State Consumer Disputes Redressal Commission
N.Iyappan,Tirunelvel. vs T T Ramesh Raja,The Managing ... on 29 May, 2024
1
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI.
Present: THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.34/2017
Date of complaint filed : 11.07.2017
Date of orders pronounced : 29.05.2024
N.Iyyappan,
S/o S.Natarajan,
230 A, V.V.K.Street,
Pettai, Tirunelveli - 627 004. Complainant
-Vs-
1. T.T.Rameshraja,
Managing Director,
Mayan House Construction (P) Limited,
No.112/A2/2, Trivandrum Road,
Vaikapalam Bus Stop, Palayamkottai,
Tirunelveli - 627 002. Opposite Party
Counsel for Complainant : Mr.A.Alaguraja, Advocate.
Counsel for Opposite Party : Mr.S.Suresh, Advocate.
This complaint came before me for final hearing on 16.05.2024 and upon
perusing the material records this Commission made the following:-
2
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
(Dictated in OPEN COURT).
1. The complainant's case : The complainant one Mr.N.Iyyappan owned a plot in Thirumalnagar, Tirunelveli and entered into an construction agreement with the opposite party to construct a house measuring 490 sq.ft. and the total agreed cost is Rs.10,25,000/-,. The date of agreement is 09.02.2016. The complainant availed a loan from Axis bank for Rs.7,00,000/- and he made arrangement to disburse the loan amount directly to the opposite party as a construction linked distribution. Sofar the complainant paid Rs.2,46,000/- from his pocket and from the loan amount Rs.5,18,700/- was paid up to 29.07.2016. Still the complainant is liable to pay Rs.79,000/- from his pocket and Rs.1,81,300/- from bank loan, totally Rs.2,60,300/-. Since the opposite party committed many deficiencies in the construction, he advised and instructed the bank not to disburse the remaining amount to the opposite party and he re-arranged the loan schedule. The opposite party committed many deficiencies such as weak foundation, shortening of height than agreed and many cracks in the wall etc., The complainant initially reported the State Consumer Council help line and informed Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, alleging the above deficiency. But the opposite party did not rectify those defects in the building. The complainant had aged parents with many ailments. The complainant started repayment of loan. The complainant suffered monetary loss because of incompletion of 3 construction made by the opposite party. Hence he filed a consumer complaint claiming compensation under various heads totally Rs.32,18,630/-.
2. The opposite party in their written version admitted having undertaken the construction work entered into an agreement for total construction cost of Rs.9,30,000/. However he further submitted as the complainant had demanded some additional features , the agreed cost has been worked out to Rs.11,14,779.50ps. So far only a sum of Rs.3,16,500/- has been received from the complainant while a sum of Rs.5,18,700/- has been received from his bank. So the complainant still liable to pay Rs.2,79,579.50ps. It is incorrect to say the opposite party constructed the building with defects. The construction was made according to the specifications mentioned in the agreement. Infact the complainant insisted upon laying tiles chosen by him at a shop of his choice. The tiles identified by the shopkeeper as have been chosen by the complainant were brought to the work spot and the work of fixing the same was duly completed. However, the complainant contended that the tiles fixed were not of his choice and wanted all further works to be stopped. It is significant to note that apart from the complainant, some of his colleagues had also chosen the tiles at the same shop and there was no grievance from any other persons. The opposite party completed 90% of the construction work, but the complainant still liable to pay 40% of the agreed cost. Only to wriggle out of the complainant's obligations to pay construction cost this complaint was lodged with false allegations. The complainant already approached Tamilnadu State Consumer Helpline in March 2017 for which the opposite party sent a detailed reply and the complainant alone did not adhere to the instructions 4 given by them. Even after six years no cracks have been found in the building. The construction was perfect in nature and there is no delay on the part of the opposite party but only the complainant attitude caused disturbances of work. Hence he requested this Commission to dismiss the complaint.
3. In this complaint, the complainant was examined as PW1 by filing proof affidavit and Exhibits A1 to Ex.A21 were marked. No documents were marked on the side of the opposite party.
4. Two Commissioners were appointed and their reports were also received by this Commission and they are marked as Ex-C1 & C2 today.
5. The learned counsel appeared for the complainant would submit that the opposite party committed deficiencies in construction which were manifolds and he listed out those deficiencies as follows:
(i) Weak foundation with cracks
(ii) Shortening of foundation than agreed.
(iii) Non alignment of walls, cracks in the partition wall.
(iv) Leakage in the septic tank.
