DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 29th day of May, 2023.
Filed on: 17/03/2021
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No 139/2021
COMPLAINANT
Jils K.V S/o K.S. Vijayan, Koyickal(H), Manjalloor kara, Vazhakulam, Muvattupuzha, Ernakulam. Rep. by his mother as POA Holder Santhakumari P.N W/o KS Vijayan, Koyickal (H), Manjalloor kara. Vazhakulam, Muvattupuzha, Ernakulam Kerala pin-686670.
(Rep. by Adv. Sujesh J. Mathew, Near Court Complex, Muvattupuzha 686661
Vs.
Siju Peter, S/o Peter, Pulinthanath (H), Chelavu Kara, Karimannoor village. Thodupuzha Taluk, Idukki district pin -685588.
F I N A L O R D E R
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 Complainant and his family, residents of 5 th Mile, Mukkudam, Konnathady, Idukki district, purchased a property in Manjalloor village for constructing a house. The complainant, a nurse working in New Zealand, entered into a written agreement with a building construction service provider named Anto Agencies on 13/5/2020. The agreement stated that Anto Agencies would complete the truss work and roofing of the complainant's house within 40 days, covering an area of 3750 square feet, at a rate of Rs. 108/- per square foot. However, the actual roof area was 2600 square feet. The complainant paid Rs. 4,42,500/- to Anto Agencies but the work was not completed as agreed. Despite repeated demands, the opposite party failed to provide the promised service. Consequently, the complainant hired another person to complete the truss work, incurring expenses of Rs. 3,06,090/-. The delay in completing the work forced the complainant and his family to stay in a rented home, incurring additional expenses of Rs. 32,000/-. Mediation and a lawyer notice did not result in the completion of the work. Due to the deficiency of service, the complainant suffered financial loss, damages, mental agony, inconvenience, physical discomfort, and emotional stress. The complainant seeks a refund of the payment made to the opposite party, appropriate compensation, and a total amount of Rs. 9,48,590/- with interest. The complainant granted power of attorney to his mother, Santhkumari PN, to represent and prosecute the complaint on his behalf, as she is the owner of the property where the house was constructed. The complainant had approached the Commission seeking an order directing the opposite party to return Refund Rs. 4,42,500/- to the complainant, which was originally paid by the complainant to the opposite party, to pay Compensation and damages to the complainant for causing a loss amounting to Rs. 3,06,090/-and 2,00,000 and the cost of the litigation.
2). Notices
Notice was issued from the Commission to the opposite party. The opposite party received the notice but did not file their version. Consequently, the opposite party is set ex-parte.
3) . Evidence
The complainant had filed a proof affidavit and 3 documents that were marked as Exhibits-A-1 to A-3.
Exhibit A-1: Notary Attested copy of Power of Attorney.
Exhibit A-2: The Original of Written agreement executed between the complainant opposite party on 13/5/2020.
Exhibit A-3: The Original acknowledgement card signed by the opposite party on 18/8/2020.
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 parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
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. As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced the Original of Written agreement executed between the complainant opposite party on 13/5/2020. (Exhibit A-2). Deferred payment can also be considered as consideration under the Consumer Protection Act. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 2019. (Point No. i) goes against the opposite party.
The above case is filed by the complainant for compensation for the deficiency in service of opposite party in connection with the delay in completing the truss work. The counsel for the complainant submitted that the complaint, who is a consumer, paid the required amount and was willing to fulfil the terms of the agreement. However, the opposite party failed to provide the promised service, causing mental distress, inconvenience, physical discomfort, and emotional strain to the complainant and their family. The complainant is seeking compensation of Rs.2,00,000/- for the financial loss incurred as a result of the opposite party's negligence. They also demand a refund of the money paid and appropriate compensation for the injuries and losses suffered due to the opposite party's negligence and failure to deliver the agreed-upon service.
We have also noticed that Notice was issued from the Commission to the opposite party did not file their version. Hence the opposite party set ex-parte. The complainant had produced 3 documents which are marked as Exbt.A-1 to A-3. But the opposite party did not make any attempt to participate in the above proceedings before this commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary, and unjustified act of the opposite party amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite party. We have no reason to disbelieve the words of the complainant as against the opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The opposite party had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the opposite party in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
The complainant had produced three documents before the commission (Exhibits-A-1 to A-3). The Original of the agreement executed between the complainant and the opposite party on 13/5/2020 (Exhibit A-2). However, the complaint lacks documentary evidence and relies solely on averments made in the complaint itself. The complainant has not provided any additional documents to substantiate his claims. As a result, the burden of proof necessary to establish that the money was actually paid to the opposite party has not been met. Due to the insufficient evidence, the commission is unable to direct the opposite party to refund the amount to the complainant.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite party.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite party is liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
- The opposite parties shall pay Rs.50,000/- as compensation for deficiency in service and failure on the part of the opposite party in failing to provide the service agreed by the opposite party to the complainant.
- The opposite parties shall also pay the complainant Rs. 5,000/- towards the cost of the proceedings.
The opposite party shall liable for the above-mentioned directions which 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) above shall attract interest @9% from the date of receipt of a copy of this order till the date of realization.
Pronounced in the Open Commission on this the 29th day of May, 2023
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded/by Order
Assistant Registrar
Forwarded by Order
Senior Superintendent
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1: Notary Attested copy of Power of Attorney.
Exhibit A-2: The Original of Written agreement executed between the complainant opposite party on 13/5/2020.
Exhibit A-3: The Original acknowledgement card signed by the opposite party on 18/8/2020.
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 139/2021
Order Date: 29/05/2023
