Counsel For Complainant                    :    S. Muthukumaravel

Counsel For Opposite party                 :   Exparte

ORDER

PRONOUNCED BY THIRU. S. PANDIAN,  District Consumer Disputes Redressal Forum, Thiruvallur District.
 

              This Complaint has been filed by the complainant against the opposite party u/s. 12(1) Consumer Production Act 1986., seeking direction that the opposite party has to pay a sum of Rs. 3,00,000/- being the additional expenses  to complete the remaining 50% of the construction work with compensation of Rs. 2,00,000 and 6,000/- towards the cost @ rate of 12%p.a as interest from the date of petition  till realization.

 Breif facts of the complaints as follows:-

1.         The complainant approached the opposite party who is a builder to construct the house  in his plot bearing the number 22, 1st cross street, Kannappah Nagar, Kaavaangarai, Chennai – 66 to the extend of 560 sq.ft.    and in turn the opposite party has agreed to construct and thereby a mutual agreement was entered between them on 4.6.2010.      The terms of agreement is to complete the construction of the house within 90 days and the total consideration was fixed @ Rs. 4,50,000/-. As per the above said agreement the construction was started and while it was in progress the complaint has paid the entire consideration under the following dates: 

4.06.2009     Rs.50,000/-                    4.07.2009       Rs.20,000/-

8.07.2009     Rs.50,000/-                   15.07.2009      Rs.15,000/-

23.07.2009   Rs.70,000/-                    2.08.2009       Rs.50,000/-

15.08.2009   Rs.55,000/-                   18.08.2009      Rs. 25,000/-

20.08.2009   Rs.25,000/-                   31.08.2009     Rs.60,000/-

4.02.2010     Rs.30,000/-

            The above said amount was duly received by the opposite party and to that effect the opposite party has made an endorsement in the agreement itself.  While being so the opposite party without any intimation and not completing the house fully he had left the place.   In fact 50 % of the constructions only were completed and the remaining 50% left incomplete by the opposite party.   Even though as per the agreement the entire payment was paid to the opposite party by the complainant the opposite party has failed to perform his part of contract.    Moreover, when the opposite party has left the house he has also taken the pipe materials worth of Rs. 7,200/- .      Such act of the opposite party is highly illegal and breach of contract and thereby the complainant suffered a lot and by borrowing the money of Rs.3,00.000/- and spent as an additional amount to complete the remaining 50% of the construction work. 

 2.        Then the complainant has issued the legal notice to the opposite party on 19.08.2010.  In spite of receipt of the same,  the opposite party has not sent any reply.      The complainant is being an auto Driver who is driving the rented auto to a monthly salary due to his poor condition.  Then, first he preferred the complaint before the Legal Services Authority High Court, Chennai, in file No. 5440/10 and the Lok Adalat has been commenced on 22.09.2010 , 13.10.2011  and finally on 3.11.2010 .    In all most all hearings, the opposite party failed to appear before the Lok Adalat even after due notice served on him.  Then the Legal Service Authority has transferred this file to Legal Service Authority, Ponneri and there also the opposite party has hidden and never appeared before the Lok Adalat, Ponneri.   Then after prolonged battle in the month of July 14, the above said Complaint has been transferred to the Dist. Legal Aid service authority, Thiruvallur to file a consumer complaint and in turn the counsel who has appointed by the Legal Service authority Thiruvallur, preferred this complaint.   Hence this complaint may be allowed with cost.  

     3.         In spite of notice served to the opposite party from this forum and given sufficient opportunity for his appearance, the opposite party has not come forward to appear before this forum and hence he set exparte. 

4.         At this stage, in order to prove the case of the complainant, the complainant himself filed his proof affidavit for his evidence and Ex. A -1 to A -7 are marked.  

5.         At this functure, the vital points for determination before this Forum is

1.  Whether it is correct to say that there is any deficiency in service on the part of the opposite party? 

2.   Whether the complainant is entitled any relief as prayed for

6.         Written Arguments filed by the complainant and in addition to that oral arguments adduced by the complainant.

7.         Though the opposite party remained exparte, this Forum wants to decide this case on merits put forth by the complainant before this Forum. 