(v) Leakage in the concrete.
(vi) Change of tiles,
(vii) Illegal measurement of both room and toilet.
In support of the above he brought to the notice of this Commission with regard to the Commissioner's finding in Ex.C1. The Commissioner in the above report mentioned that there are cracks in the compound wall, and cracks, on top of the 5 wooden door and the wooden door was not properly fixed and it got struck in the half way.
6. Further the learned counsel submitted that, the Commissioner noted minor cracks all over the building and closet has not been fixed in the toilet and flooring tiles were not properly fixing, plumbing work were remains incomplete. Further the learned counsel submitted the complainant voluntarily stopped loan payment to the opposite party, since the opposite party failed to rectify their defects. The re-arrangement letter sent by the opposite party to his bank has been marked as Ex.A3.Further the learned counsel draw the attention of this Commission with Ex.A4 & A5 in which the complainant narrated his grievance and it was supported by the Commissioners finding. Hence he requested this Commission to allow the complaint.
7. On the other hand, the learned counsel relied upon Ex.A4 & A5 stating that, the problems were started only after the mis-understanding about the tiles chosen by the complainant.. The learned counsel drawn the attention of this Commission that the complainant himself admitted that he alone chose the tiles from a shop of his choice. The tiles were only taken out by the opposite party and fixed by them in the building. After fixation the complainant raised objection that it was not chosen by him. Even the opposite party was ready to change the tiles but the complainant failed to pay the agreed amount to the opposite party and also stopped disbursement of loan amount.
6
8. The learned counsel further submitted that the complainant himself admitted the opposite party as a reputed construction company and the opposite party under took construction of many houses along with this complainant and there was no single dissatisfaction raised by others. Because of the incalsitrent and adamant nature of the complainant the works were not carried out by them and the building was constructed by them, meticulously following the agreement details and measurements and there is no deviation etc. Since the complainant alone liable to pay more than 40% of the agreed amount, the complaint itself is not maintainable and he prayed to dismiss the complaint..
9. Now the point for consideration is: Whether the opposite party has committed any deficiency in construction?
10. Point This Commission perused both sides pleadings, evidence and arguments. It is an admitted fact that, the complainant and the opposite party entered into a construction agreement and it is marked as Ex.A2. In the agreement the construction cost has been fixed as Rs.9,30,000/- but the complainant admitted in his complaint that subsequently additional features were included and the agreed cost is Rs.10,25,000/. On the other hand the opposite party has stated the agreed cost is Rs.11,14,779.50ps. The complainant has stated that he paid Rs.5,18,700/- through bank and Rs.2,46,000/- from his pocket totally Rs.7,64,700/-.On the other hand the opposite party contended that the complainant paid Rs.3,16,500/- + Rs.5,18,700/- totally Rs.8,35,200/- and claimed the complainant is liable to pay Rs.2,79,579.50ps till date. On the other hand the complainant admitted he is liable to pay only 7 Rs.2,60,300/-. Though the opposite party claimed the agreed cost of construction is higher than, the complainant's version the opposite party admitted that he received more amount than the complainant has stated. Whatever it may be the complainant admitted, he is still liable to pay Rs.2,60,300/- which means he did not pay the entire agreed amount.
11. Moreover the complainant also admitted having sent an intimation to the bank to stop loan disbursement to the opposite parties. He also contended he rearranged the loan amount monthly installments etc. The complainant revealed his intention clearly that he is not ready to pay the remaining agreed amount to the opposite party. When as per the case of the complainant he is in arrears of agreed payment and not ready to pay the same or undertake to pay the same then he cannot be construed as a consumer. The definition under Section 2(1) (d) that defined "consumer" after the amendment of 1993 read as follows:-
"Section 2(1)(d) "consumer" means any person who--
(i) ..........
(ii) hires or avails of any services 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 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, 8 when such services are availed of with the approval of the first mentioned person;
As per the above definition when agreed charge has not been paid which means a service availed partially free of charge then he cannot be claimed as a consumer. The complainant, in order to succeed in his attempt to get relief, must make out a case:
(1) That the opposite party had committed violation, not following the agreement, (2) That because of the said violation, he was made to suffer, not only monetarily, but also mentally, which could be quantified in terms of money, and (3) That the opposite party had committed deficiency in service, despite the fact, he had fulfilled all his duties and liabilities, as per the terms and conditions of the builder agreement.
