DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 25th Day of February 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 31/08/2010
(C.C.No.109/2010)
Ambika Jayaraman
W/o.Late Sri.Jayaraman,
CRD Menon Colony,
Puthur Post,
Kallepulli, Palakkad
(By Adv.Jayachandran.G &
Adv.Dhananjayan) - Complainant
V/s
A.D.Kesavadev
S/o.Madhavan Namboodiri,
Sukesitham,
Banglowkunnu (PO),
Kongad, Palakkad
(By Adv.M.P.Ravi) - Opposite party
O R D E R
By Smt.PREETHA.G.NAIR, MEMBER
Complainant had entered into an agreement with opposite party to construct a house on 3rd November 2007. The complainant and opposite party have with full consent had agreed and executed a building construction agreement. As per the terms of contract, it was fixed that Rs.675/- per Sq.ft was the cost of construction of the plinth area and he should complete the construction within six months of the agreement. During the time of the construction the complainant had been residing in a rented house. As per the terms and conditions it was decided only qualitative materials should be used for the building construction and only well qualified workmen and masons would be doing all the works. The opposite party has violated the terms and conditions of the agreement. He had not completed the work as promised within 6 months from the date of execution of the agreement. But at last he had handed over the key of the house on 2009 February only. As per the terms of the contract the complainant has paid Rs.15,65,000/- to the opposite party. When they have began their inhabitance in the newly constructed house within a few months itself the complainant has noticed serious anomalies, defects and imperfection in the newly constructed house.
On the month of March itself the door lock pad, out side and inside bolts of the front, back and other doors were broken and damaged and the complainant had to replace and affix those with new ones. The complainant in the month of May 2009 noticed the following defects and short comings in the construction.
- The building on almost every where more particularly in the ground floor and first floor and the upper portion of the building. i.e. the main slab itself began to leak and existing water seepages from there to beneath.
- There are wider and long cracks on the western wall, which have approximately 1 cm width and near about one meter length in a vertical manner.
- The main door frame (kattila) made of teak have imperfection and it has not been properly treated and polished.
- On the right side of the main drawing hall the electrical fittings like the light and plug have not been properly fixed. On the main hall ceiling hooks were not properly fixed. The fixed one had been fallen down. The complainant’s daughter has a new born baby had been in one occasion laid the baby in the cradle which was tied in the ceiling hook situated on the main hall. Within half an hour after the baby was began to sleep in the cradle, the hook on which the cradle has been fastened had fallen down and invariably baby was fallen down. Baby had got injury and was hospitalized.
- On the main hall at many places in the wall termite heaps are noticed. This has happened due to imperfect floor construction.
- Through out the house the flooring remains as uneven and it gives considerable discomfort while walking.
- On the 2nd bed room of the house which lies on the western side of the main hall visible dampness and water seepages are existing from the side walls on the northern wall
- Window glasses were broken on the dining hall even at the time of the handing over of the house
- Very poor quality electrical fittings and accessories had been used.
- Many cracks are seen on the outer wall and almost every where in the house on the wall and on the upper ends of the wall touching the main slab dampness exists and wetness seen and have not even vanished even after the rainy season. The walls of the house always appear as wet and soaking. The water taps and plumbing works done by the opposite party is also not at all different. Many taps in the bath room and kitchen had not been properly affixed, many of them had been fallen down and damaged within six months itself.
- As per the agreement the well in the house is to be protected and inserted with concrete rings. But the opposite party has used only 34 concrete rings but has obtained the amount for 44 rings.
Thus the building constructed by opposite party is having very serious construction defects. His action and omission caused for immense financial loss to the complainant. As he has not completed the construction within the stipulated time as agreed the cost of construction had also increased considerably and invariably.
The defects were informed and intimated to the opposite party. But instead of redressing the grievances and on the apprehension and suspicion that the complainant would at any time move to the concerned court of law the opposite party has filed a suit for recovery of money from the complainant before the Court of Subordinate Judge. The complainant is not at all liable to pay Rs.2,57,121/- as alleged by the opposite party.
Opposite party is factually liable for his deficiency in service and negligence done and caused by him. Hence the complainant prays an order directing the opposite party to pay Rs.3 lakhs along with its cost and interest for the negligence and deficiency of service caused and done.
Opposite party filed version stating the following contentions. It is true that the opposite party has entered into an agreement with the complainant to construct a house. When the complainant has began her inhabitance in the newly constructed house within a few months itself and noticed serious anomalies defects and imperfection in the newly constructed house is not correct and is denied by opposite party.
