IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Friday the 18th day of December, 2020
Filed on 12.10.2015
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma.BA, LLB(Member)
In
CC/No.304/2015
Between
Complainant:- Opposite parties:-
Sri. Noushad.A Sri. Abdul Zazimudeen
Veliyil House S/o Kunjimoydeen Koya
Karukayil Ward Pullikkalakathu
Thathampally.P.O Palace Ward, Alappuzha
Alappuzha (Adv.R.Unnikrishnan)
(Adv.M.P.Manojkumar)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act,1986.
1. Material averments briefly stated are as follows:-
Complainant is working abroad. He entered into an agreement with the opposite party to construct a house and an amount of Rs. 19,86,700/- was spend for the same. Opposite party made to believe the complainant that he is having sufficient technical knowledge regarding the construction of the house. Work was not done for the amount received by him.
There are several defects in the construction and the building was not constructed as per the approved plan. Cross beams were not constructed as per the plan and so there is difference in the elevation of the building. The pillers of the sitout were not constructed as per the plan. The plastering was not done in time and it was done with sub standard materials using unskilled masons.
The stair case was constructed in a different manner without the permission of the complainant. Since the sun shade was not constructed rain water is falling into the house. Concreeting work was done hurriedly using sub standard materials and there was no proper supervision. Lintels were not constructed as per approved plan. There are several holes in the walls and there are leakages in the roof.
There was deficiency of service from the part of the opposite party by which complainant sustained mental agony and heavy loss. For curing the defects an amount of Rs.5,00,000/- is required and the complainant is entitled to claim the same from the opposite party. Complainant is also entitled for compensation of Rs.3,00,000/- for mental agony and Rs.25,000/- as cost.
2. Opposite party filed a version mainly contenting as follows:-
The complaint is filed with false allegations. On 17/8/2013 complainant and opposite party entered into an agreement for completing the construction of the house. As per the terms and conditions of the agreement an amount of Rs.5,00,000/- is to be given as advance and the remaining amount is to be given as instalment during the construction. The total cost of construction was Rs.43,94,400/-. Approved plan containing measurements was not handed over to the opposite party and only rough sketch was given. Complainant did not give amount as per the agreement and there was delay. Only an amount of Rs.12,54,233/- was given to the opposite party and not Rs.19,86,700/- as mentioned in the complaint. Opposite party had made constructions for an amount of Rs. 22,00,000/- till 13/8/2014. Since complainant was not ready to give money construction was stopped on 13/8/2014. Opposite party is the 3rd contractor and the previous 2 contractors also left without completing the constructions.
Opposite party had spend an amount of Rs.9,44,767/- in excess for construction till 13/8/2014. On 7/5/2015 complainant filed CMP No.296/2015 before the vacation court, Alappuzha and obtained a temporary injunction against opposite party and thereafter construction was completed. The case is pending before Munsiff Court, Alappuzha as OS.No.445/2015.
Opposite party is entitled for an amount of Rs.9,45,767/- for which he has filed a suit as OS No.667/2015 before Munsiff Court ,Alappuzha. The intention of the complainant is only to harass the opposite party. Construction was done by the opposite party on the basis of rough sketch and changes were made as per the direction of the complainant. Plastering was done only partially. The allegation that sub standard materials were used for the construction is false. Opposite party is entitled for an amount of Rs. 9,45,767/- from the complainant and this complaint was filed on an experimental basis claiming an amount of Rs.8,00,000/-. Hence the complaint may be dismissed with cost.
3. On the above pleadings following points arose for consideration:-
- Whether there is deficiency of service as alleged by the complainant?
- Whether the complainant is entitled to realize an amount of Rs.5,00,000/- from the opposite party for rectifying the construction?
- Whether the complainant is entitled for an amount of Rs.3,00,000/- as compensation from the opposite party?
- Whether the complainant is entitled for an amount of Rs.25,000/-as cost?
- Reliefs and cost?
Evidence in this case consists of the oral evidence of PW1 and Ext.A1 and A2 from the side of the complainant and the oral evidence of RW1 to RW3 and Ext.B1 from the side of the opposite party. The expert commissioner was examined as CW1 and Ext.C1 was marked.
