- (1.) THE complainant's case is that the complainant is a Professor in Pharmacology in the University of Madras. She is in possession of a house plot and wanted to raise a construction thereon. She applied for a housing loan to her employer and obtained a loan of Rs. 2.5 lakhs which was disbursed to her at different stages. The opposite party undertook to raise and complete the construction including the compound wall at a total estimate of Rs. 3.5 lakhs. She entrusted the work to the opposite party and made payments to him periodically. In all, she paid a sum of Rs. 2.67 lakhs to the opposite party. After the completion of the roof slab level, an Engineer who inspected the construction felt unhappy about the quality of the construction. He also found cracks in building at various places. Therefore, the complainant requested her husband's friend to estimate the construction, who after inspecting the property was of the view that sub -standard materials were used and the cost of the construction would not exceed Rs. 1.65 lakhs. The complainant questioned the opposite party. But the opposite party behaved rudely and demanded another sum of Rs. 1 lakh to continue with the construction. The opposite party has not provided the partition walls for the rooms. He has only constructed the outer shell on the four sides. He also refused to refund the money. The complainant is entitled to get refund of unutilized construction amount Rs. 40,000/ - and compensation and damages at Rs. 10,000/ -. The complainant became a victim of the unfair trade practice of the opposite party. The opposite party has been preventing the complainant from undertaking necessary steps. There has been callous negligence, inordinate delay and gross deficiency in service on the part of the opposite party. The complainant issued notice on 15.2.1995. The opposite party has been keeping the complainant under one promise or the other but he has not chosen to repay the amount and complete the construction. The complainant, therefore, prays for refund of Rs. 40,000/ - being the amount utilized for construction and a sum of Rs. 10,000/ - towards mental agony and Rs. 10,000/ - for loss of alternative attractive investments.
(2.) THE opposite party filed his version pleaded thus: The complainant and her husband approached the opposite party through known sources for constructing a house for them. The opposite party agreed and obliged and had helped them in obtaining the building plan sanction from local authorities. The complainant promised to provide fund by obtaining a loan and thus after obtaining the loan, a revised plan was prepared to limit the construction to the extent of availability of funds. An estimate for Rs. 3.51 lakhs was drawn up based upon the prevailing market price of materials and labour. The construction was started in the third week of May, 1994. It was informed that the stage -wise payment will be released. There is no written agreement and it is only cash transactions. The foundation work upto basement for the building portion and compound wall was completed a month's time. Payments were made after inspection of the University Authorities in June, 1994. Work on superstructure was continued and roof slab was concreted in the last week of August 1994. During this period, the opposite party wanted additional works to be taken up in staircase room upto basement level and also accommodate a toilet below staircase landing. It was estimated at Rs. 17,000/ -. But for the additional work, a sum of Rs. 17,000/ - and another part payment of Rs. 10,000/ - only was made in October, 1994. After 5 months of completion of roof slab in the 4th week of January, 1995, the opposite party was informed about having received the loan. The loan were disbursed by the University only after inspection. Joint inspections were made. There were no cracks nor defects in the building. After disbursing the balance amount due in the 4th week of January, 1995, the complainant requested the opposite party for taking up further works. Due to enormous delay of nearly 5 months for which the opposite party was not liable, there was escalation of price of materials. The complainant requested the opposite party to cut down certain works till such time she could arrange for additional funds. It is not true to say that the opposite party was rude to her and demanded a sum of Rs. 1 lakh. The opposite party, therefore, arranged for procurement of wood and cement and started plastering works inside the building. After nearly two weeks, the complainant came and informed the opposite party that she would arrange a known contractor for taking up balance works. Considering her request, the opposite party agreed to the proposal after settlement of account. A sum of Rs. 2.67 lakhs was received for the stage -wise works completed and additional works done. Out of this, a sum of Rs. 13,000/ - was returned in cash and Rs. 16,000/ - was returned by way of materials and work done after completion of roof slab. The opposite party returned Rs. 35,000/ - by way of materials and labours since the same was handed over from Rs. 2.67 lakhs. The allegations that the balance amount was not returned is totally false. This was done immediately after the complainant's decision to take up the works to another agency. There was no such notice dated 15.2.1995. The allegations made in the complaint are false. The construction work was undertaken as per the demands of the complainant. The opposite party has returned the money which has not been utilized. The opposite party is an experienced contractor with many challenging satisfactory work to his credit.
