STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

                                    (Additional Bench)

Neelam Bansal W/o Sh.Pawan Bansal through her special power of attorney Sh.Pawan Bansal, Advocate S/o late Sh.H.R.Bansal, resident of House No.1206, Sector-44-B, Chandigarh.

                                                                                        ...  Appellant.

                                               Versus

1. M/s Dev Constructions through its proprietor/partner Sh.Raj Verma, S/o Sh.Ram Chander
2. Dev Dutt Verma S/o Sh.Raj Verma

Both residents of Flat No.001, Suncity, Sector-20, Panchkula. 

                                                                            ..... Respondents

Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 10.05.2023 passed by       District       Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint No.701/2021.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       Mr.PREETINDER SINGH,MEMBER

For the appellant:     Sh.Pawan Bansal, Advocate   

 For the respondents: None( Respondents ex-parte).

 PER PADMA PANDEY,PRESIDING MEMBER

                   This appeal is directed against the order dated 10.05.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it disposed of the complaint, being not maintainable. 

 2.        Before the Ld. Lower Commission, it was case of the complainant/appellant that  in order to raise construction on her Plot No.367, Sector 77, Mohali (Punjab), the complainant contacted Opposite Parties/respondents and entered into an Agreement (Annexure C-1) on 27.11.2019.  The total cost of construction was settled in lump sum of Rs.15,50,000/- and the building was to be completed in all respects within four months latest by 31st March, 2020.  The complainant made advance payments to the Opposite Parties and till 31.12.2019 paid an amount of Rs.4,91,000/- for purchase of building material etc., whereas work done by them at the site was negligible.  It is averred that though the OPs failed to complete the construction within the stipulated time yet on their request , the complainant still paid an amount of Rs.2,90,000/- to the opposite parties from 3.6.2020 to 10.7.2020.  It is further averred that   before laying the lintel, the OPs raised demand for more amount, whereas the complainant was required to pay  55% of the total agreed amount upto the stage of lintel, which comes to Rs.8,52,000/-  and against  the said amount, the complainant had already made payment to the tune of Rs.7,81,000/-  including Rs.40,400/- paid to GMADA and as such, the complainant was required to pay only  Rs.1,11,400/-  to the Opposite Parties upto the stage of lintel and not Rs.3 lacs as per their demand. Accordingly, the complainant paid an amount of Rs.1,00,000/- to the OPs through NEFT.  It is alleged that   that after taking payment, the OPs did not place any order for shuttering and even the walls upto the stage of lintel were not  completed at all and thus the OPs have played a fraud with the complainant.  It is further averred  that the OPs have obtained money from the complainant in excess of the work done by them to the tune of Rs.3.50 lacs.  It is alleged that the OPs have not handed over the complete documents obtained from the office of GMADA to the complainant i.e. demarcation of the plot, certificate of completion of plinth level etc. despite repeated requests made by her.  It was further alleged  that the quality of construction  made by the OPs at the site was of very poor quality, walls of the rooms were not rectangular; pillars erected were also not straight and of square shape, as such, the complainant had to get the wrong construction made by OPs dismantled after spending huge amount of money.  Ultimately, the complainant got the building completed by engaging the services of another contractor i.e. Mehraj Constructions on 5.3.2021 (Annexure C-4) and made all payments.  It was  asserted that as per valuation obtained by the complainant from approved valuer on 18.8.2020, the total cost of construction incurred by the OPs on the site of the complainant was Rs.4 lacs approx.; even the brick wall work upto the slab level was not complete; no rain water and sewerage water pipes of four inches size were  affixed in the walls which were required to be affixed before construction and casting the slab.  It is also asserted that the OPs instead of completing the project, served legal notice on the complainant on 25.7.2020, which was duly replied on 6.8.2020 (Annexures C-6 & C-7). Thus, alleging deficiency in service on the part of the opposite parties, a consumer complaint was filed before the Ld. District Commission seeking  compensation of Rs.26,50,000/- on account of excess amount received by OPs, harassment suffered and   penalty paid to GMADA for extension of time and loss of rental income of Rs.3 lacs suffered by her.   

