Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
25th day of January 2023
CC 28/18 filed on 23/01/18
Complainants :1) Shaji Kumar, S/o Thankappan, Thuruthumel House,
Kundukkad, ChettikkadDesom,
Madakkathara Village, Thrissur.
2) Aneesha, W/o Shaji Kumar, Thuruthumel House,
Kundukkad, ChettikkadDesom,
Madakkathara Village, Thrissur.
(By Advs. John Neelankavil& Lloyd Arby, Thrissur)
Opposite Party : Gijo George, S/o George Joseph, Pottayil House,
MuttikkalDesom, Madakkathara Village, Thrissur.
Proprietor, JPG Constructions & Civil Engineering,
Thanikudam, Thrissur.
(Ex-parte)
O R D E R
By Sri. C.T. Sabu, President :
Facts of the Case as follows:
The complaint is filed under Section 12 of the Consumer Protection Act, 1986. The complainants are husband and wife. The 1st complainant is working abroad. The complainants’ case is that,the 1st complainant made a written agreement with the opposite party on 28/01/16 for completion of the remaining works in respect of the double storied house owned by the complainants which is approximately come to 2422 sq.ft. According to the agreement between the parties the opposite party had to complete all the left over works as stipulated in the agreement within a period of 5 months. The materials for completion of the work are to be purchased by the opposite party by himself as per the norms and quality prescribed in the agreement. The agreement envisages all the details of work to be completed, the quality of items and all other related norms to be adhered by the opposite party. According to the agreement Rs.550/- per square feet has been decided for completion of work amountingtoRs.13,32,100/- (Rupees Thirteen lakhs thirty two thousand and hundred only). The agreement also stipulates that if the opposite party failed to fulfil the conditions in the agreement he will be liable for the damages to the complainant. The opposite party had failed to complete the works within the period of five months stipulated in the agreement but in the meantime the opposite party had received Rs.12,90,000/- (Rupees Twelve lakh ninety thousand only) from the complainant for the said works. The complainant was not in a position to occupy the house, within time due to the breach of the agreement. The said house kept in idle for several months.Hence the complainant was constrained to make other arrangements to complete the work. Again with the direction of the opposite party made another agreement with a sub contractor on 20/12/2016. The Sub contractor was introduced to the complainant by the opposite party to complete the other remaining works. An additional cost of Rs.1,70,000/- was paid to the new contractor also by the complainant.That amount actually to be met by the opposite party as per the earlier agreement. The opposite party evaded to make payment to the workers and subcontractors after taking the amount from the complainant. At many instances the complainants had to make additional payments to said contractors directly under the direction of the opposite party. The complainant is not satisfied with the work done by the opposite party as substandard building materials were used for the construction. The complainant has sustained huge loss, hardship and mental agony due to the arrogant attitude of the opposite party. Also deserved to be compensated for the mental agony and hardship caused.The act of the opposite party towards the complainant is illegal and unfair trade practice. There is deficiency in service also on the part of the opposite party. The complainant is entitled for the amount which was paid by him over and above against the agreement. The complainant issued a lawyer notice to the opposite party dtd. 24/12/17claiming the excess amount paid by him and for compensation. But it was returned as unclaimed.Hence this complaint.
2) On receiving complaint the Commission issued proper notice to the opposite party. The same was returned as unclaimed. The opposite party failed to enter appearance, nor filed version before the Commission. Hence proceedings against the opposite party were set ex-parte and the case is posted for complainant’s evidence.