(3.) THE matter was decided originally by the District Consumer Disputes Redressal Forum, Chennai (South) on 17.5.1996 directing the opposite party to refund a sum of Rs. 40,000/ - with interest at 18% along with a cost of Rs. 1,000/ -. Against the said order, an appeal was preferred in A.P. No. 919/96 and the State Commission while holding that there are no materials given as to arrive at the figure of Rs. 40,000/ - as the amount returnable by the opposite party, it would be proper to remand the matter to the District Forum for fresh consideration after giving a chance to both the parties for adducing evidence in the matter. Again the matter came before the District Forum, Chennai (South) and the same was dismissed and, therefore, aggrieved by that order, the complainant has come up with this appeal. The order passed by the lower Forum is not satisfactory. The Appellate Court namely the State Commission has directed that as regards the sum of Rs. 40,000/ - claim how the same is arrived at is not set out since there is no evidence on the same and on that ground remanded the matter. While so, the lower Forum has overlooked this aspect but has chosen to proceed in a manner which is neither legal nor acceptable. The basis of the case stands undisputed. The complainant entrusted the job of constructing a house for her in a plot belonging to her. Ex. A1 document clearly shows that the opposite party submitted an estimate for Rs. 3.51 lakhs. It is stated by the complainant that the opposite party had not carried out works to the value of Rs. 2.67 lakhs received by him. But according to the complainant, she had the property inspected by an engineer and that engineer estimated that the cost of construction raised would not exceed more than Rs. 1.65 lakhs. Therefore, according to her, she not being satisfied with the work carried on by the contractor, opposite party, has called up him to stop the work and refund the amount. According to her, the contractor had a sum of Rs. 40,000/ - with him due to her still unutilized. It is only with reference to Rs. 40,000/ -, the claim was made originally and about which the remand order makes a mention of. But forgetting all that, the lower Forum has gone at a tangent. The complainant has, of course, not stated then that she demanded refund of Rs. 1,06,939/ -. But it is stated in the order that the complainant asked for unutilized construction cost of Rs. 1,06,939/ -. It is only by way of amendment, she has asked for. The lower Forum also makes a mention of delay in payment of the amount. Here it is not material because we are not concerned whether on account of the delay in payment the construction was delayed. On the other hand the point raised is that the contractor having received Rs. 2.67 lakhs has only put up the construction of the value of Rs. 1.65 lakhs. Again the lower Forum observed that the independent Surveyor who inspected did not do so in the presence of other side and that the report has been undertaken only at the instance of the complainant. Nothing prevented the opposite party from moving the Forum for appointment of Commissioner to have the building inspected to find out the value of construction put up by the opposite party. Curious enough the lower Forum observed that till the last payment was made, there was no evidence to show that there was objection on the part of the complainant for any use of sub -standard materials or alleged crack in the house. The user of sub -standard materials can be detected by only a qualified person. Unless one knows that the contractor is resorting to fraudulent means and is intending to use sub -standard materials, there would not be any occasion for an innocent person to suspect the bona fides of the contractor and raise objection to the same. The lower Forum has stated that the complainant has not filed any rejoinder objecting to the version of the opposite party and that the complainant has no documentary or oral evidence to prove her claim. There is no law which requires a complainant to file a rejoinder and from the mere non -filing of the rejoinder, one cannot jump to a conclusion that what is all stated in the version is to be accepted or not refuted. Thus the entire approach and assessment of the lower Forum is to put it mildly perverted.;