Complaint filed on: 28-02-2022

                                                      Disposed on: 13-09-2022

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

CC.No.69/2022

DATED THIS THE 13^TH DAY OF SEPTEMBER, 2022

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

Complainant: -

Mr.Gangadharaiah, alias Gangadharappa.

S/o Late Boralingaiah

Lakkenahalli, Hebbur hobli,

Tumkur Taluk

(By Mr.NC, Gangadharaiah,Aadvocate  )

                                        V/s                        

Opposite parties:-    

1. Mr. K. Jagadeesh

S/o Krishnamurthy, Major House No 542, 1^st Cross, Kalikanagara,

Andhralli Main Road, VN Post, Bengaluru

AND

Also resides at Lakkenahalli Village,Behind Ramadasegowda house,Nagavalli post, Hebbur hobli, Tumkur taluk.

2. Lakshmamma, W/o Krishnamurthy,Major Lakkenahalli village, Behind Ramadase gowda house, Nagavalli post, Hebbur hobli, Tumkur taluk.

(OP No.1 and 2-Called out absent)

:ORDER:

BY SRI.KUMARA.N., MEMBER

This complaint filed by the complainant under Section 35 of Consumer Protection Act, 2019, (along with IA under order 69 (2) of limitation Act to condone delay), to direct the OPs (hereinafter called as OP Nos.1 and 2) Re convey the B schedule property in favour of the complainant or to pay Rs 300000=00 along with interest @ 12% p.a from 02-02-2018 to till date, to the complainant and to pay a sum of Rs.5,00,00=00 towards deficiency of services, Rs 50000=00,towards mental agony and harassment and Rs 5000=00 towards cost of this proceedings.

2.      It is the case of the complainant that, on 02-02-2018 the complainant entered house construction agreement with the OPs which was registered and handed over all required documents, accordingly the OPs agreed to construct the complainant house / building with AC sheet within six months from the date of agreement i.e. 02-02-2018, measuring East to west 30 feet, North to south 20 feet, which includes one hall, one room with attached bath, one kitchen with all basic necessities for cooking along with electricity, water and wardrobe, which was situated at Lakkenahalli village, Hebbur hobli, Tumkur taluk. The complainant submitted that the complainant on 02-02-2017 sold his said property bearing khata number 255 and No 152500903800720028 measuring East to west 40.24 feet, North to south 70.48 feet, which was situated at  Lakkenahalli village, Hebbur hobli, Tumkur taluk to the OPs, through registered sale deed . The complainant further submitted that the SR value of the said property was Rs 120000=00, but the market value was Rs 300000=00, the complainant upon sold the said property to the OPs, in lieu of monetary considerations of market value of the said property, the OPs agreed to construct AC sheet house to the complainant, accordingly OPs executed house construction agreement to the complainant. 

2(a). The complainant further submitted that the OPs are engaged in the business of construction of houses, buildings by having manpower and other resources with them and they already constructed house along with compound in the said sold property of the complainant and living in the same house, but as per the agreement the OPs not constructed AC sheet house within six months of the agreement to the complainant in spite of the several requests and approach, and the OPs failed in providing services as agreed which leads unfair contract and deficiency of service on the part of OPs, hence, this complaint.

3.      After the service of notice, the OP Nos.1 and 2 not appeared and called out absent.

4.      The complainant counsel filed his affidavit evidence along with 5 documents, which were marked as Exs.P1 to P5 and the OPs remained absent in spite of the sufficient opportunities.

5.      We have heard the arguments of complainant counsel and the points that would arise for determination are as here under:

1)      Whether the complainant proves the deficiency of service/unfair contract of OPs?

2)      Is complainant entitled to the reliefs sought for?

3)      What order ?

6.      Our findings on the aforesaid points are as follows:

Point No.1: partly in the affirmative

Point No.2: As per the final order

:REASONS:

7.      Point No.1 to 2: The learned counsel for the complainant argued that the OPs have failed to construct AC sheet house as agreed in spite of all necessary documents given and considerations received from the complainant, this acts of OPs leads to unfair contract and deficiency in the service. The complainant counsel produced Ex P1, registered sale deed, Ex P2,tax paid receipt, Ex P3 , Form No 9, Ex P3A,Form No 9(A),Ex P4, Form No 11 and Ex P5, House construction agreement. Further the complainant in their affidavit has reiterated the averments of complaint.

8.      According to the Consumer protection Act 2019;

 (A) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

(B) "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:— (i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or (ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or (iii) refusing to accept early repayment of debts on payment of applicable penalty; or (iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or (v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or (vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage;

9.      It was bounden duty of the OPs, to construct AC sheet house to the complainant, as they received considerations for the purpose and agreed by entering registered house construction agreement (Ex P5), which leads to the deficiency in the service and unfair contract of the OPs.  On perusal of the Ex.P5 OP No.1 is entered house construction agreement with the complainant.  Hence, OP No.1 is liable.   

10. The complainant prayed to award Rs.50000=00 each, towards deficiency of service and mental agony, but the complainant not produced any documents/evidence to prove this.

11. By considering the above discussion in our view the OP No.1 has not constructed AC sheet house to the complainant, even though OP No.1 received considerations for the purpose and executed registered house construction agreement to the complainant and compelled the complainant to approach this Commission hence, the complainant entitled litigation and compensation. Hence, we proceed to pass the following;

          The complaint is allowed in part against OP No.1 and the complaint against OP No.2 is hereby dismissed.

The OP No.1 is directed to pay Rs.3,00,000=00 along with interest @ 8% p.a to the complainant from 02-02-2018 to till realization.

The OP No.1 is further directed to pay compensation of Rs.12,000/- and litigation cost of Rs.10,000-00 to the complainant.

 The OP No.1 is further directed to comply the above order within 30 days from the date of receipt/knowledge of the order. Otherwise it carries interest @ 9% per annum from 02.02.2018 till realization.  

 Furnish the copy of order to the complainant and opposite parties at free of cost.