State Consumer Disputes Redressal Commission
R.Srinivasan,Madurai. vs E. Nithyananth,Bangalore. on 6 February, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S. KARUPPIAH, JUDICIAL MEMBER
C.C.No.37/2019
MONDAY, THE 06th DAY OF FEBRUARY - 2023
Date of complaint filed on: - 19.07.2019
Date of order pronounced on: 06.02.2023
1. R. Srinivasan,
S/o. Ramadoss,
Door No.4, 5th Cross Street,
Ponnagaram Broadway,
Madurai - 625 016.
2. S. Gunaseeli,
W/o. Srinivasan,
Door No.4, 5th Cross Street,
Ponnagaram Broadway,
Madurai - 625 016. Complainants
- Vs -
E. Nithyanand,
S/o. Ethiraj,
2nd Floor, No.45, Upkar Greenfield,
Near Commercial Tax Checkpost,
Aatipeeli,
Bangalore - 562 107.
Karnataka. Opposite Party
Counsel for the complainants : Mr.R.Ramanathan, Advocate.
Counsel for the opposite party : Paper Publication Effected. Called Absent.
This complaint is coming before us for final hearing on 07.11.2022
and on hearing the arguments of the complainant and on perusing the material
records, this Commission made the following;-
ORDER
THIRU.S. KARUPPIAH, JUDICIAL MEMBER.
1. This complaint has been filed by the complainants under section 17 of the Consumer Protection Act, 1986 (Replaced with section 47(1) (a) of the Consumer 2 Protection Act, 2019) to direct the opposite party to pay a sum of Rs.6,50,000/- as compensation for mental agony and also to refund a sum of Rs.23,50,000/- received from the complainants towards construction for house and also to pay costs of the proceedings.
2. The gist of the complaint averments is as follows';- The complainants are having a plot in Achampathu in Madurai and they entered into a construction agreement to construct a house at 985 sqft., with the opposite party who is a builder. The date of agreement is 24.01.2017 and the construction cost was fixed at Rs.20,00,000/- for 985 sqft. The complainants paid a total sum of Rs.23,50,000/-more than Rs.3,50,000/- as agreed. The complainants took possession of the house and performed house-warming ceremony on 27.08.2017. Within 4 months the foundations and walls were cracked and it was immediately brought to the knowledge of the opposite party. The opposite party accepted his deficiency in service in construction and he paid Rs.65,000/- on 05.09.2018 and obtained the signature of the complainants. Even after repairing the walls and other things by spending the above amount still within a short span of time the walls were again cracked and damaged. Hence, the complainants have filed this complaint claiming refund of Rs.23,50,000/- paid towards construction and Rs.6,50,000/- as compensation for mental agony.
3. The opposite party did not appear before this Commission and hence he was set ex-parte.
4. The complainants have filed their proof affidavit and Exhibits A1 to A6 were marked on the side of the complainants. We heard the arguments on the side of the complainants and perused the materials available on record. 3
5. The points for consideration are;-
(1) Whether the opposite party committed deficiency in service in construction of house?
(2) Whether the complainants are entitled to the claim amount?
6. Points No.1 & 2:- As stated earlier, the complainants admitted that they entered into a construction agreement with the opposite party and that agreement is marked as Ex A1. To prove the payment, endorsements were made in the agreement itself. It is the case of the complainants that within three months period the walls were cracked and foundation also seems to be cracked. It is their specific case that when these defects were brought to the notice of the opposite party/builder, he also agreed and accepted his liability to repair the same and further he paid the complainants a sum of Rs.65,000/- towards repairing the above defects. To evidence the same, they executed an agreement and it was marked as Ex A3. On perusing the above agreement, it seems that the complainants on receipt of Rs.65,000/- agreed not to blame the opposite party or any of his representatives responsible for any kind of damages to the building in the future. It is not the case of the complainants that they did not receive the promised amount of Rs.65,000/- from the opposite party. On the other hand, in paragraph 6 of their complaint, the complainant specifically admitted that the opposite party paid Rs.65,000/- to the complainants and the complainants made necessary repairs.
