IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 11^th day of August, 2021

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member

Sri. K.M. Anto, Member

C C No. 307/2016 (filed on 08-11-2016)

Petitioner                                          :         Anu Baiju @Anu Elsa Esho,

                                                                   W/o. Baiju Sebastian,

                                                                   Kaleeckal House,

                                                                   16-Chira, Karappuzha.

                                                                   Now residing at

                                                                   Glory Bhavan, Iranjal,

                                                                   Kanjikuzhy, Muttambalam P.O.

                                                                   Kottayam – 686 004.

                                                                   (Adv. G.R. Panicker)

                                                                             Vs.                             

Opposite Parties                               :   1)  Anish Jose,

                                                                   S/o. Joseph,

                                                                   Mylammoottil House,

                                                                   Vettikad Kara, Titanium P.O.

                                                                   Kadakampally village,

                                                                   Thiruvananthapuram – 695 021.

                                                                   (Adv. S.Suresh Babu)

                                                                2)  Jasmine Antony @ Deepa,

                                                                   Mylammoottil House,

                                                                   TC 34/497 (1) Beach P.O.

                                                                   Thiruvananthapuram – 695008.

                                                                   (Adv. Akash K.R.)

                                                          O  R  D  E  R

Sri. Manulal V.S. President

          The nutshell of the complaint is as follows.

          The complainant is a teacher and 1^st opposite party is a building contractor.  The 2^nd opposite party is a partner of the 1^st opposite party.  The 1^st opposite party with the consent, permission and knowledge and on behalf of the 2^nd opposite party entered into an agreement with the complainant for constructing a residential building in her plot at Karappuzha, Kottayam.  On the date of execution of the agreement, the 1^st and 2^nd opposite party jointly received an amount of Rs.2 lakhs from the complainant for which they did not give any receipt.  As per the agreement, the total cost of the construction was Rs.14 lakhs and the construction work of the building was to be completed by 31-10-2015 ie. within a period of 7 months from the date of execution of the agreement.                              The mode of execution of work and payment in each stage is annexed in the agreement.  As per the term of the agreement annexed to it, an advance of Rs.2,00,000/- (Rupees Two lakhs) was given to the 1^st opposite party and it was paid as agreed by and between the parties.  Out of the total amount of 14 lakhs, the opposite parties received Rs.2lakhs on 29-03-2015, Rs.3 lakhs on 27/05/2015, Rs.1 lakh on 29-06-2015 Rs.1 lakhs on 02-07-2015.  As such a total of Rs.7 lakhs was received by the opposite parties even before completing the foundation and basement work as per the agreement.

          For starting the work, the opposite parties demanded the complainant to demolish the existing building.  The opposite parties had promised that they would arrange people to purchase the existing building and the complainant need not spent any amount for demolishing the existing building.  Though the opposite party assured that Rs.2 lakhs would be paid to the complainant as cost of the existing building, however the opposite parties did not arrange the sale of the said building.  The complainant had to spent Rs.28,000/- for demolishing the building.  The opposite parties deputed workers for that job for which the complainant had to pay Rs.20,500/-.

          On the advice of the opposite parties, 6 yielding coconut trees, two mango trees and some other trees were cut and removed by the complainant and for which she had to spent Rs.21,000/-.  The complainant had to pay Rs.6,000/- for food and accommodation of the workers of the opposite parties.  Apart from that the complainant had taken sanction for construction of building from the electricity board for which she had to spent Rs.5,258/- and Rs.3,000/- for building plan and Rs.2,000/- for sanction from the municipality.  The complainant had to pay Rs.15,000/- to a ‘poojari’ who was brought by the opposite party to remove the atonement in vasthu.  The complainant had to pay Rs.10,000/-to the Supervisor who is employed by the opposite parties to look after and supervise the work. 

