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.No.79/08 (Remanded)
Between:
Sam Mathew @ Binoy,
S/o. N. Mathew,
residing at Nellimoottil House,
Kadapra .P.O., Kumbanadu,
Thiruvalla Taluk,
Pathanamthitta Dist. rep. by his
Power of Attorney holder N. Mathew,
of -do. –do.
(By Adv. S. Manoj) ... Complainant.
And:
Abraham. C. Kuruvilla,
Chennattu Builders,
Opp. S.B.T. Kumbanadu.P.O.,
Thiruvalla Taluk. ... Opposite party.
(By Adv. George Mathew)
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The facts of the case in brief is as follows: 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 residential building of the complainant as per the specification agreed by the parties. As per the 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 is 1850 sq.ft. which includes the renovation work of the old building and the agreed rate is ` 750/- per sq.ft. Opposite party has agreed to carryout some additional work also in addition to the works specified in the agreement. The additional works done are construction of 550 sq.ft. compound wall, laying tiles in car porch, demolition of tiles of old bedroom, laying of roof tiles for an area of 1042 sq.ft., septic tank, water tank and additional electrical works in the building. The approximate expenses for these works comes around ` 2,50,000/-.
3. The opposite party started his work and completed an approximate plinth area of 2400 sq.ft. of new building, i.e. around 600 sq.ft. in addition to the agreed work. As per the agreement, the opposite party has to complete the work on or before 18.11.2007, but the opposite party has not completed the work even after seven months after the expiry of the agreed period. The total amount for the completion of the work as per agreement is ` 20,00,000/-. The opposite party has received an amount of ` 24,84,450/- from the complainant till date. An amount of ` 4,50,000/- is required for the completion of the balance work at the present rate. The opposite party has received an excess amount of ` 3,44,450/- from the complainant. The non-completion of the construction work as per the work specification agreement even after the expiry of the agreed period and the poor quality of the works are gross negligence and deficiency in service from the part of opposite party, which caused financial loss, mental agony and other inconveniences to the complainant. Therefore, the complainant filed this complaint for allowing the following reliefs.
(a) By allowing the complainant to realise an amount of
`3,44,450/-, the excess amount received from the
complainant with interest @ 18% per year from 18.11.2007
till the date of realisation.
(b) By allowing the complainant to realise an amount of
`50,000/- from the opposite party as compensation.
By allowing the complainant to realise an amount of
`1,00,000/- from the opposite party for curing the defects
in the works done by the opposite party.
(c) By allowing the complainant to realise the cost of this
proceedings from the opposite party.
Hence this complaint for allowing the reliefs prayed for as above.
4. Since opposite party was exparte, the complainant’s evidence was taken which consists of oral testimony of the Power of Attorney Holder of the complainant as PW1 and Exts. A1 to A5 series and Ext. C1 series.
5. On the basis of the evidence adduced from the side of the complainant, this complaint was allowed.
6. Being aggrieved by the order of this Forum, the opposite party filed an Appeal before the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram as Appeal No. 281/2010 and the said Appeal was allowed by the Hon’ble CDRC and set aside the order of this Forum and remanded the matter to this Forum allowing the opposite party to contest the case and the case was posted to this Forum on 13.12.2010.
7. Accordingly, both parties appeared and the opposite party filed his version with the following main contentions along with a counter claim. The opposite party admitted that he had undertaken the construction and renovation work of the complainant’s building vide an agreement/construction specifications. According to the opposite party, he had agreed to construct a building of approximate 1850 sq.feet and the agreed cost of construction was ` 20 lakhs and the period fixed for the completion was 6 months from the date of commencement. As per the agreement, the construction cost per square feet has not been mentioned. After starting the construction work as per the direction of the complainant, some alterations and certain modifications were made in the constructions which are beyond the construction specification/agreement between the parties. Further the opposite party had constructed an additional area of 600 sq. feet approximately. Certain other constructions were also made by the opposite party. Though the period stipulated for the completion of the work was 6 months, due to the extra works and additional works, he had taken more period than 6 months for the works. The opposite party had constructed a partial compound wall so as to partition the entries separately for the courtyard and other premises and also fixed a gate which are additional works. The plinth area of the construction made by the opposite party is 3246 sq. feet out of which 754 sq.feet was renovation and 2492 sq. feet was new construction which includes 1467 sq.feet in the ground floor and 1025 sq. feet in the first floor. The opposite party had completed all the works stipulated in the agreement within the time limit. The opposite party had admitted that he had received ` 24,84,480 from the complainant. For completing the works, additional amount was required which the complainant is not willing to give and hence the additional works were not done by the opposite party. The materials and workmanship used in the construction are superior quality and hence the allegation regarding the quality of the works is false.
8. The allegation that the opposite party had made the additional works without the consent of the complainant is also false. Generally no one would construct a building in excess of what is stipulated in the contract specification without the knowledge and consent of the owner. There was no deficiency in service from the part of the opposite party. With the above contentions, opposite party prays for the dismissal of the complaint.
9. Apart from the above contentions, opposite party made a counter claim for getting an amount of ` 10,72,568 is also claimed in this version. As per the Consumer Protection Act, there is no provision for allowing counter claim to the opposite party. Hence the prayer for counter claim is not considered.
10. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
11. The evidence of this complaint after the remand consists of the oral depositions of PW1, DW1 and CW1 and Exts. A1 to A5 and Exts. C1 series. After closure of evidence, both sides were heard.
12. The Point: The complainant’s case is that he had entrusted the construction works of his house to the opposite party as per the agreement/specification executed by the complainant and the opposite party. The construction works were started by the opposite party. But it was not completed by him and he had deviated from the specifications and had not completed the works as per the agreement. Further, the works done by the opposite party is of poor quality and without completing the works, the opposite party had collected more amount than the agreed amount. Further, the complainant had to spend more money for completing the works due to the deficiency of service and negligence of the opposite party.
