State Consumer Disputes Redressal CommissionR.Kalyanakrishnan, S/O.R.Ramasamy, ... vs Ramasamy, S/O.Rangasamy, D.No.T-3, ... on 3 June, 2011THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
  
 
 
 







 



 

THE TAMILNADU STATE
CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI 

 

  (BENCH
II) 

 

  

 

Present: Thiru.A.K.Annamalai, M.A.,
M.L., M.Phil., Presiding Member
Judicial 

 

 Tmt.Vasugi
Ramanan, M.A., B.L.,  Member 

 

  

 

F.A.No.300/2008 

 

[Against order in COP.No.293/2005
on the file of the DCDRF,   Coimbatore] 

 

 FRIDAY,
THE 3rd DAY OF JUNE 2011.  

 

R.Kalyanakrishnan, 

 

S/o.R.Ramasamy, 

 

  Sundakkamuthur  Village, 

 

100-R,
Kovaipudur, 

 

  Coimbatore 641 042.  .. Appellant/Complainant 

 

  

 

 Vs.
 

 

Ramasamy, 

 

S/o.Rangasamy, 

 

D.No.T-3,   Sundakkamuthur  Village, 

 

  Coimbatore 641 042.  ..  Respondent/Opposite party 

 

  

 

    

 

The Appellant as complainant filed
a complaint before the District Forum, Coimbatore, alleging deficiency against
the opposite party to pay Rs.1,20,000/-, to pay Rs.40,000/- towards
compensation for mental agony and to pay Rs.5,000/- towards costs. The District Forum, allowed the complaint
against the opposite party. Against the
said order, this appeal is preferred by the complainant, praying to set aside
the order of the District Forum,   Coimbatore,
dated 25.09.07 in COP.No.293/2005. 

 

  

 

This appeal coming before us for
hearing finally on 31.05.2011, upon hearing the arguments of the counsel on appellants
side and perused the documents, written submissions as well as the order of the
District Forum, this Commission made the following order :- 

 

  

 

Counsel
for the Appellants/Complainant : M/s.T.S.V.Krishnan, Advocate. 

 

Counsel for the Respondent/Opposite party : Mr.D.Ramesh Rai, Adv.(Remained absent) 

 