          The platform for RCC was brought by an agent of the opposite parties from Kumaranalloor.  The opposite party did not pay the rent for the same.  The opposite parties left the work at the 1^st stage of construction of foundation.  Without completing the foundation and basement, they left the work leaving employees there.  The complainant had to arrange the food and accommodation for them and she had to spend Rs.6,000/- for that.  When the complainant tried to contact the 1^st opposite party through phone, he avoided speaking to the complainant, instead the 2^nd opposite party attend the phone and she informed the complainant that the 1^st opposite party is trying to raise fund for construction of building as the amount received from the complainant was spent in some other sites of the 1^st opposite party.  Though the complainant very often used to call the 1^st opposite party sometime he used to attend the call and advance lame excuses.  He told the complainant that he would come and restart the work in July, 2016.  But even after July 2016, the 1^st opposite party kept on requesting to enlarge time for completing the work.  The opposite parties did not even attend the phone call of the complainant after July 2016.  As such the complainant had to go to the native place of the 1^st opposite party, on 24^th July, 2016, the 1^st opposite party did not ready to meet the complainant.  The 2^nd opposite party told the complainant that she would advice the 1^st opposite party to restart the work.  But the opposite parties did not restart the works so far.

          The 1^st opposite party breached the contract.  He did not act according to the terms of the agreement.  The complainant had spent Rs.9,10,758/- for various construction work.  The opposite parties have not rendered service as expected out of a prudent contractor to the complainant, as the complainant had paid for the services of the 1^st opposite party.  The act of the opposite parties amounts to unfair trade practice and deficiency in service.  Due to the deficiency in service, the complainant had to suffer heavy loss, damage, mental agony and hardships.  The opposite parties are liable to compensate the complainant for actual amount which she had spent for construction and for compensation of deficiency in service and unfair trade practice of the opposite parties.

          Due to the demolishing of the existing building, the complainant had to reside in a rented building in Baker hill for 12 months @ Rs.6,000/- as monthly rent.  Thereafter the complainant had vacated the building and obtained a building at Eranjal bhagom for which she had to spent Rs.8,000/- as rent per month.  The complainant had to pay Rs.1,28,000/- as rent.

          Therefore, the complainant prayed for an order for directing the opposite parties to pay Rs.9,10,758/- the amount spent by the complainant for construction and Rs.1 lakh as compensation for deficiency in service from the opposite parties along with cost of litigation.

          Upon notice from this Commission, the opposite parties appeared before the Commission and filed separate version.

          The version of the opposite party is as follows.

          It is admitted that the 1^st opposite party and the complainant had entered into an agreement for the construction of the building.  The complainant had failed to pay for the construction in accordance with terms of the agreement.  The complainant had paid very small amount instead on the ground agreed for the payment.  The 1^st opposite party had acknowledged the receipt of the amount on the reverse side of the agreement.  The 1^st opposite party had no knowledge about the 2^nd opposite party.  The complainant had paid only Rs.2 lakhs to the 1^st opposite party as stated in the agreement.  The 1^st opposite party has not received any amount from the complainant as alleged in the paragraph 5 of the complaint.  The complainant had introduced some persons for cutting and removing the trees to the 1^st opposite party and he had paid Rs.12,000/- to the labourers, who had removed the trees from the site.

          It is true that the complainant had remitted the fee for the electricity connection.  The complainant had paid the charges for approving the building plan to the 1^st opposite party.  The averment in the paragraph 10 of the complaint is not true and denied by the 1^st opposite party.  The 1^st opposite party had paid to the supervisor who is the employee of the 1^st opposite party.  According to the 1^st opposite party he had paid the rental charges of the RCC platform.  It is averred in the version that the construction work was disrupted due to the failure of the complainant to comply with the terms and conditions of the agreement.  If there is any deficiency in service from the part of the 1^st opposite party only responsible person of the same is complainant and her failure to comply the terms of the agreement.

          2^nd opposite party filed version contenting as follows.

          The complainant is not a consumer of the 2^nd opposite party and the 2^nd opposite party is not a service provider.  The 2^nd opposite party has not consented and permitted the 1^st opposite party to enter into an agreement on her behalf for constructing a residential building for the complainant’s plot.  The averment that on the date of execution of agreement, the 1^st and 2^nd opposite party jointly received Rs.2 lakhs is false.  The averment with regard to the execution of the agreement, terms of the agreement, cost of construction, receipt of the amounts, mode of execution of the work etc. as alleged in the complaint are false.                            The averment that when the complainant went to the native place of the 1^st opposite party on 24-08-2016, the 2^nd opposite party was present there in that house and the 2^nd opposite party told that she would advice the 1^st opposite party to restart the work etc. are false.  The 2^nd opposite party is neither a partner not having any connection with the construction if so any carried out by the 1^st opposite party.  The 2^nd opposite party has not entered into any agreement with the complainant in relation to the construction of any residential building.  The 2^nd opposite party is a total stranger and unnecessary party to the proceedings.  There is no deficiency in service or unfair trade practice on the side of the 2^nd opposite party.  The 2^nd opposite party is dragged into the litigation with the ulterior motive.  No cause of action is arosed against the 2^nd opposite party.  None of the reliefs claimed by the complainant is allowable.

