IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 20th Day of November 2021
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.282/16
Haridevan Raghavan : Complainant
Rose Mount
Perinad P.O
Anchalummoodu
Thrikkadavur Village
Kollam Taluk, Kollam.
[By Adv.Sumith Mohan]
V/s
B.Karthikeyan : Opposite party
Rohini House
Vaidyasala Nagar-433
Asramam North
Kollam Taluk, Kollam.
[By Adv.Parippally R.Raveendran]
FINAL ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M, President
1. This is a case based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.
2. The averments in the complaint in short are as follows:-
The complainant is a gulf returning. Opposite party is a building contractor. The complainant decided to make certain alteration, modifications and maintenance work as advised by Sri.Kanippayyoor Krishnan Namboothirippadu, vasthu astrologer for which he approached the opposite party building contractor and had a talk with him. Accordingly the opposite party agreed to carried out the construction work of 325 sq.ft. The opposite party has also made the complainant to believe that he would use first quality and standard product of recognized companies for construction work. On the basis of that information complainant agreed for the rate of Rs.1400/- per sq.ft. Accordingly the opposite party agreed and started to carried out the above works and received Rs.4,00,000/- on different occasions. But against the terms agreed to between the parties the opposite party used low and sub standard quality materials having less durability. He has also not carried out only a part of the construction work and remaining works were left unfinished. At the time of entrusting the work to the opposite party he made the complainant to believe that the entire works will be carried out within 4 months. But even after the elapse of the above period has not completed the work. On enquiry it was revealed that as the complainant was working abroad for a pretty long period he has been conceived and caused to misunderstood for the rate and agreed for the higher rate of Rs.1400/- per sq.ft and obtained Rs.4,00,000/- but not carried out even half of the construction work. The opposite party has also obtained Rs.88155/- towards extra work over and above the agreed rate without payment of any bills. However the opposite party has issued hand written receipt for the said amount. The opposite party has realize Rs.7500/- for cutting and removing a coconut tree from the property as extra charge which itself would show that the opposite party have charging very high rate for the extra work. There is deficiency in service and unfair trade practice on the part of the opposite party. The non completion of the work within the stipulated period and carried out the partly agreed work with sub standard articles has caused much mental agony apart from financial loss to the complainant. Though the complainant requested the opposite party to carry out the remaining work or else to return the amount received. The opposite party has not paid any heed to the above request. Hence the complainant was constrained to send a lawyer notice on 11.08.2016. After receiving the notice the opposite party has caused to send a reply notice stating false and frivolous facts. In the said reply notice the opposite party would claim that he is entitled to get Rs.55000/- for the work carried out. But no such amount is due to him. As the opposite party has not carried out the work in time the said residential building is left unoccupied which has caused much financial loss to the complainant and also caused much mental agony to the complainant and his family members. The complainant further prays to direct the opposite party to return Rs.288155/- being the excess amount received by the opposite party from the complainant towards the agreed modification, alteration and maintenance work. The complainant also prays to direct the opposite party to pay compensation to the tune of Rs.5000/- and Rs.15000/- as costs of the proceedings.
3. The opposite party resisted the complaint by filing a detailed version and counter claim raising the following contentions. The complaint is not maintainable either in law or on facts and the complainant is not entitled to get any relief. The complaint has been filed by canceling material facts with malafied intention. However the opposite party would admit the following facts. The entire construction work has been considered to be 325 sq.ft and the rate agreed per sq.ft is Rs.1400/- . There was only an oral agreement regarding the alteration, modification and electrification work and no written agreement has been executed. The opposite party would further admit that he received Rs.4,00,000/- but it was after carrying out the entire construction work orally agreed between the parties. The opposite party would deny and dispute all other averments in the complaint. According to the opposite party he used the materials such as cement, steel items, m-sand etc. made by the standard and reputed companies. The materials for the construction work has been selected by one Shyju who is the nephew of the complainant. He started the construction work on 15.06.2015 and completed on 05.02.2016 . The allegation that he received Rs.88155/- in excess of the agreed rate is incorrect. The above amount has been obtained by the opposite party from the complainant as he has carried out additional works such as cutting and removing 3 coconut trees, replacing the old main door of the building with a new one, carried out maintenance work of the kitchen including concrete work of the roof of the kitchen and also to set right the window panels. There is no deficiency in service or unfair trade practice on the part of the opposite party. The opposite party is entitled to get altogether Rs.455000/- @ rs.1400/- for 325 sq.ft out of which he received only Rs.4,00,000/- and he is entitled to get Rs.55000/- along with interest from the complainant for which he raised a counter claim. The opposite party further pray to dismiss the complaint and allow the counter claim with interest and costs.
