IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 15th Day of September 2021
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
CC.76/16
Smt.Thameema : Complainant
Thekkezhikathu Veedu
Thekkevila P.O
Kollam
[By Adv.S.Sivaraj&Adv.M.Ziad]
V/s
- Aji Thomas : Opposite parties
The Proprietor
M/s Blue Seven Star Construction
(P) Ltd, Reg.No.027538
Residing at Lalu House, Kottara
Main road, Nettayam, Kollam.
- Shyja
W/o Aji Thomas
Lalu House, Kottara
Main road, Nettayam, Kollam.
[By Adv.Baby John Amballoor]
FINAL ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
The complainant intended to construct a house building for the residence of herself and her family members. The opposite party is a construction contractor by name and style M/s Blue Seven Star Construction(P) Ltd, Kollam. The husband of the complainant is working abroad the complainant approached the opposite party who made the complainant to believe that he is the best man in the construction field and assured to complete the work in the contract period. By believing the above representation of the opposite party the complainant entrusted the construction work of her residential building to the contractor after executing an agreement with the opposite party dated 22.12.14. As per the agreement the opposite party has to complete the construction work as per the mutually agreed plan and specifications for a sum of Rs.35 Lakhs within 6 months from the date of agreement excluding the concrete curing period of 20 days. The complainant had also handed over the plan, elevation and specifications of each items to the opposite party on the date of execution of the contract itself. The opposite party has also suggested the payment schedule. By mutually agreeing the terms and conditions the opposite party started the work. The complainant made payment as per the schedule of payment till 20.10.15. After making altogether 27,75,000/- on 11 installments till 20.10.15the complainant realized that the opposite party will not complete the work as per the contract or as per the payment made. The complainant caused to verify the works carried out and payment made to the opposite party by engaging a qualified Engineer who reported that though the contractor has received 80% of the payment he had only completed 60% of the work as per the agreement. Even then the opposite party has been demanding more payment from the complainant. The opposite party has violated the stipulations regarding time and did not complete the work even after 13 months.
It is further alleged that the opposite party without the consent of the complainant changed the elevation of the building for which he has no right at all. By violating the terms of the agreement the opposite party reduce the thickness of concrete of roof in to 3 inches whereas the agreed thickness is 4 inches. He has also installed single door window in two places where double door windows were provides as per the agreement. He has also dug a well near the building as agreed between parties but the dimension of the well was reduced to 3 feet radius from the agreed 5 feet. The above changes were made by the opposite party without the consent and concurrence of the complainant and the same has caused much loss and mental agony to the complainant. The opposite party has also not completed the plastering works of the building, outside stair case, tiles works, plumbing works, bathroom fittings, wiring, wardrobes, hand rails for stair case and sit out, kitchen fitting, flooring, gate, garden inter locks, doors, window pans etc. However the opposite party stopped the construction work on 23.01.2016, without completing the work as per the contract. The complainant estimated the remaining work as per the contract and found that the opposite party had completed works only for Rs.20,00,000/-, but he received a sum of Rs.27,75,000/- and thereby received an excess amount of Rs.7,75,000/-. The complainant is entitled to get back the amount from the opposite party. According to the complainant the above acts of the opposite party amounts to deficiency in service and unfair trade practice. The complainant has also not completed the construction work at the stipulated period which also caused heavy loss to the tune of Rs.3,00,000/- to the complainant. Apart from the monitory loss the complainant has sustained much mental agony and hardship. Hence the complaint.
The opposite parties resisted the complaint by filing a detailed joint version raising the following contentions.
The complaint is not maintainable either in law or on facts. The opposite parties would admit the averments in paragraph 1 to 4 in the complaint. The contract amount is also admitted. But according to the opposite parties the father-in-law of the complainant had voluntarily approached them and executed the agreement. Opposite parties have not demanded any exorbitant amount from the complainant but only asked for the payment of the completed and extra work. At the time of entering the agreement the complainant and the opposite parties mutually agreed into an agreement and it is stipulated in the agreement that “if the first party fails to make payment as per the terms of payment within 5-7 working days from the due date, the contractor has the right to stop the work until the payment is settled”. These being the real facts the opposite parties had complied all the necessary requirements in the above agreement. The only defect noted is the concreting of the sunshade, it was proposed in a slanting position, but it has been done in a straight and parallel manner. The reason for this change is to avoid the falling of rain water at the neighbours compound as well as for the purpose of providing A/C unit. The windows mentioned in the expert opinion will only be provided at the second stage of the work, the change was due to the opinion of vastu consultant, the complainant herself had demanded to change the pattern of windows. The opposite parties would further admit that the dimension of the well was fixed as 5 feet. But the complainant himself had produced a vastu consultant and as per his advice well should not be divided-it is to be more specifically explained as ‘ No well should have a point to the direction of a wall’. Hence both complainant and opposite parties decided to change the diameter of well. As per the payment schedule of work executed on 22nd day of December 2014, it is specifically and categorically mentioned, after the completion of second roof concrete the outstanding amount to be paid to the opposite party is 28 lakhs. But the complainant had only made a payment of Rs.27.75 lakhs. Hence the opposite parties had continued the contracted work for the building and completed 50% of plastering work, ie, the opposite party had entered into the 7th stage of the construction work. These being the real facts the complainant with utmost deliberate. Attitude filed a petition before the Sub Inspector of Police, Eravipuram and after perusal of records and effective investigation, the concerned Station Head Office arrived at a conclusion that no sort of default or illegal means had been addition by the opposite parties and preferred for a compromise. But unfortunately the complainant had decided to tarnish the reputation of opposite party as well as his firm by filing false and frivolous complaints.
