K SELVAM vs T PANDIAN & ORS

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 19.2.2015 in First Appeal No. 66 of 2014 passed by Tamilnadu State Consumer Disputes Redressal Commission, Madurai Branch (for short "the State Commission"). By its impugned order, the State Commission allowed the Appeal in part and modified the order of the District Forum reducing the amount to be paid by the Petitioner herein to Rs. 2,00,000/- towards rectification and strengthening of the defective building, while confirming the rest of the order of the District Forum.

The brief facts as set out in the complaint are that the Complainant had applied for housing a loan of Rs. 27,20,000/- on 2.7.2011 through LIC Housing Finance Limited, Madurai, arrayed as the second Opposite Party. The loan was sanctioned with the condition that the cheque for the loan amount would be released by the Finance Company on the basis of a report to be submitted by the engineer of the Insurance Company. The Complainants were based in Chennai and entered into an unregistered agreement with the first Opposite Party on 30.7.2011 and it was agreed that the construction cost would be Rs. 33,50,000/- and on the same date an amount of Rs. 5,00,000/- was paid. On the basis of the inspection report, an amount of Rs. 24,75,000/- was handed over to the first Opposite Party. It is averred by the Complainants that they inspected the building construction work in the month of January 2012 and they informed that the construction work was of inferior quality and on further enquiry found that first and second Opposite Parties have fraudulently prepared a report stating that 75% of the work has been completed and got the loan amount released, whereas only work to the extent of Rs. 15,00,000/- worth was completed. The Complainants pleaded that the first Opposite Party received an excess amount to the extent of Rs. 9,75,000/- and they lodged an FIR vide crime number 17/2012 and sent a notice to the Opposite Parties on 22.3.2012. Thereafter, the entire building was inspected by a Chartered engineer and a report was filed that the work to the extent of Rs. 12,62,700/- has been completed. The cement mortar was also sent to the laboratory to examine the quality and it was found that it was of sub-standard quality. Thereafter, loss to the extent of Rs. 12,12,300/- was incurred by the Complainants and they had further spent an amount of Rs. 4,00,000/- for improving the strength of the building. Hence, the Complaint before the District Forum giving directions to the Opposite Parties to refund the excess amount of Rs. 12,12,300/- with interest, compensation and costs.

The Opposite parties no. 1 and 3 were set ex-parte by the District Forum.

The second Opposite Party filed its written version stating that it is not responsible for any disputes between the Complainants and the other Opposite Parties and that it had only released the loan amount in terms of the Rules & Conditions which were laid down in the finance Agreement.

The District Forum based on the evidence adduced and the material on record held that the first Opposite Party had to refund an amount of Rs. 9,75,000/- which is the excess amount collected from the Complainants and further pay an amount of Rs. 4,00,000/- for rectification of sub-standard construction together with compensation of Rs. 1,00,000/- and Rs. 5,000/- as costs. The District Forum also ordered that if this amount is not paid within one month it would attract interest at the rate of 9% per annum.

Aggrieved by this order, the first Opposite Party preferred FA No. 66 of 2014 before the State Commission.

The State Commission modified the order of the District Forum and reduced the awarded amount of Rs. 4,00,000/- towards rectification and strengthening of the defective building to Rs. 2,00,000/- while concurring with the District Forum with the rest of the observations.

The learned counsel for the Petitioner submitted that he was set ex-parte by the District Forum and that no opportunity was given to him to file his version. I observe from the record that notice had been served on the Revision Petitioner but he did not appear despite summons and was set ex-parte by the District Forum on 21.11.2012. The learned counsel for the Petitioner submitted that the District Forum had erroneously relied on a private engineer''s report and that the amounts paid towards completed construction works has not been proved by the Complainant.

The learned counsel for the Respondents/Complainants submitted in his counter that ample opportunities were given by the District Forum and that one Mr. G. Sivabalamurugan had filed vakalatnama on behalf of the first Opposite Party who is the Revision Petitioner herein and thereafter the matter was called for filing of written version on 18.7.2012, 8.8.2012, 29.8.2012, 13.9.2012, 10.10.2012, 25.10.2012, 7.11.2012, 22.11.2012, 29.11.2012 and on 13.2.2013. The record with the dates filed in this counter affidavit clearly shows that inspite of filing Vakalatnama and several opportunities being given, the Revision Petitioner did not choose to appear before the District Forum. We also observe from the record that in the grounds of First Appeal no substantial reasons were given for the non-appearance of the counsel. Therefore, the contention of the Petitioner that no opportunity was given to them is unsustainable.

A brief perusal of the Chartered Engineer''s Report (Exhibit A-7) dated 20.4.2012 reads as follows: (whole report) "DETAILS OF CONSTRUCTED BUILDINGS:

IT IS LEARNT THAT THE RESIDENTIAL BUILDINGS AT THIS PLOT IS BEING CONSTRUCTED IN 2011-12 CONSISTING OF GROUND AND FIRST FLOORS.

ON VISUAL INSPECTION & VERIFICATION, IT IS FOUND THAT THE CONSTRUCTION WORKS HAD NOT BEEN CARRIED OUT USING QUALITY MATERIALS/FITTINGS AND ENGAGING SKILLED WORKERS.

THE GENERAL DETAILS OF THE RESIDENTIAL BUILDING IS AS SHOWN BELOW."

The State Commission has also given a detailed order estimating the market value based on Exhibits A-7 & A-8 as Rs. 13,60,000/-, for re-engineering of the entire work at the assessed rate of Rs. 650/- per sq. ft. for Rs. 21,64,000. Therefore, as on 20.4.2012 there was a difference of Rs. 9,75,000/-. Both the Fora have concurred with the finding of deficiency of service on behalf of the Petitioner herein, based on the Chartered Engineer''s Report. However, the State Commission had observed that an amount of Rs. 4,00,000/- towards rectification of the constructed building was excessive and reduced the amount to Rs. 2,00,000/-.

Keeping in view our limited jurisdiction, as specified in Rubi (Chandra) Dutta vs. United India Insurance Co. Ltd., 2011 2 CPJ 19 , I am of the considered opinion that there is no illegality or infirmity in the concurrent orders of the Fora below with respect to deficiency of service on behalf of the Revision Petitioner.

Hence this Revision Petition fails and is dismissed accordingly. No order as to costs.