4. The complainant filed written version against the counter claim raised by the opposite party by reiterating the averments in the complaint and also denying the counter claim raised by the opposite party. It is contented by the complainant that the agreed rate of Rs.1400/- per sq.ft includes the expenses for modification, demolition and electrification works. Though the opposite party would deny the same he contented what was the agreed rate for the work which itself would show that the case of the complainant that the amount of Rs.1400/- sq.ft fixed by the parties is inclusive of the demolition, modification and electrification work. Hence the opposite party is not having any right to charge any excess amount from the complainant for doing any extra work. The opposite party has purposefully withheld the original bills and receipts obtained while purchasing materials for construction instead he issued a hand written bill making absolutely false entries incorporating, exorbitant and excessive rates. The complainant who has also paid Rs.4,00,000/- to the opposite party towards the agreed construction is not liable to pay any more amount on that count. The opposite party has not carried out work worth Rs.4,00,000/- paid by the complainant. Over and above the above amount the opposite party has charged an amount of Rs.88155/- from the complainant. The complainant further reiterated that there is deficiency in service and unfair trade practice on the part of the opposite party and prays to allow the complaint with costs and compensatory costs.
5. The points that arise for consideration are:-
- Whether there is any deficiency in service or any unfair trade practice in respect of the modification, alteration and electrification work carried out by the opposite party at the house building of the complainant?
- Whether the counter claim set up by the opposite party is allowable?
- Reliefs and costs.
6. Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.P1 to P5 documents. Ext.C1 Commission report is also got marked in evidence. The opposite party has been examined as DW1. No documentary has been marked on the side of the opposite party. Both sides have not filed any notes of argument, though sufficient opportunity was granted. Heard both sides.
Point No.1&2
7. For avoiding repetition of discussion of materials these 2 points are considered together. The following are the admitted rather undisputed facts in this case. Opposite party is a builder by profession and he has entered into contract with the complainant for modification, alteration and maintenance of the complainant’s house building as directed by Vasthu Sri.Kanippayyoor Krishnan Namboothirippadu. The opposite party has undertaken the work and started construction as agreed and obtained Rs.4,00,000/- from the complainant towards construction cost. The complainant entrusted the opposite party to carry out the works such as modification, alternation and maintenance as per Ext.P2 report and plan. There was no written agreement but only oral agreement between the parties. The opposite party agreed to carry out the construction work within 4 months. But he has not completed the work, though the amount was received as installment from the complainant. The opposite party has received Rs.4,88,185/- towards construction cost including the cost of construction work as per Ext.P2 report and extra work. The complainant has caused to sent Ext.P3 lawyer notice dated 10.08.2016 for which the opposite party has caused to sent Ext.P5 reply notice.
8. The complainant would further allege that opposite party has carried out certain extra work for which he received Rs.88155/- which according to the complainant is highly excessive. The complainant has received Rs.7500/- as cost of cutting one coconut tree. The contention of opposite party is that he had cut and removed 3 coconut trees. Actually the complainant cut and removed one coconut tree and removed another coconut tree stem from the property.
9. The Commissioner and expert deputed by the Forum has prepared Ext.C1 report.
10. The specific claim of the complainant is that opposite party has not carried out the work in proportion to the amount of Rs.4,88,185/- received from him. But the opposite party would content that he has carried out the entire work as per the oral agreement and also carried out the additional work to the tune of Rs.88155/- and therefore he is entitled to get the remaining amount. Inorder to ascertain the correctness of the above rival contentions one expert commission by name Sri.Jayakrishnan, Architect(Assistant Professor, TKM College, Kollam) has been appointed as per application of the complainant. The said expert has visited the disputed construction site verified the constructions and filed Ext.C1 report which has been marked subject proof. However the complainant has not examined the expert and made the marking of Ext.C1 absolutely. Both parties have filed objection against expert report. In the circumstances Ext.C1 report cannot be acted up on without examining the expert commissioner.
