BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC.26 / 2002 TUESDAY THE 21st DAY OF SEPTEMBER 2010. N. Arjunan, S/o. V.R. Natarajan, Residing at No.34/B Rail Road Street, Vettuvanam Village, Vellore Taluk. … Complainant. - Vs – A. Sekar Maistry, S/o. Annamalai Mudaliar, Residing at No.13, Sanndhi Thoppu Street, Nellure Pattai, Gudiyatham, Vellore District. … Opposite party. . . . . This petition coming on for final hearing before us on 24.8..2010, in the presence of Thiru. P.S.Subramanian, Advocate for the complainant and Thiru. S. Varathan, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The opposite party entered into an agreement with the complainant for the construction of a residential house with regard to the space belonging to the complainant on 14.9.2000 with the following and conditions. The opposite party agreed with the complainant for the construction of the house on payment for a sum of Rs.23,000/- for one square (viz 10 feet into 10 feet) for the required area which included all the building materials, labours, wood works, Electrical fittings, PVC pipe fittings, Distemper, colour paining and all other necessary works for the finishing of the building. The old house should be demolished and the entire walls demolished and removed. After removal of the debris and other things, foundation should be laid as per the plan, with 3 feet down and above the floor 2 feet with raising of filt beam on all sides, After using quality bricks with good cement mixing for raising of the building. In each room as per the desire of the complainant room R.C.C. slabe, Almyyrash size of (5 ½ length, 3 ½ breadth, 1 ½ Depth), show case Almyrahs with glass doors, shoes keeping Almyrahs, room ceiling designs, Borders as per the desire and wish of the complainant. As per the desire of the complainant plumbing works, Electrical works, oil distemper / painting works should be done at the expenses of the opposite party and do necessary fitting to make complete the building. 2. R.C.C. roofs with 4 inches thickness, cement concrete at the ratio of 1:2:4 should be mixed, Moulding iron rods of 12mm, 10mm, 6 mm sizes rods should be used with granite stones for making a strong moulding for the building. Later the tiles should be placed with the mixture of lime motor and effectively supported by cement and sand mixing with a parapet wall to be raised for 3 feet height, 9 inches thickness wall with the provision for the iron ring, ceiling rings etc. Inside the house all the walls should have cement coating outside also there should be proper mixture of cement, with sponge coating. The wall sides and wood surfaces should be properly examined and made perfect and later on, the colour distemper / painting should be given. Inside the house the single door, door way almyrahs, almyragh doors etc., should be made in water proof ply wood with free water proof ply wood as per the desire of the complainant, Sunmica should also be pasted with designs on almyraghs in wood should be fixed in the wall in proper places. Toilet soak pit size (10” x 6 x 6’ ). Water over tank, Electrical earth pit, Floor water tank, Inside / outer side sitting plot forms with all other work should be done by the opposite party. The complainant agreed to pay separately for those only at the rate mentioned bellow: a) Street entrance grill gate as per the weight. b) Stair case, Head room with wooden door, sun shade etc. in all within the value of Rs.12000/- c) For the street sun shade per one square feet is Rs.7000/- only. d) Room should have a lofter and it is also should be at the rate of Rs.7000/- per one square feet. 3. The opposite party further agreed to construct the building properly with all the above work neatly and properly effected as per the desire of the complainant within a period of 4 months. The opposite party executed the above agreement in the presence of two witness I.D.T. Moorthy and V.G. Damodaran on 14.9.00. A part form the original agreement the opposite party has executed another agreement incontinuation of the original agreement on 21.5.01 in which the opposite partly agreed for the sum of Rs.46000/-, he will complete all the house construction work and deliver the key. The opposite party had also received a sum of Rs.5000/- on 22.5.01 and on 26.5.01 a sum of Rs.10,000/- he has also signed in the agreement that he had received the aforesaid amounts but he did not complete the work as agreed. The opposite party received the following amounts from the complainant. 1) on 14.9.2000 Rs.20,000/ 2) on 4.10.2000 Rs.30,000/- 3) on 11.10.2000 Rs.10,000/- 4) on 30.10.2000 Rs.15,000/- 5) on 23.11.2000 Rs.15,000/- 6) on 10.12.2000 Rs.35,000/- 7) on 12.12.2000 Rs.15,000/- 8) on 17.12.2000 Rs.20,000/- 9) on 24.12.2000 Rs. 6,000/- In all total sum paid is Rs.1,66,000/- This was paid till the moulding work was done. Then 1) on 3.1.2001 Rs.25,000/- 2) on 30.1.2001 Rs.16,000/- 3) on 1.2.01 Rs.10,000/- 4) on 11.2.01 Rs.10,000/- 5) on 18.2.01 Rs. 3,000/- 6) on 7.2.01 Rs. 5,000/- 7) on 6.5.01 Rs. 2,000/- 8) on 23.5.01 Rs. 5,000/- 9) on 23.5.01 Rs. 1,500/- 10) on 26.5.01 Rs.10,000/- In all a total sum of Rs.2,53,500/- was paid to the opposite party. Even though the opposite party received a sum of Rs.2,53,500/- in excess he has not done the following construction works. A) carpentry work b) laying of floor Mosaick tiles c) Fixing of wall tiles d) work relating to Electrical fitting e) laying of pipe lines f) wall coating of distemper and wood painting works g) There were also other unfinished work which the opposite party has not done anything. 4. Therefore the complainant approached the president of the building labourers Association, at Kulathumedu, Gudiyattam for directing the opposite party to finish the unfinished construction work as per the agreement entered into between the opposite party and the complainant. Therefore the complainant engaged workers to finish the unfished work on daily wages. The following are the particulars regarding the same and the amounts spent thereon. 1) From 23.7.01 to till 13.9.01 For the purchase of building materials Rs.19,656/- For this labour charges paid Rs.11,008/- 2) From 21.8.2001 to till 3.9.01 For the works relating to Electrical fitting Rs. 6,617/- Payment of Electricians. Rs. 1,250/- 3) From 16.8.01 to till 17.9.01 For the purchase of painting materials Rs. 1,724/- Towards painters wages paid. Rs. 1,670/- 4) From 7.9.01 to till 20.10.01 For the purchase of wood work materials Rs.22,310/- Towards carpenters wages paid Rs. 8,076/- The complainant has also spent the following amounts for purchase of things details hereunder. 1) For Mosaic Tails as advance payment paid Rs.10,000/- 2) For purchase of Electrical goods as advance paid Rs.5,000/- 3) For purchase of wooden materials as advance paid Rs.20,000./- The total amount paid as advance for the above is Rs.35,000/- The complainant complained against the opposite party on 17.8.01 to the Bharath Tamil Nadu construction and building labourer’s association, 10, Kulathumedu, Gudiyattam about the way in which the opposite party behaved and forced the complainant to spent an additional amount including the amount paid to the opposite party as detailed above. 5. On account of the deliberate misconduct of the opposite party, deficiency in service and dereliction of duty, non-finishing of the construction work as agreed to by the opposite party with the complainant, in spite of having received excess amount, the complainant was put to irreparable loss and hardship mental agony and physical torture. The complainant issued a legal notice dt. 4.3.02, through his counsel to the opposite party but the opposite party on receipt of the same sent a reply dt. 3.4.02 containing all fasle and reckless allegation. The complainant prayed for directing the opposite party to pay a sum of Rs.1,07,310/- being the excess amount paid to opposite party and the amount spent by the complainant for finishing the unfinished work left out by the opposite party and Rs.50,000/- towards loss of income mental agony and physical torture on account of the deficiency in service on the part of the opposite party and Rs.25,000/- which the complainant incurred towards the additional labour employed by him apart from the amounts mentioned already to the complainant and to pay a sum of Rs.1000/- being the expenses incurred prior to the filing of the complaint to the complainant and Rs.1000/- being the cost of this complaint. 