Tamil Nadu

North Chennai

171/2014

V.S.Kannaiappan,S/o.V.Shanmugam, - Complainant(s)

Versus

Aiswarya Foundation ,rep by its partner, - Opp.Party(s)

S.C.Viswanath

22 Nov 2017

ORDER

 

                                                            Complaint presented on:  25.07.2014

                                                                Order pronounced on:  22.11.2017

 

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

 

WEDNESDAY THE 22^nd DAY OF NOVEMBER 2017

 

C.C.NO.171/2014

 

 

V.S.Kannaiappan,

Son of V.Shanmugam,

Old No.73, New No.2,

Vivekanadan Street,

Lakshmipuram,

Chennai – 99.                                                           ….. Complainant

 

..Vs..

Aishvarya Foundation,

Represent by its Partner,

A.C.Senthil Kumar,

No.12-C, Raghavan Nagar,

Kodungaiyur, Chennai – 118.

.....Opposite Party

Date of complaint                                 : 26.08.2014

Counsel for Complainant                      : S.C.Vishwanth& P.Saratha

Counsel for Opposite Party                      : R.Ilanchizhian & S.Chinnasamy      

 

 

 

 

 

O R D E R

 

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

          This complaint is filed by the complainant to pay compensation for pending work and deficiency in service and for mental agony with cost u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant  is the absolute owner of the property situated in S.No.1471/1C4, Kolathur Village, Old Door No.73, New No.2, Vivekanadan Street, Lakshmipuram, Chennai – 99 to an extent of 407 sq.ft of land, along with 1/3 rd share in passage of land leading to Vivekandha Street. The complainant and the opposite party entered into a contract agreement dated 23.07.2012 to construct a building in the complainant land with an agreed rate of Rs.1200/- per square feet for the ground and first floor.

          2. As per the agreement, the total construction area of land is 930 square feet. The consideration was fixed at Rs.1200/- per square feet and total sum of Rs.10,56,200/-  The entire time limit for the project has been fixed as 390 days from the date of commencement of the advance amount with effect from 02.07.2012.

          3. The total consideration of Rs.10,56,200/- as Rs.3,69,600/- up to the basement level, Rs.3,16,800/- up to roof, Rs.3,16,800/- up to brickwork, finishing, plumbing, plastering, paint finishing and finally to a sum of Rs.53,000/- before  handling over the key. As per the agreement, the complainant had paid the amount on different dates commencing from 02.07.2012 to 24.05.2013, even before the terms specified in the agreement. The opposite party also, received the amount and made endorsement in the agreement itself. The complaint alleged deficiencies are that there was no painting work done by the opposite party. The walls, rod, grills are yet to be painted. The opposite party had failed to apply one coat white wash and two coats of color wash with branded Asian paints, to lay 2x2 vitrified tiles for the flooring and wall finishes, but fixed only 1 ¼  x 1 ¼ ordinary ceramic tiles. Further tile fixation, usage of electrical means, using of TMT Bars, are all contrary to the agreement. Left with no other option, the complainant had moved to the unfinished house, after making immediate work to reside there. The unfinished electric lines with switches have been temporarily installed by complainant. The expense for water septic lines has been succumbed by the complainant from his own pocket. Such act of the opposite party is Gross negligence and deficiency in service to the complainant. The complainant estimated the cost of finishing the unfinished work by the opposite party is rounded to Rs.5,30,000/-. The complainant issued legal notice to the opposite party on 25.03.2014 to pay the compensation. However, the opposite party had never come forward to settle the issue. Hence this complaint is filed before this Forum.        

 4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The complainant approached the opposite party to develop his property which comprises an extent of 407 sq ft. They entered into an agreement on 23.07.2012 to construct ground floor, 1^st floor and roof area measuring to a total extent of 930 sq ft. The rate per sq.ft agreed to Rs.1200/- and total cost agreed was at Rs.10,56,200/- The said amount agreed to be paid from 02.07.2012 to 24.05.2013  and the same was paid in ten schedules.  The opposite party agreed to complete the construction in 390 days.  The complainant had taken about 327 days for payment and even before that the opposite party completed the work.

          5. This opposite party denies the averments that the painting work was pending and also regarding the 2 x 2 vetrified tiles for flooring was changed to 1 ¼ x 1 ¼ this claim made by the complainant is denied. The tiles size have been changed and moreover the design of the tiles was selected by the complainant directly. The difference of payment between the tiles has been compromised with the part of quality and design of the tiles. Moreover the cost that is fixed is Rs.42/- per sq.ft and the same have been even handed with the rate of the tile, flooring, wall finishers and labour. The pending work is only the final coat of external painting and the same was kept pending to avoid re-painting, if the second floor work started means, it might damage the painting work. In this situation opposite party met an heavy loss of about Rs.2,25,850/- which was the extra work done  by the opposite party and claimed the same from the complainant.

          6. Regarding the pending works explained by the complainant only single coat of external painting was pending. After the “Keraga Prevasam” the balance second coat will be painted as it was practice done in all the new building construction. The Complainant have completed the function on 12.06.2013 and the pending work was just external second coat painting, this legal proceedings were started by the complainant only because of the claim made by the opposite regarding huge loss made by the complainant to opposite party on false assurance of continuing the 2^nd floor work. The drainage lines have been clearly fixed from the building to the road and it was the job of the opposite part, but the same have been completed by complainant.

