By Smt. Beena. M, Member:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
2. Brief facts of the case are as follows:- A house construction agreement was entered into between the Complainant and the Opposite Party on 28th August 2017. As per the agreement, the Opposite Party agreed to complete the construction work of 1600 sq. ft. as per the plan presented by the Complainant at the property of the Complainant situated at Aloorkunnu. It is stated in the agreement that the Opposite Party should be completed the work of the house and the ground should be concreted. The agreed rate between the Complainant and Opposite Party is Rs.300/- per sq. ft. for the construction. Moreover the above works should be completed within 31/12/2017 as per conditions. There was a gross negligence on the part of the Opposite Party in the construction of the house. Although the Complainant has supplied construction materials on time as per the instruction of Opposite Party for the construction of house, the Complainant has suffered severe financial loss due to the defects in the construction of the Opposite Party. The Opposite Party after the construction of the foundation, the door frame was fixed only after placed rough flooring at a height of 6 inches above the belt concrete. But the brick was laid from the belt level. Then, when the Complainant was said to the Opposite Party that the above work would cause loss to him, then the Opposite Party has said that the Complainant would not have any difficulty and he could build the house in such a way. Then concreting the ground required a lot of additional cement, sand and metal had to be filled. Due to serious negligence in the construction of the car porch, water, dust etc accumulated inside the car porch and the Complainant was unable to use the car porch. The coating which is to be done after the above main warp is not done on time by the Opposite Party, subsequently, due to repeated requests, the work was done by the Opposite party in which the above mentioned coating has cracked in many places and the wall has cracked and leaked at about 5 places due to the work done by the persons who have no experience or expertise in the above works. Moreover, there was a condition that the staircase room should be constructed and painted and the asbestos sheets should be laid, the Complainant was forced to carry out the works at his own cost when the Opposite Party was not ready to complete it. And the inner part, facing the wall of the staircase is placed without even plastering. The Opposite Party said to have rectified the deficiencies in the works as stated above and collected the entire money from the Complainant, but he has not done any kind of repair work till date. Hence, this complaint.
3. On receipt of notice, Opposite Party entered and filed version. The Opposite Party admits that on 28.08.2017 the Opposite Party had entered into an agreement with the Complainant for undertaking the construction works of the Complainant’s house. But there were no defects as mentioned in the complaint from the Opposite Party. The Opposite Party stated that as per the agreement, the Opposite Part has completed the construction work of the Complainant’s house neatly and handed it over to the Complainant. He further stated that there has no delay on the part of the Opposite Party in completing the work. The construction work of the house was completed by the Opposite Party using the materials supplied by the Complainant. The amount to be paid by the Complainant to the Opposite Party is Rs. 300 per square feet. The total house area is 1600 square feet shown in the contract, but during the construction of the house, as per the request of the Complainant, the construction of 147 square feet more has been done by the Opposite Party and the same has been accepted by the Complainant. According to the agreement, the Opposite Party had received from the Complainant several times a sum of Rs. 3,47,250/- till the date of accounting. Then after completing the work and looking at the total calculation, it was found that the house has total area of 1747 square feet, so the Opposite Party should have received Rs. 5,24,100/- from the Complainant at the rate of Rs. 300/- per square feet. Rs. 3,47,250/- received by the Opposite Party and towards the remaining balance of Rs. 1,76,850/-, the Complainant had given Rs. 50,000/- on 04.04.2018 and the Complainant had given two cheques to the Opposite Party saying that the remaining amount of Rs.1,26,850/- would be paid in two installments. Later the Complainant issued cheque of Rs. 75,000/- dated 30.04.2018 to the Opposite Party. But the amount as per cheque of Rs. 51,850/- dated 20.05.2018 has not been paid by the Complainant to the Opposite Party till date. A cheque case No. ST 107/2020 has been filed in JFCM II Sulthan Bathery court against the Complainant for recovery of the above cheque amount and the same is still pending. According to the Opposite Party, the Complainant has filed the Complaint only to prevent the Complainant from paying the amount due to the Opposite Party. There is no deficiency on the side of Opposite Party and the complaint is liable to be dismissed.
