IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 21st day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. 142/08 (Remanded)
Between:
A.M. Jacob alias Jaimon,
aged 48 years, residing at Adimathra-
House, Muttumon, Pulladu P.O.,
Thiruvalla Taluk, Pathanamthitta Dist.
(By Adv. S. Manoj) ... Complainant.
And:
Abraham.C. Kuruvilla-
alias Shobby,Chennattu Builders,
Nellimoottil Building,
Opp. SBT, Kumbanadu P.O.,
Thiruvalla Taluk,
Pathanamthitta Dist.,
residing at Chennattu-
House, Kumbanadu P.O., Thiruvalla. ... Opposite party.
(By Adv. George Mathew)
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The complainant has filed this complaint against the opposite party in connection with the construction of the residential building of the complainant. The opposite party is a building contractor who agreed to carry out the construction and renovation work of the complainant’s residential building as per the specification agreed by the them. As per the construction specification, opposite party agreed to complete the work within 6 months from the date of commencement of the work. The total plinth area of the construction was 975 sq.feet, which includes 300 sq.feet on the ground floor, and 675 sq.feet on the first floor at the rate of ` 750/- per sq.feet. The opposite party has started the construction work with the renovation of the old building. The renovation works carried out are; earth work of 16.9 cubic meters, brick work of 12.700 cubic meters, R.R. work of 6.31 cubic meters, P.C.C. (1:3:6) of 10.89 cubic meters and sand filling of an area of 4.728 cubic meters. The actual cost for the renovation work done by the opposite party is calculated at ` 1,31,090/-. The period for completion of the work ended on 5.09.2007 and till then only the structural work of the building was carried out by the opposite party. The complainant had paid an amount of ` 10,00,250/- as the construction charges and cost of materials to the opposite party. The total amount entitled to opposite party on completion of the work is only ` 6,38,690/-. Thus, opposite party has received an excess amount of ` 3,61,560/- from the complainant. Now the opposite party is absconded and the complainant has to spend an additional amount of ` 8,56,575/- for the completion of his residential building at the present rate.
3. Moreover, the complainant is residing in a rented house from March 2007 onwards by paying a monthly rent of ` 2,500/-. He had paid an amount of ` 22,500/- as rent till September 2008. For the construction work, complainant availed loan from banks and provident fund of his wife. The irresponsibility and non-completion of the construction work as per the work specification agreement even after the expiry of the agreed period is a gross negligence and deficiency in service from the part of opposite party which caused financial loss, mental strain and other inconveniences to the complainant. Now it is learnt that the opposite party after squeezing a huge amount from the complainant has absconded. In the circumstances, the complainant has filed this complaint seeking the following reliefs:
(a) By allowing the complainant to realise an amount of
` 3,61,560/-, the excess .amount received by the
opposite party from the complainant with interest @
18% per year from 5.09.2001 till the date of
realisation.
(b) By allowing the complainant to realise an amount of
` 8,56,575/- from the opposite party, the additional
amount required for the completion of the work or
the actual amount spent by the complainant.
(c) By allowing the complainant to realise an amount of
` 22,500/-, the rent paid by the complainant due to
the delay caused in completing the construction
work, from the opposite party.
(d) By allowing the complainant to realise the future
rent to be paid by the complainant.
(e)&(f)By allowing the complainant to realise an amount
of ` 50,000/- as compensation and to realise the
cost from the opposite party.
The complainant prays for granting the reliefs.
4. The opposite party has not appeared or filed a version irrespective of paper publication against him. Hence he is set exparte and he remains as such.
5. Since the opposite party was declared exparte and he remains as such, complainant’s evidence was taken which consists of the proof affidavit of the complainant and Exts. A1 to A3 and Ext. C1 series.
6. On the basis of the evidence adduced by the complainant, this Forum allowed the complaint against the opposite party.
7. Being aggrieved by the order of this Forum, opposite party filed an Appeal before the Hon’ble Consumer Disputes Redressal Commission as Appeal No. 280/2010. In the Appeal, the Hon’ble CDRC set aside the order of this Forum and the matter is remanded back to this Forum for fresh disposal giving opportunity to the opposite party for contesting the case and the case was also posted before this Forum on 15.01.2011 by the Hon’ble CDRC.