          7. The complainant have suppressed many external work that have been executed by the opposite party, they have performed the following extra works like

Ground and First Floor works included

1. 5 Feet basement (Height) work worth – Rs.36,100/-
2. Inner double coat patty work (painting) – Rs.46,500/-
3. Hall border (POP) work RFt (77’6”) – Rs.4250/-

5. Kitchen Table Top and Sink (Marble finish) – Rs.6,000/-
6. Plumbing Fittings (E.W.C) Parry ware – extra charges – Rs.10,000/-
7. Main Door – Carving Work charges – Rs.10,000/-
8. Weathering Course work – Rs.34,500/-
9. Material Mobilization charges (Road to site) – Rs.25,000/-
10. Material Stock kept in the site (before dispute) – Rs.25,000/-
11. Drainage line provision (Extra Work) – Rs.5,000/-
12. Extra Electric works and A/Complaint provision (not in the contract) – Rs.15,000/-
13. Extra Toilet (Below Staircase) – Rs.7,000/-
14. Transport – Rs.4,000/-

All the above are the extra work executed by the opposite party and the claims comes to around Rs.2,25,800/- which has to be paid to the opposite party in the month of July 2013 and on the contrary they claim that opposite party was negligent and haven’t done any work as per the contract. The complainant has filed this complaint with an intention of grabbing money from this opposite party and he had not committed any deficiency in service to the complainant and prays to dismiss the complaint with costs.

 

8. 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?

9. POINT NO :1

          It is an admitted fact that the complainant is the absolute owner of the property situated in S.No.1471/1C4, Kolathur Village, Old Door No.73, New No.2, Vivekanandan Street, Lakshmipuram, Chennai – 99 to an extent of 407 sq.ft of land, the complainant and the opposite party entered into a contract agreement dated 23.07.2012 to construct a building with ground floor, first floor and roof area with total extent of 930 sq.ft at the rate of Rs.1200/- per sq.ft and total cost of construction agreed  to a sum of Rs.10,56,200/- and agreed to construct the project in 390 days from the date of  02.07.2012 of the payment of advance amount.

          10. The complainant alleged deficiencies against the opposite party are that no painting work was done for the walls, roof and grills and also failed to apply one coat white wash and two coat of colour wash with branded Asian Paints and failed to lay vetrified tiles for the flooring and instead he laid only ordinary ceramic tiles and further usage of electrical means and TMT bars are all contrary to the agreement and further the complainant spent for water septic lines from his own pocket and thereby left the aforesaid unfinished work and to finish the unfinished work the cost of estimates comes to Rs.5,30,000/- and therefore the opposite party has committed deficiency in service.

          11. The opposite party would contend that he had used quality materials as per the agreement and constructed the building and further in the ground and 1^st floor this opposite party done many external works like five feet basement, inner double coat patty work, hall border work, kitchen table top and plumbing fittings, main door carving works, weathering course work, material mobilization charges, drainage provision, AC provision and extra toilet and for all the works he had spent around Rs.2,25,800/- and hence the  opposite party had not done any negligent work and prays to dismiss the complaint with costs.

          12. The complainant admits that after construction he is in possession of the property. The opposite party made endorsement in the agreement itself that as per the agreement the full payment has been settled. Such endorsement clears that for completing the construction, the complainant made entire payment as agreed by him and no due from the complainant to be settled to the opposite party.

          13. The opposite party would contend that he had done several extra works as pleaded by him in para 9 of his written version.  The extra work alleged to have done by the opposite party has not been supported by any evidence by way of proof affidavit by the concerned person. Ex.B6 is the list prepared and filed by the opposite party to show that he had done extra work.  However no proof filed to show that bills for the materials mentioned in Ex.B6 have been purchased to carry out extra work. Therefore, it is held that the opposite party has not proved the extra work done by him.

          14. In respect of the deficiency alleged by the complainant, the opposite party himself admits in his written version that the pending work is only the final coat of external painting and the same was kept pending to avoid re-painting, if the second floor work started means it may damage the painting work. Nowhere, the opposite party stated that such an external painting work was done by him subsequently. Therefore, failure to do the external painting work is deficiency on the part of the opposite party and therefore it is held that the opposite party has committed deficiency in service.          

15. POINT NO:2

          Admittedly the opposite party had not done the outer painting work. However, there is no evidence available to carry out such outer painting work what could be the cost of materials are required. Further, failure to do the painting work caused mental agony to the complainant is accepted. Hence, considering the circumstances of the case, it would be appropriate to order a sum of Rs.25,000/- towards compensation for not painting and for mental agony, besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs. 25,000/- (Rupees twenty five thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 22^nd day of November 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 23.07.2012                   Agreement with effect from 02.07.2012

Ex.A2 dated NIL                     Family Ration Card

Ex.A3dated NIL                      EB consumption charge

Ex.A4 dated 20.07.2013                   CSR copy

Ex.A5 dated 25.03.2014                   Legal Notice

Ex.A6 dated NIL                     Proposed plan

Ex.A7 dated NIL                     Photos

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

Ex.B1 dated 10.02.2016                   Representation power to the partner

 

Ex.B2 dated NIL                     List of customers

 

Ex.B3 dated 23.07.2012                   Agreement executed between both complainants

                                                    and opposite party

 

Ex.B4 dated 20.02.2013

21.04.2013                              Tiles purchased bills

 

Ex.B5 dated 03.07.2012                   TMT bars purchased bills

14.09.2012, 10.10.2012

 

Ex.B6 dated NIL                     List of cost of additional works

 

 

 

MEMBER – I                                                               PRESIDENT