DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 17th day of January, 2023
Filed on: 26/07/2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO.242/2021
Between
COMPLAINANT
1. Geetha Rani C. W/o. Premchandran Nair, Kalarickal House, Changampuzha Cross Road, Edapally Village, Ponekkara, Kanayannoor Taluk
2. KP Premachandran Nair, S/o. Padmanabhan Nair, Kalarickal House, Changampuzha Cross Road, Edapally Village, Ponekkara,Kanayannoor Taluk
(Rep. by Adv. Tom Joseph, Court Road, Muvattupuzha)
VS
OPPOSITE PARTIES
1. Priyanka Augustine W/o Cling Lawrence, House No. 1/1145-D, Thekkanath House ,Njaliparambu Fort Kochi-682001
2. Clint Lawrence S/o T.U. Cleetus, House No. 1/1149-0 Thekkanath House, Njaliparamu, Fort Kochi, Koch-682001
F I N A L ORDER
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainants are the joint owners of 01.54 Ares of land comprised in Survey number 378/18-6 and 02.66 Ares of land comprised in survey Number 378/2-5-1 of Kadungalloor Village purchased by them as per Sale Deed No 2878/2017 registered before the Alangadu Sub Registrar's Office. These properties are lying as a single plot and the same was purchased for the purpose of constructing a house for them. They obtained a building permit from Kadungalloor Grama panchayath on 01.11.2018 for constructing a residential building having a plinth area of 298.41 square meters (3026 Sqft). The opposite parties who were conducting a construction firm under the name and style of CIDAC Developers approached the complainants and made them believe to construct their house as per the approved plan obtained from the Grama Panchayath within a short period. They have also shown some houses and made believe the complainants that those houses were constructed by them. Believing the assurance to construct a good quality house within a reasonable time frame the complainants entrusted the construction work to the opposite parties. The opposite parties had promised to complete the construction of the house having a plinth area of 3026 sq. ft. for a total construction cost of Rs. 54,28,000/-(Rs. 1793/- per sq. ft.) within 10 months from the date of execution of the agreement. Believing the assurance given by the opposite parties, the complainants entered into a construction agreement with the opposite parties on 12.12.2018. The site was handed over to the opposite parties on 18.01.2019. The complainants gave Rs.2,00,000/-on 12.12.2018, Rs.4,00,000/- on 18.01.2019, Rs.1,00,000/- on 02.02.2019, Rs.1,00,000/-on 08.02.2019, Rs.1,50,000/- on 02.03.2019 Rs.1,30,000/- on 11.03.2019, Rs.1,00,000/- on 16.03.2019, Rs.50,000/- on 20.03.2019, Rs.25,000/- on 29.03.2019, Rs.10,00,000/- on 05.04.2019, Rs.50,000/- on 07.06.2019, Rs.5,00,000/- on 15.06.2019, Rs.1,00,000/- on 29.06.2019, Rs.1,00,000/- on 04.07.2019, Rs.1,25,000/- on 02.08.2019, Rs.3,00,000/- on 20.08.2019, Rs.50,000/- on 27.09.2019, Rs.4,60,000/- on 11.10.2019, Rs.60,000 on 25.10.2019, Rs.30,000/- on 01.11.2019, Rs.3,00,000/- on 07.11.2019, Rs.3,50,000/- on 09.11.2019, Rs.96,000/-on 30.11.2019, Rs.35,000/- on 03.12.2019, Rs.1,00,000/- on 18.12.2019, Rs.1,00,000/- (one lakh only) on 20.12.2019, Rs.1,00,000/- on 02.01.2020, Rs.10,000/-n 11.01.2020, Rs.5,000/-n 11.01.2020, Rs.50,000/- on 17.01.2020, Rs.1,00,000/- on 24.01.2020, Rs.10,000/- on 07.04.2020, Rs.40,000/- on 14.05.2020, Rs.1,00,000/- on 13.07.2020 towards the consideration for the apartment. Altogether the opposite parties received Rs.54,26,000/- from the complainants till 13.07.2020. But as against the assurance to complete the construction within 10 months from the date of the agreement, the work was not completed even after the elapse of 22 months. They abandoned the construction work the midway. Thus, the complainants were compelled to carry out the pergola works and parapet height increase in the 1st floor by spending Rs.1,31,000/-. They further spent Rs.1,75,000/- for raising the basement height. They were also compelled to carry out the courtyard work by spending Rs.49,000/-. Moreover, the complainants were compelled to purchase good quality wooden doorframes, doors, and window shutters by spending Rs.1,95,000/- from their pocket for replacing the defective door frames, doors, and window shutters. They were