If the above ingredients are made out, then only the Forum/Commission can exercise its jurisdiction, under the Consumer Protection Act, not otherwise. Thus it is seen, the complainant who accused the opposite party, as if he has committed deficiency, has not followed the conditions stipulated in the agreement, paying the amount periodically , thereby, enabling the opposite party to perform his obligation, without any detriment. When the complainant himself had not followed the conditions, and not paid the amount, assuming that construction has not been completed within the time, that cannot be taken as deficiency in service, since for the service being rendered, consideration was not paid, as agreed.
9
12. Apart from the above legal impediment, this Commission approached this case factually to ascertain the entitlement of any relief to the complainant. Firstly the complainant alleged many cracks in the wall and other places apart from alleging some other defects in the construction. But in Ex.C1 the Commissioner noticed some facts and his observations are given below:
(i) Reference level bench mark not identified. So the depth of footing and basement is not separate, totally measuring height 6'7"
including Brick on edge. Measurement is checked at North East corner and South West corner.
(ii) At the time of inspection white washing work fully completed and looks New except Toilet portion. No cracks visible but minor patch work has done with putti and the same was visible.
(iii) Staircase steps minor hair cracks are visible.
(iv) Cement Tiles is used instead of weathering mud Tiles in Roof Top portion.
(v) Cracks are formed in East side compound wall. It is constructed as brick wall and finished. South and West side as readymade concrete slab and readymade pillar North side - not constructed.
(vi) One Toilet - Unfinished condition, another bathroom Tiles joint filing materials not fix properly.
(vii) Water tank Volga Tuff - 500 lit make used instead of Sintex Tank.
(viii) Main door shutter - Top style. Two cracks are visible on both left and Right side.
(ix) Rear door shutter - block board - Solid core is used.
(x) Front side Sit-out portion in incomplete.10
As per the above observations, only minor cracks were noticed in the staircase and minor patch works in the wall were noticed by him. The Commissioner have given a comparison table of, construction as per agreement and actual construction on site.
13. Not satisfied with the above finding of the Commissioner with regard to foundation, another Commissioner was appointed and he was instructed to note down the foundation. The second report is marked as Ex.C2 and the Certificate of the engineer was as follows:
" I certify that I have inspected the building mentioned in the statement and furnish above the salient technical features.
The Structural soundness of the building has been verified by me with reference to Indian Standard Institute loading standards 875 (latest version) and other relevant Indian Standard code of practice.
The site soil condition is Earth packed hard Red soil. The foundation depth is 3'.6" and width is 1'.9". The building load is stable enough to with stand in ground floor, first floor and second floor. So, Hence safe.
From the above certificate the Commission concluded that the building strength is very safe and it was constructed as per Indian Standard. Moreover this engineer also gave a comparison table and as per the table the foundation and basement was more than six feet. Mere and simple verification of the comparison table given by both engineers clearly revealed that the construction was made as per the terms of the agreement. The opposite party instead of constructing readymade compound wall, 11 constructed one side wall with bricks and cement which will benefit only the complainant, and it is not at all a deficiency.
14. The second Commissioner did not find any seepage. Moreover if as alleged by the complainant any seepage was really existing, by this time the building would have been completely ruined. The case is pending for more than five years and the stability was found safe by the second Commissioner. So the allegation of seepage, cracks were not serious enough to consider as deficiency but they are only minor defects usually happened in any construction. To be specific criticism can be levelled only after finishing of the construction. We cannot find fault with any Unfinished product and an incomplete building cannot be found defective when the complainant did not pay the entire agreed cost.
15. The counsel for the opposite party submitted that the cracks were normal in any construction. Furthermore during second visit no such cracks noted by the Commissioner. Further the opposite party made preliminary coating of wall so whatever deficiency or mistakes were inexistence at the time of first Commissioner's visit, they were all subsequently corrected by the opposite party. Moreover it is the duty of the complainant to pay entire cost agreed by him then only he can entitled to allege any deficiency, that too after completion. The complaints of the complainant were all premature in nature without allowing the opposite party to complete the construction. He leveled allegations and forced the opposite party to left the building incomplete. Admittedly the problem was started only with regard to choosing of tiles. The complainant alleged that the tiles were all of his choice. For which the opposite party no 12 way can be blamed. The complainant himself admitted that the cost of replacement of tiles is Rs.4500/-. For such a meager sum the misunderstanding arose between both sides and the complainant alone is mainly to be blamed for the issue become very big and spoil his own benefits.
