The following order of the Commission was delivered by Dr.(Mrs) Monika Malik, Member :

This is an appeal by the opposite party / appellant directed against the order dated 28.06.2016 passed by the District Consumer Disputes Redressal Commission, Bhopal (for short ‘District Commission’) in complaint case no. 895/2007, whereby the District Commission has partly allowed the complaint and directed the opposite party to refund the excess amount of Rs.3,15,000/- received from the complainant / respondent alongwith interest @15% p.a. from the date of deposit, till payment. In addition compensation and costs of Rs.25,000/- and Rs.3,000/- respectively is also directed to be paid to the complainant within a period of two months from the date of the order. It is directed that in case of failure the amount of compensation shall carry interest @ 15% p.a. from the date of the order, till payment.

2. The case of the complainant / respondent is such that under a housing and construction scheme floated by the opposite party / appellant, the complainant / respondent was initially allotted house no.105, but due to lack of progress, house no.120 was allotted in his favour vide letter dated 18.02.2005 without stipulation of any additional cost. It is alleged that the complainant paid 95% of the consideration amount by 30.05.2005 in accordance with the agreement, leaving 5% payable at the time of possession. However, possession was not delivered. Subsequently, on 19.10.2005, the opposite party unilaterally enhanced the price and demanded Rs.3,82,500/- despite only Rs.66,500/- being due and ignored the complainant’s objection. It is further alleged that physical possession of the subject house was handed over in December 2006, though registration was completed on 14.11.2005 after receipt of the amount. On possession, the complainant discovered construction defects which the opposite party failed to rectify. Thereafter, on 10.09.2007 after an independent inspection, the complainant got the defects repaired at the cost of Rs.1,25,000/-. He therefore approached the District Commission alleging deficiency in service against the opposite party.

3. The opposite party / appellant in its reply before the District Commission submitted that at the request of the complainant / respondent house no.120, which was constructed as sample house, was allotted to him resulting in automatic termination of the earlier agreement dated 27.09.2004. It is alleged that although the base price was Rs.13,50,000/-, but the agreement permitted price variation. Hence upon completion, additional charges of Rs.3,82,500/- was demanded towards extra work and superior fittings installed in the sample house, of which the complainant was also aware. It is further alleged that the complainant had already taken possession of the house prior to execution of the sale deed, therefore no separate possession letter was required. It is also stated that after two years of possession, inspection was conducted by one Mr.Raina in the absence of opposite party and thus raising complaints regarding construction defects, does not prove deficiency in service against them. Prayer for dismissal of the complaint was thus made.

4. Heard.

5. Learned counsel for the appellant / opposite party argued that the District Commission has erred in not appreciating the facts on record. He submitted that the subject house no.120 was a sample house which was under construction at the time of allotment. This is evident from the letter dated 17.01.2005 (Annexure C-5) filed by the complainant / respondent wherein he had consented to the change in payment schedule, being fully aware of the superior and additional work involved. Therefore prior intimation of the additional cost was not required. The complainant / respondent accepted and enjoyed the additional work and was bound by the agreed escalation clause. He argued that the District Commission has failed to consider that the compla