As per the terms and conditions and payment schedule executed between complainant and opposite parties the construction work scheduled to be completed is 2014 sq.ft but a construction of 2250 sq ft had already been carried out. Therefore as per the payment schedule the complainant has to pay and amount of 4,50,000/- more to the opposite parties. But unfortunately the complainant had concealed and real facts about the extra and excess work done by the opposite parties. The execution of agreement between the complainant and the opposite parties was on 27.12.2014, the cost of materials as well as labour charge will be entirely different at present 2016. So the total labour charge and material charge has been increased considerably. The incompletion of the construction work is solely due to the conduct of the complainant. The complainant never personally or directly visited the construction site or area, instead his father-in-law had supervised the work and he unnecessarily interfered with the labours and several occasion caused hardship to the opposite parties and his labourers. Subsequently the complainant and her father-in-law preferred a frivolous complaint before the police station and the same resulted in the stoppage of work therefore the loss if any occurred, it is solely due to the fault of complainant and there is no deficiency in service as well unfair trade practice on the part of the opposite parties. The complainant is having no cause of action against the opposite parties. The opposite parties are not bound to pay any compensation to the complainant. Since the opposite parties have not committed fault or deficiency in service, the complainant is not entitled to get any compensation from them.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties in respect of the construction of the house building as per Ext.P1 agreement?
- Whether the opposite parties have received excess amount of Rs.7,75,000/- from the complainant in connection with construction of the house building?
- Whether the complainant is entitled to get compensation as claimed?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1 to PW3, Ext.P1 to P9, P10 series(8 documents), P11 series and P12 series. The opposite parties have not adduced any oral evidence but got marked Ext.D1 series Engineers report during the cross examination of PW2. Both parties have not advanced any oral argument though sufficient opportunity was granted. However the learned counsel for the complainant has filed notes of argument.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. The following are the admitted facts in this case. Opposite parties are construction contractors functioning under the name and style M/s Blue Star Construction(P) Ltd, Kollam. On 22.12.2014 the complainant entered into Ext.P1 agreement/work contract with the opposite parties for constructing house building at the site belongs to the complainant for Rs.35000/-. The agreed period for construction is 6 months from the date of executing the agreement but excluded the curing period of the concrete(20 days). But the date of agreement itself the complainant handed over the plan, elevation, specification of materials to be used for the construction and also agreed to pay the amount as per the payment schedule. Opposite parties have started the construction work of the building in the site and received 27,75,000/- on 11 different dates starting from the date of executing agreement till 03.10.2015. The work was not completed even after the elapse of 13 months from the date of agreement. It is brought out in evidence that the opposite parties have constructed the house building not as per the plan and elevation without the consent or concurrence of the complainant or any of the family members of the complainant.
It is pertinent to note that though PW1 who is none other than father and power of attorney holder of the original complainant has deposed regarding the major defects and deficiency in service in constructing the house building. The major allegation sworn in the proof affidavit filed by PW1 is that the opposite parties have changed the front elevation of the residential building. They constructed a flat sunshade instead of slop sunshade specified in the elevation. The above change is without the consent and concurrence of the complainant. The next allegation shown by PW1 is that the opposite parties have reduced the thickness of the concrete roof into 3 inches instead of the agreed 4 inches. That instead of installing double door windows opposite parties fixed only single door windows which is also against the agreement and approved plan and elevation. The agreement was to dig a well at the radius of 5 feet instead the opposite parties have dug well at the radius of 3 feet and thereby caused loss to the complainant. It is further alleged in paragraph 7 of the proof affidavit filed by PW1 that the opposite parties have not carried out the outside plastering work, outside stair case tiles work, plumbing works, bath room fittings, wiring, construction of wardrobe, handrails or stair case and sit out, kitchen fittings, flooring, gate garden interlock, door, windows shutters etc. According to PW1 the 1st opposite party has not came to supervise the work properly and also entrusted the work to unskilled and irresponsible laborers and thereby caused much defects in the construction work. The above evidence tendered by PW1 is not seriously challenged by the opposite parties during cross examination.
