Kerala

Idukki

CC/201/2019

Sebastian - Complainant(s)

Versus

AKHIL V ANIL - Opp.Party(s)

27 Jan 2020

ORDER

DATE OF FILING : 18.11.2019

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27^th day of January, 2020

Present :

SMT. ASAMOL. P PRESIDENT-IN-CHARGE

SRI. AMPADY K.S. MEMBER

CC NO.201/2019

Between

Complainant : Sibi Thomas, S/o. Thomas,

Arackal House,

Pandippara, Thankamany.

Represented by

Power of Attorney Holder,

Sebastian, S/o. Thomas,

Arackal House, Njarukutti,

Karikkodu, Thodupuzha.

(By Adv: C.K. Anilkumar)

And

Opposite Party : Akhil V. Anil, S/o. Anilkumar,

Engineer, 2 day Builders,

Puthuppalli, Kottayam.

 

O R D E R

 

SRI. AMPADY K.S., MEMBER

Case of the complainant is as follows :

          Sri. Sibi Thomas is the complainant in this case. His brother is the power of attorney holder.  Sri. Sibi Thomas has been working in Dubai and for constructing a house in survey No.219 in block No.37 of Neyyassery Village having an extend of 10.12 ares which was purchased in the name of Sibi Thomas.  It is stated that his wife was suffering from brain tumour and to fulfill her last wish to construct an own house, Sibi Thomas has decided to construct the house at the earliest.  So  a contract for construction was entered into by the complainant herein on 4.4.2019 with the opposite party.  One of the conditions in the said agreement was to complete the construction of the house for residence and also complete materials as well as equipments for the construction shall be brought by the opposite party.  Another condition was that the quality of the work and

(cont....2)

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materials has been assured by the opposite party.  As per the plan for the construction of a house having plinth area 1943 sq. ft., cost thereof was fixed on mutual consent and agreement was signed.  Another condition was that if the construction materials are found to be not acceptable due to low quality, such materials shall be changed and the quality materials will be used.  It is stated that as per the agreement, plan was attached as appendix 1, elevation as appendix 2 and civil / technician specification as appendix 3.

          But opposite party has done certain works against the conditions in the agreement and also against the details mentioned in the plan.  The opposite party has not used cement and sand for plastering etc. for the construction of the foundation.  Therefore, the foundation of the building was damaged and the rubbles were separated.  Eventhough, it is agreed that, teak wood would be used for doors and windows, the opposite party brought door frame prepared from Anjili wood. Moreover, the construction was done against elevation. 

          On 4.4.2019, Rs.4 lakhs was given to the opposite party that is, before construction of the house. On completion of plinth beam, Rs.3,50,000/- was given 11.5. 2019 on reaching the lintel level 1.5 lakhs totalling to Rs.9 lakhs was received by opposite party from the complainant.  

          Since the opposite party has acted against the agreement and not completed the work within the prescribed time, the   power of attorney holder herein filed complaint before Thodupuzha Police Station, but opposite party has not attended there or compromised the matter.  Due to the use of materials like cement, sand etc. in improper proportion, the building has lost strength.  The opposite party has received more amount than the work done by him. 

          Since the opposite party has done the work against the conditions in the agreement and also not using the raw materials, the work so far done has become useless.  Due to the deficiency in service of the opposite party, (cont....3)

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there was a loss of Rs.9 lakhs towards principal amount.  Since the construction of the house is not done in time, the wife of the complainant could not be resided in the house and therefore the complainant has suffered mental difficulties. 

          Hence the complainant has sought for the following reliefs.

1.     Pass an order for recovering an amount of Rs.9 lakhs received from the complainant  by the opposite party towards work and Rs.5 lakhs for not completing the work and also for doing the work against the terms of agreement.

2.    Allow to recover an amount of  Rs.2 lakhs from the opposite party towards mental agony caused to the complainant.

3.    Allow such other reliefs as prayed for and found to be allowable by this Forum.

          Registered notice sent to opposite party was returned with endorsement of postal authorities returned to sender.  From this, it is clear that,   opposite party has refused to accept the notice issued from this Forum.  Hence the notice is treated as duly served under Section 28 A (3) of Consumer Protection Act 1986. 

 

          When the case was called on 23.12.2019, opposite party was absent and therefore set him exparte and case was posted for exparte evidence on 6.1.2020.  Complainant filed commission application and also for appointing an expert to assist the commissioner in determine the details requested in the application.  Accordingly Adv: N. Vijayamohanan is appointed as the Commissioner and Sri. Jaferkhan, Engineer in M.G. University, Thaipparambil, Thodupuzha was appointed as expert commissioner as per    IA 69/2019 dated 19.11.2019.  The commissioner along with expert commissioner has visited the site and filed report of both of them along with photographs of the foundation as well as the construction of the house upto lintel level etc. 