 3.               The Opposite Parties, despite service through publication of notice in the newspapers, did not appear before the Ld. Lower Commission and as such they were proceeded against ex parte vide order dated 30.05.2022.

  4.                On appraisal of the complaint, and the evidence adduced on record by the complainant, Ld. Lower Commission came to the conclusion that the services availed by the complainant were for commercial purpose as such the complaint was disposed of being not maintainable under the Consumer Protection Act,2019.      

5.                Aggrieved against the  aforesaid order passed by the Ld. Lower Commission, the instant Appeal  has been filed by the Appellant/complainant   to set aside the impugned order and  to allow her complaint by granting relief as prayed therein.    

6.                     We have heard Counsel for the appellant and have gone through the evidence and record of the case with utmost care and circumspection.

7.                 The Learned Counsel for the appellant contended that the appellant  had nowhere asserted that she owned House No.1206, Sector-44-B, Chandigarh and intended to give House No.367, Sector-77, Mohali on rent after its construction whereas the said house was constructed for residential purpose.  The appellant had made prayer for claiming relief by expressly stating that had the respondents been efficient in completing the constructions work within the stipulated date, the appellant would have earned an income of Rs.3.00 Lakhs by way of rent and claiming of this relief does not change the nature of complaint and the main relief claimed for deficiency of service on the part of the respondents. 

8.                 In the prayer clause of the complaint, the complainant had claimed total amount of Rs.26,50,000/- on account of deficiency in service, mental tension and harassment besides escalation of cost of construction material and labour and the penalty payable to the GMADA due to delay in construction of the building. The detail of said claim has been given in para-12 of the complaint. The complainant has claimed Rs.3.00 Lakhs on account of loss of income on account of rent to be received @ Rs.20,00/- P.M. from April,2020 onwards.  Annexure C-1 is the Agreement entered into between the parties on 27.11.2019 for construction of ground floor & mounty on approx.150 sq.yards plot bearing No.367, Sector-77, Mohali, wherein terms and conditions settled between the parties have been incorporated.

9.                 The appellant had hired the services of the respondents for raising construction on residential plot No.367, Sector-77, Mohali. It is pertinent to mention here that ‘Housing Construction’ falls under the definition of “Service’ as defined in Section 2(42) of the Consumer Protection Act,2019.  It is nowhere averred in the complaint that the complainant/appellant wanted to sell the said house after construction. She has only claimed loss of rental income @Rs.20,000/- as the respondents failed to fulfill the terms and conditions of the agreement by completing the construction within the stipulated period. Claiming such relief of loss of rental income does not debar the  appellant from claiming other relief in the complaint.  The appellant has placed on record receipt Annexure C-3 wherein detail of payments received by the  respondents  for construction of house in question  has been given,  which  proves that services of the respondents were hired for consideration  for construction of house and as such the complainant falls under the definition of “Consumer”.  The question whether the appellant is able to prove her case and justify the prayer made therein is a matter of evidence. We find that the order passed by the Ld. District Commission is not based on correct appreciation of evidence and law on the point.

10.                   In view of the above discussion, the appeal is accepted and the impugned order is set aside. The case is remanded back to the Ld. Lower Commission for deciding the same on merits after affording opportunity to the parties to file reply and adduce evidence, if any,  in support of their respective contentions.  The parties are directed to appear before the District Consumer Disputes Redressal Commission-II, U.T.Chandigarh, on 31.10.2023.

11.             Complete record of complaint file be sent back to the Ld. Lower Commission concerned alongwith certified copy of this order, so as to reach there well before the date fixed.

 12.          Certified copies of this order be sent to the parties, free of charge.

13.            File be consigned to the Record Room, after completion.    

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