In fact the opposite party has constructed the house as per the terms and conditions of the agreement entered into between the complainant and handed over the key after completing the entire work of the building. Apart from the works specified so many other works as required by the complainant like construction of compound wall, well, gate, concreting of the yard, septic tank and leach pit, waste pit, extra wiring and plumbing earth leveling and fixation of railings etc. As per the terms and conditions of the agreement extra works will be charged with extra money. An amount of Rs.2,57,121/- alongwith interest is due from the complainant to opposite party for the additional works carried out. Inspite of repeated demands and request made, the complainant has failed to pay the same. The complainant had been seeking time stating that she is not in a position to raise funds because of the death of her husband. Thereafter the opposite party has preferred a complaint before the LENFED District committee on 7/9/2009. The complainant had appeared there and sought time for making payment. But she has not paid the amount and hence the opposite party issued a legal notice on 18/11/09. But the complainant has not paid the amount. Hence the opposite party had filed a suit before the sub court on 16/2/10. To defeat the legitimate claim of opposite party, the complainant has come forward with a false case. There is no deficiency in service on the part of opposite party. There is no defects to the house as stated in the complaint and the complainant is not entitled to get any amount as compensation. Hence the opposite party prayed that dismiss the complaint with costs.
Both parties filed their respective affidavits and documents. Ext.A1 to A3 marked on the side of the complainant. Ext.B1 and B2 marked on the side of the opposite party. Commission report was marked as C1. Complainant was examined as PW1. Matter heard.
Issues to be considered are
- Whether there is any deficiency in service on the part of opposite parties ?
- If so, what is the relief and costs ?
Issues No.1 & 2
Admittedly both parties entered into an agreement to construct the house. In Ext.A1 the agreement dated 3/11/07 no where mentioned the date of construction work was started and completed. The opposite party stated that after completing the entire work of the building handed over the key to the complainant. Further opposite party stated that apart from the works specified in the contract he has done so many other works as required by the complainant. The opposite party has not produced documentary evidence to prove the extra works. According to the opposite party an amount of Rs.2,57,121/- along with interest is due from the complainant for the additional works carried out. Ext.B1 is the copy of notice filed before the Lenfed District Committee by the opposite party. The opposite party stated that the complainant has appeared before the Lenfed District Committee and sought time for making payment. The opposite party has not produced evidence to show the decision of Lenfed District Committee. Thereafter opposite party sent a lawyer notice to the complainant. Ext.A3 dated 3/12/09 is the reply notice sent by the complainant. The opposite party demanded Rs.2,57,121/- as an additional amount to the complainant. In Ext.A1 also mentioned terms and conditions 4:- If there is any alteration or extra work 7% of such work shall be charged towards contractor’s percentage along with the cost of extra work. The cost of such work shall be estimated and presented by the contractor to the owner for mutual understanding and approval. So the opposite party has the right to claim the cost of additional work. Ext.B2 shows the opposite party filed suit before the sub court and claimed an amount of Rs.2,57,121/- with 12% interest per annum.
In the present case the complaint is filed for getting Rs.3 lakhs for the financial loss on account of the delay in construction of the house and also for the mental agony and also on account of the defects in construction.
C1 is the commission report filed by the expert commissioner. Opposite party filed objection to the commission report stating that the observations, conclusions and suggestions given by the expert is beyond the scope of the work and it is not at all material to decide the matter in controversy. But the opposite party has not taken steps to get clarification on the aspects which he disagrees on from the expert.
In Ext.C1 the commissioner mentioned that the toilet with entry from work area has got an Indian type closet. The waste water while bathing will go into the commode and created problem. Also the commissioner assessed Rs.60,000/- for correction of toilet. In the objection the opposite party stated that it is only a toilet fixed with Orissa pan and there is no facility for bathroom. In Ext.A1 the agreement shows the detailed specification of the proposed constructions mentioned in 13:- European closet with flush in attach bathrooms and Indian closet without flush in common toilet. The commissioner mentioned the toilet with entry from work area has got an Indian type closet, not stated attach bathrooms. The complainant has not produced evidence to show the defects noted in attach bath room or common toilet. So we cannot considered the correction of toilet.