(cont....4)

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The complainant filed proof affidavit and  was examined as PW1 and 3 documents produced were marked as follows.  Original agreement dated 4.4.2019 between the complainant and opposite party is marked as Ext.P1, copy of sale deed No.527/19 dated 25.2.2019   executed by one Varkey in favour of the complainant Sibi Thomas which is marked as Ext.P2 and original of   power of attorney dated 7.11.2019 executed by Sri. Sibi Thomas in favour of Sri.Sebastian, power of attorney holder of above person is marked as Ext.P3.  Commission report dated 27.12.2019 and the expert opinion produced  is marked as Ext.C1 and C1(a). 

We have examined the contentions of the complainant and also gone through the documents produced by the complainant and commission report.    It is seen that the complainant alleges deficiency in service on the part of opposite party for which he has claimed Rs.9 lakhs towards amount received by him.  He  also claimed Rs.5 lakhs towards not completing the building in accordance with the agreement and also for not completing the work in time.  Another relief claimed is that, opposite party may be directed to pay Rs.2 lakhs to the complainant towards the mental injury caused to him and such other claims as may be found to be allowable by this Forum. 

As per the commission order dated 19.11.2019, advocate commissioner Sri. N. Vijayamohanan along with expert commissioner (engineer) inspected the partly constructed building mentioned in the complaint and prepared report along with the expert commissioner.  He filed commission report dated 27.12.2019 along with expert commissioner’s report and photographs taken in respect of the partly constructed building and also the valuation of the work done by the opposite party.  On a careful study of the averments in the complaint and also the details gathered on inspection it is seen that, the work so far done by the opposite party is not in conformity with the agreement executed between him and the complainant.  As per the terms of the agreement, and marked as Ext.P1 the work has to be completed within a period of

(cont....5)

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8 months from the date of agreement, that is, 4.4.2019.  But the opposite party has done the work upto lintel level as seen by the photographs as well as the report of the commissioner.  The commissioner has specifically stated that the rubbles used for the basement is not properly constructed using sand and cement.  Instead mud was seen used for doing the said work.  As per the plan attached to Ext.P1 and also from the report of the commissioner plan of the house was for two storied one.  The commissioner also stated that the rubbles in the basement have no relation between each other and it can be detached by hand.  So he reported that the work cannot be continued due to loss of strength.  He also reported that no cement or sand was seen used for constructing the basement.  He reported that the walls were constructed with red stone and using some cement.  Cement is seen used for the lintel work. 

The expert commissioner reported that the building is partially constructed upto lintel level and 2 porch pillors upto 1.8 mtr. hight casted. Only one main door frame is fixed.  Balance opening is only provided by fixing windows and door frames. He reported that  Brick work above lintel not commenced and plastering not started. The following observations were also submitted by him.  1.  The building is constructed according to plan.  2. The wood frame is seen of anjili wood.  3.  The quantity of materials required usage can be only assessed by lab testing  he reported the  estimate of the work done so far at Rs.5 lakhs only. 

From the above evidences on record,    proves beyond doubt that there is clear case of deficiency in service and violation of the terms of agreement from the part of opposite party.  It is the specific allegation of the complainant that, he has decided to construct the house for fulfilling the last wish of his wife suffering from brain tumour.  The allegation of the complainant with regard to the work done against the plan is not sustainable in the light of report of the expert commissioner.  He has reported that the building was constructed according to plan.  At the same time, the work was not seen completed within the time agreed between them.  (cont....6)

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On an entire analysis of the facts and evidences on record, we are of the considered view that, the complainant is entitled to certain reliefs prayed for.   Hence  we allow this complaint on the following lines.  

The opposite party is directed to pay Rs.4 lakhs in respect of the excess amount received for the work so far done.  Opposite party is also directed to pay Rs.1 lakh as compensation for not completing the work done in time and also to pay Rs.1 lakh towards the mental injury caused to the complainant.   The opposite party shall pay the above amounts within 30 days from the date of receipt of a copy of this order, failing the opposite party is liable to pay interest at the rate of 12% per annum from the date of agreement till full realization of the amount. 

Considering the facts and circumstances of the case, we make no order as to costs.  In the result, the complaint is partly allowed as above.

Pronounced in the Open Forum on this the  27^th day of January, 2020. 

 

Sd/-

SRI. AMPADY K.S., MEMBER

 

Sd/-

SMT. ASAMOL. P., PRESIDENT-IN-CHARGE

 

 

 

 

 

 

 

 

 

 

 

 

 

(cont....7)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Sebastian A.T.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - Original agreement dated 4.4.2019 between the complainant

and opposite party

Ext.P2 - Copy of sale deed No.527/19 dated 25.2.2019   executed by

one Varkey in favour of the complainant Sibi Thomas.

Ext.P3 - Original of   power of attorney dated 7.11.2019 executed by

Sri. Sibi Thomas in favour of Sri.Sebastian,

Ext.C1and C1(a) - Commission report dated 27.12.2019 and the expert

opinion produced.

On the side of the Opposite Party :

Nil.

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT