State Consumer Disputes Redressal Commission
Mr.B.C.Rajan, No.602, Triveni ... vs Mrs.K.Padmalatha, 2. Mrs.K.Shobhana ... on 12 September, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : HONBLE JUSTICE THIRU.R.REGUPATHI PRESIDENT THIRU.A.K.ANNAMALAI JUDICIAL MEMBERF.A.NO.181/2009
(As against the order in CC.No.637/2005 on the file of DCDRF, Chennai (South) DATED THIS THE 12th DAY OF SEPTEMBER 2013 Mr.B.C.Rajan, No.602, Triveni Apartments, Beracah Road, Kellys, M/s.John Victor Chennai 600 010. Counsel for appellant / Opp.party
-vs-
1. Mrs.K.Padmalatha,
2. Mrs.K.Shobhana Mahendran,
3. Mr.K.Subramanian, M/s.R & P Partners Counsel for Respondents / All of them residing at Complainants.
New No.8, State Bank Officers Colony, Ayanavaram, Chennai 600 023.
The Respondents are the complainants filed a complaint before the District Forum against the opposite party praying for a direction to the opposite party to pay a sum of Rs.1,23,365.50 with 24% interest towards the expenses incurred by them and to complete the unfinished construction work as per the agreement and to pay Rs.2,00,000/- as compensation for mental agony and tension and to pay costs. The District Forum Allowed the complaint. Hence appeal is preferred by the Appellant / opposite party praying to setaside the order of the District Forum in CC.No.637/2005, dated 10.02.2009.
This appeal coming before us for hearing finally on 07.8.2013, upon hearing the arguments on either side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.
A.K.ANNAMALAI, JUDICIAL MEMBER
1. The opposite party is the appellant.
-2-2. The complainants have entered into construction agreement with the opposite party on 25.02.2002 to construct the house in the vacant land owned by the complainants at Nungambakkam and as per the agreement the opposite party has agreed to deliver the constructed house within the period of 12 months from the date of agreement. The total consideration was Rs.17,00,000/-.
The complainants were prompt in payment of the amount for the construction work. But the construction of the house was not completed by 25.02.2003 even after payment of Rs.14,72,107/- till April 2003. The complainants went to constructions site in and around April 2003 and found that the site was deserted with unfinished ground floor which is contrary to the progress report sent by the opposite party. It was ascertained that the opposite party dissolved his business and the complainants have incurred Rs.1,23,365/- towards construction of the ground floor of the house which was not done by the opposite party. But the opposite party demanded payment of Rs.1,46,805/- from the complainants by the letter dated 21.11.2003 which he is not entitled to. He has not completed the construction work. The amount claimed by the opposite party was for dismantling of the peripheral walls of the previous building of all 4 sides of the boundary.
The complainants have issued legal notice calling upon the opposite party to pay Rs.1,23,365/-. Since the opposite party did not pay the money, the complainants have filed this complaint claiming the said amount and compensation and costs.
3. But the opposite party contended in his written version stating that the complainants are not consumers and this forum has no jurisdiction to try this -3- complaint. The opposite party is a builder. The complainant had approached the opposite party to construct their house and an agreement was entered into between the parties on 16.07.2001. The opposite party had constructed 1482sq.ft in the ground floor instead of 1050sq.ft to the 2nd and 3rd complainants as against the approved plan and at the time of commencing the work the existing building was demolished. The additional works were taken by the opposite party by incurring additional expenditure because of the complainant handed over the flat for construction with the peripheral walls of the previous building was existing of all 4 sides of the boundary. Hence the opposite party had dismantled by paying additional expenditure for labour to the tune of Rs.6600/-. In March 2003, the complainants have asked the opposite parties to stop the balance work until further instructions. But the complainants have engaged another contractor to finish the work. They have not paid the amount due to the opposite party. The opposite party filed a civil suit before the Civil court claiming the damages in O.S.No.1283/2006. There is no deficiency in service on the part of the opposite party.
4. On the basis of both sides materials, after an enquiry, the District Forum allowed the complaint by directing the opposite party to pay a sum of Rs.50,000/- as compensation for mental agony and to pay Rs.3000/- as costs.
