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KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
K. Surendra Mohan, President, T.S.P. Moosath, Judicial Member and Beenakumary. A., Member
P.C. Reghuthaman and Anr. —Appellants
versus
Rajesh Kumar —Respondent
Appeal No.358 of 2016
Decided on 1.9.2022
Consumer Protection Act, 1986 – S.15 [Consumer Protection Act, 2019 – S.41] – Appeal Against order of District Commission – Services – Real Estate – Allotment of Flat – Delayed Possession – Commercial Purpose – Whether Appellants can be termed as Consumers – Thus the proposed building is for conducting his business and more over the opposite party has no case that the complainant is not a consumer under the Consumer Protection Act. There is no averment in his version and at the time of cross examination no question was put to the complainant suggesting that he was not a consumer and that the construction was for commercial purpose and accordingly complainants are not consumers. The opposite party has produced some documents regarding the permit to show that the proposed building was a commercial building. All shop rooms are commercial buildings, at the time of issuing building permits. This is not the deciding factor that the complainant was planning to use the shop for commercial purpose. Hence the finding of the District Forum is wrong. Complainants are consumers under Sec. 2(d) of the Consumer Protection Act, 1986 – Therefore, the appellants/complainants are consumers and there was deficiency in service on the side of the respondent/opposite party. For that the appellants suffered too much mental agony, financial loss and other hardships. For the grievances of the appellants the respondent has to pay compensation and costs to them – Appeal allowed. [Paras 12,13]
Result: Appeal allowed.
JUDGMENT
Beenakumary. A., Member—Appellants are the complainants and respondent is the opposite party before the Consumer Disputes Redressal Forum, Ernakulam (in short the District Forum) in C.C. No. 819/2012.
2. Brief facts of the case are follows:
The complainants entered into a contract with the opposite party on 17.07.2012 for the construction of a building having an extent of 221.80 sq.m. as per permit No. 239/12, issued by N. Parur Municipality, at an agreed rate of Rs. 1000/- per square feet, making a total of Rs. 24,09,000/-for the construction of the whole building. The construction stared on 19.07.2012. The opposite party who undertook the construction work did not follow the covenants in the agreement. The pits taken for erecting the column and pillars were not having the required depth and the proportion of cement mortar used was substandard. The alignment of the structure of the building was irregular. The whole construction made so far, was deprived of technical expertise, affecting the stability of the building, and against the plan approved by the Municipality. The complainants had so far paid Rs. 3,27,000/- to the opposite party in advance. However the examination of an expert showed that the opposite party had made constructions worth Rs. 2,06,480/- only. The complainant is not interested to permit the opposite party to continue with the work. The plinth beam constructed by the opposite party is not having the required stability for further construction over it, as per expert advice. Entire constructions made by the opposite party are to be redone, requiring an additional expense of Rs. 1,00,000/-. The complainant was asked by his landlord to vacate the tenanted premises where he was doing his business. The defective construction has caused delay and the complainant is put to a loss of Rs. 2,00,000/- requiring reparation by the opposite party. The complainants, through this complaint, seek an order directing the opposite party to return Rs. 3,27,000/- which was already given to the opposite party, and to pay compensation to the complainant to the tune of Rs. 2,00,000/- towards the delay, Rs. 1,00,000/- towards the cost of demolition of the unskilled work and the costs of the proceedings.
3. Opposite party filed version raising the following contentions. The complaint is not maintainable. The construction was done as per the terms of the agreement. The allegation of payment of Rs. 3,27,000/- is incorrect. There was no disloyalty on the part of the opposite party in the matter of construction. The complainant was attempting to evade the payment of the amount due to the opposite party, by filing this false complaint. The complainant had, after obtaining permission from the Forum, started construction on the very same foundation alleged to be defective, without demolishing the previous structure. The commission report filed by the close friend of the complainant is not correct and opposite party had filed objection to it. The construction made by the opposite party was in accordance with the approved plan given from the Municipality. There was no deficiency in service on the part of the opposite party. The complainant had defaulted payment due to the opposite party and when the opposite party had demanded payment as per the agreement, the complainant had come forward with this false complaint incorporating untrue averments. The complaint is liable to be dismissed.
4. The evidence in this case consists of the oral evidence of the complainant as PW1 and the documents Exts. A1 to A13 on the side of the complainant and the oral evidence of the opposite party as DW1 and Ext B1 to B6 on the side of the opposite party. Ext C1 and C2 commission reports were also marked.
5. On the basis of the evidence adduced by both the parties the finding of the District Forum was that the building was intended to be used by the complainant for commercial purpose and the complainant has no case that he is constructing the same for ek
Commercial Purpose — All shop rooms are commercial buildings, at the time of issuing building permits. This is not the deciding factor that the complainant was planning to use the shop for commercial....
Remand – Ordering a remand would cause additional hardships to the parties to the list as no useful purpose would be served in doing so.
Absence of Evidence – In the absence of evidence produced by the complainant in the form of terms of contract entered into between the parties, bills for such alleged items procured in excess, and ev....
Court upheld the lower forum's findings of service deficiency and justified compensation due to incomplete and defective work.
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