DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 30th day of September 2021
Present : Sri.Vinay Menon.V President
: Smt.Vidya.A, Member Date of Filing: 14/08/2020
CC /85/2020
Hamsa,
S/o.Kasim,
Residing at Dew Drops, - Complainant
Ummini, Dhoni(PO),
Palakkad Taluk, Palakkad Dist.
PIN – 678 008.
(By Advs.G.Ananthakrishnan, K.B.Priya & K.R.Savitha)
V/s
Proprietor, - Opposite party
ABA Group of Pranavam Builders,
Chellam Cottage,
Ambalaparambu, Kavilpad,
Palakkad Taluk, Palakkad Dist.
(Exparte)
O R D E R
By Smt.Vidya.A., Member
Brief facts of the complaint
- The complainant purchased the property including a single storied building situated there in by virtue of sale deed No.841/2007 of Olavakkode Sub Registrar Office. The complainant is residing along with his family in that house. The building in that property was having a sit out, Hall, 3 bed rooms, 3 attached bathrooms and kitchen. The complainant approached the opposite party for carrying out the extension work in his house. They estimated 305sq.ft. extension work in the downstairs and 799 sq.ft. work in the upstairs including the construction of 2 bedrooms with attached bathrooms, living room and sit out in the upstairs. Both parties entered into an agreement on that basis on 05/12/2019.
As per the agreement, the opposite party was required to do the following works.
At present the ground floor is having a building of area 799sq.ft. The agreement was to construct a porch, having an area of 172 sq.ft. and ground floor slab, stairs, steps, hand rest, kitchen slab with area 305sq.ft. As per their agreement, cost of the first floor renovation work was Rs.1,300/- per sq.ft., ground floor work Rs.850/- per sq.ft. and the cost for the constructions of toilet and work area in the ground floor was Rs.1,34,325/-.
After the agreement, the roof top of the work area and toilet in the ground floor are decided to be concreted and for that an oral agreement was made agreeing to pay Rs.1200/- per Sq.ft. and the total amount as per the oral agreement was Rs.2,16,000/-.
As per the agreement, the complainant has to give Rs.2,59,250/- for the ground floor work, for the construction of work area and toilet, an amount of Rs.2,16,000/- and Rs.12,62,300/- for the first floor work. Thus complainant has to give a total of Rs.17,37,550/- to the opposite party for the completion of entire work as per their agreement.
As per the agreement, the complainant has to give 20% of the total cost amounting to Rs.3,31,175/- after the construction of pillar, beam, porch and RCC work and Rs.1,65,587.50(10%) after completion of kitchen work area and an amount of Rs.2,48,381.25(15%) after completing the lintel work and RCC block work in the first floor. Then the complainant has to give Rs.2,48,381(15%) at the time of main roof slab work and on the completion of wood work and plastering an amount of Rs.3,31,175/-(20%), after completion of electrical, plumbing and floor tile work an amount of Rs.2,48,381/- and the balance amount has to be paid after the completion of the entire work.
The opposite party had received a total sum Rs.15,34,935/- from the complainant on different occasions. The opposite party started some of the works as per the agreement, but he did not complete the work. The opposite party engaged one Mr.Ramachandran for doing the concrete works in the first floor. He agreed to do this by June 10th, 2020, but he did not do the work and the complainant and Mr.Ramachandran tried to contact him in person and through telephone, but all in vain.
The opposite party agreed to complete the entire works within six months and believing this the complainant had paid the above mentioned amount. The opposite party agreed to complete the work before the rainy season and due to the failure on his part in completing the work, water entered the house causing short circuit of electricity. So the complainant was forced to complete the concrete work of the 1st floor by spending labour charges from his pocket. The opposite party had supplied only the materials for that and the complainant had to spent an amount of Rs.50,335/- in connection with labour and other charges. The complainant and his family is residing in that building under renovation and it is highly necessary to complete the work immediately.
