposite party cannot be taken into consideration. Having so held by the District Forum, the District Forum may not be justified in holding that there is deficiency in service on the part of opposite party alone.
12. Secondly, as per Ex.R2, the complainant agreed to pay a sum of Rs.1,11,200 to the opposite party for completing the construction. It is borne out by records that the complainant has not paid the said amount to the opposite party for completing the construction. Though this fact was set out by the District Forum in its order, the same was not taken into consideration while directing the opposite party to pay a sum of Rs.3,50,000/- to the complainant for completing the remaining construction. Even assuming that a sum of Rs.3,50,000/- has been paid by the complainant for completing the remaining construction by employing third party, a sum of Rs.1,11,200 has to be deducted from the said amount of Rs.3,50,000/-, since only on payment of the said amount as promised by the complainant, the opposite party could complete the construction. Therefore, looking at any angle, the order of the District Forum directing the opposite party to pay a sum of Rs.3,50,000/- to the complainant is required to be modified. The opposite party could be directed to pay only a sum of Rs.2,38,800 (Rs.3,50,000 – Rs.1,11,200).
13. That apart, since we have held that deficiency in service cannot be attributable to the opposite party alone, a sum of Rs.25,000/- awarded as compensation for mental agony to the complainant cannot be a justifiable one. At the risk of repetition, we can point out that the District Forum in para 10 of the Order, has clearly set out that the delay of construction was caused because of the complainant. Therefore, we direct the opposite party to pay a sum of Rs.15,000/- under the said head instead of Rs.25,000/- ordered by the District Forum. A sum of Rs.5,000/- has been awarded by the District Forum towards cost, which is just and reasonable. Therefore, we are inclined to direct the opposite party to pay
(a) a sum of Rs.2,38,800/- (Rupees Two-Lakh Thirty-Eight Thousand and Eight-Hundred only) to the 1st complainant for the monetary loss sustained by him;
(b) to pay a sum of Rs.15,000/- (Rupees Fifteen-Thousand only) towards compensation for mental agony and sufferings; and
(c) a sum of Rs.5,000/- (Rupees Five-Thousand only) towards costs.
(d) The said amounts shall be payable within two months from the date of receipt of this order, failing which, they shall carry interest at 12% p.a. from the date of expiration of two months' period till final payment. However, there is no cost in this appeal.
14. Thus, the appeal is allowed in part to the extent indicated above.
Dated this the 9th day of November, 2017
(Justice. K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