8. Accordingly, both parties appeared before this Forum and the opposite party filed his version. The main contention in the version of the opposite party is as follows: Opposite party admitted that he was running a Consultancy Firm by name “Chennathu Builders” and the said firm undertakes contract works and allied matters. While so, the complainant approached the opposite party for preparing an estimate for the construction of a residential building and for that purpose, he obtained a specification and rough estimate needed for the completion of the work. There is no agreement between the complainant and the opposite party for the construction and renovation of the complainant’s residential building and the opposite party has never undertaken to carry out the construction work. The construction specification produced by the complainant has not been signed by the parties. But on the insistence of the complainant, the opposite party took the supervision of the work of the complainant’s building, on an understanding that as and when the opposite party’s visa for abroad received, he will leave abroad and as such there is no understanding for completing the work within 6 months. Moreover, such a condition is also not endorsed in the works specification. As per the understanding between the parties, opposite party agreed to supervise the construction work of 975 sq. feet. But when the works started, the complainant made directions for alterations in the work and the opposite party obeyed the direction of the complainant and modified the constructions accordingly. Thus, the opposite party was made to construct an additional area of 294 sq. feet more than the area agreed initially. Since the additional area of 294 sq. feet is constructed, excess amount was required for completing the work which was not paid by the complainant. Opposite party had spent an amount of ` 8,88,300 which does not include the supervisory charges due to the opposite party from the complainant. The works done by the opposite party is perfect and since there is no agreement between the parties, the opposite party has not committed any violation of the contract and there is no deficiency of service from the part of the opposite party. This complaint is filed by the complainant for unlawful enrichment from the opposite party. All the averments in the complaint are false and the opposite party is not at all liable to the complainant in any manner.
9. With the above contentions and without any specific pleadings against the pleadings in the complaint, opposite party prays for the dismissal of the complaint raising a counter claim for getting ` 1,85,800 from the complainant. But as per the Consumer Protection Act, there is no provision for claiming counter claim, the counter claim raised by the opposite party in his version is not considered.
10. In the light of the pleadings of the parties, the only point to be considered at this stage is whether this complaint can be allowed or not?
11. The evidence of this complaint after remand consists of oral deposition of PW1, CW1 and DW1 and Exts. A1 to A4 and Ext. C1 series. After closure of evidence, both sides were heard.
12. The Point: The complainant’s allegation is that the construction works of the complainant’s building entrusted with the opposite party has not completed by the opposite party within the agreed period. The opposite party is entitled only to get ` 6,38,690 for the works done by him whereas opposite party had received an amount of ` 10,00,250 from the complainant, thereby opposite party has received an excess amount of ` 3,61,560 from the complainant. Because of the non-completion of the works, the complainant has to spend ` 8,56,575 for completing the works. Further, because of the non-completion of the works, the complainant was compelled to stay in a rented house by paying monthly rent of ` 2,500 and still he is continuing in the rented house by paying the said rent. All the above said acts of the opposite party caused mental agony and financial loss to the complainant and the opposite party is liable to the complainant for the same. Therefore, the complainant prays for allowing the complaint as prayed for in the complaint.
13. In order to prove the complainant’s case, the complainant filed a proof affidavit in lieu of his chief examination along with 4 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A4 and the Commissioner’s Report, mahazer etc. were marked as Exts. C1 series (Exts. C1 to C1(d) through PW1. Thereafter, the Commissioner appointed by this Forum who prepared and submitted Exts. C1 series documents is also examined as CW1. Ext. A1 is the construction specification/agreement. Ext. A2 is the statement of account of the complainant showing the payments to the opposite party. Ext. A3 is the statement of account of the payment of rent by the complainant for residing in a rented building. Ext. A4 is the copy of the WP(C) No. 11044 of 2010 of the Hon’ble High Court of Kerala. Exts. C1 to C1(d) are the report, plan, estimate, calculations and photographs prepared and submitted by the Commissioner.
14. On the other hand, the opposite party’s contention is that he had undertaken the construction work of the complainant’s house. But there is no written agreement for the construction instead a works specification was given to the complainant. He had started the construction work of 2700 sq. feet and completed 70% of the said work. The understanding at the time of starting the work was for demolishing the old house and to construct a new house having 2100 sq. feet. But due to the objections in getting permit for the construction work from the panchayat, they decided to retain the old house and renovate the old house and further decided to construct another 975 sq. feet attached to the old house. But instead of 975 sq. feet, 1269 sq. feet of new construction was carried out with a bed room and bath room at the first floor. All the works were done in the presence of the complainant. The complainant had paid only ` 9,77,000 including material costs. Due to the irregular payments of the complainant, he could not complete the works. He used quality materials and labour for the construction. All the additional works are done with the permission of the complainant. The complainant’s claim that he is residing in a rented house is false and he is residing in a house owned by one of his relative.
15. In order to prove the contentions of the opposite party, he adduced oral evidence as DW1. With the above contentions, opposite party argued for the dismissal of the complaint.