The opposite party had received an amount of Rs.15,34,935/- as per their agreement on 05/02/2019. But he did not complete the work. The opposite party informed the complainant that he is not ready to complete the balance work. The opposite party had completed the work amounting to the cost of about Rs.10,00,000/-(Rupees Ten lakhs only), but he received an amount Rs.15,34,935/- from the complainant. So he had received an excess amount of Rs.5,34,935/-. Hence, the opposite party has to refund the excess amount collected from the complainant over the cost of the work carried out by him.
The acts of the opposite party had caused mental agony and financial loss to the complainant. The deficiency and inefficiency in service on the part of the opposite party had caused mental strain and financial loss to the family of the complainant.
After receiving 90% of the amount as per the agreement, the opposite party failed to complete the construction works within time and because of the deficiency in service on the part of opposite party, the complainant was forced to live in the house under construction with his wife and small kids. He estimates Rs.8 lakhs for completing the balance work.
So this complaint was filed for directing the opposite party to refund the excess amount Rs.5,34,935/- and Rs.5,00,000/- as compensation and cost of this litigation.
- Complainant filed an emergent IA 125/2020 to emergently consider the complaint and IA 126/20 to appoint an Adv.Commissioner to inspect the subject property with the assistance of an expert engineer and it was allowed. Complaint admitted and notice issued to the opposite party. Even after the receipt of notice, the opposite party did not appear before the Forum. So the opposite party’s name was called absent and set exparte. Complainant filed IA 138/2020 for getting an order to permit them to complete the balance work and it was allowed.
- Complainant filed chief affidavit and Ext.A1 to A15 and Commission Reports Ext.C1, C1(a) were marked. Complainant was heard and it was posted for orders. Then it was suo moto re-opened for further hearing. Complainant filed additional affidavit along with documents. Ext.A16 to A19 were marked and evidence closed.
4. Main points to be considered
- Is there any deficiency in service on the part of the opposite party?
- If so, what is the relief as to cost and compensation ?
Points 1&2
- As per the complaint, the complainant approached the opposite party for carrying out the extension works in his house and for that purpose they entered into an agreement on 5/12/2019. The agreement is produced by the complainant which is marked as Ext.A1. As per Ext.A1, the work has to be completed within 6 months from the starting date and the total amount agreed for the construction was Rs.16,55,875/- as seen in proof affidavit and Ext.A1. After this agreement an extra amount of Rs.24,000/- was added for concreting the roof of work area and toilet.
The complainant agreed to pay an amount of Rs.2,59,250/- for the construction work in the ground floor, Rs.1,58,325/- for work area and toilet and Rs.12,62,300/- for first floor work. Thus the complainant had agreed to pay a total of Rs.16,79,875/- to the opposite party for doing the entire work.
- The complainant stated that the opposite party received a total of Rs.15,34,935/- from him and produced the bank statements showing these transactions which were marked as Ext.A16 to A19. On verification of these documents, it is clear that the complainant has transferred an amount of Rs.15,34,935/- to the opposite party’s account.
According to the complainant, the opposite party agreed to complete the entire works within 6 months and on that basis he paid this amount to the opposite party. But the opposite party did not complete the work. The complainant did the concrete work of the 2nd floor by spending Rs.50,335/- from his pocket.
- Ext.C1 report also clearly shows the “works completed” and “works to be completed”. So it
is evident that the opposite party did not complete the work in time as per their agreement and it is clear deficiency in service on the opposite party’s part.
The expert commissioner estimates the amount for completed works in both ground and first floor as Rs.8,31,150/- He also assess the estimate amount for completing ground, first floor and extra work to be Rs.9,66,950/-
8 . As per the complaint, after receiving Rs.15,34,935/- the opposite party completed the works costing about Rs.10 lakhs and so the complainant is entitled to get the balance amount of Rs.5,34,935/-. Further the complainant estimate Rs.7 lakhs for the completion of balance works as per affidavit.
