BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 375/2003 Filed on 22/03/2003
Dated: 30..01..2010
Complainant:
Krishnalal, T.C.17/1521, Mangalya, Poojappura, Thiruvananthapuram. Represented by his Power of Attorney Shri. Jose Raj. J.L., S/o P. Jerome, T.C. 13/70, Pallimukku, Pettah – P.O., Thiruvananthapuram.
(By Advs. M.R. Anandakuttan & S.V. Shaji) Opposite party:
B. Satish Nair, Managing Director, M/s. Trans India Constructions, Krishna Arjuna, Kochar Road, Thiruvananthapuram. (By Adv. Koliacode K. Rajeev)
This O.P having been heard on 15..12..2009, the Forum on 30..01..2010 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, complainant entered into the contract with the opposite party on 5/2/2002 for the construction of a residential building in his property strictly in accordance with the enclosed drawing, specification, wood work, spread sheet and payment schedule, that the complainant wanted the work to be completed strictly in accordance with the specifications before 31st July 2002 and the key had to be handed over to him, that the building was not completed within the agreed period, that opposite party handed over the completed structure after a lapse of one year and that too not in accordance with the specifications made in the contract, that opposite party deliberately committed the short delivery of the following items such as items 5,8,9,10,11,13,14,15,17 & 18 stated in Annexure III and items such as Electric chimney, Large sink on work area, Arakallu, Tap and cemented area outside work area with wash rock, Couple of garden rocks, Grilled steel shelf above wash basin in the kitchen, Flooring in the kitchen, shelf under work area counter, Bed, head board etc.... stated in Annexure IV, and that violating the contract and assurance given to the complainant opposite party followed substandard work in the construction. The pillars as per Annexure IV do not confirm the specification or the quality of work, instead of making the dining table with violet wood, the tabletop is made up of plywood, instead of making sofas in violet wood, the scope bottom box frame is with plywood, instead of Indian type closet & European type closet is fixed in right side room, instead of making 5 beds with on the base, the whole is drilt up with plywood. The complainant has performed his part of the contract without any delay and hesitation and he had given the entire amount of Rs. 16,17,000/- as per the payment schedule as Annexure V therein the contract. Opposite party constructed the house using substandard materials and committed alterations only with the intention of making huge and illegal profits. Hence this complaint directing the opposite party to pay an amount of Rs.5,00,000/- with interest to complainant towards compensation along with cost.
2. Opposite party filed version contending that he entered into a contract with the complainant to construct a residential building in his property, that the construction work was carried out timely in accordance with the specifications and in compliance with the changeful suggestions put forth by the complainant and as per his directions and hence there happened a little delay and so there was no failure from the part of opposite party in fulfillment of the contract, that opposite party used standard and high quality materials and construction work was carried out in conformity with the specification and terms of contract, that the complainant has not performed his part and total amount incurred for the completion of construction has not been paid to the opposite party, that the construction was carried out as per the changeful suggestions and directions put forth by the complainant to his satisfaction during the course of contract and accordingly the complainant given assurance and promise to the opposite party for the payment of extra amount incurred by him to the successful completion of the construction work thereby the opposite party incurred an extra amount of Rs. 4,00,000/- for the completion of the construction work and an amount of Rs. 16,17,000/- totally given by the complainant and Rs. 4,00,000/- is due to the opposite party from the complainant. Hence opposite party prayed for an order in his favour and against the complainant as per the counter claim amount of Rs.4,00,000/- with interest thereon along with cost of the proceedings.
3. The points that arise for consideration are: Whether there is deficiency in service on the part of the opposite party in the construction work vide agreement dated 5/2/2002? Whether complainant is entitled to get a compensation of Rs.5,00,000/-? Whether opposite party is entitled to get Rs. 4,00,000/- from the complainant? Whether complainant is entitled to get cost? If so, at what amount?