16. The complainant admitted he did not pay more than 30% amount. On the other hand the opposite party alleged 40% of the balance amount was not paid. The opposite party has completed more than 90% of the construction. So even if there is any incompletion of work or deficiency in construction the complainant has to pay entire amount first then, only he can raise consumer complaint and get any relief from this Commission. As the complainant is prematurely raised without paying the entire construction amount and without completion of work the complaint is liable to be dismissed. In a similar set off acts the Principle Bench at Chennai in Jamuna Radhakrishnan .Vs. Sri Jai Constructions, Rep. By Its Proprietor...on 25th February, 2022 has held as follows:
But, the complainant has not paid the amount as agreed upon by her. When there is a delay in payment, the complainant cannot expect completion of the construction work, with in the time specified in the agreement. Further, according to the complainant, so far she has paid the entire amount of Rs.5,01,000/- and an other sum of Rs.5000/-for construction of sump, which has been admitted by the opposite party, in his written version. Whereas, according to the opposite party the total construction amount is Rs.5,59,700/-as per the agreement. Even as per the complainant's statements he has paid only Rs.5,01,000/, which 13 would show that still the complainant has to pay the balance amount. Similarly, it is the contention of the opposite party that the pending works pointed out by the complainant and the Advocate Commissioner in his report, are not the ones agreed in the construction agreement. Therefore, there is no deficiency of service on his part. Considering the submissions and the counter submissions of the counsel for the complainant and the opposite party, we are of the opinion that there are disputed question of facts. When there are disputed question of facts, the issue involved in this case cannot be decided by the Consumer Forum in a summary manner. Therefore, this kind of issue needs elaborate oral evidence, by giving opportunity of cross-examination to the other side. Therefore, it would be appropriate for the complainant to approach the concerned civil court for her redressal, where the parties can adduce elaborate oral evidence by affording opportunity of cross examination to the other side.
So on this score also the complaint is liable to be dismissed as it involved many disputed question of facts. The complainant even raised vasthu problems and sentimental issues which were all out of the purview of this Commission.
17. Needless to say that if the payments are not made regularly as per schedule, it will not be possible to maintain the progress of construction resulting in the delay of completion of the project and escalation of the cost as there has already been substantial increase in the cost of construction material i.e., cement, steel, bricks and 14 also labour. If at all the construction is incomplete the complainant is alone to be blamed. The learned counsel in the written arguments clearly expressed , he is ready to hand over the building after completing remaining works provided the remaining amount found due were paid to him. So the choice is left with the complainant to work out his remedies and this complaint is liable to be dismissed. Hence the complaint is dismissed without cost and answered the point accordingly.
18. In the result,
1. The complaint is dismissed.
2. No cost.
Dictated and pronounced in the open court to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 29th day of May 2024.
Sd/-xxxxxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
ANNEXURE List of documents marked on the side of the Complainant Ex.A1 --- Complainant's father and his husband Medical Certificate. Ex.A2 09.02.2016 Construction agreement and house booking receipt. Ex.A3 17.11.2016 Axis bank repayment schedule to the complainant. Ex.A4 20.02.2017 Complainant sent a letter to State Consumer Help Centre. 15 Ex.A5 04.03.2017 Complainant sent a letter to opposite party with Acknowledgment card.
Ex.A6 01.03.2017 Letter communication between the Commissioner, Food and Consumer Protection Department and.
Ex.A6 14.03.2017 Complainant sent a letter to State Consumer Helpline with acknowledgment card.
Ex.A8 28.03.2017 State Consumer Help centre sent a mail to the complainant.
Ex.A9 04.04.2017 Complainant sent a reply to the State Consumer Help centre.
Ex.A10 ---- Day to day work schedule prepared by complainant.
Ex.A11 ---- Balance due amount of the complainant.
Ex.A12 --- Photo copies.
Ex.A13 --- Tamilnadu development and building rules.
Ex.A14 --- DVD.
Ex.A15 ---- Copy of lawyers line book.
Ex.A16 --- News paper article vasthu.
Ex.A17 --- Copy of Axis Bank Statement.
Ex.A18 --- Complainant jewel loan bank statement.
Ex.A19 --- NSDL Statement.
Ex.A20 --- Newspaper article.
Ex.A21 --- Newspaper article.
16
List of documents marked on the side of opposite party.
-Nil-
The two Commissioners' reports marked today before this Commission. Ex.C1 31.12.2018 Advocate-Commissioner Report.
Ex.C2 08.09.2022 Advocate-Commissioner Report.
Sd/-xxxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
17Corrected