State Consumer Disputes Redressal Commission
J. Murugan vs P.Ramesh on 12 July, 2023
1
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION AT PUDUCHERRY
Dated this the12th day of July 2023
Consumer Complaint No.05/2016
Murugan, S/o.Jayaraman,
Hindu, aged 52 years
"Arulmigu Sri Mariamman Illam"
Plot No.76, Door No.6,
Manakula Vinayagar Nagar,
Main Road, Puducherry. ... Complainant
Vs
P.Ramesh, S/o.Palani
Hindu, aged about 51 years
No.2, Third Middle Street,
Kurinji Nagar,
Lawspet, Puducherry. .. Opposite Party
BEFORE:
HON‟BLE THIRU JUSTICE R. PONGIAPPAN
PRESIDENT
DR.S.SUNDARAVADIVELU,
MEMBER
TMT.S. OUMASANGUERY,
MEMBER
FOR THE COMPLAINANT
M/s.Achari & Antoni Associates, Thiru.P.Visvassoundaram, Advocate
FOR THE OPPOSITE PARTY:
Tvl.R.Praveen Kumar and E.Mourougane, Advocates
2
O R D E R
(By Tmt. S.Oumasanguery, Member) The complainant herein has filed this petition under sec 17 of the CP Act of 1986. The facts of the case, in a nutshell, are as follows The complainant has put forward his case that, the suit property belongs to his wife Canmany. The complainant and his family decided to construct a house through the Opposite party for personal use. The complaint states that the Opposite party claimed that he is an architect and builder and infused confidence in the complaint. The complainant negotiated with the Opposite party for the construction of the residential building, and the plan was drawn by the Opposite party for an estimated cost of Rs.47,90,000/- which was agreed upon by both the complaint and the Opposite party. The same was reduced to a written Agreement Dated 25/01/2013 marked as Ex.C3. The complainant mobilized funds by way of a loan, dated 9/11/2013, Ex.C4, from SBI RASMECC and by private and Jewel Loans. A sum of Rs 40,00,000/ was paid to the Opposite party by way of both cash and cheque towards the agreed construction Ex.C5.
2. The complainant further states he was employed at Bangalore, his wife is a dentist by profession and his parents were old ailing in patients at Chennai and were not able to supervise the work done by the Opposite party. Despite the 3 enormous delay, the quality of construction done by the Opposite party was very poor, and the complainant had purchased various sanitary fittings and some essential plumbing items in August 2014 and the assessment of the area of construction was found to be less than the agreed area.
3. The construction was in very bad shape and the building was dilapidated and in a dangerous condition unfits to live in. The complainant reported some defects in the building to the Opposite party through telephonic calls and also through various e-mails between 13.05.2015 and 03.08.2015 and sought to rectify the same. The Opposite party, through his mail dated 20.05.2015, admitted the defects and agreed to rectify the same. The trailing mail between the complainant and the Opposite party is marked as Ex.C6.
4. However the Opposite party did not carry out the rectification, the complainant engaged an expert Engineer to inspect the house and assess the defects and provide an estimate for rectification of the defect. House Inspection Report and Estimate dated 31.08.2015, Ex.C7 was provided by M/S.Zenith Constructions, Engineers &Architect. The complainant was not satisfied with the said report and wanted to know, further about the structural aspects of the building and hence engaged another structural Engineering expert, a Chartered Engineer cum Licentiate valuer Mr. A.Shajahan Sait B.E. The expert submitted his report dated 09.09.2015 marked as ExC8 reporting deviations from the plan and use of sub-standard materials thus not safe to live. 4
5. The complainant gave a complaint to the Inspector of Police, Orleanpet Police Station, Puducherry on 10.09.2015. But the concerned police officer did not register the complainant and did not even acknowledge the receipt of the complaint. The complainant approached the Senior Superintendent of Police by Registered Post with acknowledgment due on 05/01/2016. Here again, the complaint was not registered and the complaint was filed Cr.O.P. No 1092/2016 before the Hon‟ble High Court Chennai. On findings of the Investigation Report, which stated that the complaint is of civil nature, Hon‟ble High was pleased to dismiss the petition by its order dated 27/01/2016 marked as Ex.C9.