-
For the sake of convenience these points are considered together. PW1 is the complainant in this case.He filed an affidavit in tune with the complaint and marked Ext.A1 and Ext.A2.RW1 is the opposite party in this case.He filed an affidavit in tune with the version and marked Ext.B1.
RW2 filed an affidavit stating that complainant and opposite party entered into an agreement for construction of a house.He used to give technical advice to the opposite party and he had given advice regarding the construction.Before entrusting the construction with the opposite party the work was done by two other contractors.They stopped the work since money was not given.Thereafter opposite party was entrusted to complete the construction.Opposite party had done the construction for an amount of Rs.22,00,000/- and he is entitled for an amount of Rs.9,45,767/- being the balance. Construction was stopped since the amount was not given. When the complainant attempted to construct building with another it was prevented by the opposite party and the complainant obtained a temporary prohibitory injunction from the Munsiff Court, Alappuzha and completed the construction.
RW3 filed an affidavit stating that he is familiar with parties to the proceedings.Earlier he was doing the construction and he had done the basement work.Since the complainant did not give the agreed amount he abandoned the construction.He had sustained heavy loss.Thereafter construction was done using another contractor and he also left. Thereafter the work was entrusted with the opposite party.
CW1 is the expert commissioner in this case. He inspected the premises on 6/1/2016 and prepared a report and it is marked as Ext. C1.
The substance of the evidence is discussed above.PW1, complainant in this case entered intoExt.A1 agreement with RW1 for constructing his house.The total amount fixed was Rs.42,62,400/- and the contract period was 6 months.However the construction was not completed and RW1 left the work in the middle way.Hence alleging deficiency of service and claiming amount for rectification of the work and also claiming compensation for mental agony and cost this complaint was filed.From the side of the complainant he got examined as PW1 and Ext.A1 and A2 were marked.An expert engineer visited the property and prepared Ext.C1 report.The expert engineer was examined as CW1.Opposite party filed version denying the allegations and contented that the complaint is filed on an experimental basis.Opposite party got examined as RW1 and Ext.B1 was marked.RW2 and 3 were also examined from the side of the opposite party. Now the case to be considered is whether the allegations leveled against the opposite party by the complaint is true so that he is entitled for compensation.According to PW1 Ext.A1 is the agreement entered by him with RW1. The same agreement was produced by RW1 and it was marked as Ext.B1.On a comparison of Ext.A1 and B1 it is noticed that Ext.A1 is only having one page and it does not contain the signature of both parties.On the other hand Ext.B1 produced is having eight pages and in some pages there is signature of complainant.While giving evidence PW1 admitted that the signature belongs to him.Ext.A1 cannot be relied upon since its does not contain the whole agreement and so that it is not having the signature of either of the parties.As per Ext.B1 agreement the total amount for construction was Rs. 43,94,400/-.In Ext.A1 the rate for 1st floor is shown as Rs.1,600/- per sqft. Whereas in Ext.B1 the rate is shown as Rs.1,700/- per sqft.No other difference is seen in Ext.A1 and the 2nd page of Ext.B1.Admittedly RW1 is the 3rd contractor engaged by PW1.RW3 one of the previous contractors had done only the basement and thereafter he abandoned the job.In Ext.B1 2nd page 30% of the amount ie, Rs.9,21,600/- is seen deducted being the amount of work already done.In Ext.B1 the amount payable as stage wise is also mentioned.An amount of Rs.5,00,000/- is to be paid on completion of balance brick work and roof concreeting and 1st floor brick work starting.Likewise during second stage an amount of Rs.11,00,000/-is to be paid andthe 3rd stage an amount of Rs.5,00,000/- is to be paid.Similarly on 4th stage Rs.5,00,000/-, 5th stage Rs.10,00,000/-, 6th stage Rs.3,00,000/- and on7th stage Rs.4,94,400/- is to be paid.