also compelled to spend Rs.1,30,000/- for primer putty work and Rs.28,750/- for front door additional expense to the tune of Rs.7,08,750/- for the above said works frame the complainants incurred. In the meanwhile, the complainants submitted a petition before the Binanipuram Police for their intervention to get the work completed as per the agreement and to get the refund of the excess amount collected from them by the opposite parties. Though the opposite parties had agreed to complete the construction work within a short period no positive action was seen taken by them to complete the work. Subsequently, lawyer notices were issued to the opposite parties intimating to them that the complainants are constrained to complete the construction work by themselves by employing workers directly or through some other building contractor. Since no reply was received from the opposite parties the complainants entrusted another contractor Mr. Abdul Jalal for completing the construction work. He gave an estimate of Rs.13,00,000/- for completing the works abandoned by the opposite parties.
The complainants have been paying huge interest for the bank loan unnecessarily due to the inordinate delay that occurred in completing the construction work. They are presently staying in a rented house and the rent paid per month is Rs.25,000/-.They have suffered huge losses, hardships, and mental agony due to the inordinate delay that occurred in completing the project. The long-cherished dream of an independent house has not yet been fulfilled due to the purposeful omissions on the part of the opposite parties. The opposite parties had carried out the work for an amount of Rs.32,00,000/- only. That means the opposite parties had excessively collected Rs.22,26,000/- from the complainants. The opposite parties purposefully violated the terms and conditions of entered into between the complaints and the opposite parties. They have not completed the work even after collecting more amount than the amount due to them. They have carried out a portion of the work by using inferior-quality materials and poor workmanship. The above said acts amount to unfair trade practice and deficiency in service on the part of the opposite parties.
The complainants had approached the Commission seeking an order directing the opposite parties to refund an amount of Rs.22,26,000/- excessively collected from the complainants, compensation of Rs.10 lakhs for the mental agony and hardships suffered by them due to the unfair trade practice adopted by the opposite parties and for the deficiency in service on their part and the costs of the proceedings.
2). Notice
The Commission’s notice sent to the opposite parties were returned with the postal endorsement “unclaimed”. Hence the notice was deemed to be serviced. Consequently, the opposite parties were set ex-parte.
3). Evidence
The complainant had filed a Proof affidavit and 6 documents that were marked as Exhibits-A-1- to A-6.
Exhibit A-1: Copy of the Construction Agreement.
Exhibit A-2: Copies of the receipts issued by the opposite parties.
Exhibit A-3: Copy of the petition submitted to the Binanipuram Police Station.
Exhibit A-4: Copy of the lawyer notice issued to the opposite parties.
Exhibit A-5: Copy of the estimate dated 13.01.2021 given by Contractor Mr.Abdul Jalal.
Exhibit A-6: Copies of the Bank account statement.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complaint is regarding the abandoning of the house construction work midway by collecting the entire consideration of Rs.54,28,000/-, the amount agreed for completing the work, and also regarding the inferior workmanship and usage of inferior quality materials.
According to Section 2(7) of the Consumer Protection Act, 2019, "CONSUMER" means any person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.
The complainant produced Copies of the receipts issued by the opposite parties (Exhibit A-2-). Therefore, we are only to hold that the complainants are consumers as defined under the Consumer Protection Act,2019 (Point No. i) goes against the opposite parties Copies of the receipts issued by the opposite parties. The complainants have filed the Proof Affidavit and 6 documents which are marked as Exbt.A-1 to A-6.