6. The complainant has alleged that the Opposite party has committed a breach of contract, cheated, delayed, and defective construction in spite of receipt of Rs 40 lakhs amounting to unfair trade practice.
7. The complainant has prayed for the following relief:
(i) Direct the opposite party to refund a sum of Rs.40,00,000/- with interest at the rate of 18% per annum from the date of payment till discharge, paid by the complainant due to the delay, defective work, deficiency in service and unfair trade practice in the construction of the building.
(ii)Direct the opposite party to pay the complainant a compensation of Rs.10,00,000/- (Rupees ten lakhs only) for the physical hardship, mental agony, and monetary loss caused to them by the opposite party's delay, defective work, 5 deficiency in service and unfair trade practice in the construction of the building.
(iii) Direct the opposite party to the litigation cost.
The opposite party has at the outset denied all the averments and defended his case as follows:
8. The opposite party has denied the jurisdiction of this Commission stating that the complainant will not fall under the definition of 'Consumer" as per the Act and the complaint deserves to be dismissed.
9. Denies that he is an inexperienced builder but he is a B.Arch graduate and experienced builder. Ex.R1 is his degree certificate.
10. It was the complainant who approached the opposite party after verifying the performance and honesty of the opposite party. The opposite party agrees that they entered into an agreement Ex.C3. Further states that it was the complainant who violated the terms of conditions of the agreement as he has not paid the balance of Rs.7,90,000/- yet even after completion of the work. It is for the complainant to raise funds for construction and denies that the complainant has taken private loans and jewels loans. The opposite party states that payments were made by cheque only and no cash payments were made by the complainant. And also the complainant was residing in a rented house built by the Opposite Party for some other person.
6
11. The opposite party denies that the complainant visited the site only on weekends. The complainant's father Mr.Jayaraman used to visit the site right from day one up to the construction of the basement. He would arrive even before the worker came and left the spot only after the worker retired. The complainant was working in a software company, working from home, and used to visit the site from Friday to Monday. Moreover on the date of roof casting the whole family was present, the complainant‟s father said Jayaraman was beside the concrete and the whole process was supervised. The carpentry work was done at the construction site itself and the complainant used to visit and supervise. The whole family was present at the time of the Main Door fixation (Ceremony). The opposite party strongly objects that the complainant did not visit the site to supervise the construction work.
12. The opposite party admits that the construction is not as per the plan submitted by the complainant in Consumer Complaint, but all the deviations are only as per the instruction and approval of the complainant, beams were removed from the dining hall. The complainant did not take the advice of the opposite party in regard to the flooring, as the complainant had some financial issues, the complainant had visited some of the other sites of the opposite party also before making this decision.
13. The opposite party submits that the kitchen counter was altered on instructions by the complainant who after visiting another site of the opposite 7 party, directed the opposite party to reduce the size and wanted to design and construct in a similar way, but again change his plans at the time of starting the construction. Further submits that the complainant did not want any cupboards in the rooms as he planned to make them out of wood, only the cupboard was made in the kitchen which was also removed later.
14. The opposite party submits that there was no delay in construction and all the delays were caused only by the complainant, because of his new ideas and deviations from the original plan now and then. Denies that the built-up area is less than that agreed upon. It was in the complainant‟s own interest to purchase some new model sanitary wares and plumbing items. The opposite party states that the complainant approached him only after a span of 8 months after the "Gragapravesam'. The opposite party denies that he admitted his defects and assured him to rectify the same. But of goodwill agreed to clear some of the defects. The delay was because of a delay in the processing of the Bank Loan and more over the unusual hike in the price of sand, the same has been informed to the complainant who agreed to the same.