As admitted by both parties RW1 also abandoned the work without completing it.The work was stopped on 13/8/2014.Thereafter complainant filed a suit before the vacation Court and obtained an order to temporary injunction.On the basis of the temporary injunction RW1 was prohibited from entering and obstructing the construction and PW1 completed the construction.Now the case of PW1 is that as per Ext.C1 report an amount of Rs.4,17,223/- is required for rectification and he is claiming Rs.5,00,000/- on account of the same.Ext.A2 is a letter dtd.4/3/2015 sent by The General Secretary, All Kerala Private Contractors Association State Committee to the complainant.In Ext.A2 it is stated that on the basis of a complaint filed by PW1 on 15/12/2015 valuation was done and detailed valuation report is sent.As per the valuation report attached to Ext.A2 it is seen that the total work done is for Rs.13,90,559.62/-.However it is seen that Ext.A2 is dtd.4/3/2015 whereas the complaint was filed on 12/10/2015.So it is pellucid that the valuation attached to Ext.A2 was prepared before filing the complaint.Moreover it was prepared without giving notice to RW1 and so it cannot be relied upon.In said circumstances there is no evidence on record for the actual volume of work done by RW1.Ext.A1(a) contained certain amounts which was paid to RW1.Though the total amount shown is Rs.19,86,700/- it is seen that there is a calculation mistake and the total amount will come only Rs.17,16,700/-.As per Ext.A1(a) Rs.21,00,000/- is to be paid to RW1 up to the 3rd stage of construction.Deducting the amount collected by him an amount of Rs.1,13,300/- is shown as balance.As stated earlier since there is a calculation mistake the balance will come to Rs.3,83,300/-(21,00,000 – 17,16,700).According to PW1, RW1has completed up to the 3rd stage of work.If that is so he is entitled for an amount of Rs.21,00,000/- as per Ext.B1.From Ext.A2(a) it can be seen that he had only received an amount of Rs. 17,16,700/- andRs.3,83,300/- is due to him.From Ext.C1 report it is seen that plastering was done in certain parts and plastering is shown as the 4th stage and if RW1 has completed the 4th stage he is entitled for Rs.5,00,000/- more on that stage and the total amount will come to Rs.26,00,000/- whereas he has only received Rs.17,16,700/-.
The main allegation of PW1 is that the construction was not done as per the plan.However the said plan is not seen produced and marked in evidence.According to RW1 there was no such plan and only a rough sketch was handed over and some changes were done as per the directions of PW1.However CW1 the expert engineer stated that he had seen the approved plan but it is not seen produced before the commission.Without verifying the approved plan it cannot be ascertained whether the construction was done with any changes.In Ext.C1 report it is stated that an amount of Rs.4,17,223/- is required for rectifying the defects.CW1 had seen about 200 holes in the wall. But such holes are necessary for the purpose of construction and when examined before commission CW1 stated that the defects can be rectified at the time of completing the construction.Admittedly RW1 was not allowed to complete the construction and on the strength of temporary prohibitory injunction the work was done by somebody else as per the instructions of PW1.Of course in Ext.C1 report CW1 had stated that there are some defects in the construction but as said earlier approved plan is notseen produced before the commission for the comparisonand since the construction was only half way there will be defectsand it can be curedonly on the last stage.It is to be remembered that RW1 was not allowed to complete the construction and so he cannot be blamed for the defects noticed by CW1 in Ext.C1 report.
According to RW1 the construction was not completed since PW1 was not ready to pay the amount stage wise as agreed in Ext.B1.As discussed earlier as per Ext.B1 amount had to be paid stage wise.From Ext.C1 report it is seen that plastering was done in some area and plastering is shown as at the 4th stage.If RW1 had done construction up to the 4th stage he is entitled for an amount of Rs.26,00,000/- and as per Ext.A2(a) RW1 had only received an amount of Rs.17,16,700/-.So RW1 is justified in stopping the construction. As discussed earlier Ext.A2 was prepared on 4/3/2015 that is about 7 months before filing the complaint and that also without the presence of RW1.So Ext.A2 is not binding RW1 and no order can be passed on the basis of Ext.A2.In other words there is no reliable evidence on record to show the volume of work done by RW1 and without the same the total amount of money cannot be calculated.As per Ext.B1 if RW1 has completed up to 4th stage he is entitled for Rs.26,00,000/- whereas as per Ext.A1(a) only an amount of Rs.17,16,700/- is paid to him.This attains significance since RW1 has taken a contention in the version that he had done excess work for an amount of Rs.9,45,767/- and for realizing in the same he had filed a suit as OS.No.667/2015 before the Munsiff Court.However when examined before court RW1 stated that since he was unable to pay the balance court fee, the plaint was rejected.
