IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 17th day of April, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.74/09 (Filed on 01.06.2009) Between: Varghese, Kupreth Veedu, Manthuka Muri, Kulanada Village, Kozhencherry Taluk. (By Adv. B. Gopakumar) ..... Complainant And: Arul Das, Arul Nivas, Kudassanadu.P.O., Palamel, Mavelikkara. ..... Opposite party. O R D E R Sri. N. Premkumar (Member): Complainant filed this complaint for getting a relief from the Forum. 2. Fact of the case in brief is as follows: Opposite party is the contractor by undertaking construction work. Opposite party had entered into a contract with the complainant on 23.6.08 for the house construction. As per contract the said building would be completed within one year and be transferred to the complainant. Provision for part payment also include on each stages of completion of work. The total amount payable on completion of house is fixed as Rs.2,40,000/-. The total amount received by opposite party from the complainant is Rs.1,98,000/-. But the major work has not been completed. 3. According to the opposite party the work done by the opposite party is in negligence. Therefore the following deficiency has done by opposite party: (1) The walls of the newly constructed building has bend, inclination and reversal of the state of condition. (2) The irregularity in roof concreting resulted in leaking. (3) Improper installation of door resulted in slope and shapeless. 4. When the complaint has try to point out the above defect, the opposite party became violent and caught hold of his throat and pull him with abused words and given up the work and gone. Thereafter complainant directly and by mediators approached the opposite party and for curing the defect and completion of work. But opposite party has not turned up. 5. Due to the incompleteness of the work based on the contract resulted in laches, deficiencies on opposite party’s part. The building has being leaking and ruined. Moreover complainant’s son will return from abroad recently and decided to fix marriage. Therefore the completion of work is in need. Opposite party’s willful negligence, laches and inaction caused huge loss to the complainant. Hence this complaint for getting loss, compensation and cost from opposite party. 6. Opposite party entered appearance and filed version by admitting the agreement with the complainant in construction of his house. According to him, works starts from June 2009 onwards. But due to non-remittance of amount by complainant, opposite party would not be in a position to continue the work and forced to stop it. What complainant stated n the complaint is not true and his motive is only to cheat the opposite party. 7. Basement was already constructed at the time of starting the construction. But complainant raised the allegation of improper work and therefore opposite party demolished it and reconstructed. This caused additional expenditure from opposite party. The work has been done by the direction of complainant and his physical presence. The complainant purchased various types of bricks having different measures. Therefore the constructed wall containing bend and slope. But the construction was fit having no fault. Complainant has also aware of this fact. But he has not complaint till the cessation of work. 8. After the completion of belt and shade, the work further proceeds. At that time, complainant’s son came from abroad and inspected the work, but he has no complaint. But complainant has not complied as per the agreement by remitting amounts. Even then opposite party continue the work depend upon the amount of remittance. 9. Complainant has not supplied sand in time for roof concrete, even though the wooden ceiling had completed. After the lapse of two months the complainant supplied sand. Therefore the wooden ceiling has become bend and wriggled. It caused additional amount need for reconstruction of wooden roof. By using mixer machine and vibrator opposite party concreted the roof of the building properly. Leakage as alleged by the complainant is caused due to the non-completion of parapet construction. Water has filled on the roof of the building for setting the concrete. The filled water on the roof leads to some moisture only. This defect is curable by the construction of parapet and by plaster over it. 10. More over, complainant has not supplied bricks for the construction of the wall of chimminy. Lack of sufficient number bricks, the workers forced to use broken and partially damaged bricks for construction. This caused bend on outer part of the wall. The slab of the chimminy has constructed by the direction of the complainant. But the wooden log used for the concreting the chimminy would not removed. Therefore wooden log has become ruined and cannot be further use. This caused a loss to the opposite party. The concrete has also done a week before the dispute of this case. 11. Opposite party has filed separate reasons for the discontinuance of work. According to him, complainant has not prompt in paying the assured part payment as per A1 and also usual interference, which created obstruction. Complainant also lodged false complaint against opposite party at police station as well as Grama Panchayat. All this peculiar misbehavior, opposite party could not complete the work within the time limit. 