15. The opposite party further submits that as per the original plan, the staircase to the first floor is outside at the entrance of the house, but the complainant as per his daughter wish convinced and suggested new ideas. As per the new idea, the staircase was started from the dining room, with the approved consent of the complainant. The opposite party submits that the cost 8 of demolishing the old staircase and extending the bedroom amounted to Rs.2,50,000/- has not been paid. Moreover, to extend the dining room as requested by the complainant, the opposite party had to remove the wall and put in an extra column which cost Rs.50,000/- for which the complainant has not paid anything.
16. The opposite party submits that he is totally unaware of Cr. O.P 1092/2016 filed before the Hon'ble High Court, but the complainant‟s father Jayaraman used to threaten the opposite party with his influence at Orleanpet, Odiyansalai, D'Nagar, and Nehru Street Police Station. The complainant's father used to threaten the opposite party and his wife over the phone using filthy words, the opposite party did not pick up the calls, and the complainant's father went to the opposite party's wife and complainant to her superior thereby causing mental harassment to the opposite party and his wife. This landed the opposite party as a heart patient at the hospital. The opposite party states that the complainant manipulated the civil case into a criminal case, just to extract money from the opposite party. The complainant would not cooperate to carry out the petty work, as the complainant's wife would make them wait and would not pass the keys on time.
17. The complainant was satisfied with his work and he and his wife were invited to the 'Gragapravesam'. After the function when the opposite party was attending the leftover works, the complainant‟s wife wanted the kitchen 9 platform extended. The opposite party obliging carried out the work with the remaining granite for which the complainant‟s wife shouted at the opposite party and his assistants.
18. Hence, the opposite party states that there is no deficiency of service, delay, or deviation on the part of the opposite party if at all any only with discussions and approved consent of the complainant. Hence, prays that this complaint be dismissed with a heavy cost and render justice.
19. In order to prove the case, the complainant examined himself as witness CW1 and marked exhibits C1 to C11. On the Opposite party side, the Opposite party examined himself as RW1 and marked exhibit R1 and R2(series).
20. We have given thoughtful consideration of the contentions raised by the learned counsel for the complainant, for deciding the present complaint, the following questions of Law and Fact arise for determination.
1. Whether the complainant falls under the definition of "Consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986?
2. Whether there is a deficiency of service on the part of the opposite party?
3. To what damages are they entitled?
10Issue No.1:
21. To maintain a complaint under the provisions of the Act the complainant must be a Consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. The word consumer is defined under section 2(1)(d) of the Consumer Protection Act, 1986 which reads as follows:
"consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom-
ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purposes;
22. The complainant and his wife entered into an agreement marked as Ex.C3 with the opposite party for the construction of a residential house for their family. As per Ex.C3 the complainant has made a part payment of Rs.40 lakhs which is not denied by the opposite party and has acknowledged it. Thus it was an agreement for building a house for personal use for consideration. 11
23. The definition of service under the Consumer Protection Act 1986 reads as follows:
Section 2(o) service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service
24. It has been clearly and expressly seen that "housing construction" comes under the definition of services. Moreover, this issue has been confirmed by Hon'ble Supreme Court in Narne Constructions (P) Ltd etc. Vs. UOI & Other AIR 2012 SC 2369, wherein it was held that housing constructions and building activities come under the definition of "Services" as defined under section 2(1)(o) of the Consumer Protection Act, 1986. Hence, in view of the above discussions we hold that the complainant squarely falls under the definition of "Consumer" of the Act and the construction services of the opposite party under Section 2(1)(O) of the Act.
25. On going through Ex.C1 and Ex.C2, the property stands in the name of the complainant's wife "Canmany" and as per Ex.C3 she is a party to the contract. But she had not been added as a party to this complaint. The question that falls for consideration is "Whether the complaint is bad for the non-joinder of the necessary party. Though under section 2(1)(b)(iv), "One or more consumers, 12 where there are numerous consumers having the same interest. Even otherwise, the Consumer Protection Act, of 1986 is beneficial legislation to provide speedy inexpensive, hassle-free consumer redressal. In Mr.Kamaljit Shingh Anand Vs. M/S Emmar Land (P) Ltd., dated 01.05.2014, State Consumer Forum U T Chandigarh observed provisions of the code of Civil Procedure, except the one provided under Sec.13(4) of the Act, the Evidence Act are not applicable to consumer disputes. The Consumer Fora is to evolve its own procedure, for adjudicating consumer disputes, by resorting to the principles of natural justice. The proceeding before the Consumer Fora is summary in nature. The controversy can be effectively and completely adjudicated in the absence of all the consumers. Complaint is therefore not bad for non-joinder of necessary parties.