6. The averments in the counter filed by the opposite party is as follows: The opposite party denies all the allegations in the complaint except those that are expressly admitted herein and puts the petitioner to strict proof of those are not so admitted. The opposite party had agreed to construct a building for the complainant @ Rs.23,000/- per 100 sq ft inclusive of building materials, labour wood work, electrical fittings, P.V.C. pipe fittings, distemper, colour painting and all other necessary work for finishing of the building is not sustainable since it is humanly impossible for anybody to quote that amount particularly at the present day of cost of materials and the wages. There is no consensus between the parties, the opposite partly who is an illiterate was asked to sign in a filled up document and therefore there is no concluded contract which is enforceable in law. Even with regard to the payments as mentioned in serial number 7 in the agreement is nebulous which again makes the so called agreement unenforceable in law. The opposite party started the work on 1.10.2000 and as and when the complainant paid the money the constructions proceeded further and the building was handed over after completion of full work on 30.5.01. The opposite party had constructed the main building which is 1,200 Sq ft. steps one sq. ft. Lofts one sq.fi overhead tank ½ sq. sump in all 1.550 sq fit. At a total cost of RS.3,92,500/- even adopting the rate of Rs.23000/- sq fit. Apart form this he had put up an extra wall on the northern side of the building to in a length of 86 ft. at 10 ft. high by laying plinth beam at a cost of Rs.36,000/- Adding that, as already stated the opposite party had spent Rs.3,92,500/- for the completion of the building as against the complainant has paid, as admitted by him a sum of Rs.2,53,500/- alone. Since the opposite party demanded for the balance amount he has chose to issue the notice as well as application. The opposite party emphatically denies of there being another agreement dt. 21.5.01 witnessed D.T. Murthy and V.G. Damodaran. The complainant owes a sum of Rs.1,39,000/- being the balance of the amounts spent by him for the construction of the house. The opposite party prays that this Hon’ble court may be pleased to direct the complainant to pay the sum of Rs.1,39,000/- with interest at 24% p.a. and to pay sum of Rs.10,000/- as and by way of damages for the mental agony given by the opposite party and to payment of Rs.5000/- towards cost for defending this case. The complaint devoid of merits lacks in bonafide and deserves to be dismissed with cost. 7. Now the points for consideration are: a) Whether there is any deficiency in service on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 8. Ex.A1 to ExA11 were marked on the side of the complainant and no documents were marked on the side of the opposite party. Proof affidavit of the complainant and opposite party have been filed. No oral evidence let in by either side. 9. POINT NO. a) The complainant contended that the opposite party agreed with the complainant on 14.9.00 for the construction of the house on payment for a sum of Rs.23,000/- for one square (viz 10 ft into 10 ft) for the required area which included all the building materials, labour wood works, Electrical fittings, PVC pipe fittings, Distemper, colour painting and all other necessary works for the finishing of the building. The opposite party further agreed to construct the building properly with all the above work neatly and properly effected as per the desire of the complainant. The complainant agreed to pay separately for street entrance grill gate, Stair case, Head room with wooden door, sun shade and lofter for each room. After the agreement the opposite party received a sum of Rs. 2,53,500/- from the complainant from 14.9.00 to 26.5.01 in different dates. It is further contended that, even though the opposite party received a sum of Rs.2,53,500/- in excess he has not done the carpentry work, laying of floor Mosaick tiles, fixing of wall tiles, work relating to electrical fitting, laying of pipe lines, wall coating of distemper and wood painting works. Therefore the complainant engaged workers to finish the unfinished work on daily wages. On account of the deliberate misconduct of the opposite party, deficiency in service and non-finishing of the construction work as agreed to by the opposite party with the complainant, inspite of having received excess amount, the complainant was put to irreparable loss and hardship mental agony. 