11. The opposite party has been examined as DW1 who sworn in paragraph 3 of the proof affidavit that he has completed the renovation, modification and maintenance work as per the oral agreement and received Rs.4,00,000/- from the complainant, that he used only standard items for the construction work, that the cement used was Ramco Company Ltd., Steel item used is Agni company having ISO marks and quality m-sand and plastering sands purchased from Akkavila company. Though DW1 was subjected to severe cross examination nothing material has been brought out to disbelieve the above version regarding the quality of construction material used by him. In the circumstances the contention of the complainant that opposite party has used the sub standard item for the construction work is not believable and acceptable at all.
12. The further allegation of the complainant is that the opposite party has obtained Rs.4,88,185/- from the complainant. The opposite party has admitted the same during cross examination and it is further brought out in evidence that out of the above amount Rs.88185/- has been obtained by him from the complainant towards the charges for extra work. The opposite party has also raised a counter claim for Rs.55000/- along with its interest. But it is well settled that the Consumer Commission is not having authority to entertain and decide any counter claim for which he has to approach a civil court. According to the complainant the extra work shown as item No.10,11&15 in ExtP1 are the work stipulated as item No.1&2 in Ext.P2 plan. But the opposite party denied the same. However the complainant has not succeeded in establishing that aspect. According to the opposite party he has agreed to complete the construction work of 325 sq.ft @ Rs.1400/- per sq.ft. If that be so an amount of Rs.485000/- due to him. Apart from that he has carried out the extra work shown in the version as well as proof affidavit for which he expended Rs.88185/-. Towards sq.ft rate of the construction an amount of Rs.4,00,000/- alone was given by the complainant and the remaining amount was given for the additional construction. The above evidence of DW1 remains unchallenged.
13. DW1 has also sworn in paragraph No.4 of the proof affidavit that there is no deficiency in service on his part and he has carried out the entrusted work correctly, properly by using quality and durable articles and in the circumstances the allegations in the complaint would not stand at all. But the complainant would alleged that the opposite party realized very heavy rate for the additional work. PW1 has sworn that aspect in paragraph No.3 of the proof affidavit. The averments in paragraph No.3 of the proof affidavit would indicate that the opposite party has not given the bill claimed for each item of extra work and therefore the complainant feels that he has realized heavy amount for each extra work. PW1 has pointed out that the complainant has realized Rs.7500/- for cutting one coconut tree from which it can be understood that the opposite party has realized heavy amount for each work. According to the opposite party he has cut and removed 3 coconut trees for which he paid Rs.7500/- that he has excavated one stem of coconut tree by using JCB and also by deputing labourer. The materials available on record would probabilise the above contention of the opposite party. PW1 would admit during cross examination that for constructing the road opposite party has cut one coconut tree. According to the opposite party he cut 3 coconut tree and removed its stem by excavating the same using labour and JCB. Though the complainant would deny the same he could admit that the coconut tree cut were removed from the spot.
14. On evaluating the entire materials available on record we come to the conclusion that the complainant has not succeeded in establishing that the opposite party has not carried out the work as per Ext.P2 report, plan and vasthu and he has not carried out the extra work entrusted to him. No reliable materials are available to hold that the opposite party has received excessive rate for the extra work carried out. There is absolutely no materials to hold that there is deficiency in service or any unfair trade practice on the part of the opposite parties in carrying out the construction work. We find no merit in the complaint and the same is only to be dismissed. The counter claim raised by the opposite party is also to be dismissed being not maintainable.
15. In the result complaint and counter claim stands dismissed. Parties are directed to suffer their respective costs.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 20th day of November 2021.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
Witnesses Examined for the Complainant:-
PW1 : Haridevan Raghavan
Documents marked for the complainant
Ext P1 : Copy of extra work
Ext.P2 : Copy of plan
Ext.P3 : Lawyer notice
Ext.P4 : Postal receipt
Ext P5 : Reply of lawyer notice dated 2308.2016
Witnesses Examined for the opposite party:-
DW1 : Karthikeyan
Documents marked for opposite party:- Nil
Ext.C1 : Commission Report
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
