ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not completing the construction of the house entrusted to OP even though he has received substantial amount towards the same and for refund of the amount of Rs.3,30,000/- received from the complainant along with interest at 24% on the said amount from the date of receipt  of amount till payment of the entire amount and Rs.1,00,000/- for deficiency in service and mental agony suffered by the complainant and for other reliefs as the Commission deems fit under the circumstances.

2.      The brief facts of the complaint are that;

The complainant is the owner of site No.01, Ramasandra Village, Sulikere Village Panchayath, Kengeri Hobli, Bangaluru South Taluk, Bengaluru 560 060.  He wanted to construct a house over the said site. OP agreed to get the said house constructed for Rs.33,00,000/- and entered into an agreement //////////////////of construction on 17.09.2019.  a sum of Rs.5,00,000/- was paid to him and further a sum of Rs.4,12,138/- on 18.09.2019 in all sum of Rs.9,12,138/0 was paid being the 10% of the total cost of the project.  OP commenced the construction on 29.10.2019 after entering into agreement, and in the agreement he agreed to complete the construction within 9 months from the date of agreement with three months grace period.   OP started construction as per the design and started construction of underground sump for storage of water.  Though 1½ feet space to be left for the sump to be built from the peripheral shoulder drain of the main road, it was found that no space was left from the drain endangering the water to be stored in the sump and also leading to leakage of water with damage and brakeage of the sump wall.  This shows negligence and incompetence of the person executing the work on behalf of OP. 

3.      Further there was a delay in putting the RCC slab of stilt.  There were so many fault in the said RCC construction.  The columns which was agreed to be upto 10 feet, were short of 6 inches.  The shattering were removed by the vendors of OP on the ground that they have not paid the amount. Stilt stare case was also not properly constructed and there were miss match in the number of steps and hence half step has to be done in between the steps leading to deficiency in service.  After eight months, the stilt slab was casted, that too on 14.07.2020 from 8 pm till the late in the night to 2 am disturbing the neighbors sleep which was complained to him.  Since the slab was casted in the night, it varied from 5 inches thickness to 7 inches thickness, whereas it ought to have been 6 inches uniformly.  Due to which, proper curing could not be done for all the areas. Even 48 hours after casting the slab, OP did not take any initiation in curing the cement concrete and no vibrator machine was used at the time of casting the concrete, and thereby the iron rods gets exposed to the sun and rain.  He had to cancel the contract and terminated the same for which after much persuasion OP agreed.

4.      It is further contended that as per the agreement entered into on 17.08.2019, the expenses of the stilt slab was Rs.21,84,840/-.  It included the plastering, laying floor tiles sides, plumbing, electrical, constructing the compound wall, stair case rearing, lift wall, gate painting and final finishing and other incidental work, which amounted to Rs.7,84,840/-.  Whereas OP carried out only the slab work and collected Rs.37,37,462/- including the 10% advance amount of Rs.9,12,138/-, whereas as per the estimate and the construction carried out by him, he has only spent Rs.14,00,000/- for the same. 

5.      It is contended that when requested to refund the amount of Rs.23,37,462/- they initially denied for the same and afterwards when he insisted for refund of the same they sent a refund extract calculation stating that they are agreeable to refund Rs.1,74,711/- only.  A complaint was lodged with the HSR Police Station and again in the second round of abstract calculation they agreed to refund Rs.6,35,621/-.  After further negotiation in the third round of calculation, they agreed to pay Rs.8,01,310/- which was rejected by the complainant.  On 24.10.2020 OPs sent an email that as initial part payment in respect of the excess amount collected, they will pay Rs.5,00,000/- in two equal installment on 28,.11.2020 and 04.11.2020.  A sum of Rs.2,50,000/- was sent to the account of the complainant on 31.10.2020 whereas the second installment of Rs.2,50,000/- has not been paid.  

6.      There is deficiency in service on the part of OP in not adhering to the time schedule of construction and also delay in constructing the stilt and not completing the same, and further negligent in not constructing the said properly and there is undue delay and unfair trade practice.  The cost of the construction carried out by the OP is at Rs.14,00,000/-.  OP has to refund Rs.23,37,462/- of which Rs.2,50,000/- has been returned.  OP is liable to pay Rs.23,37,462/- and a further compensation of Rs.7,28,377/- being the interest on the amount of 10% paid to the OP to the extent of Rs.1,01,977/-, rebuilding of the broken compound wall Rs.1,22,000/-, stone masonry work for the sump abutting the shoulder drain Rs.44,400/- grouting for all the exposed steel rods in the stilt slab Rs.40,000/-, permanent damage to stilt slab due to poor construction and delay in curing Rs.2,20,000/- and Rs.2,00,000/- as compensation for delay in completing the construction work, totally Rs.7,28,377/-.   He had to issue legal notice on 19.11.2020 calling upon the OPs to pay a sum of Rs.28,15,839/-.  Though the OPs have acknowledged the receipt of the notice, no positive response or reply has been issued by them.  The cause of action for the complaint arose on 28.03.2019 and subsequenty, hence the complaint and prayed to Commission to allow the same.

7.      Upon the service of notice, OP1 being the proprietorship company represented by its proprietor OP2 have appeared before the Commission.  Inspite of obtaining several opportunities, did not file the version and hence their right to file the version was forfeited.