Further commissioner stated that painting and polishing is an extra item when the contract agreement is considered. Commissioner stated that the furniture fittings like door locks, tower bolts are not of very good quality and the contract also does not specify the quality of polishing work. The complainant stated that the opposite party handed over the key of the house on 2009 February. The Commissioner inspected the house on 17/5/2010 and 16/10/10 and stated that the polish may not be of good quality. Commissioner could not find out the number of rings as water was at a higher level and stated that well is not well maintained. Further Commissioner mentioned that no major structural cracks are visible and most of the cracks are temperature cracks or stress relieving cracks. Complainant stated that her daughter laid the baby in the cradle which was tied in the ceiling hook situated on the main hall. Within half an hour after the baby was began to sleep in the cradle, the hook on which the cradle has been fastened had fallen down and invariably baby was fallen down. Commissioner also noted that one of the hooks near the stair case moved during usage, making a small piece of cement plaster to fall. Commissioner not assessed the type of cable and rings of well. So we considered the assessment of Commissioner of Anti terminate treatment, water proofing painting and polishing, and changing of furniture fixtures and tap fitting. Commissioner noted that anti terminate treatment not taken. Commissioner has not mentioned the type of cables. The opposite party has not produced evidence to show the extra work done.
There was no dispute regarding the payment as per the agreement. The opposite party stated that an amount of Rs.2,57,121/- alongwith interest is due from the complainant. But the opposite party has not produced documentary evidence to prove the amount due was the extra amount or the amount stated in the agreement. The complainant sated that she has paid Rs.15,65,000/- to the opposite party. No contradictory evidence produced by the opposite party. According to the complainant the key handed over on 2009 February. No evidence was produced by the complainant to prove that she had been residing in a rented house. According to the Commissioner certain electrical switches seems to be not properly fixed. One of the hooks near the stair case moved during usage, making a small piece of cement plaster to fall. But the Commissioner has not assessed the amount for rectification of electrical switches. Moreover the commissioner has not specified the type of cables. Further the commissioner noted that the well is not well maintained and could not find out the number of rings as water was at a higher level. So we find Rs.10,000/- shall give on the account of maintenance of well and rectification of cables and electrical switches.
As per the commission report we considered Rs,1,07,000/- (Rupees One lakh seven thousand only) (for Anti Termite Treatment Rs.10,000/-, Water proofing Rs.12,000/- Painting and polishing Rs.60,000/- and charging of furniture fixtures and tap fittings Rs.25,000/-) Further Rs.10,000/- (Rupees Ten thousand only) considered for the maintenance of well and rectification of cables and electrical switches. So we find Rs.1,17,000/- as the cost of curing the defects in the complainant’s house.
In view of the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay the complainant an amount of Rs.1,17,000/- (Rupees One lakh seventeen thousand only) as the cost of curing the defects with 12% interest per annum from the date of filing of the complaint to date of order and pay Rs.3,000/- (Rupees Three thousand only) as cost of proceedings.
Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry 9% interest per annum from the date of order till realization.
Pronounced in the open court on this the 25th day of February 2012
Sd/-
Seena.H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
1.Ext. A1 – Copy of agreement dated 3/11/07
2. Ext. A2 – Lawyer notice issued to the complainant by opposite party dtd.18/11/09
3. Ext. A3 – Reply to lawyer notice sent to opposite party dated 3/12/09
Complainant examined
PW1 – Ambika Jayaraman
Exhibits marked on the side of the Opposite Party
1.Ext. B1 – Copy of complaint filed before the Lenfed District Committee by the
opposite party dated 7/9/09
2.Ext. B2 – Copy of Suit filed by the opposite party before the Sub Court, Palakkad as
O.S.134/10 dated 15/2/10
Witness examined on the side of opposite party
Nil
Commissioner Report
Ext.C1 – Er.D.Ajith
Cost Allowed
Rs.3,000/- allowed as cost of the proceedings.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 12th day of November 2010 .
Present : Smt. H. Seena, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member
C.C.No.109/2010
Ambika Jayaraman
W/o. Late Sri. Jayaraman
CRD Menon Colony
Puthur Post
Kalleppulli
Palakkad - Complainant
( AdvJayachandran.G & Adv. Dhananjayan)
Vs
A.D. Kesavadev
S/o. Madhavan Namboodiri
residing at Sukesitham
Bunglowkunnu (P.O)
Kongad
Palakkad - Opposite parties
(Adv.M.P. Ravi)
O R D E R
By Smt. Seena.H, President.
Complainant and Opposite party represented. Complainant not filed affidavit. Posted as last chance. Complaint dismissed for default.
Pronounced in the open court on this the 12th day of November , 2010
PRESIDENT (SD)
MEMBER (SD)
Date of filing: 31/08/2010 MEMBER (SD)
D
