BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 9th day of November, 2017
FIRST APPPEAL No. 13/2016
Kumaran, S/o Sampath Kumar,
No.5, Narayani Illam,
III Cross Street, Brindavanam,
Puducherry-13. …………. Appellant
Vs.
Tajudeen, S/o Pakir Mohamed,
No.25, Yanam Venkatachalam Pillai St.,
Puducherry-1. …………… Respondent
(On appeal against the order passed in C.C.No.35/2010, dt.15.03.2016 by District Forum, Puducherry)
C.C.No.35/2010
Tajudeen, S/o Pakir Mohamed,
No.25, Yanam Venkatachalam Pillai St.,
Puducherry-1. …………… Complainant
Vs.
Kumaran, S/o Sampath Kumar,
No.5, Narayani Illam,
III Cross Street, Brindavanam,
Puducherry-13. …………. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
THIRU. S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Tvl. R.Thiroumavalavan & R.Ramachandiran,
Advocates, Puducherry.
FOR THE RESPONDENT:
Thiru M.Vikunth,
Advocate, Puducherry.
O R D E R
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry, dated 15.03.2016 made in C.C.35/2010.
2. The opposite party thereon is the appellant herein and the complainant before the District Forum is the respondent.
3. The parties are referred in the same position as they have been referred before the District Forum for the sake of convenience.
4. The case of the complainant before the District Forum is that he has entered into an agreement with the opposite party on 21.05.2008 under Ex.C1, in and by which, the opposite party has agreed to put up a construction at plot No.44, 14th Cross, Krishna Nagar, Puducherry. As per the agreement, the complainant has to pay Rs.3,75,000/- to the opposite party. The complainant has paid a sum of Rs.2,50,000/- to the opposite party in two instalments on 27.05.2008 and on 28.06.2008. As per the agreement, the opposite party has to complete the construction within four months from the date of agreement. However, the opposite party started the construction only on 27.07.2008. When the building came to window level, the opposite party stopped the construction in a semi-finished manner that too with poor building materials. The opposite party done the work only to a tune of Rs.2,02,183.75. When the complainant prayed for the completion of the construction of his building as well as his sister, the opposite party gave complaint against them before the Police. Before the Police Station, the opposite party has agreed to complete the construction of his building and his sister. But, did not do so. Therefore, the complainant was constrained to issue legal notice to the opposite party. Since it has not yielded any result, the complainant has filed the complaint before the District Forum seeking an order to direct the opposite party to pay sum of Rs.72,816.25; a sum of Rs.5,00,000/- towards compensation; Rs.7,00,000/- as compensation for deficiency in service and negligence in duty on the part of opposite party and to pay a sum of Rs.27,183.75 towards cost of the proceedings.
5. Reply version has been filed on behalf of the opposite party and the gist of the same is set out hereunder:
While admitting the agreement and payments made by the complainant, it is stated that because the construction site is a low-lying area and the soil is of clay and soft soil water logged due to rain and the excavation work could not be easily carried out. Everyday when the earth is mined for five feet for laying the foundation, the next morning the earth would have dissolved and the foundation trenches would be covered upto three feet and had to again make excavation work. However, with great difficulty pile foundation was carried out. While so, the trouble started with regard to the construction to be carried out on the premises of complainant’s sister, since she refused to make last instalment of Rs.1,10,000/- plus the wood and the opposite party could not carry out the work. The complainant and his sister brought rowdy elements and threatened the opposite party to complete the construction. Hence, the opposite party was constrained to give police complaint. After the renewed agreement at the police station, the complainant never permitted the opposite party to do any work. The complainant’s sister was at fault and the complainant never approached the opposite party and on 18.11.2008, the complainant and his sister approached the opposite party and requested the key of the house of his sister for doing some rituals and the opposite party gave the key. Thereafter, legal notices were given and the present complaint was filed before the District Forum.