However during cross examination the learned counsel appearing for the opposite parties has elicited that PW1 is not having technical knowledge to depose regarding the construction work. It is true that PW1 has admitted the lack of technical knowledge expertise in the field of construction work but no much technical knowledge is required to depose any of the above aspects sworn to by PW1 in his proof affidavit Even a layman can very well find out and understand the defects sworn to by PW1 in page No. 1 to 7 of his proof affidavit. Furthermore the above evidence of PW1 stands corroborated by the oral evidence of PW2&3 who are technical expert and Advocate commissioner and their reports, mahazar etc. which are marked as Ext.P11 series and P12 series.
It is also brought out in evidence that no additional work has been carried out by the opposite party with the direction or permission of the complainant. But it is clear from the available materials that there are changes in the walls and the opposite party shifted the bedroom position from north to west of the stair case for which also no permission has been obtained from the complainant. It is further to be pointed out that the opposite party has agreed to construct the house building as per the approved plan and elevation. As per the approved plan the plinth area of the building is 2012 sq.ft and as per the agreement the plinth area shown is 2014 sq.ft. But the plinth area measured by the Commissioner and expert is 2201 sq.ft which would indicate that the opposite party has constructed the house building not in accordance with approved plan and elevation. On evaluating the entire materials available on record we come to the conclusion that there is clear deficiency in service and unfair trade practice on the part of the opposite parties. It is brought out in evidence that the opposite parties have made a construction of 89 sq.ft. more There is no merit in contenting that the complainant is not liable to pay for the excess area constructed as it was without the consent or knowledge of the complainant especially when the excess construction is there in the building even now and the complainant has been enjoying that excess area also. As per Ext.D1 series report of the expert Engineer the plinth area of the construction is 220 sq.ft. The plinth area proposed to be constructed is 2112 sq.ft. Therefore the complainant is liable to pay the agreed rate for the entire construction of 2201 sq.ft @ Rs.1050/- per sq.ft. Hence the amount due to the opposite parties as cost of construction of 2201 sq.ft@ Rs.1050/- per sq.ft is Rs.23,11,050/-. There is no much dispute with regard to the fact that the opposite parties have received Rs.27,75,000/-. Therefore they are liable to refund Rs.4,63,950/- (27,25,000-23,11,050) .
Point No.3
The complainant would claim Rs.3,00,000/- as compensation for the defective construction of his building by the opposite party. It is brought out in evidence that there are material defects in the construction of the house building. The opposite party has also changed the front elevation of residential building and also carried out the construction of the house building by violating the principles of vastu. The complainant has deposed that the principles of vastu by the opposite party in constructing the house building has caused much mental agony apart from financial loss. Therefore the complainant is entitled to get compensation for his mental agony. In view of the facts and circumstances of the case we are of the view that the complainant is entitled to get Rs.1,00,000/- as compensation for the mental agony.
It is also brought out in evidence that there are several material defects in the construction of the house building which has been pleaded and proved by the complainant. Therefore the complainant is entitled to get compensation for the defective construction of the building, digging well to a reduced radius of 3 feet instead of constructing the well at a redius of 5 feet etc. In view of the facts and circumstances brought out in evidence including Ext.P11 series and P12 series documents and Ext.D1 Engineer’s report we are of the view that the complainant is entitled to get Rs.2,00,000/- as compensation apart from the compensation awarded for the mental agony sustained to the complainant. The points answered accordingly.
Point No.4
In the result complaint stands allowed in the following terms:-
The opposite parties are directed to pay Rs.4,63,950/- being the excess amount received from the complainant. The opposite party is also directed to pay Rs.2,00,000/- as compensation for the defective construction of the house building and also Rs.1,00,000/- as compensation for the mental agony caused to the complainant . The opposite parties are also directed to pay Rs.10,000/- as costs of the proceedings.
The opposite parties are directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover(Rs.4,63,950+2,00,000+1,00,000)= Rs.7,63,950/- with interest @ 6% p.a from the date of complaint till realization with costs Rs.10,000/- from opposite party No.1&2 and their assets.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 15th day of September 2021.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Ali Akbar
PW2 : Raveendran nair
PW3 : Muhammed Nahas
Documents marked for the complainant
Ext.P1 : Agreement
Ext.P2 : Lawyer Notice
Ext.P3 : Postal receipt
Ext.P4 : Acknowledgment
Ext.P5 : Copy of receipts
Ext.P6 : Bills
Ext.P7 : Copy of estimate
Ext.P8 :Copy of balance work estimate
Ext.P9 : Daily receipt and payment
Ext.P10 series(1):Voucher(cement work)
Ext.P10(2):Electrical &Plumbing work voucher&bills
Ext.P10(3) :Painting works voucher&bills
Ext.P10(4) :Cash voucher(tiles work)
Ext.P10(5) :voucher for wood work
Ext.P10(6): Voucher (hand rail, stair case)
Ext.P10(7):Voucher(wardrobe)&bills
Ext.P10(8):Voucher(gate)
Ext.P11 series&P12 series: Commission report & Mahasar
Witnesses Examined for the opposite party:- Nil
Documents marked for opposite party:-
Ext.D1 : Engineer’s report
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