The counsel for the complainants submitted that the evidence, in this case, consists of Exhibits A1 to A5. Exhibit A1 dated 27-8-2017 is the agreement between the complainants and the opposite parties. As per clause No. 5, Exhibit A-1 the opposite parties have agreed to complete the work for a consideration of Rs.54, 28,000/-. In the unnumbered page No. 5 of Exhibit, A-1 the opposite parties have agreed to complete the work within a period of ten months from the date of laying the foundation. The opposite parties collected the last payment on 13.07.2020. Even after collecting the entire consideration, no effort was taken by the opposite parties to finish the work as per the plan. Hence the complainants were compelled to approach the Binanipuram police on 7.10.2020(Exhibit A-3). Though the opposite parties agreed to complete the work soon nothing was done to them. A lawyer notice was issued to the opposite parties. (Exhibit A-4). Since there was no positive approach on the part of the opposite parties the complainants have been compelled to complete the work by entrusting the work to another contractor by paying Rs.13,00,000/- is the estimate given by the new contractor Mr. Abdul Jalal. (Exhibit A-5). Since item Nos. 1 & 7 shown in Exhibit A-5 is with respect to extra works which were deducted from the due amount. Hence an amount of Rs. 13 lakhs were paid for completing the abandoned work. The bank statement contains the details of the payment made through the bank for completing the work. (Exhibit A-6). On a perusal of Exhibit, A-6, it can be seen that the complainants made payment to the tune of Rs. 7, 75, 854/- through the bank towards the consideration and materials for completing the work. Though notice from this commission was served on the opposite parties they have remained absent and consequently the opposite parties were set ex parte.
The complainants who had availed the services of both the opposite parties were made to suffer due to the deficiency of service on part of the opposite parties. The opposite parties are liable to compensate the complainants for the deficiency of service on their part.
We have also noticed that Notices were issued from the Commission to the opposite parties but did not file their version. Hence the opposite parties set ex-parte. The complainant has filed the Proof Affidavit and 3 documents which are marked as Exbt.A-1 to A-6. All in support of his case. But the opposite parties did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it.
The opposite parties’ conscious failure to file their written versions in spite of their having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. The Hon’ble NC held a similar stance in its order cited 2017(4) CPR page 590 (NC).
It was further stated that this illegal, arbitrary and unjustified act of the opposite oarties amounted to deficiency in service, indulgence into unfair trade practice, and caused mental agony and physical harassment to the complainant. Hence this complaint was filed. Despite due service, none appeared on behalf of the Opposite Parties, hence, they proceeded against ex parte vide order dated 07.02.2022.
The opposite party Nos. 1 and 2 has inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of opposite party Nos. 1 and 2 in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainants.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainants for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainants had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainants.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties shall refund of Rs.22,26,000/- (Rupees twenty two lakh twenty six thousand only) excessively collected from the complainants.
ii. The Opposite Parties shall pay the complainants Rs.20,000/- (Rupees twenty thousand only) as compensation for loss caused to the complainants due to the deficiency in service and unfair trade practices of the opposite parties.
iii. The Opposite Parties shall also pay the complainant Rs.4,000/- (Rupees four thousand only) towards the cost of the proceedings.
The above-mentioned directions shall be complied with by the Opposite Party within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission this 17th day of January, 2023.
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s evidence:
Exhibit A-1: Copy of the Construction Agreement.
Exhibit A-2: Copies of the receipts issued by the opposite parties.
Exhibit A-3: Copy of the petition submitted to the Binanipuram Police Station.
Exhibit A-4: Copy of the lawyer notice issued to the opposite parties.
Exhibit A-5: Copy of the estimate dated 13.01.2021 given by Contractor Mr.Abdul Jalal.
Exhibit A-6: Copies of the Bank account statement.
Opposite parties’ evidence:
Nil
Despatch date:
By hand: By post
kp/
CC No. 242/2021
Order Date: 17/01/2023