          Evidence in this case consists of deposition of Pw1 and 2 and Exts.A1 to A5 from the side of the complainant.  2^nd opposite party examined as Dw1 from the side of opposite party.  Commission report is marked as Ext.C1.         

          On the evaluation of complaint, version and evidence in this case, we would like to consider following points.

1. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?
2. Reliefs and costs?

For the sake of convenience, we would like to consider point No.1 and 2 together.

Point Nos.1 and 2

     Case of the complainant is that the opposite parties, who are the partners entered into an agreement with the complainant for construction of residential building in complainant’s property, which is situated at Karappuzha, Kottayam.  Pw1, who is the complainant deposed before this Commission that opposite parties assured that they would completed the construction work before 31-10-2015 ie. within 7 months from the date of agreement.  The original of the agreement is produced before this Commission and marked as Ext.A1.  On a mere reading of Ext.A1 we can see that the 1^st opposite party had entered into an agreement with the complainant for the construction of a residential building on 29-03-2015.  It is agreed by the 1^st opposite party in Ext.A1 that the agreement will expire on 31-10-2015.  By executing Ext.A1 the 1^st opposite party agreed to complete the construction work in accordance with the specifications, which is annexed to Ext.A1.  He further agreed that he had no right to make any changes in the measurement and specifications which is annexed to Ext.A1.  It is further agreed by both the parties that the payment should be made as per specifications.  It is annexed to the Ext.A1.

     The specific case of the complainant is that though the 1^st opposite party started the construction work, he abstained from the work at the 1^st stage of the construction of the foundation without completing the foundation and basement.  The 1^st opposite party agreed in the version that he had received Rs.2 lakhs from the complainant on the date of execution of Ext.A1 agreement.  Though the Pw1, who deposed before this Commission that the 1^st and 2^nd opposite parties are the partners.  On perusal of Ext.A1, we can see that the Ext.A1 was executed between the complainant and 1^st opposite party.  The 2^nd opposite party is not a signatory in Ext.A1 even as a witness for the same.  The complainant did not adduce any evidence to prove that the 1^st and 2^nd opposite parties jointly executed the Ext.A1 with the complainant.  On perusal of Ext.A1 it is pertinent to note that the endorsement for the receipt of amount from the complainant was made by the 1^st opposite party alone.  The 2^nd opposite party who is examined as Dw1, deposed before this Commission that she is a stranger to the 1^st opposite party.  The 2^nd opposite party denied all the allegation regarding execution and construction of the residential building of the complainant.  The complainant failed to prove by any evidence to show that she had entered the Ext.A1 agreement and entrusted the construction of the residential building to the 1^st opposite party with the consent and knowledge of the 2^nd opposite party.  Only allegation in the complaint and a mere statement in the witness box could not help the complainant to substantiate her case on this regard.

     To ascertain the present condition of the building an expert commission is appointed by this Commission on the application of the complainant.  Expert Commissioner inspected the site and filed a report which is marked as Ext.C1. In Ext.C1 the Expert Commissioner categorically reported that as per agreement the construction of the building has to be completed at a total cost of Rs.14 lakh for a plinth area of 1442.87 sq.ft. at a cost of Rs.970/- per sq.ft.  According to the Expert Commissioner it is very low rate at the time of executing the agreement and the opposite party has carried out only a small quantity of foundation work.  The Expert Commissioner reported that the 1^st opposite party has completed clearing the site, earthwork, excavation, RCC 1:2:4 with 2 mm model for foundation and providing coting, bending and binding reinforcement steel rod for RCC using 20mm metal steel.  According to the Expert Commissioner for these work the total expenses was Rs.1,10,017/- as per the rates during 2015.  In Ext.C1 it is reported that Rs.20,000/- had incurred by the complainant for cutting and removal of trees. So it is evident from the Ext.C1 that 1^st opposite party has completed only the foundation work of the agreed construction work.  He had not completed the ‘plans work’ as per the terms agreed in Ext.A1.  On perusal of annexure of Ext.A1 we can see that the 1^st opposite party had received an amount of                     Rs.3 lakhs on 27-05-2015 and 1 lakh on 29-06-2015 and another 1 lakh on          02-07-2015.  Apart from 2 lakhs it was admitted by the 1^st opposite party in his version. Thus we can see that the 1^st opposite praty had received Rs.7 lakhs from the complainant.  On perusal of annexure of Ext.A1, we can see that the agreed amount, which would be payable to the 1^st opposite party after the completion of foundation was Rs.3 lakhs in addition to the advance amount of Rs.2 lakhs.  From the available evidence we can see that 1^st opposite party had abstained from the construction work after receiving Rs.7 lakhs from the complainant.

