IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 25th day of October, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 228/2016 (filed on 03-08-2016)
Petitioner : Anoop Varghese,
S/o. Varghese Abraham,
Muttathara House,
Panachikadu Village,
KJottayam – 686 533
(Adv. Avaneesh V.N.)
Vs.
Opposite Parties : 1) Aneesh G.
S/o. Gopalakrishnan Nair,
Elamanoor Veedu,
Vellavoor Vilage,
Vellavoror P.O. – 686 541.
Changanacherry, Kottayam.
(Adv. Georgekutty C.A.)
O R D E R
Smt. Bindhu R, Member
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
The case of the complainant is that he entered into an agreement with the opposite party on 26.09.2015 for the construction of his new house. The work was scheduled to be finished by 15/04/2016 and the payment also was scheduled
to be in 6 instalments from 26.9.15 to 15.4.16.
Though the opposite party received the 1st instalment, he started the work very late. Even after the receipt of 2nd instalment, the basement was not completed as stated in the agreement. When the petitioner contacted the opposite party, he replied that he was contesting in the Grama Panchayath Election and only after the elections he could start the work in full swing. But even after the elections there was no progress in the work. Upon compulsion of the complainant the respondent started the work using more man power and for that the complainant had to pay 2 instalments in advance. The complainant demanded to construct one more bedroom and a work area which was not in the plan. This was not included in the agreement as per the request of the respondent for which the complainant had to pay Rs.2,50,000/-in advance.
Para 4 of the complaint, in March 2016 the respondent stopped the construction work without any notice. Even after several requests and demands, he did not turn up and hence the complainant himself took up the balance work to be completed with other labourers directly.
The opposite party has received Rs.13,14,000/- through bank and by cash. The complainant has paid the excess amount in cash for the additional work. Moreover, the complainant had to spent Rs.1,50,000/- for completing the balance construction work. After concreting and plastering of the rooms, the opposite party abandoned the work though he had received excess amount. The act of the opposite party has caused financial loss and mental agony to the complainant. The complainant being the consumer of the opposite party has committed deficiency of service and hence liable to compensate the same. Evenafter repeated demands the opposite party did not attend to the complainant’s grievances and hence this complaint has been filed.
The opposite party was noticed and he appeared before this commission and filed version contending that the opposite party has filed a civil case for getting the amount due to him from the complainant as O.S.583/16 against the complainant before the Munsiff’s Court, Kottayam. The complaint herein has been filed in anticipation of the above said civil suit. Admitedly the opposite party has entered into an agreement with the complainant for the construction of his house. But there was no delay in the completion of the work. The respondent completed the construction in the 2nd week of April 2016. The opposite party constructed an additional bed room with an area of 137 sq.ft and toilet having an area of 36 sq.ft. But no payment of Rs.2,50,000/- was demanded from the complainant.
All the allegations regarding defects in the construction work are false and has been put up only to escape from the liability of Rs.5,53,500/- due to the opposite party from the complainant as he defaulted in the payment as agreed. The opposite party denies that he had received Rs.13,14,000/- . All the transactions were made only through bank and he had received only 11,20,000/-The petitioner did not have to pay Rs.1,50,000/- for the completion of the construction. The opposite party did not stop the work but he completed the construction work within time. As per the agreement dated 26/9/ 15 the period of construction was 7 months from the date of agreement. Initially the total area of the building was agreed as 850 sq.ft. The construction cost was fixed as Rs.1375/- per sq.ft. This amount is mainly for structural works and excluding fittings, paintings, fancy works, finishing works etc. Before the commencement of the work the complainant obtained sanction from Panachikkadu Grama Panchayath for constructing the building with an area of 952 sq.ft..
The complainant agreed to make the payment in 6 installments. He agreed to give the first instalment of Rs.1,50,000/- as the advance payment, before starting the work. The 2nd instalment was Rs.4,00,000/- and the 3rd instalment was agreed as Rs.3,00,000/-. The 4th and 5th instalment were fixed as Rs.2,00,000/- and Rs.1,70,000/-. The last instalment had to be made on 15-04-2016 on completion of the work. Thus the total amount due for the construction of building with 952 sq.mt. is Rs.13,09,000/-.
It was also agreed that if any additional work, extra works finishing and fancyworks etc. are to be done the complainant would pay additional amount over and above the agreed rate. Before the construction started the complainant demanded the opposite party to construct a bed room having an area of 137 sq.ft and a toilet having an area of 36 sq.ft upon an agreed rate of Rs.1500/- per sq.ft. and an amount of Rs.2,59,500/- is due to the opposite party from the complainant.
More over other extra works and finishing work which were not provided in the agreement were also done by the respondent. For the external doors the frame was agreed to be made in anjili wood and its shutters were agreed to be plain and made of jack wood or mahagani. The frame of inside doors and all the windows were agreed to be of concrete material, of maruti brand. The cost of tile per sq.ft. was agreed as Rs.45/- and of Johnson or Kajariya brand. At the stage of these works the complainant insisted for some of quality, perfection etc. He agreed to give additional amounts for such deviation. The shutter of the front long window was made of wood and for this respondent spent Rs.10,000/-. The complainant wanted the windows shutters with check design and for this respondent spent of Rs.17,600/-. The front door shutter was made of teak wood instead of jack or mahagani. For this respondent had to spent an amount of Rs.20,000/-. As per the demand of the complainant also laid tile and granite above the agreed rate and quality and thus spent an amount of Rs.32,648/-. Moreover design works at parapet and other places were done by the respondet at Rs.20,300/-. So also the respondent constructed waste tank having cost of Rs.4,300/-. These extra works cost an amount of Rs.1,04,848/-.