Issue No.2:
26. Having decided that complainant is a consumer, the second issue is whether there is a deficiency of service on the part of the opposite party. The definition of deficiency under the, as is under Sec. 2 (1)(g) of Consumer Protection Act 1986, reads as "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
13
27. As read above deficiency applied to this case on hand can interpreted as:
(i) Whether there was any fault, imperfection or inadequacy in the quality, nature and manner of performance by the opposite party in pursuance of the contract ExC3.
(ii) Whether „deficiency‟ in a wider meaning would include denial of comfort.
28. Now taking up the first part, the allegation by the complainant is that the opposite party is not a qualified architect, has not been proved by the complainant. The opposite party has proved that he is qualified architect, filed Ex.R1, the photocopy of the Degree certificate dated 26.02.1998 from Regional Engineering College, Bharathidasan University, Thiruchirappalli, TamilNadu. Hence the opposite party is a qualified person to construct the building.
29. Then the complainant states that the opposite party approached him offering to construct the house, this fact has been totally denied. The complainant has admitted in his cross-examination that his wife‟s parents‟ house is at Krishna Nagar quote "After observing that the Opposite party had constructed a house at Krishna Nagar I approached him to build my house". Thus this fact is also proved against the complainant. The fact that the complainant has taken a loan for construction has been proved in Ex.C4 dated 09.11.2023, which is the Home Loan Agreement with RAS MECCC. Regarding his private loans and jewel loans the complainant has not produced any documentary evidence and has not proved it. The payments to the opposite party by way of the cheque are 14 acknowledged by the opposite party, whereas the receipt of cash payments is denied and the complainant has not filed any receipts for such payment, are not proved. The opposite party has alleged that an amount of Rs.7,90,000/- is due and the complainant has also admitted in cross-examination as "As per the agreement till date, I have to pay some due to the opposite party". We can conclude that there is some due to being paid by the complainant to the opposite party as defended by the opposite party which is to be adjudicated before the proper forum.
30. The next fact to the decided upon is the frequency of visits by the complainant and his family, which will directly impact the quality of construction. The fact that the complainant's father is a retired Government staff has visited the site up to the construction of the basement and on the day of casting the roof, this fact was admitted by both the complainant and the opposite party. From the facts admitted, it is quite obvious that the complainant has been visiting the site at regular intervals. The opposite party has stated that the complainant was present at every step and the same has not been disproved by the complainant by any evidence or even by cross-examination. On careful consideration of Ex.C6, which is the trailing e-mails, the complainant greets the opposite party for his cooperation and has pinpointed all the minute (small) defects, and on a bare reading of mail we can conclude that the complainant was regularly visiting the site instructing the opposite party. The defence of the 15 opposite is that the deviations were because the complainant is justified and agreed by us. Adding to it there would always be fluctuations in the market price of the raw materials, particularly sand is universal. Regarding the controversy about the staircase in Ex.C6 (page no has not been mentioned) "Coming to steps _____ "at point no.8..... I told you to start ... " is quite clear that only with the knowledge and consent of the complainant, the opposite party has constructed the steps inside the house. Hence, we are convinced that all the deviations are with the consent of the complainant. The opposite party has also admitted that because of the deviations, the area to be constructed as mentioned in Ex.C3 has been reduced and the consideration has also been reduced. From the facts admitted, it is quite obvious that the complainant visits the site regularly. The facts stated and evidence let in by the complainant are contradictory. The deviations requested at the time of Gragapravesam have also been carried out and admitted by the opposite party and not denied by the complainant. The complainant has filed Ex.C7 and C8 to prove the deficiency of service. But the author of the document has not been examined to prove the same. Hence, we cannot rely on the said documents. Thus the complainant has not proved his allegations that there is a deficiency of service. The person who alleges will have to prove, the burden of proof will not shift to the opposite party.
16
31. The next part whether meaning deficiency in a wider meaning would be denial of comfort as far as construction activity is concerned. Our Hon‟ble Supreme Court in Faqir Chand Gulati Vs Uppal Agencies Pvt Lid and Another on 10 July 2008 has held that any defect in construction activity would be denial of comfort and service to consumer. "If a builder of the house uses substandard material in construction of the building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall his obligations as agreed to. A flat with leaking proof or cracking wall or substandard floor is denial of service." But here in this case on hand, the complainant has failed to prove that the building is unfit to live.
32. The complainant has alleged a deficiency of service that the house is unfit to live in, but the same has been disproved in the cross-examination that the complainant has leased out the property for the past seven years. He also admitted that the tenants pay the rent regularly without any complaints. Here again, the complainant has failed to prove that the property is in a dilapidated dangerous condition to live as alleged by him. In Sgs India Ltd Vs Dolphin International Ltd on 06/10/2021 our Hon'ble Supreme Court has hammered that the onus of proof of deficiency in service is on the complainant under the 17 Act. " It is the complainant who had approached the commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency of service".
33. From the above discussion, we are convinced that the complainant has failed to prove defective work or deficiency in service and unfair trade practice hence this petition is dismissed.
Issue No.3:
34. Whether the complainant is entitled to compensation? In view of the findings in issue no.2, the complainant is not entitled to any damages. Issue No.3 is answered accordingly.
In the result, the complaint is dismissed. No costs.
Dated this the 12th day of July 2023.
Sd/-
(Justice R. PONGIAPPAN) PRESIDENT Sd/-
(S.SUNDARAVADIVELU) MEMBER Sd/-
(S. OUMASANGUERY) MEMBER 18 LIST OF COMPLAINANT'S WITNESSES:
CW.1 08.07.2022 Murugan (Complainant)
LIST OF OPPOSITE PARTY'S WITNESS
RW.1 20.02.2023 Ramesh (Opposite party)
LIST OF COMPLAINANT'S EXHIBITS:
Ex.C1 23.11.2009 Photocopy of Sale deed registered as document
no.3791 of 2009 before the Office of the Sub
Registrar, Oulgaret.
Ex.C2 18.02.2010 Photocopy of Sale deed registered as document
No.575 of 2010 before the Office of the Sub
Registrar, Oulgaret.
Ex.C3 25.01.2013 Photocopy of Construction Agreement between the
complainant and opposite party.
Ex.C4 09.11.2013 Photocopy of the Home Loan Agreement letter
issued by State Bank of India, Puducherry.
Ex.C5 -- Statement of payments made by the complainant to
the opposite party through cheques.
Ex.C6 20.05.2016 Complainant's trailing emails to the opposite party
and the opposite party's reply mail collectively.
Ex.C7 31.08.2015 The House Inspection Report and estimate given by
M/s.Zenith Construction Engineers & Architect.
Ex.C8 09.09.2015 The Notes of inspection given by Thiru.A.Shajahan
Sait, B.E (Struc), Chartered Engineer, Licenciate Valuer.
Ex.C9 27.01.2016 Copy of the order of Hon'ble High Court in Crl.O.P.No.1092 of 2016.
Ex.C10 01.04.2014 Copy of E-mail received from the opposite party. 19 Ex.C11 04.04.2014 Reply mail given by the complainant alongwith certificate.
LIST OF OPPOSITE PARTY EXHIBITS :
Ex.R1 26.02.1998 Photocopy of degree certificate of the opposite party issued by Bharathidasan University.
Ex.R2 -- Photocopy of photographs of the buildings. Series 1 to 5