9. Though the expert Commissioner in his report which is marked as Ext.C1, estimated the cost of completed works as Rs.8,31,150/- and the cost for completing the balance work as Rs.9,66,950/-, the complaint was not amended on the basis of that report. Since, the complainant has not amended the complaint, we limit the reliefs based on the reliefs sought for in the complainant’s proof affidavit.
At this juncture, it is important to note that some of the amounts like the total amount, amount for the entire work, amount for the workarea and toilet are seen varied in the complaint and proof affidavit. The amount expected to complete the balance work also varies. Hence, we are resorting to the amount stated at the later instance i.e. proof affidavit to grant relief.
10. The deficiency in service on the part of the opposite party has caused mental agony and financial loss to the complainant. The complainant was staying in the incompleted house with wife and small kids. This has caused mental strain to the complainant which the opposite party is liable to compensate. Further the complainant has to spent some additional amount for the completion of balance work resulting financial loss to him.
Since the opposite party remained exparte, the evidence adduced by the complainant stands unchallenged.
In the result, the complaint is allowed.
We direct the opposite party to
- Refund Rs.5,34,935/- (Rupees Five lakhs thirty four thousand nine hundred and thirty five only) to the complainant.
- To pay Rs.2 lakhs (Rupees Two lakhs only) as compensation for the mental agony, financial loss and for the deficiency in service on their part.
- To pay Rs.15,000/- (Rupees Fifteen thousand only) as cost of this litigation.
The order shall be executed within 45 days from the date of receipt of this order; otherwise complainant is also entitled to get interest @ 9% per annum on the amount mentioned in relief (1) due to him from the date of filing of complaint till realization.
Pronounced in the open court on this the 30th day of September 2021.
Sd/-
Vinay Menon V
President
Sd/- Sd/-
Vidya.A
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Agreement between complainant and opposite party dated 05/12/2019.
Ext.A2 – Receipt issued by opposite party to complainant dated 20/12/2019.
Ext.A3 – Receipt issued by opposite party to complainant dated 27/12/2019
Ext.A4 – Receipt issued by opposite party to complainant dated 07/01/2020
Ext.A5 – Receipt issued by opposite party to complainant dated 11/01/2020
Ext.A6 – Receipt issued by opposite party to complainant dated 29/01/2020
Ext.A7 – Receipt issued by opposite party to complainant dated 14/02/2020
Ext.A8 – Receipt issued by opposite party to complainant dated 27/02/2020
Ext.A9 – Receipt issued by opposite party to complainant dated 15/03/2020
Ext.A10 – Receipt issued by opposite party to complainant dated 20/03/2020
Ext.A11 – Receipt issued by opposite party to complainant dated 01/05/2020
Ext.A12 – Receipt issued by opposite party to complainant dated 11/05/2020
Ext.A13 – Receipt issued by opposite party to complainant dated 16/05/2020
Ext.A14 – Receipt issued by opposite party to complainant dated 23/05/2020
Ext.A15 - Receipt issued by Ramachandran to complainant dated 15/06/2020
Ext.A16 – Statement of account of Febin in CSB Bank for the period 1/12/2019 to 30/6/20
Ext.A17 – Statement of account of Shajimol in bank of Baroda for the period 1/12/2019 to 31/7/20
Ext.A18 – Statement of account of Febin in SBI for the period 1/12/2019 to 28/2/2020
Ext.A19 – Statement of account of Febin in Bank of Baroda 1/12/2019to 30/7/2020
Exhibits marked on the side of Opposite parties
NIL
Witness examined on the side of complainant
NIL
Witness examined on the side of opposite parties
NIL
Commission Report
C1 – Expert Commissioner Report
C1(a) – Adv.Commissioner Report
Cost : Rs.15,000/- allowed as cost of this litigation.NIL
NB : Parties are directed to take back all extra set of documents submitted in the
proceedings in accordance with Consumer Protection (Consumer Commission
procedure) Regulations, 2020, failing which they will be weeded out.
Forwarded/By Order,