Pw2 would depose that Ext.A3 is executed by Valsalan for labour charges for the demolishing of existing building.  According to Pw2, the existing building was demolished by the labourers of the said Valsalan.  On perusal of Ext.A3 we can see that it is recorded in Ext.A3 as labour charges for proposed building demolishing.  In proof affidavit, Pw1 who is the complainant stated that she had spent Rs.28,000/- for the demolishing of existing building.  But she failed to produce any evidence before this Commission to prove that she had spent Rs.28,000/- for the same.  She did not produce any receipt from the Valsalan.  According to Pw2, he had demolished the existing building.  Though the complainant deposed before this Commission that he had spent Rs.15,000/- for removing the atonement in vasthu, she did not produce any evidence for the same.  The complainant produced Ext.A5 to prove her expense for the food which provided to the labourers who removed the trees from the plot.  On a mere perusal of Ext.A5, which was marked as subject to proof, we can see that there is no signature or name of the person who issued Ext.A5.  According to Pw1 she had paid Rs.12,000/- for rent.  But she did not neither produced the rent deed nor the receipt for the same.                                      The complainant failed to produce any evidence regarding the expenses of electric connection, building plan and building sanction and payment to the supervisor of the 1^st opposite party.  As discussed earlier, the complainant failed to prove that the 2^nd opposite party is the partner of the 1^st opposite party and the Ext.A1 agreement had been executed with the consent and knowledge of the 2^nd opposite party.  Moreover the complainant has failed to prove that 1^st opposite party has acted in connivance with the 2^nd opposite party.

Ext.A1 proves that the complainant had entered into an agreement with the 1^st opposite party for the construction of a residential building for her.  Section 2(1) (o) of the Consumer Protection Act 1986 defines service as “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

Thus we are of the opinion that the complainant had availed service of the 1^st opposite party for the construction of the residential building.                                    On evaluation of evidence, we can see that the 1^st opposite party had abstained from the construction of the residential work after obtaining Rs.7 lakh from the complainant.  Thus the act of the 1^st opposite party amounts to deficiency in service and thereby caused mental agony and hardship to the complainant, for which the opposite party is liable to compensate.  In these circumstance we allow the complaint and pass the following order.

1. We hereby direct the 1^st opposite party to pay Rs.7 lakhs (Rupees Seven lakhs only) to the complainant.
2. We hereby direct the 1^st opposite party to pay Rs.50,000/- (Rupees Fifty thousand only) to the complainant as compensation for deficiency in service.
3. We hereby direct the 1^st opposite party to pay Rs.5,000/- (Rupees Five thousand only) as cost of litigation.

The Order shall be complied with within a period of 30 days from the date of receipt of Order.  If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 11^th   day of   August,  2021.

Sri. Manulal V.S. President Sd/-

Smt.  Bindhu R,  Member               Sd/-  

Sri. K.M. Anto, Member                  Sd/-

Appendix

Witness from the side of complainant.

Pw1  -  Anu Baiju

Pw2 – Robin P.D.

Witness from the side of opposite party

Dw1 – Jasmi Antony

Exhibits from the side of complainant

A1- Agreement between complainant and opposite party 1 and 2

A2 – Elevation of building

A3 – Bill dtd.22-04-15 for Rs.20,500/-by CKV construction

A4 – bill dtd.24-04-2015b for Rs.21,000/-

A5 – Estimate for Rs.6,000/-

Exhibits from the side of opposite party

Nil

Commission report

C1 – Commission report dtd.25/0/2017 by George Cherian.

                                                                                                By Order

                                                                               Senior Superintendent