4. The Complainant filed chief affidavit and examined as PW1 and the Expert Commissioner was examined as PW2. Ext. A1, A2 and C1 were marked. After the evidence on the side of the Complainant was concluded the Opposite Party did not come forward to give evidence, in spite of several adjournments. And on the last date of adjournment i.e. on 27.12.2023, the Opposite Party’s counsel reported no instructions.
5. Heard the Complainant and perused the petitions and documents filed by the Complainant.
6. Points for consideration:
1. Whether there is any deficiency in service on the part of Opposite
Party?
2. Whether the Complainant is entitled for the relief as prayed for?
7. It is undisputed fact that the Opposite Party had undertaken house construction at the rate of Rs. 300 per square feet. On the other hand it is the plea of the Opposite Party that apart from the agreed work he executed extra square feet. According to the Opposite Party he had done additional construction work of 147sq.ft.as demanded by the Complainant and the Complainant had to pay Rs.5,24,100/- for the work of the total area of 1747 sq. ft. But the Complainant had paid only Rs.3,47,250/- to him. So the Complainant had to pay Rs.1,76,850/- to him. According to the Opposite Party, there is no deficiency in service on his part and the Complainant had filed the complaint to evade the payment of the balance amount. Regarding the claim of Rs.1,76,850/- put forward by the Opposite Party for the additional work alleged to have been done by him, the Opposite Party failed to prove the same. The Opposite Party ought to have taken steps to ascertain and report regarding the additional work alleged to have done by him. Here the Ext. C1
commission report is very clear and convincing regarding the condition of the building. The commissioner pointed out the defects in the construction of the house and the main reason stated for that is the poor workmanship. It is brought out in the report that leakage of water was observed in the roof slabs in two bed rooms. To rectify this defect the commissioner suggested that the roof top plastering to be demolished and to be plastered with necessary adhesive materials wherever required. The commissioner further observed the following things and also he suggested proposals for rectifying the defects. More than 10 minor cracks in brick walls and 4 major cracks in walls. One crack is seen in porch roof. According to the commissioner the areas where cracks noted to be chopped and filled with crack fillers and plastered after fixing standard nets available in the market. Reverse slope in porch floor, it can be rectify through re-slop. The work area floor is lowered by 5 cm relating to relating to other room floors. To this defect can cure the work area floor to be raised and floor tiles are to be laid. The commissioner noted that the step sides of stair case are not plastered, crack above beam of stair case- headroom in hall (rear long wall in roof slab) and roof top plastering damaged in many areas which causes leakage. From the perusal of commission report it is clear that there is defect, short fall and inadequacy in the service rendered by the Opposite Party while making the construction of house. According to the expert in order to rectify the defects an amount of Rs.92,000/- is necessary. Here the Complainant claimed compensation of Rs.10,00,000/- for which complainant has miserably failed to substantiate the claim by way of cogent and convincing evidence. In the absence of any supporting of evidence to support his contention and without any basis for the claim, in our opinion the claim of Complainant is exorbitant. So, the claim of compensation Rs.10,00,000/- cannot be considered while awarding compensation on merits.
8. In view of the above discussions and perusal of commission report the complaint is hereby allowed in part and the Opposite Party is liable to pay compensation for the deficiency in service.
In the result, the complaint is allowed in part. The Opposite Party is directed to pay compensation of Rs.1,20,000/- (Rupees One Lakh Twenty thousand only) to the Complainant with interest of 9% p.a. from the date of complaint till the date of payment.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Commission on this the 18th day of June 2024.
Date of filing: 08.11.2028.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant:
PW1. Joseph. Complainant.
PW2. Sugunan. P.K Pensioner.
Witness for the Opposite Party:
Nil.
Exhibits for the Complainant:
A1. Copy of Copy of Lawyer Notice. dt:08.08.2018.
A2. Reply Notice. dt:15.10.2018.
C1. Commission Report. dt:23.01.2023.
Exhibit for the Opposite Party:
Nil.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