5. Against the impugned order the appellant / opposite party filing this appeal by contending that the District Forum erroneously allowed the complaint in granting compensation of Rs.50,000/- without assigning how the mental agony -4- undergone by the complainant and without considering the contentions of the opposite party and thereby the appeal is to be allowed. Further before this commission they have filed documents under Ex.B1 as additional evidence to show that for the dues payable by the complainant, a civil decree was obtained.
6. Whereas per contra the Respondents / complainants contended that the opposite party failed to complete the building work as per the terms of the agreement and failed to complete with the requirements by forcing the complainant to complete the unfinished work through some other contractor and thereby the District Forum passed an order by taking into consideration of all those things which needs no interference.
7. We have heard both sides arguments and carefully considered the materials and documents placed before us. It is not in dispute that the complainants entered into an agreement with the opposite party for the construction of house to be completed within 12 months from the date of agreement on 25.2.2002 and not completed by 25.2.2003 inspite of payment made in April 2003 part payment for the total consideration of Rs.17,00,000/- and thereafter since the complainant completed the unfinished work by engaging other contract. This was not disputed and it is also proved that the opposite party in order to claim the alleged balance payable by the complainant for the extra work said to have been carried by the opposite party for which he has filed civil suit in O.S.No.1283/2006 and he had obtained decree against the complainant for the recovery of an amount for Rs.1,46,805.60 with 9% interest as per the judgment and decree under Ex.B1 which -5- is filed now before this Commission. Even though the opposite party contended that the Consumer Court has no jurisdiction in view of the civil suit liability. The Consumer Forum has considered only regarding the deficiency in service relating to the construction of building as per the agreement and deficiency in delay in handing over the building within the prescribed time and incompletion of work after receipt of payment for the construction. In those circumstances the District Forum has got certainly the jurisdiction to entertain such grievances against the service provider and thereby this plea cannot be accepted.
As far as the other points raised by the opposite party in the grounds of appeal are the question of limitation and on perusal of the records the complainant filed the complaint on 8th November 2005 with the alleged cause of action lastly arose on payment of money by the complainant during April 2003 and the letter dated 21.11.2003 issued by the opposite party / appellant which is marked as Ex.A16 and thereby the complaint is well within the time and the question of limitation barred by the limitation is also not proved. We have gone through the details of the District Forum order and the District forum has thoroughly gone through the entire materials placed before it by both sides and after analyzing all the materials came to the conclusion that there was deficiency in service on the part of the opposite party in which we find no irregularity or error in the same. As far as the question of quantum of compensation awarded is concerned the appellant contended that the same was granted without assigning any reason. From the records we find that the complainant has entered into an agreement for the construction of house to the value of Rs.17,00,000/- for which they have paid entire amount and said to have paid Rs.14,72,107 before the -6- Completion of entire construction in April 2003.
Further incurred additional expenses f or Rs.1,23,365/- for the completion of ground floor for the remaining amount to be payable to the opposite party was Rs.1,56,845.29 and the complainants also alleged that the construction work was not carried over as per the specification and further the opposite party also filed Civil suit against the complainant after filing the complaint by the complainant for the alleged recovery of money which are all sufficient causes to cause and to have mental agony and ordeal to the complainant for which a sum of Rs.50,000/- awarded as compensation cannot be considered as on the higher side or abnormal and thereby we are of the view that the amount is justifiable and in view of the foregoing discussions and reasons discussed as above the appeal deserves to be dismissed as devoid of merits and accordingly In the result, the appeal is dismissed by confirming the order of the District Forum in CC.No.637/2005 dated 10.02.2009.
No order as to costs in the appeal.
A.K.ANNAMALAI R.REGUPATHI (J) MEMBER PRESIDENT -7- LIST OF DOCUMENTS FILED BY THE APPELLANT / OPPOSITE PARTY:
Ex.B1 29.06.2010 Copy of the judgment copy in O.S.No.1283/2006 3rd Asst.Judge, City Civil Court, Chennai.
A.K.ANNAMALAI R.REGUPATHI (J)MEMBER PRESIDENT INDEX: YES / No Vl/d;/pjm/orders