 ORDERA.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL1.  The
complainant is the appellant.2. The complainant filed a complaint against
the opposite party claiming for refund of the amount paid towards the
unfinished construction of house for Rs.1,20,000/- and Rs.40,000/- as
compensation for mental agony and Rs.5,000/- for costs.3.  The brief details of the complaint are
as follows :- The complainant entered
in to an agreement with the opposite party for construction of the house on
payment of Rs.4,00,000/- by the complainant and to complete the construction
within 6 months from the date of agreement to the extent of 1000 sq. ft. RCC
building in the first floor. The complainant
paid at the rate of Rs.50,000/- each and various dates in all Rs.2,00,000/- in
toto for which the opposite party has completed work only to the extent of
Rs.80,000/- and left the work on 14.6.05 incomplete and never turned up. The complainant provided water electricity
motor facilities and 103 bags of cement two loads of mud and 4 loads of
bricks. The opposite party had taken
half load of sand and absconded. The
complainant also entrusted the approved plan along with property tax receipts
is the possession of the opposite party.Since the opposite party not turned up for completing the work on
5.9.2005 a legal notice was issued
demanding the balance amount of Rs.1,20,000/- for which the opposite party gave
a reply on 6.9.2005 demanding more money about Rs.78,000/- said to be the
excess amount spent for the construction work by the opposite party. Hence the complainant has come forward with
this appeal.4. The opposite party denied the allegations
of the complainant in his written version by stating and the dispute is
relating to only with the construction work of the first floor and as per the
agreement, complainant failed to pay the payments and thereby the opposite
party from his own funds constructed the building to the value of Rs.2,78,000/-
and only Rs.2,00,000/- was paid by the opposite party and there was a balance
of Rs.78,000/- the Advocate Commissioner appointed by the Forum inspected the
building and reported the value of completed construction work as for
Rs.1,73,131/-. But omitted to mention
about the stock of cement sand and bricks which would be around Rs.1,00,000/-
value and the Commissioner Report was not correct and the complainant has not
come forward with the real position of the situation regarding the value of the
work done and the complainant to pay Rs.78,000/- to the opposite party for
which the District Forum to order and the complaint is not maintainable.5. On the basis of both sides materials,
after an enquiry the District Forum allowed the complaint by directing the
opposite party to pay the amount of Rs.26,869/- and Rs.5,000/- as compensation
for mental agony and Rs.1,000/- as costs.6. Not satisfied with the order of the
District Forum, the complainant has come forward with this appeal praying for
the enhancement of compensation and the claim amount as per the prayer made in
the complaint.7. When the appeal is taken up for final
hearing on 31.5.11 and even prior to that for several hearings, the
respondent/opposite party remained absent before this Commission in this
appeal.8. The appellants arguments heard and the
written version and other documents order of the District Forum are all
considered. As per the both sides
versions the opposite party agreed for constructing the first floor of the
building of complainant on payment of Rs.4,00,000/- to the extent of 1000 sq.
ft to be completed within six months as per Exhibit A1. But it is also admitted that the construction
work was not completed within the period
and left unfinished and also the complainant has paid only a sum of
Rs.2,00,000/- towards payment for construction within the case of the
complainant that the opposite party has constructed the building only to the
extent of value of Rs.80,000/- only and thereby balance amount of Rs.1,20,000/-
to be returned by the opposite party for which a legal notice Exhibit A2 was
issued. But the opposite party claimed
that he has constructed the building to the extent of Rs.2,78,000/- and thereby
the complainant has to pay excess amount of Rs.78,000/- to him as per reply
notice Exhibit A4. Hence the District
Forum appointed an Advocate Commissioner to inspect the building relating to
the construction and Advocate Commissioner has given a report which was marked
as Exhibit C1, which is omitted to be mentioned in the list of documents in the
order of the District Forum. As per the
report Exhibit C1, the Advocate Commissioner estimated the value of finished
work for Rs.1,73,131/- and this report was objected by both sides regarding the
fixation of value the complainant and the opposite party alleged the dispute is
only relating to the first floor construction and the Advocate Commissioner wrongly
mentioned as for 2nd floor instead of 1st floor.9. As per the report there was no
construction on the 2nd floor which is open terrace in which some
sand and bricks were stored which were valued for Rs.1,990/- and included with
the cost of the construction done by the opposite party. On that basis the District Forum directed the
opposite party to pay the sum of Rs.26,869/- after deducting the value of
Rs.1,73,131/- from the amount of Rs.2,00,000/- paid by the complainant. In the absence of proof for the constructions
value was estimated by complainant was done only for Rs.80,000/- claimed by the
complainant. The only available record
is the Commissioners Report Exhibit C1 and as per which the value of
construction was estimated for Rs.1,73,131/- by considering the abstract of
details given by the Engineer Report attached to the Commissioners Report
which is to be accepted and thereby the District Forum has come to the proper
conclusion by taking it as the proper value for construction done by the
opposite party and the balance of Rs.26,869/- was ordered to be refunded out of
Rs.2,00,000/- in which we feel that there is no need for any interference. As far as the compensation is concerned the
complainant claimed a sum of Rs.40,000/- as compensation and the District Forum
awarded a sum of Rs.5,000/- only. While
considering this aspect it is for a total value of construction for
Rs.2,00,000/- given work was done for Rs.1,73,131/- and for the remaining
portions for Rs.26,869/- which was ordered
to be refunded without any interest and the compensation of Rs.5,000/- was
awarded which cannot be considered as lower one. However we feel that instead of compensation
of Rs.5,000/- awarding of interest for the refund amount could be a justifiable
one and as far as the cost is concerned as the appellant contended that the
complainant has spent Rs.1,250/- towards Advocate Commissioners Fee and
another sum and was paid an engineers
fee and for the legal expenses a sum of Rs.5,000/- claimed and we feel for all
those expenses, the award to Rs.1,000/- by the District Forum as costs is very
low and could be enhanced to Rs.5,000/-. Further the complainant relied upon
the ruling relating to the dispensation of compensation by awarding interest
for the amount for refund reported in (IV) 2006 CPJ 202 (NC), in which it is
stated as follows :-K.RAJU
& ANR Vs COINPAR CENTRE OF INDIA & ORSin which it is stated as follows :-Consumer
Protection Act, 1986Section 14(1)(d)Agreement  Non completion of
construction work  Entitlement to compensation  Quantum  Agreement for
construction of house  Work not found to be progressing satisfactorily,
incomplete  Admittedly, Rs.5,15,000/- received by OP  Valuation of incomplete
building arrived at Rs.3,97,391/- State Commission directed O.P to pay
remainder amount of Rs.1,17,680/- with interest @ 18% p.a and Rs.1,00,000/-
compensation  In view of return of excess amount with interest @ 18% p.a.,
Rs.1,00,000/- compensation would not stand  Interest @ 18% p.a., sufficient
compensation.10.  In the
result, the appeal is allowed in part by modifying the order of the District
Forum, Coimbatore, in COP.No.293/2005 dated 25.09.07 as follows :-a) The
opposite party is directed to return a sum of Rs.26,869/- with 12% interest
from 12.9.05 till date of realization to the complainant.b) The
opposite party is directed to pay a sum of Rs.5,000/- as costs to the
complainant.c) The
order of the District Forum, awarding Rs.5,000/- as compensation for mental agony and Rs.1,000/- as costs are
hereby set aside.d) There
will be no order as to costs in this appeal.VASUGI RAMANAN   A.K.ANNAMALAI,  

 

 MEMBER  PRESIDING MEMBER JUDICIAL 

 

  

 

INDEX : YES / NO  

 

sg/B-II/aka/Constructions