10. The opposite party contended that there is no consensus between the parties, the opposite party who is an illiterate was asked to sign in a filled up document and therefore there is no concluded contract which is enforceable in law. It is further contended that the opposite party started the work on 1.10.2000 and as and when the complainant paid the money the constructions proceeded further and the building was handed over after completion of full work on 30.5.01. The opposite partly had constructed the main building which is 1.200 Sq ft. steps one sq. ft. Lofts one sq ft overhead tank ½ sq sump in all 1.550 sq ft. At a total cost of RS.3,92,500/- even adopting the rate of Rs.23,000/- sq ft. Apart from this the opposite party had put up an extra wall on the northern side of the building to in a length of 86 ft at 10 ft high by laying plinth beam at a cost of Rs.36,000/-. Adding that as already stated the opposite party had spent Rs.3,92,000/- for the completion of the building as against the complainant has paid. The complainant owes a sum of Rs.1,39,000/- being the balance of the amounts spent by the opposite party for the construction of the house, since the opposite party demanded for the balance amount the complainant has choose to issue the notice as well as application. Therefore there is no deficiency in service on the part of the opposite party. 11. It is admitted facts that the opposite party had agreed to construct a building for the complainant @ Rs.23,000/- per 100 Sq ft. According to the complainant that the opposite party entered into an agreement Ex.A1 dt.14.9.2000 with the complainant for the construction of residential use with regard to space belonging to the complainant. From the perusal of Ex.A1 dt.14.9.2000 it is mentioned as follows: 2000-k; Mz;L brg;lk;gh; 14-k; Bjjp tpahHf;fpHik jpU.vd;.mh;$Pdd; (thjp) vd;gtUf;F brhe;jkhd tPl;Lkidapy; tPLfl;o bfhLf;f ahd; Mfpa jpU.v.Brfh; Bk!;jphp (gpujpthjp) Mfpa ehA;fs; nUtUk; VBfhgpj;J Bgrp Kot[ vLj;Jgo rJuk; xd;Wf;F gj;J mo X gj;J mo (10 x 10) U}.23,000/-kl;Lk; fPBH Fwpg;gpl;Ls;s xg;ge;jj;jpd;go tPL fl;oju rk;kjpj;J vGjpbfhLj;j mf;hpbkz;l; xg;ge;j gj;jpuk;. (ne;j gpy;oA;; vy;yhtpj bghUs;fs;, Typ, kuk;, vyf;ohpf;!; bghUl;fs; P.V.C. Pipes Fitting, bra;Typ, fyh; ork;gh; bgapd;oA; Bghd;w vy;yh BtiyfSk; mlA;Fk;.) kw;Wk; 1 Kjy; 11 tiuapyhd ruj;Jfspy; fz;Ls;sthW fl;o Koj;J bfhLf;f rk;kjpj;Js;shh;. The said alleged agreement Ex.A1 signed by the opposite party only. The total sq ft of the plinth area and the total cost of the construction work were mentioned in the said agreement. The contention of the opposite party that he had constructed the main building which is 1200 sq ft, steps one sq ft lofts one sq ft over head tank ½ sq sump in all 1.550 sq ft and the total cost of Rs.3,92,500/-. The complainant has not produced the approved plan and the estimate of the construction by the license Engineer. The opposite party stated that the total cost for construction of plinth area is Rs.3,92,500/-, even adopting the rate of Rs.23,000/- sq ft. Apart from this he had put up an extra wall on the northern side of the building to in a length of 86 ft at 10 ft high by laying plinth beam at a cost of Rs.36,000/-. Therefore the opposite party had spent a sum of Rs.3,92,500/- for the completion of the building as against the complainant has paid. Therefore the complainant owes a sum of Rs.1,39,000/- being the balance of the amounts spent by the opposite party. To prove the above contention the opposite party has also not produced any record particularly the estimation or vale of the construction work of the building. The complainant contended that he engaged workers to finish the unfinished work on daily wages and spent a total sum of Rs.72311/- and he has also spent Rs.35,000/- for purchase of materials. But there is no bills or receipts to prove the above contention. 12. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A11, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 13. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 14. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 21st day of September 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 14.9.2000 - x-copy of Agreement. Ex.A2- 21.5.01 - X-copy of 2nd agreement. Ex.A3- 17.8.01 - X-copy of the complainant’s letter . Ex.A4- 13.2.02 - X-copy of the Reply letter. Ex.A5- -- - X-copy of the details of the material purchased with costs & Wages paid by the complainant for various workers. Ex.A6- 4.2.02 - X-copy of legal notice. Ex.A7- 11.3.02 - Postal Ack. Card. Ex.A8- 3.4.02 - Reply letter by the opp party. Ex.A9-17.8.00 - X-copy of the agreement. Ex.A10- -- - X-copy of House plan. Ex.A11- 14.9.00 to - X-copy of the details of payment to the opp party. 26.5.01 Opposite party’s Exhibits: .. Nil.. MEMBER-I MEMBER-II PRESIDENT
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