Thus the total amount due to the respondent towards the construction of building of the complainant was Rs.16,73,348/- as stated above. Out of this the respondent received the following payments only. On 26-09-2015 he received an amount of Rs.1,00,000/- only as advance though the agreed amount was Rs.1,50,000/-. Subsequently he received Rs.1,00,000/- on 26/11/15, Rs.1,00,000/- on 09/12/15, Rs.1,50,000/- on 17/12/15 Rs.45,000/- on 2/1/16, Rs.1,50,000/- on 14/1/16, Rs.1,00,000 on 5/2/16, Rs.50,000/- on 1/3/16, Rs.1,50,000/- on 4/3/16, Rs.1,50,000/- on 21/3/16, Rs.25,000/- on 23/3/16. Thus the total amount received by the respondent from the complainant is only Rs.11,20,000/-.
The complainant has defaulted in payment and an amount of Rs.5,53,500/- is due from the complainant and even after several demands, he did not pay the said amount to the opposite party and for realisation of this amount the opposite party has filed a civil suit no 583/16 before the Munsiff’s court Kottayam. Hence
the complainant has not approached the commission with clean hands.
The complainant adduced evidence through proof affidavit and Exhibit A1 whereas the opposite party adduced evidence through DW1, DW2 and Exhibit B1. The commission report is marked as Exhibit C1.
On a detailed evaluation of the pleadings and evidence, we frame the following points for consideration
- Whether the complainant has succeeded to establish the deficiency of service on the part of the opposite party and if so what are the reliefs he is entitled to?
- Answering the above points, we would peruse the summary of the complaint and version. The complaint has been filed alleging defects in the construction work of the house of the complainant which was constructed by the opposite party and the same was not delivered as completed within the promised period seeking compensation for the damages suffered by the complainant due to the deficiency in service of the opposite party. The opposite party denied all the allegations of defect and deficiency on the ground that the complainant has filed the complaint to evade the payment due from him to the opposite party towards the cost of the construction for which a civil suit is pending before the Munsiff’s Court, Kottayam.
2) The complainant has produced Exhibit A1 agreement between the complainant and the opposite party in which the opposite party has agreed to deliver the fully constructed house to the complainant in the seventh month of the agreement. But the complainant alleges that the opposite party committed delay in the completion of work.
3) The allegation of the complaint is that not only the opposite party had delayed the completion of the work, he abandoned the construction work after completing the concrete and plastering. Thereafter the complainant had to take up the construction work and had to spent an additional 1, 50,000/- for the same.
4) The complainant alleges that as the construction work got delayed, the opposite party deputed more labourers and in this regard also the complainant was forced to give 2 instalments prior to the agreed dates. Moreover, the opposite party has received 2,50,000/- for the additional work required by the complainant.
5) As the complainant entrusted the work to the opposite party, he continued to run his shop at Kottayam. But as the opposite party abandoned the work, he had to take up and do the remaining work of his own. The construction of the door to the kitchen and one bed room was not suitable, the granite skirting of the rooms was fitted in a malicious manner, the plastering of the rooms slowly detached from the wall and some cracks were happened in the joints of the wall and parapet and the terrace portion is not in a level so as to dispose the water through the pipes fitted for that purpose. As a result of that water lodged in the terrace portion. The plumbing and painting work was not completed since the construction has not came into an effect. The septic tank and its allied work was not completed by the respondent. Windows are not fitted in fair level. The opposite party received excess amount for the extra work demanded by the complainant but the said
work was not completed by him.
6) Now, when the commission report Exhibit C1 is considered, the commissioner has reported that there are cracks in the walls, shades and parapet. The plastering of the terrace portion is reported to be not levelled causing water logging in the terrace which would cause future leaking affecting the strength of the building. Moreover, the plastering was found rough due to the defect in the mixing of cement. The shade on the western side of the house was found not in level but slanting to the wall which would cause water to spill through the walls. Further
termites were spread throughout the corners of the front rooms ,on the windows and doors etc. This is reported to have occurred due to the defect in the concreting of the floor. Moreover, it is reported that on many of the walls of the house, fungal attack was seen. The plinth area of the building is reported to be 1117.32Sq.Ft.
7) On a perusal of the deposition of the expert commissioner as DW1 also we see that he had deposed in concurrence with his report. He has categorically stated that all the defects found in the building were due to the defective construction and in the long run will cause damage to the building.
8) As the complainant has proved the alleged defects in the construction through the expert commissioner report and his deposition and in the absence of any cogent and corroborative evidence from the part of the opposite party, we are inclined to find the points in favour of the complainant. The opposite party has produced a commission report in the civil suit no.583/16 in the Munsiffs court, Kottayam and examined the commissioner also. But though the subject matter and parties to the suit are same, the nature of suit is different. We see that Exhibit B1, the commissioner report in the civil suit has no relevance in this case.
Hence the complaint is allowed and the opposite party is directed to
1. Pay Rs. 2,25,000/- to the complainant.
2. To pay Rs. 10,000/- to the complainant as compensation for mental
agony.
3. To pay Rs. 2000 towards litigation cost.
Order shall be complied with within a period of 30 days from the date of receipt of this Order. If not complied as directed, the award amount will carry 9% interest from the date of order till realization.
Pronounced in the Open Commission on this the 25th day of October, 2021.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of opposite party
Dw1 – Abhilash K.R.
Dw2 – Reshmi K.N.
Exhibits marked from the side of complainant
A1 – Agreement dtd.26-09-15 between respondent and petitioner
Exhibits marked from the side of opposite party
B1 – Copy of commission report dtd.05-09-2018 produced by the Commissioner in O.S.583/16 pending before the Municiff Court, Kottayam
Commission report
C1 – Commission report prepared by Abhilash R.
By Order
Senior Superintendent