4. Points (i) to (iv): It is not in dispute that on 5/2/2002 an agreement for construction was executed between the complainant and the opposite party. According to complainant the building was not completed within the agreed period, that opposite party handed over the completed structure even after a lapse of one year than that of the contractual period, and the construction was not in accordance with the specifications made in the contract, that opposite party constructed the house using substandard materials and committed alterations only with the intention of making huge profits. It is argued by opposite party that the construction work was carried at timely in accordance with specifications and in compliance with the changeful suggestions put forth by the complainant and delay in the construction works was not due to the failure of the opposite party in fulfillment of the contract but due to the changeful suggestions put forth by the complainant, opposite party used standard and high quality materials in the construction work. It is further submitted by opposite party that complainant had given assurance and promise to opposite party for payment of extra amount incurred by him to the successful completion of the contractual work which comes to an amount of Rs.4,00,000/- which is due to the opposite party from the complainant. Ext. P1 is the agreement executed between the complainant and opposite party on 12th February. As per Ext. P1 the complainant has agreed to award the construction and the opposite party has agreed to undertake the construction of the residential building designed by the opposite party in accordance with enclosed drawing (Annexure I), enclosed specifications (Annexure 2), wood work (Annexure 3), client specification spreadsheet (Annexure 4) at a fixed contract value of Rs.16,17,000/-. The above said Annexures are part and parcel of the agreement and subject to change only with mutual consent. It is specifically agreed in Ext. P1 that timely and satisfactory completion of the project subject to the timely and satisfactory payment of each installment is the essence of the contract. It is made clear that opposite party shall set out the building according to the drawing strictly following the specifications and the attached client specification spread sheet. It is specifically stated in Ext. P1 that a guarantee is given by the opposite party for the finished house and all the materials in it for a period of six months and for roof and wood work including furniture for a period of 10 years, breakage not covered and loss due to mishandling not covered. It is further stated in the agreement that all changes to specification of materials and alterations in the drawing after the contract is signed shall be done at additional cost. It is stated further that any such changes should only be made after the opposite party receives a written request from the complainant to do so and the complainant agrees in writing to the opposite party that the additional cost towards that work is acceptable. As per Annexure 5 payment schedule enclosed in Ext. P1 contract – total contract value is Rs.16,17,000/-, initial payment Rs. 5,27,000/- vide cheque No.167461 dated 20/2/2002 of Union Bank, Thiruvananthapuram, balance Rs. 10,90,000/-, Advance already paid Rs.50,000/-, Balance Rs. 10,40,000/-, which is divided into 4 monthly installments of Rs. 2,25,000/- payable on 15th of every month starting from 15th March and a final payment of Rs.1,40,000/-, payable on 31st July 2002 on handing over the key. It is specifically stated that building shall be handed over on July 31/2002. Ext. P2 series include receipts issued by Kerala Water Authority. Ext. P3 is the test certificate of water meter. Ext. P4 is the bill for Rs.6,058/- issued by Ganapathi Traders in the name of complainant. Ext. P5 is a cash bill for Rs. 4,936/- issued by Travan-Co Sanitations, from Ext. P5 it is not clear to whom the said bill is issued. Ext. P6 is a calculation statement by Furnishing Avenue. It is uncertain in whose favour the said statement is given. Ext. P7 is a bill for Rs. 1,996/- issued in the name of complainant by Santha Paint House. Ext. P8 is a bill for Rs. 1,197/- issued by Arunachalam & Sons. The person upon whom the said bill issued is not mentioned in Ext. P8. Ext. P9 is a document evidencing handing over the key to the complainant. Ext. P10 is a statement regarding the list of items not delivered. Ext. P11 is the copy of Advocate notice dated 14/8/2003 issued by complainant addressed to the opposite party. Ext. P12 is the reply notice dated 2/9/2003 to Ext. P11 advocate notice given by the opposite party. Ext. P13 series are postal receipts and acknowledgment cards and Ext. P14 series are rent receipts (12 in Nos.). Ext. P16 is the certified copy of charge sheet issued from the Chief Judicial Magistrate Court, Thiruvananthapuram. Ext. C1 is the Commission report against which complainant has filed objection stating that Ext. C1 report is not fully correct, that Commissioner has omitted to note down so many hair line cracks seen in the roof of the building causing leakage, that Commissioner omitted to note down the substandard woods used in the doors and windows of the building. As per Ext. C1 the plinth area of the completed building comes to 207.67 m2 . It is stated by the Commissioner that the building was constructed approximately according to the agreed plan except a middle slab of area 16.70m2 which was constructed internally and for valuation it will be taken as a 1st floor and the total cost