7. It is the further case of the complainants that even after such repairs, again there was some cracks and damages in the construction. To prove this fact, the complainant did not take any steps to appoint a commissioner to value the damages except some photographs.
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8. Xerox copies were produced by them as documents. From these Xerox copies, we are unable to ascertain what kind of damages caused to the building. Even otherwise, the above defects did not depict the actual loss suffered by the complainants in repairing the same. The complainants did not produce any further document to show that he repaired the walls and other damages and the cost of such repairs, wages etc, to this Commission. When the actual damages caused to the building and the actual costs for repairing such damages are not proved, we hold that the complainants failed to prove the deficiency committed by the opposite party in constructing the house. Even though the opposite party did not file any written version or contest the case, the complainants as discussed earlier failed to prove the further damages and the loss sustained by him after the execution of agreement dated 05.09.2018 which is marked as Ex A3.
9. Similarly, Ex A3 is the undertaking agreement given by the complainants in which the opposite party agreed that some more repairs were pending and it amounts to admission of his deficiency in construction. At the same time, towards this deficiency committed by the opposite party, the complainants received Rs.65,000/- towards final and complete claim from their end. They further agreed not to hold the opposite party responsible for any future damages occurred to the building. Once the complainants received full and final settlement they cannot reopen the claim and file a complaint before this Commission. The Hon'ble Supreme Court of India in its decision, reported in 2009(1) SCC 267 in the case of National Insurance Co. Ltd. v. M/s Boghara Polyfab Pvt. Ltd., in paragraphs 27 to 31 has held as follows;-
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"27. Let us consider what a civil court would have done in a case where the defendant puts forth the defence of accord and satisfaction on the basis of a full and final discharge voucher issued by plaintiff, and the plaintiff alleges that it was obtained by fraud/coercion/undue influence and therefore not valid. It would consider the evidence as to whether there was any fraud, coercion or undue influence. If it found that there was none, it will accept the voucher as being in discharge of the contract and reject the claim without examining the claim on merits. On the other hand, if it found that the discharge voucher had been obtained by fraud/undue influence/coercion, it will ignore the same, examine whether plaintiff had made out the claim on merits and decide the matter accordingly".
In this case the complainant did not allege, fraud and undue influence...etc., and this commission cannot examine the same in summary proceedings. So, we found the agreement marked as Ex A3 as true voucher to acknowledge full satisfaction and on the score also the complaint is liable to be dismissed. To sum up the earlier discussions, we find that for the initial damages caused to the building, the complainants received a sum of Rs.65,000/- as final and full settlement and also given undertaking not to prosecute the opposite party for further damages in future. Secondly, the complainants failed to prove the actual damages caused subsequent to the undertaking and its cost of the damages. Hence, we hold that the complainants miserably failed to prove their claim and therefore the complaint is liable to dismissed as not proved.
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10. In the result, (1) The complaint is dismissed.
(2) No costs.
Sd/-xxxxxxxxxxxxx Sd/-xxxxxxxxxxxxx S. KARUPPIAH, N. RAJASEKAR, JUDICIAL MEMBER PRESIDING JUDICIAL MEMBER.
LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANTS Ex A1 24.01.2017 Building Construction Agreement Ex A2 11.07.2016 Building Construction Plan with Estimate Ex A3 05.09.2018 Undertaking Agreement Ex A4 12.07.2019 Photographs with Receipts Ex A5 08.06.2019 Lawyer Notice Ex A6 Acknowledgement Card LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES NIL Sd/-xxxxxxxxxxxxx Sd/-xxxxxxxxxxxxx S. KARUPPIAH, N. RAJASEKAR, JUDICIAL MEMBER PRESIDING JUDICIAL MEMBER.
Index: Yes/No TCM/SCDRC/Madurai Bench /Orders/Jan 2023