6. On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C9 were marked. One Thiru S.Chandrakumar, J.E., P.W.D. has been examined as CW2 and through him Ex.X1 and X2 were marked. On the side of opposite party, O.P. himself was examined as RW1 and Ex.R1 was marked.
7. Three points were framed by the District Forum for determination and they are set out hereunder:
1. Whether the complainant is a consumer?
2. Whether the complainant is entitled for a sum of Rs.72,816.25,
being the difference amount to be paid from the received amount
of Rs.2,75,000/-?
3. Whether the opposite party attributed any deficiency in service?
8. On the first point, the District Forum found that the complainant is a consumer. On points No.2 and 3, the District Forum found that there is deficiency in service on the part of opposite party which has caused loss and sufferings to the complainant and therefore, directed the opposite party to pay to the complainant Rs.72,816.25 for the unfinished work; to pay a sum of Rs.25,000/- towards compensation for negligent act of the opposite party and to pay Rs.5,000/- towards cost of the proceedings.
9. As stated already, the present appeal is filed against the said order.
10. It is an admitted fact that the complainant and the opposite party entered into an agreement on 21.05.2008, as borne out by Ex.C1. The fact that construction was not completed is also admitted. However, each party blaming the other for not completing the work. But, even according to the complainant, the opposite party had done work to a tune of Rs.2,02,183.75. Even the Junior Engineer, P.W.D. who has been appointed as Commissioner by the District Forum to find out and to oversee the construction and to file report, has filed his report. In his report Exs. X1 and X2, CW2 has stated that approximately, the cost of construction would be Rs.1,98,630/-. In such event, the complainant would be eligible to the balance amount out of Rs.2,50,000/- paid by the complainant to the opposite party. After deducting a sum of Rs.2,02,183.85, which will come to Rs.47,816. Therefore, the District Forum is not justified in granting a sum of Rs.72,816.25 for the unfinished work. The complainant having paid a sum of Rs.2,50,000/- only, can expect the opposite party to pay only the amount referred to above and nothing more.
11. One more aspect that has to be seen is that the expert witness has not mentioned about correct length of pile foundation put up. It has been clearly set out in Para 13 of the order of District Forum, which is extracted hereunder:
“13. The learned counsel for the opposite party would argue that in Ex.X1, the pile foundation work was taken into account only upto 2 metres instead of 4.57 metres. Similarly, sump work was not at all taken into account, but sump work was estimated. The opposite party had done pile foundation to fifteen feet and the basement filled with red earth instead of sand. To establish that the pile foundation made to fifteen feet, the CW2 in his Report Ex.X2 as well as during his examination before this Forum has stated that he has not mentioned and estimated anything about the pile foundation. During his second visit, the opposite party did not give any details about the pile foundation, he could not ensure the depth of the pile foundation. He himself done the excavation work for pile foundation and put it as 24 running metres (2metres X 12 Nos.). Further stated that as there was seepage of water at one metre level of pile foundation depth could not be ascertained.”
12. Therefore, as stated already, the complainant cannot expect more than the amount specified by us in our order. However, in view of non-completion of the work, the complainant would have suffered mental agony for the deficiency in service on the part of opposite party. Hence, the amount of Rs.25,000/- awarded by the District Forum as compensation is just and proper. The District Forum also awarded a sum of Rs.5,000/- towards cost of the proceedings, which is also just and fair.
13. In fine, the appeal is allowed in part directing the opposite party to pay a sum of Rs.47,816/- (Rupees Forty-Seven Thousand Eight-Hundred and Sixteen only) to the complainant; to pay a sum of Rs.25,000/- (Rupees Twenty-Five Thousand only) as compensation for mental agony and sufferings and a sum of Rs.5,000/- (Rupees Five Thousand only) towards cost of the proceedings.
14. The said amounts shall be payable within two months from the date of receipt of this order. Failing which, it shall carry interest at 12% p.a. from the date of expiration of the two months’ period till final payment is made. However, there is no cost in this appeal.
Dated this the 9th day of November, 2017
(Justice. K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