CW1 expert engineer visited the property on 6/1/2016 and prepared Ext.C1 report.It is true that he had noticed 18 defects in the construction and for rectification of the same an amount of Rs.4,17,233/- was required.But it is to be noted that on 7/5/2015 PW1 filed CMP.296/2015 before the vacation Court and obtained an order of temporary injunction.The case was transferred to Munsiff Court, Alappuzha and re-numbered as OS.No.445/2015.On the strength of temporary injunction the construction was completed by PW1 and he had started residing in it.As discussed earlier when examined as CW1 the expert engineer stated that the rectifications can be done at the time of completing the construction for which additional amount is required.RW1 was not permitted to complete the construction and the construction was completed by PW1 on the strength of temporary injunction.So RW1 cannot be blamed for not curing the defects since it can be done at the time of completion of construction.
Admittedly PW1 has paid only an amount of Rs.17,16,700/- to RW1.As per Ext.B1 for completing up to 4th stage RW1 is entitled for Rs.26,00,000/- and even up to the3rd stageRW1 is entitled for Rs.21,00,000/-.So it is crystal clear that amount shown in Ext.A1 which is to be paid during stage wise construction was not given to RW1.Admittedlydispute arose between parties and so the construction was stopped.Only if there is defects after the completion of work it can be alleged that there was deficiency of service.Here it is to be noted that the entire construction was not completed by RW1 and he stopped the work during mid way.Though the complaint was filed on 12/10/2015 filing if civil suit before the Munsiff Court and completion of construction by the complainant is not narrated in the complaint.An opportunity was also not given to RW1 to complete the construction and cure the defects. On the other hand on the strength of order of temporary injunction RW1was prohibited from completing the construction and the remaining work was done by PW1.It is to be remembered that RW1 was not given the amount as admitted in Ext.A1 agreement and that is why the construction was abandoned by him in the midway.As discussed earlier the main allegation is that construction was done varying from the plan but the approved plan is not seen produced without which no inference can be taken regarding difference of construction.No reliable evidence is available regarding the construction done by RW1 and so the value cannot be calculated.Ext.A2 cannot be relied upon since it wasprepared prior to the filing of the complaint and also in the absence of RW1.It is true that in Ext.C1 report the expert engineer has stated that an amount of Rs.4,17,223/- was required for rectification but it has come out in evidence that the rectification can be done during the time of completion of work.Since RW1 was not allowed to complete the construction he cannot be blamed for not doing the rectification.Hence on assessing the evidence as a whole it can be safely concluded that there is no convincing evidence to prove that there was deficiency of service from the part of RW1.Sufficient data’s are not available to ascertain the work done by RW1 and without which no order can be given as compensation.Filing a civil suit before the Munsiff Court by RW1 itself shows that money was due to him.It is also noticed that before filing this complaint complainant had filed a civil suit for getting a temporary injunction and he could have included the relief claimed in this complaint in the said suit. It is an indication that filing of this complaint is an afterthought.Civil Suit was filed on 7/5/2015 and this complaint was filed only on 12/10/2015.Complainant is seeking compensation of an amount of Rs. 3,00,000/- for his mental agony.But it is to be noted that the construction as per Ext.B1 agreement was not completed and RW1 was prevented from completing the constructionon the strength ofcivil suit.So it is not known as to what was mental agony sustained by PW1.In said circumstance we are of the view that complainant is not entitled for any relief and so these points are found against the complainant.
Point No.5
In the result complaint is dismissed with cost of Rs.2000/-. (Rupees Two thousand only)
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 18th day of December, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Noushad.Rahim(Complainant)
Ext.A1 - Contract amount.
Ext.A2 - Letter from AKPCA dtd.4/3/2015.
Evidence of the opposite parties:-
RW1 - Abdul Nazimudeen(Opposite party)
RW2 - Ratheesh( Witness)
RW3 - Jaleel Jamal(Witness)
Ext.B1 - Contract Agreement
Ext.CW1 - B.Mohanan(Witness)
Ext.C1 - Commission Report
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
