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2015 DIGILAW 6 (UTT)

KASIMUDDIN v. SHIV PRAKASH

2015-01-06

B.C.KANDPAL, D.K.TYAGI, VEENA SHARMA

body2015
ORDER (Per: Justice B.C. Kandpal, President): These two appeals, one by the opposite party and another by the complainant, filed under Section 15 of the Consumer Protection Act, 1986, arise out of the order dated 15.10.2012 passed by the District Forum, Dehradun in consumer complaint No. 211 of 2010, whereby the District Forum has partly allowed the consumer complaint and directed the opposite party to pay compensation of Rs. 1,41,802/- to the complainant within a period of one month from the date of the order together with Rs. 25,000/- towards mental agony and Rs. 10,000/- towards litigation expenses. It was also directed that in case the amount is not paid within the prescribed period of one month, the complainant shall also be entitled to interest @9% p.a. on the above amount from the date of filing of the consumer complaint till payment. Since both the appeals arise out of the same order passed by the District Forum, therefore, these are being disposed of by this common order. 2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant had purchased a residential plot of land in Banjarawala, Dehradun. In the year 2007, the complainant wanted to construct a residential house on the said plot of land. It was alleged that the opposite party approached the complainant and told that he is a very good contractor. Thereafter, an agreement dated 25.06.2007 was executed between the parties and the rate of construction was fixed at Rs. 580/- per sq. ft. including material. In the agreement, it was mentioned that the construction of the house will be completed within a period of one year from 25.06.2007. It was also alleged that till 04.10.2008, the complainant had paid sum of Rs. 15,70,000/- to the opposite party. It was further alleged that on 04.10.2008, after receiving the amount of Rs. 2,10,000/- from the complainant, the opposite party stopped the construction work of the house and the house is still not complete. The opposite party has not done the work as mentioned in para 5 of the consumer complaint. This apart, the opposite party has used the low quality material and there are certain defects in the construction work carried out by the opposite party. The opposite party has not done the work as mentioned in para 5 of the consumer complaint. This apart, the opposite party has used the low quality material and there are certain defects in the construction work carried out by the opposite party. The complainant requested the opposite party time and again to rectify the defects and also to complete the construction work left by him, but to no avail. Thereafter alleging deficiency in service on the part of the opposite party, the complainant filed a consumer complaint before the District Forum, Dehradun. 3. The opposite party filed written statement before the District Forum and pleaded that the construction work was stopped by the opposite party for want of payment of required amount by the complainant; that delay in construction of the house was caused on account of delayed payment by the complainant; that the construction work was to be done in an area measuring 3400.00 sq. ft. and a sum of Rs. 19,72,000/- has been spent in the construction work; that a total sum of Rs. 21,38,360/- has been spent in the construction work, against which the complainant has made the payment of Rs. 15,70,000/-, leaving the balance of Rs. 5,68,360/-, which the complainant has not paid to the opposite party and, as such, the opposite party has left the construction work incomplete and that there is no deficiency in service on the part of the opposite party. 4. The District Forum, on an appreciation of the material on record, partly allowed the consumer complaint vide impugned order dated 15.10.2012 in the above manner. Aggrieved by the said order, the opposite party has filed First Appeal No. 162 of 2012, thereby assailing the propriety and legality of the impugned order passed by the District Forum and whereas being dissatisfied with the relief awarded by the District Forum, the complainant has filed First Appeal No. 12 of 2013 for enhancement. 5. We have heard the learned counsel for the parties and have also perused the record. 6. There is no dispute with regard to the fact that an agreement dated 25.06.2007 was executed between the complainant and the opposite party for construction of the complainant’s house (Paper Nos. 25 on the record of First Appeal No. 162 of 2012)and the rate of construction including material was fixed as Rs. 580/- per sq. ft. 6. There is no dispute with regard to the fact that an agreement dated 25.06.2007 was executed between the complainant and the opposite party for construction of the complainant’s house (Paper Nos. 25 on the record of First Appeal No. 162 of 2012)and the rate of construction including material was fixed as Rs. 580/- per sq. ft. There is also no dispute with regard to the fact that sum of Rs. 15,70,000/- has been paid by the complainant to the opposite party towards the construction work of his house. 