Tamil Nadu

North Chennai

CC/08/2015

Mr.Rizwan, S/o.Shanatha,Mrs.R.Zueda, W/o.Mr.Rizwan,No.39/54, School Rd, - Complainant(s)

Versus

A.Srinivasan, Building Contractor,M/s.A.K.Construction, - Opp.Party(s)

A.Srinivasa Subbiah

19 Sep 2017

ORDER

 

                                                            Complaint presented on:  31.12.2014

                                                                Order pronounced on:  19.09.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY  THE 19^th  DAY OF SEPTEMBER 2017

 

C.C.NO.08/2015

 

1.Mr.Rizwan,

S/o. Mr. Shajatha,

 

2.Mrs. R.Zubeda,

W/o. Rizwan,Both Residing at:

No.39/54. School Road,

Jaganathapuram,

Chetpet, Chennai – 600 031.

                                                                                    ….. Complainants

 

..Vs..

Mr.A.Srinivasan,

Building Contractor,

M/s. A.K.Construction,

No.1, B.R.N., Garden “B” Block,

Broadway, Chennai – 600 108.

.....Opposite Party

Date of complaint                                 : 07.01.2015

Counsel for Complainant                      : M/s. A.Srinivasa Subbiah, &

                                                                    P.S.Vasanthakumar

Counsel for Opposite Party                      : M/s. I.Murugan, S.Vijay Anand,

                                                                    T.Vanitha Sri Rohini Devi     

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant  to direct the opposite party to carry out the said defects and recover from the opposite party and also direct to pay compensation for mental agony with litigation expenses u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The first complainant purchased a property at No.39/54 School Road, Jaganathapuram, Chepet, Chennai – 31 in the name of his wife/2^nd complainant by way of sale deed dated 21.12.2011. The opposite party was carrying on construction business in the name of AK Construction. The complainants wants to develop the property by constructing residential house. The opposite party approached the complainants and assuring to undertake the construction. Accordingly both of them entered into a construction agreement dated 05.03.2013 and agreeing to construct 497 sq.ft each in the ground floor, first floor and second floor and the cost of construction was fixed at the rate of Rs. Rs.1300/- per sq.ft in the ground floor, Rs.1200/- per sq. ft in the first floor and Rs.1225/- in the 2^nd floor. The said property was 400 sq.ft and based on that the construction cost was calculated at Rs.14,90,000/-.

          2. The complainant measured the property with help of an engineer  and found that only 347 sq.ft available and the remaining area was encroached by the neighbours in the extend of 400 sq.ft. Thus the opposite party received an excessive payment of Rs.1,97,425/- from the complainants.

          3. The opposite party committed deficiency in deliberately failing to complete the construction work, outer wall plastering work, front elevation work and electrical work etc. Further the opposite party used substandard materials for construction of the building resulting cracks were found in all the rooms. Further electrical wiring materials used also substandard and the windows are madeup of poor quality and the tiles fixed in the floor are not proper and the toilet waste water seepage needs immediate repairs.

          4. The complainants for carrying out the aforesaid repairs in the construction regarding electrical work, outer plastering work front elevation and for rectification of cracks he had estimated an amount of Rs.3,00,000/-. There was exchange of notices between them. Even after notice the opposite party had not rectified the defects pointed out  in the notice. Hence the complainant filed this complaint to direct the opposite party to carry out the said defects and recover from the opposite party and also direct to pay compensation for mental agony with litigation expenses.

5. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The opposite party admits that he had entered agreement with the complainant to construct a ground, first floor and 2^nd floor and he had also received a sum of Rs.14,90,000/- from him. The opposite party never received any excessive payment from the complainants. The opposite party used orbit wire for electrical work and also used only quality materials only. The complainant alleged to carryout extra work, he had not paid additional payment as per the agreement. Further the complainant had fight with the Christian neighbors. The northern and western neighbors did not permit the opposite party to carry out plastering work. If the complainant gets permission from them to complete the work from their side, even today ready they are to carry out such plasterings work. The complainant estimated a sum of Rs.3,00,000/- for rectification of work is imaginary. As such the opposite party only incurred a loss of Rs.1,09,000/- in receipt of certain works to complete the construction. Therefore this opposite party has not committed any deficiency in service and prays to dismiss the complaint with cost.

6. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

7. POINT NO :1 

          The admitted facts are that the complainants are the owners of the property at No.39/54 school road, Jaganathapuram, Chepet, Chennai – 31 and they wanted to put up construction in the said land and the opposite party  agreed to provide service to construct building in that land and accordingly both of them entered into an agreement Ex.A1 dated 05.03.2013 to construct ground floor, 1^st floor and 2^nd floor at a cost of Rs.14,90,000/- and the complainants also have paid the said amount to the opposite party and received by him.

          8. According to the complainant the opposite party agreed to put up construction of    497 sq.ft in each floor and the land available only 347 sq.ft out of total extend of 400 sq.ft and thereby the complainant paid an excessive payment of Rs.1,97,425/- to the opposite party. Whatever, may be the case of either parties in respect of the extend of the land, the complainant paid a sum of Rs.14,90,000/- to the opposite party and he had also received the same and after the construction the complainant also occupied the building and the complainant had not filed the sale deed for the purchase of the land his name from the 2^nd opposite party and in such circumstances exact measurement of the land is immaterial to decide the case in hand.

          9. The complainants alleged deficiency against the opposite party is that he had deliberately failed to complete the construction work of out plastering wall work, front elevation work and  electrical work  and further the opposite party used substandard construction materials resulting in lot of track in all the rooms, electrical wiring materials windows tiles fixed in the floor are coming out and toilet and waste water seepage needs immediate repair and taps and pipe line wire of substandard quality were corroded within three months and to carry out such repairs he requires a sum of Rs.50,000/-  for electrical work, a sum of Rs.1,50,000/-  for outdoor plastering, a sum of Rs.50,000/-  for front elevation and further a sum of Rs.50,000/-  required for cracks in the building.

          10. The complainant examined PW2 Anbarasan an engineer as an expert witness to speak about the defects in the building and he also filed his report and the same is marked as Ex.A9 in that report had stated that the bed room, over head tank whethering tiles work in the open terrace, steps in the stair case, marble flooring and glassed wall tiles in the ground and 1^st floor was done by owner according to the information furnished to him. However, for carrying out the aforesaid work no bills were filed by the complainant. Therefore, the above work carried out by the complainant was not established or proved by him.

          11. In Ex.A9 report, PW 2 further said that except front side all other side plastering work have not finished and  rain water leakage and seepages were found in  all the floors and materials substandard one.   There was leakage of rain water and seepage are found in the all the floor were not substantiated with any photographic evidence. Therefore the defects aforesaid mentioned in Ex.A9 report are not proved by the complainants.

          12. However, the opposite parties admits that the outer wall was not plastered as the western than northern side neighbours have not permitted him to him to carry out such work. PW2 also stated in his cross examination that there was    just one feet gap between the complainant compound and the neighbours house and one feet gap is not sufficient to carryout plastering work was accepted by him. Further in Ex.A1 construction agreement the outer wall work was mentioned as extra work. The opposite party would contend in his written version that even now he is ready to complete the outer wall plastering work, if he is willing to pay a sum of Rs.60,000/- as per the agreement. The complainant is not  willing to pay such amount. Since, as per the agreement the outer wall plastering work is an extra work which requires further payment from the complainant as per the construction agreement, the opposite party committed deficiency in not plastering the outer wall cannot be the accepted. Therefore from the forgoing discussions we hold that the complainant has not proved the deficiency committed by the opposite party and hence, it is held that the opposite party has not committed deficiency in service.

13. POINT NO:2

Since the Opposite Party has not committed any Deficiency in Service, the Complainant is not entitled for any relief and the Complaint is liable to be dismissed.

          In the result the Complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 19^th  day of September 2017.

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 05.03.2013                   Construction Agreement between the opposite

                                                    party and 1^st complainant

 

Ex.A2 dated 15.07.2014                   Police complaint given by the 1^st complainant

 

Ex.A3 dated 15.07.2014                   C.S.R. issued by the Chetpet Police Station

 

Ex.A4 dated 13.08.2014                   Legal Notice issued by the 1^st complainant to the

                                                    opposite party

 

Ex.A5 dated 18.08.2014                   Acknowledgement Card

 

Ex.A6 dated 03.09.2014                   Reply Notice issued by the opposite party’s

                                                    counsel to the complainants counsel

 

Ex.A7dated 01.09.2014          Legal notice issued by the 1^st complainant to the

                                                    opposite party

 

Ex.A8 dated 06.09.2014                   Acknowledgement card

 

Ex.A9 dated 25.09.2016                   Civil Engineer’s Report

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                      …… NIL …….

 

                                     

 

MEMBER – I                                                               PRESIDENT