 8.   Point :-  (1)

The first and foremost duty of this forum is to consider as to whether the complainant has established his case before this forum by means of relevant and acceptable evidence.     At the outset, on careful perusal of the proof affidavit filed by the complainant, it is learnt that the complainant is having a plot in Block No. 22, 1^st Cross Street, Kannapah Nagar, Kaavaangarai, Chennai -66 and he has entered into an agreement with the opposite party to construct a building to a extent of 560 sqt, in the above said plot on 5.6.2010 by fixing the consideration of Rs.4,50,000/-  and the constructions  would be completed within 90 days. The said agreement within the parties is marked as Ex.A-1.  On further perusal, it is crystal clear that the opposite party has completed only the 50% of the construction work in the said plot  even the opposite party has fully received the sum of Rs.4,50,000/- in different dates.     Further more, it is very well seen from the naked eyes, that the opposite party made an endorsement in Ex.A-1 for the receipt of whole consideration of Rs.4,50,000/- and it is very well established by the complainant that the opposite party has only completed 50% of the construction work and not completed the remaining 50% of the construction work and left the above side site without any intimation to the complainant.   

 9.        It is further learnt that in spite of  the receipt of the legal notice marked as Ex.A-2. the opposite party has not come forward to rectify the defects committed by him.  Not only that, the opposite party has also  taken the pipe materials worth of Rs.7,200/-  when he left the house.  The said bill is marked as Ex.A-4.    On further perusal it is brought to the knowledge of this Forum that the complainant has to move the Legal Service Authority High Court, Madras and then it has been proceeded by the Taluk Legal Service Authority, Ponneri and then by the District Legal Service Authority,  Thiruvallur.   But the opposite party has not appeared before the Lok Adalat.  Therefore as per the direction of the District Legal Service Authority,    Thiruvallur this complaint has been preferred in this Forum.   The documents pertaining to the above said proceedings have been marked as Ex.A -3, A -5 and A -6.    In such being the position the Ex.A -7 series photographs clearly shown the fact of the incomplete constructed building. 

10.       In furtherance, it is crystal clear from the averments made both by the complainant as well as the proof affidavit filed by the complainant, the complainant has only completed the remaining 50% of the construction work by borrowing amount of Rs.3,00,000/- as an additional amount and thereby the complainant has incurred much loss and  mental agony.    From the foregoing among other facts, this court can easily to hold that the complainant has proved the allegation of the deficiency in service on the part of the opposite party beyond doubt.   While so, inspite of repeated and the sufficient opportunity given  to the opposite party by both Legal Service Authority Hight Court, Madras as well as District Legal Service Authority, Thiruvallur, the opposite party has not utilized the same.   Moreover the opposite party has also failed to appear before this Forum in order to rebut the evidence of the complainant.    In the light of the above discussion and observation this Forum hold that the complaint has to be allowed.   Thus the point No-1 is answered accordingly.  

11. Point No. (2).   

      As per the decision arrived in point no.2, the complainant is entitled for the relief as narrated in the complaint along with the reasonable compensation and cost.    Thus the point no.2 is answered accordingly.  

In the result this complaint is allowed in part.  Accordingly the opposite party is directed to pay Rs.3,00,000/-( Rupees Three Lakhs  only)  being the additional expenses incurred by the complainant to complete  the remaining 50% of the construction work and a sum of Rs. 25,000/- (Rupees Twenty five thousand only) towards compensation and Rs. 3,000/- (Three Thousand only) towards cost of the complaint  within two months from the date of this order failing which the above said amount shall carry an interest  @ 9% p.a till the  date of payment.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 19^th of May’2015.

Sd/-****                                Sd/-****                                                Sd/-****

Member-1                              Member-2                                             President.

List of Complainant Documents:

1.  Ex.A-1  4.06.2009   -  Xerox copy of construction agreement.
2. Ex.A-2   19.08.2010  -  Xerox copy of Legal Notice.
3. Ex.A-3  10.10.2010   -   Xerox copy f letter issued by the Complainant.
4. Ex.A-4  15.05.2009   -   Xerox copy of Pipe Bill.
5. Ex.A-5          -            - Xerox copy of proceedings before the Lok Adalat (3Nos)
6. Ex.A-6  26.08.2010   -  Xerox copy of acknowledgement card. M
7. Ex.A-7    -                  -  Xerox Copy of Photos. ( 13 N0s.)

Sd/-****                               Sd/-****                                              Sd/-****

Member-1                             Member-2                                            President.