7. The complainant has sent a legal notice dated 28.06.2010 to the opposite party, wherein he has stated that the opposite party has carried out the construction admeasuring 3198.68 sq. ft. in total and it was also mentioned that the said measurement was made by the opposite party. Thus, the construction made by the opposite party comes to 3198.68 sq. ft., say 3200.00 sq. ft. But the opposite party has left the wooden work, water fitting, white-washing and gate work. Thus, as per the agreement executed between the parties, the total cost of construction including material comes to Rs. 18,55,234/-, as mentioned by the complainant in para 5 of the legal notice dated 28.06.2010 (Paper Nos. 16 to 19 on the record of First Appeal No. 162 of 2012). As is stated above, sum of Rs. 15,70,000/- has already been paid by the complainant to the opposite party and there is no dispute with regard to the fact that the opposite party has left the construction work incomplete and has not completed the construction work and as per the version of the opposite party, the work was left incomplete by him for want of required payment by the complainant. If the opposite party would have completed the entire work, he would have been entitled to the balance amount of Rs. 2,85,234/-. 8. So far as the work left incomplete by the opposite party is concerned, the complainant has got his house inspected from Design Associates, Architecture, Estimating & Costing, Land Survey, Supervision, Construction & All Associates Works, 8, Adarsh Nagar, Near Rewati Nursing Home, Dharampur, Haridwar Road, Dehradun, who have given the abstract of cost of incomplete work, which comes to Rs. 5,05,396/- (Paper Nos. 26 to 27 on the record of First Appeal No. 162 of 2012). There is an affidavit of Sh. 5,05,396/- (Paper Nos. 26 to 27 on the record of First Appeal No. 162 of 2012). There is an affidavit of Sh. Vivek Raturi, Proprietor, Design Associates (Paper No. 42 on the record of First Appeal No. 12 of 2013), wherein he has averred that he visited a semi-constructed house of the complainant (house in question) on 07.06.2011 and on the basis of the said visit, he has prepared a report / abstract of costs of incomplete work, which is true and correct. There is nothing on record to rebut the said report submitted by the Architect. 9. The complainant has given the details of the work left incomplete by the opposite party in para 5 of the consumer complaint and after corroborating the said work with the agreement executed between the parties, the District Forum has opined that certain work was not covered under the agreement executed between the parties and which was not required to be done by the opposite party. After careful analysis of the record, we are in agreement with the said observation made by the District Forum. 10. The perusal of the impugned judgment and order passed by the District Forum shows that the District Forum has made all the necessary calculations and after analyzing the same with the material available on record, the District Forum came to the conclusion that the complainant is entitled to Rs. 1,41,802/- from the opposite party. We do not find any error in the said calculation made by the District Forum and we are of the considered view that the District Forum has rightly directed the opposite party to pay compensation of Rs. 1,41,802/- to the complainant. However, we are of the view that the interest awarded by the District Forum @9% p.a. in case the amount is not paid within a period of one month from the date of the impugned order, is on the higher side and the same need to be reduced to 7% p.a. Since the complainant has been awarded interest, there is no question of separate compensation for mental agony and hence the award of Rs. 25,000/- passed by the District Forum towards mental agony is liable to be set aside. The litigation expenses of Rs. 10,000/- awarded by the District Forum are justified. 25,000/- passed by the District Forum towards mental agony is liable to be set aside. The litigation expenses of Rs. 10,000/- awarded by the District Forum are justified. Thus, the appeal filed by the opposite party bearing First Appeal No. 162 of 2012 is to be allowed partly and the order impugned is liable to be modified as such. 11. So far as the appeal filed by the complainant for enhancement of compensation bearing First Appeal No. 12 of 2013 is concerned, since we have already observed above that the District Forum has rightly awarded compensation of Rs. 1,41,802/- to the complainant and we have modified the impugned order passed by the District Forum by setting aside the award towards mental agony and reducing the rate of interest and hence there is no question of enhancement of compensation. Even otherwise, there is nothing on record to show that the complainant is, in any way, entitled to the amount of compensation in excess to the amount awarded by the District Forum. Thus, the appeal filed by the complainant lacks merit and is liable to be dismissed. 12. For the reasons aforesaid, First Appeal No. 162 of 2012 filed by the opposite party is partly allowed. Order impugned dated 15.10.2012 passed by the District Forum is modified and the opposite party (appellant in First Appeal No. 162 of 2012) is directed to pay compensation of Rs. 1,41,802/- to the complainant together with interest @7% p.a. from the date of filing of the consumer complaint till payment and Rs. 10,000/- towards litigation expenses, as awarded by the District Forum. First Appeal No. 12 of 2013 filed by the complainant is dismissed. The costs of the appeals made easy. 13. Let the copy of the order be kept on the record of First Appeal No. 12 of 2013.