16. On the basis of the contentions and arguments of the parties, we have perused the available materials on record and found that the opposite party had undertaken the construction works of the complainant’s building as per Ext. A1 construction specification issued by the opposite party. In this case, the contentions raised by the opposite party in the version and the statement given by him in his chief examination are entirely different. The statements given in his version is vague and it cannot be treated as a version as there is no specific pleading against the pleadings in the complaint filed by the complainant.
17. At the same time, the statements of the opposite party as DW1 in his chief examination is not consistent with the pleadings made in the version. Moreover, the opposite party has not adduced any evidence to prove his case with cogent evidence. In the absence of any cogent evidence from the side of the opposite party and due to the vagueness of the version and due to the inconsistent pleadings and due to the contradictory uncorroborative statements in the oral deposition, we are constraint to discard the contentions of the opposite party. Thus, we find that the opposite party has failed to establish a case in his favour. Therefore, we are constraint to accept the case of the complainant. Hence we find that the opposite party has committed grave deficiency in service and hence the opposite party is liable to the complainant for the said deficiency in service.
18. In order to allow the complaint, we have to calculate the liabilities of the opposite party. For that, we are constrained to rely the Commissioner’s evidence based on Exts.C1 series as it is unrebutted and in the absence of any other materials for calculating the liabilities of the opposite party.
19. The original contract between the parties was for the completion of 975 sq.feet at the rate of ` 750 sq.feet as per Ext.A1. The total area constructed partly by the opposite party is 1269 sq.feet as per the admission of the complainant. As per the assessment of the Commissioner, the value of works so far done is `7,77,790 i.e. opposite party had spent Rs. 613 per sq.feet (round figure). But the opposite party had received ` 9,77,500 from the complainant as per Ext. A2. Thus an amount of `1,99,710 (` 9,77,500 minus ` 7,77,790) is received by the opposite party as excess. As per the assessment of the Commissioner, the complainant has to spend Rs. 565 per sq.feet (`7,17,450/`1269) for completing the remaining works. So the opposite party is liable to pay an amount of ` 5,50,875 (565 x 975) to the complainant on this account.
20. On the basis of the above calculation, opposite party is liable to pay an amount of ` 1,99,710, the excess amount received and ` 5,50,875, additional expenses required for the completion of the complainant’s construction due to the deficiency in service of the opposite party. But from the facts and circumstances of this case, we find that the complainant was also responsible for the inordinate delay in this work. Nothing on records to show that the complainant had interfered diligently to make sure the completion of the works within the specified period. So he is not entitled to get the full amount and hence we are allowing only 50% on this account (additional expenses required) the claim for rent paid by the complainant is not proved with proper evidence. Therefore, the prayer for rent is disallowed.
21. In the result, this complaint is allowed, thereby the opposite party is directed to pay ` 1,99,710 (Rupees One lakh ninety nine thousand seven hundred and ten only) (the excess amount received by the opposite party) to the complainant with 10% interest per annum from the date of filing of this complaint till this date along with an amount of `2,75,000 (Rupees Two lakhs seventy five thousand only) ( the amount required for the completion of the works) along with compensation of ` 10,000 (Rupees Ten thousand only) and cost of ` 2,500 (Rupees Two thousand five hundred only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest per annum from today till the realization of the whole amount.
Dictated to the Confidential Assistant transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 21st day May 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : A.M. Jacob.
Exhibits marked on the side of the complainant:
A1 : Construction specification of the complainant’s residential
building prepared by the opposite party.
A2 : Statement of account of the complainant showing the
payments to the opposite party.
A3 : Statement of account of the complainant for residing in a
rented building.
A4 : Copy of the WP(C) No. 11044 of 2010 of the Hon’ble High
Court of Kerala.
Witness examined on the side of the opposite party:
DW1 : Abraham. C. Kuruvilla.
Exhibits marked on the side of the opposite party:
Court Witness:
CW1 : C.T. Thomas.
Court Exhibits:
C1 : Report/Mahazar.
C1(a) : Plan.
C1(b): Estimate.
C1(c): Calculation for new construction.
C1(d): Photographs (3 in number).
(By Order)
(Sd/-)
Senior Superintendent.
Copy to: (1) A.M. Jacob alias Jaimon, Adimathra House, Muttumon,
Pulladu P.O., Thiruvalla Taluk, Pathanamthitta Dist.
(2) Abraham.C. Kuruvilla alias Shobby, Chennattu House,
Kumbanadu P.O., Thiruvalla.
(3) The stock file.