13. In order to prove the case of the complainant, the complainant’s power of attorney holder filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, the complainant’s power of attorney holder was examined as PW1 and the documents produced were marked as Exts. A1 to A5 and Ext. C1 series. Ext. A1 is the power of attorney executed by the complainant in favour of PW1. Ext. A2 is the construction specification/agreement. Ext. A3 is the statement of account of the complainant showing the payments to the opposite party. Ext. A4 is the statement of account of the opposite party showing the receipt of the payments made by the complainant. Ext. A5 is the copy of the WP(C) No. 10989 of 2010 of the Hon’ble High Court of Kerala. Exts. C1 and C1(a) are the report and plan prepared and submitted by the Expert Commissioner appointed by this Forum as per the order in I.A 86/2008.
14. Thereafter, the Commissioner who prepared the report and plan regarding the present position of the building in question is examined as CW1.
15. On the other hand, the contention of the opposite party is that he had undertaken the works of the complainant’s building as per Ext. A2 construction specification/agreement and it includes new constructions and renovation works. The total agreed cost of the said constructions was ` 20 lakhs. As per the direction of the complainant, he had done the work of 3400 sq. feet in total instead of the agreed sq. feet of 1850. Further, he had constructed a compound wall and a temporary shed and some electrification and decoration works to the pillars. Thus he had executed the works worth Rs. 29 lakhs and he received only ` 24 lakhs from the complainant and the works done by him is perfect and the materials used are of good quality. All the works are done as per the directions of the complainant and his father. So the opposite party argued that he had not committed any deficiency in service as alleged by the complainant Further he claims that he is entitled to get ` 11 lakhs more from the complainant.
16. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the building construction. According to the complainant, opposite party has not completed the works entrusted to him and without completing the works, he collected an excess amount of ` 3,44,450 from the complainant. But according to the opposite party, he had finished the works almost. He had also done extra works as per the directions of the complainant and his father which are not mentioned in the work agreement. Therefore, he is entitled to get ` 11 lakhs more from the complainant for the said works.
17. On the basis of the contentions of the parties, we have perused Exts. C1 series prepared by the Commissioner who was appointed by this Forum. As per Exts. C1 series, the Commissioner estimated the total cost of completing the whole works is ` 25,37,000. The said report also shows that the work already executed is incomplete and for completing the remaining works, an amount of `4,16,150 is required. As per the deposition of the opposite party/DW1, he had no disagreement in respect of the measurement made by the Commissioner and the measurement of the works done by him. The relevant portion of the deposition of DW1 is as follows: “C.R- se sajÀsaâpw Rm³ \S-¯nb ]Wn-bpsS sajÀsaâpw H¶p Xs¶-bmWv”. Moreover, the opposite party has not made any attempt with cogent evidence to discard the Commissioner’s report. In the circumstances and in the nature of this case, we are constrained to relay the findings of the Commissioner. So on the basis of the Commissioner’s evidence, we find that the opposite party has not completed the entire works entrusted with him by the complainant and the works carried out by the opposite party is calculated as `21,20,850 (i.e. total cost for completing the works Rs.25,37,00 minus total cost required for completing the works ` 4,16,150 as assessed by the Commissioner).
18. In chief examination of DW1/opposite party he stated that he had received ` 24,00,000 from the complainant. As per the statement of accounts submitted by the complainant which are marked as Exts. A3 and A4, the complainant had paid total amount of `24,45,000 to the opposite party. From the above calculations, it is clear that the opposite party had collected an excess amount of Rs. 3,24,150 from the complainant. Further, as per the Commissioner’s evidence, some minor defects also found in the works already carried out by the opposite party.
19. Considering all the facts and circumstances of this complaint, we find that the opposite party has not completed the works within the stipulated time and some minor defects are also noticed in the works carried out by the opposite party and the opposite party collected an excess amount of ` 3,24,150 from the complainant in this transaction. All the above said acts of the opposite party is a clear deficiency in service and the opposite party is liable to the complainant for the same. Therefore, this complaint can be allowed.
20. In the result, this complaint is allowed, thereby the opposite party is directed to pay ` 3,24,150 (Rupees Three lakhs twenty four thousand one hundred and fifty only) (the amount received in excess from the complainant) with 10% interest per annum to the complainant from the date of filing of this complaint till today along with a consolidated amount of ` 1,00,000 (Rupees One lakh only) as compensation, for curing the defective works and for meeting the excess cost to be incurred by the complainant due to the delay in completing the works due to the deficiency of service from the part of the opposite party within 15 days from the date of receipt of this order with a cost of ` 5,000 (Rupees Five thousand only), failing which the complainant is allowed to realize the whole amount with 10% 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 of 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 : N. Mathew.
Exhibits marked on the side of the complainant:
A1 : Power of attorney executed by the complainant in favour of
N. Mathew.
A2 : Construction specification/agreement.
A3 : Statement of account of the complainant showing the
payments to the opposite party.
A4 : Statement of account of the opposite party showing the
receipt of the payments made by the complainant.
A5 : Copy of the WP(C) No. 10989 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 : Biju. C. Thomas.
Court Exhibits:
C1 : Commissioner’s Report prepared by Er. Biju. C. Thomas
C1(a) : Plan prepared by Er. Biju. C. Thomas.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) N. Mathew, Nellimoottil House, Kadapra .P.O.,
Kumbanadu, Thiruvalla Taluk,
Pathanamthitta Dist.
(2) Abraham. C. Kuruvilla, Chennattu Builders,
Opp. S.B.T. Kumbanadu.P.O., Thiruvalla Taluk.
(3) The Stock File.