3) When the case came for evidence the 2ndcomplainant filed proof affidavit in which she affirmed and explained all the averments of the complaint in detail. There are 9 documents produced from their side which are marked as Exts. A1 to A9. The Commission Report as per IA 410/18 filed by the Expert Commissioner is marked as Ext. C1. Ext. A1 is the Agreement between the 1st complainant and opposite party dtd. 28/01/2016. Ext. A2 is the visiting card of JPG Constructions and Civil Engineering. Ext. A3 is the estimate dtd. 20/12/2016 issued by Royal Furniture, Kundukad P.O., Thrissur. Ext. A4 is the copy of estimate dtd. 30/05/2017 issued by Surya Constructions, Kuruchikkara. Ext. A5 is the copy of House Construction agreement dtd. 20/12/2016 between Aneesha and Praveen K.M., Ext. A6 is the lawyer notice dtd. 24/12/17 send by the counsel of the complainant. Ext. A7 is the Postal Receipts (2 Nos.) dtd. 27/12/17. Ext. A8 are the notice returned ‘unclaimed returned to sender’. Ext. A9 is the Statement of Account of the 1st complainant for the period from 15/01/16 to 12/10/17 issued by Union Bank of India.
4) We have meticulously perused all the documents produced from the side of the complainant and examined the Ext. C1 Commission report.Also considered the contentions of the proof affidavit filed by the complainant. The Ext.A1 agreement would go to show that there was an agreement between the 1st complainant and with the opposite party with regard to the completion of the work of the house of the complainants. All the conditions are envisaged in detail with regard to the quality of materials and nature of work in the agreement. The complainant entered another agreement on 20/12/16 is evident from Ext. A5. Ext. A3 and A4 would go to show that there are certain payments made by the complainant as contended in the complaint. The complainant has issued lawyer notice to the opposite party on 24th December 2017 and same was returned unclaimed on 28/01/2018. Ext. P6 & P8 documents prove the same. The opposite party had obviously received Rs.12,90,000/- from the complainant. Only Rs.42,100/- remained to be paid by the complainant as per the earlier agreement for the entire completion of work. Ext. C1 report would go to show that the complainant incurred Rs.3,16,520/- in addition to complete the work. No other works are remained to be completed as per the earlier agreement.It can be calculated that the complainant incurred an excess amount of Rs.2,74,420/- (3,16,520 – 42,100) over and above against the A1 agreement. The notice issued from the Commission and Ext. A6 lawyer notice were returned unclaimed. In the absence of any evidence to the contrary we find no reason to disbelieve the allegations raised by the complainant regarding opposite party’s non-compliance of the Ext. A1 agreement.
5) The Notice issued from the Commission returned stating “unclaimed” by the opposite party. The opposite party deliberately evaded from the process of law. This disdainful attitude of the opposite party indicates his blatant disregard to the process of law. In the absence of any evidence to the contrary, we are in the opinion that there is deficiency in service and unfair trade practice on the part of the opposite party. Hence, we are inclined to allow this complaint.
In the result the complaint is allowed and the opposite party is directed to pay Rs.2,74,420/- (Rupees Two lakh seventy four thousand four hundred and twenty only) paid in excess by the complainant over and above Ext. A1 agreement along with 9% interest from the date of the complaint. Also directed to pay Rs. 30,000/- (Rupees Thirty thousand only) towards compensation and cost for the mental agony and hardship caused to the complainant. All the amounts shall be paid within one month from the date of receiving copy of this order. If failed the complainant is entitled for 9% interest for the entire amount till realisation.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 25th day of January 2023.
Sd/- Sd/- Sd/-
SreejaS. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. A1 Agreement between the 1st complainant and opposite party
dtd. 28/01/2016.
Ext. A2 visiting card of JPG Constructions and Civil Engineering.
Ext. A3 estimate dtd. 20/12/2016 issued by Royal Furniture, Kundukad P.O.,
Thrissur.
Ext. A4 copy of estimate dtd. 30/05/2017 issued by Surya Constructions,
Kuruchikkara.
Ext. A5 copy of House Construction agreement dtd. 20/12/2016 between
Aneesha and Praveen K.M.,
Ext. A6 lawyer notice dtd. 24/12/17 send by the counsel of the complainant. Ext. A7 Postal Receipts (2 Nos.) dtd. 27/12/17.
Ext. A8 notice returned ‘unclaimed returned to sender’.
Ext. A9 Statement of Account of the 1st complainant for the period from
15/01/16 to 12/10/17 issued by Union Bank of India.
Id/- President
