K. Raju vs COINPAR CENTRE OF INDIA

APPELLANT was the opposite party before the State Commission, where the respondents filed a complaint alleging deficiency in service on the part of the appellants.

VERY briefly the facts of the case are that the second respondent''s son had entered into an arrangement with the appellant for construction of a house having an area of 1800 sq. ft. for which a total amount payable was Rs. 5,15,000. This amount was paid. The construction was to be completed within 8 months, starting May, 1995. Since the work was not found to be progressing satisfactorily, and the work was incomplete at a valuation done of the incomplete work at Rs. 3,97,391 with the help of the third respondent, and again when the matter was taken up with the appellant and yet when the work was not getting completed a complaint was filed before the State Commission, who after hearing the parties allowed the complaint and directed the appellant to pay the remainder amount from Rs. 5,15,000 paid by the complainant to the appellant after adjusting for the valuation of the incomplete work along with interest @18% from 25.4.1997, compensation of Rs. 1,00,000 and cost of Rs. 1,000. It needs to be mentioned that notice was deemed to have been served on rhe appellant before the State Commission through substituted service by way of publication. It is not in dispute that the case was proceeded against the appellant before the State Commission.

Aggrieved by this order, this appeal has been filed before us. On the last date of hearing the complainant was present in person yet today none is present hence we go on to pass the orders ex parte.

WE heard the learnedCounsel for the appellant and perused the material on record. He repeatedly stated that the case was proceeded ex parte. When I asked the learnedCounsel for the appellant as to what could be done in such case when the notice was served upon appellants and they did not claim the notice after which the notice was served through publication in the eyes of law, the service is complete and. State Commission had no option but to proceed ex parte as all methods of serving upon the appellants was resorted to as laid down in the law, he had no answer except to state that they were never served. I have also carefully gone through the agreement. Page 3 of this agreement clearly states that the area to be constructed was 1800 sq. ft. @ Rs. 325 per sq. ft. and payment schedule has also been given. It is admitted in the Memo of Appeal that Rs. 5,15,000 had been received as stated by the complainant before the State Commission. The stand taken by the appellant is that instead of construction of 1800 sq. ft., by a separate arrangement, the complainant wanted additional 500 sq.ft. area to be constructed for which no payment was made hence possession was not given. I have very carefully gone through the material brought on record by the appellant and do not find a scrap of paper in support of his contention that the area was sought to be increased from 1800 sq. ft. to 2300 sq. ft. There is neither any evidence nor documents in support of this contention. On the contrary the agreement brought on record by the appellant in the appeal clearly states area to be constructed at 1800 sq. ft. In the absence of any contrary, I have no option but to agree with the finding returned by the State Commission based on the complainant''s documents and affidavit that it was 1800 sq. ft. area which was supposed to be constructed.

THERE is material on record that the valuation of the incomplete building was Rs. 3,97,391 and nothing to the contrary has been brought on record by the complainant to take any contrary view. In the above circumstances, we are also constrained to observe neither any written version nor any evidence has been led by the appellant and no such application has been made before us to bring the material on record. But whatever material has been brought on record by the appellant, does not help him and it only supports the case of the complainant. In the absence of anything to the contrary, we are inclined to agree with the finding returned by the State Commission except that we find that the excess amounting to Rs. 1,17,690 has been directed to be returned along with interest @18% p.a. for the incomplete work in view of which, in my view, the amount of Rs. 1,00,000 granted as compensation would not stand to the scrutiny as the rate of interest @18% p.a. itself would be sufficient compensation. In view of this it is not possible to sustain the award of Rs. 1. lakh as compensation to the respondent / complainant which is set aside. Rest of the order of the State Commission is maintained. Appeal stands allowed only in above terms. The appellant is directed to pay awarded amount as modified by this order within a period of 6 weeks from the date of this order, failing which the respondent / complainant shall be entitled to proceed under Sections 25 and 27 of Consumer Protection Act, 1986. Appeal partly allowed.