8.      In order to prove the case, complainant examined himself by filing affidavit evidence and produced documents. OP has not come forward to adduce the evidence.  Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

10.   POINT No.1:-

   Perused the complaint, affidavit evidence and the documents produced by the complainant.  From the documents, it become clear that OP being a contractor and architect agreed to execute the construction work of the house of the complainant and entered into agreement and also further agreed that the cost of the project inclusive of all taxes is rs.91,21,389/- and the terms of payment has also been mentioned therein.  Further OP has undertaken to start the project from Oct 2019 and complete it by July 2020.  Further from project completion date a further three months grace period i.e., till October 2020 was also obtained.  The design document, the architectural plan, the estimate specifications is at the rate of 1,600/- per sq. feet standard package was also entered into.  The estimate is also produced, wherein, for the stilt floor as per drawing total amount is Rs.21,84,840/- which includes stilt car parking for the first floor building the estimated amount is Rs.30,01,860/-.  For second floor, Rs.30,01,860/-, to the head room, Rs.2,75,400/-. Over head tank, Rs.2,85,597/- and design charges Rs.2,76,600/- and total Rs.91,21,389/-

        11.   Lot of correspondences have taken between the complainant and OP.  In the letter dated 6^th June 2020 to the OP, complainant has stated that we are starting the 8^th month and stilt slab is yet to be casted. Leaving aside for two months covid related issue, including lock down and also granting additional three months, the remaining project of stilt + 2 floors, needs to be completed in the coming six months.  Our experience so far with “House joy management team” have been quite unsatisfactory and we are deeply concerned about the time line and quality requirements being met by the team, due to reasons and examples that have been documented below.

        12.   Letter also written by OP to the complainant, stating that they understand the frustration of the complainant and expressed regrets regarding termination of the contract.  

        13.   Further three times OP has sent abstracts, cost summary, stating that a sum of Rs.1,74,711/- to be refunded to the client, second time Rs.6,35,621/- to be returned and on 24.08.2020 Rs.8,01,310/- to be payable to the client.  In all these abstracts summary OP has unequivocally admitted having received Rs.36,86,362.95 ps.,  it has claimed the total project value at Rs.35,11,652/-, Rs.30,50,742/- Rs.29,49,052/-.   “In the letter dated 24^th October 2020 OP has agreed to refund Rs.5,00,000/- in two instalments i.e., Rs.2,50,000/- on 28.10.2020 and Rs.2,00,000/- on 04.11.2020 and further mentioned that “this money will be refunded in the account details shared by you. Post that we will meet for the full settlement amount and after mutual consent we will pay the remaining amount”.

14.   Further in the letter dated 8^th November 2020 complainant has informed the OP that he has received only Rs.2,5 lakh rupees against five lakh rupee assured. Notice is also sent stating that only work of the stilt worth Rs.14 lakh has been finished and the remaining has to be completed.  

        15.   When all these correspondences and documents are taken into consideration, it becomes clear that OP did not adhere to the time line with which it has agreed to complete the construction of the residential house of the complainant, even though it has received Rs.36,86,362.95 ps., according to complainant, only work of the stilt worth Rs.14,00,000/-, have been completed and he has to invest remaining amount for completion of work. Taking into consideration, the express admission of OP that it has received Rs.36,86,362.95 ps., from the complainant towards construction of the building and having not objected to the say of the complainant that OP has only completed the work of the stilt worth Rs.14,00,000/- we are of the opinion that OP is liable to refund the difference of amount i.e., Rs.22,85,362.95 ps., along with interest at 12% p.a., from 16.06.2020 the day on which the complainant expressed intention of terminating the agreement with OP.  

16.   Since OP has paid Rs.2,50,000/- already, the same has to be deducted from Rs.22,85,362.95 ps., and hence OP is liable to refund Rs.20,35,362.95 ps., with interest at 12% p.a., from the date of payment of Rs.2,50,000/- i.e., from 31.10.2020 onwards. In view of the OP not refunding the said amount and not completing the construction of the building, OP is liable to compensate the complainant for the mental and physical sufferance by paying a sum of Rs.1,00,000/- as compensation and Rs.10,000/- towards litigation expenses. With this observation we answer point No.1 in the affirmative and answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay interest at 12% p.a., on Rs.22.85,362.95 from 16.06.2020 till 31.10.2020 and further to pay Rs.20,35,362.95 along with interest at 12% p.a., from thereon till payment of the above amount.
3. OPs are further directed to pay Rs.1,00,000/- as compensation and Rs.10,000/- towards litigation expenses to the complainants.
4. OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 19^TH DAY OF AUGUST 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Agreement dated 17.09.2019

Ex P2: Email dated 06.06.2020

Ex. P3: Reply email dated 06.06.2020

Ex P4: Email dated 16.06.2020

Ex P5: Reply email dated 16.06.2020

Es P6: Email dated 22.07.2020

Ex P7: Email refund abstracts from OP in the month of August 2020

Ex P8: Email dated 24.10.2020

Ex P9: Email dated 08.11.2020

Ex P10: Legal notice dated 19.11.2020

Ex P11: Acknowledgement card

Ex P12: Postal receipt

Ex P13: Copy of the complaint No.892/2020

Ex P14: Certified copy of the complaint No.921/2020

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

NIL

Copies of Documents produced on behalf of Opposite Party/s

NIL

MEMBER                                        PRESIDENT