12. Opposite party also filed a statement of account regarding the loss sustained by him as a result of the complainant’s inaction, which are as follows: 1. Remuneration given to 13 workers for one day due to complainant’s adamant stand that work would not start after the inspection of the vasthu expert Rs.1,300/- 2. Addl. work by digging the earth as per direction of complainant Rs.1,890/- 3. By filling the rubbles in the above work Rs.3,150/- 4. Loss due to the constructed wall demolished and installed ventilator there as per the direction of complainant Rs.1,000/- 5. Loss due to the ceiling logs of the concreting roof lying one months and additional amount spend for refitting the ceiling Rs.15,000/- 6. After concreting the chimminy complainant has not allowed to remove the ceiling logs, utensils which caused a loss Rs.7,500/- 7. After the concreting, the utensils, wooden logs and wooden beam became non useful due to rain which caused a loss Rs.60,000/- 8. Loss of time, financial loss due to complainants false complaint before the police station and panchayat office Rs.1,00,000/- (a) Total claim amount of the opposite party Rs. 1,90,045/- (b) Paid amount by the complainant Rs. 1,60,000/- Balance amount is not mentioned in the version. 13. From the above pleadings, following points are raised for consideration: (1) Whether the complaint is maintainable before the Forum? (2) Whether the relief sought for in the complaint are allowable? (3) Relief & Cost? 14. Evidence of the complainant consists of the proof affidavit filed by the complainant along with certain documents. Documents produced were marked as Ext.A1 and A2 and C1 series. Evidence of opposite party consists of the proof affidavit filed by opposite party. After the closure of evidence, both parties heard. 15. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. Documents produced were marked as Ext.A1 to A2 and C1 series. Ext.A1 is the mutual agreement between the parties for the construction of the house. Ext.A2 is the Diary pertaining to the receipt of Rs.33,000/- from complainant. Ext.C1(a) is the report of the commissioner appointed by the Forum. Ext.C1(b) is the plan of the commissioner. 16. Apart from version, opposite party has not adduced any evidence to prove his contention. 17. On the basis of the averment and contention of parties, we perused the entire material on record. It is seen that there is no dispute regarding the Ext.A1 agreement. The only dispute is with regard to the improper and incomplete construction of opposite party. But opposite party’s contention is that it is due to complainant’s breach of contract in supplying materials and amount, which caused the delay and obstruction in construction. He denied the allegation of improper construction, if anything occurred it is minute and can be curable. 18. Ext.A1 shows that a valid contract executed by both parties. Ext.A1 also revealed that opposite party received Rs.1,65,000/- and Ext.A2 shows that he received Rs.33,000/-. The total amount received from complainant is Rs.1,98,000/-. Ext.C1(a) shows the cost of labour as per 2008 rate i.e. Rs.1,64,000/-. But the amount received by the opposite party is Rs.1,98,000/-. Ext.C1(a) also revealed that for rectifying the defect of chimminy wall and leakage in roof an amount of Rs.30,000/- is required. 19. Opposite party has not adduced any evidence either to prove his contention or to disprove the complainant’s case. He has not challenged Ext.C1 series. Therefore it is presumed that complainant’s case proved unchallenged. It is the boundan duty of opposite party to construct the house without fault as per Ext.A1. Faulty and incomplete construction is not only a breach of contract as reposed by the complainant but also a clear deficiency of service. Hence complaint is partly allowable with loss, compensation and cost. With regard to the claim of exorbitant compensation amount for mental agony, loss etc. there is lack of positive evidence to prove the same. 20. In the result, the opposite party is directed to rectify the defects of the construction noted in Ext.C1 series at his cost within 30 days from the date of receipt of this order and also directed to pay an amount of Rs.5,000/- (Rupees Five Thousand only) as compensation and Rs.2,000/- (Rupees Two Thousand only) as cost to the complainant, failing which the complainant is allowed to rectify the defects noted in Ext.C1 series and to realise Rs.30,000/- as noted in Ext.C1(a) from the opposite parties along with the compensation and cost ordered herein above with 9% interest per annum from today for the whole amount till the whole realisation. Declared in the Open Forum on this the 17th day of April, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: Nil Exhibits marked on the side of the complainant: A1 : Photocopy of the agreement dated 23.6.2008 A2 : Diary Witness examined on the side of the opposite parties: Nil. Exhibits marked on the side of the opposite parties: Nil Court Exhibits: C1 : Letter dated 18.06.2009 sent by the Asst. Engineer, Pamba Irrigation Project, Maniyar, Kozhencherry Sub Division to the opposite party. C1(a) : Report of the commissioner appointed by the Forum. C1(b) : Photocopy of the Ground Floor plan of the commissioner. (By Order) Senior Superintendent. Copy to:- (1) Varghese, Kupreth Veedu, Manthuka Muri, Kulanada Village, Kozhencherry Taluk. (2) Arul Das, Arul Nivas, Kudassanadu.P.O., Palamel, Mavelikkara. (3) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