arrived accordingly. Due to to the said changes, the plinth area comes to 2234.53 sq.ft against the agreed area of 2025 sq. ft. Commissioner also noted so many hairline cracks are seen developed in the floor finish. According to the Commissioner as per agreed Annexure 3 in the agreement there are 18 items to be supplied by the opposite party out of which only 9 items are supplied. The cost of balance items to be supplied comes to Rs. 1,92,750/-. The cost of work was assessed on the Technical Circular No. D8/59974/90 dated 7/9/1999 of the Chief Engineer. It is further reported by the Commissioner that additional work or extra work is done only for providing a middle RCC slab for an area of 16.70 m2 with additional height of brick work for wall and other finishing works. The cost of the extra work assessed by the Commissioner comes to 73,746/-. According to the commission the total admissible amount to contractor comes to Rs. 12,07,030/-. It is pertinent to note that there is no dispute regarding the contracted amount. The main dispute is with regard to delay in the construction of the building and construction by using substandard materials. As per Commission report out of 18 items to be supplied by the above contractor vide Annexure 3, in the contract, only 9 items were supplied, the cost of supplied items comes to Rs. 1,92,750/-. Commissioner was estimated the total cost of the building was at Rs.11,36,530/- to which additional cost of furniture Rs. 70,500/- is added. So total cost comes to Rs. 12,07,030/-. Since both parties agreed cost of construction at Rs. 16,17,000/- and since there was no dispute with respect to the total constructed value, we are not in a position to accept the admissible amount as stated by the Commissioner in his report. As per Ext. P1 contract all changes to specification of materials and alterations in the drawing after the contract is signed shall be done at additional cost and such changes should only be made after the opposite party receives a written request from the complainant and complainant agrees in writing to the opposite party that the additional cost towards that work is acceptable. After execution of the said agreement no supplementary agreement is seen executed between parties for extra work or additional work. It is the specific case of the complainant that the alteration was made by the opposite party with intention of making huge profit, without supplementary agreement or written request if any alteration is made by the opposite party, ie against the terms and conditions of the contract. As such the bill for Rs.1,68,250/- issued by opposite party is against the spirit of the contract. The Commissioner in his report has mentioned the cost of the additional work other than the agreed items at Rs. 73,746/-. Since additional work does not form the part and parcel of the contract Rs.1,68,250/- claimed by the contracting agency without the consent of the complainant is illegal. Commissioner has been examined by both parties. In his examination in chief Commissioner (CW1) has deposed that what he has stated in Ext. C1 is correct. He has also deposed that at the time of inspection of the site complainant had given an application to ascertain to examine leakage in the roof. But he has not mentioned the same. In his cross examination he has deposed that at the time of inspection the said building was almost completed. He has assessed the construction work using two methods - PWD circular and existing rates. At the time of inspection the circular 1999 was in force. On the basis of the said circular the value was determined thereafter 25% additional works also given. On a perusal of Ext. C1 Commission report it is not clear how CW1 has arrived at the cost of balance items as stated in Annexure 3 in the agreement at Rs. 1,92,750/-. Regarding the leakage in the roof nothing has been mentioned in the commission report. There is no evidence to show that the building was completed within the agreed period, Commissioner has not mentioned in his report about the substandard materials. The opposite party did not file affidavit nor did he furnish any documents to show that he has performed his part of the contract, nor did he furnish anything to show that he was entrusted with extra work. As such what is mentioned in the version cannot be accepted. In view of the commission report, agreement executed between parties with their terms therein, it is crystal clear that there is delay in the completion of construction and handing over the key to the complainant and 9 items were not supplied as per the agreed Annexure 3 worth Rs. 1,92,750/-. The same was not challenged by opposite party. In view of the above the non supply of agreed items and delay in the completion of construction would amount to deficiency in service. Since the cost of items as per the agreed Annexure 3 has not been mentioned separately in Ext. P1, the cost of balance items to be supplied assessed by the Commissioner as such is not acceptable. Taking into consideration of the totality of circumstance we are of the considered opinion that justice will be well met if complainant is given a compensation of Rs. 1,00,000/- along with a cost of Rs. 3,500/-.
In the result, complaint is partly allowed. Opposite party shall pay the complainant a sum of Rs. 1,00,000/- towards compensation along with a cost of Rs.3,500/- . The said amounts shall carry interest at the rate of 12% if not paid within two months from the date of receipt of this order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of January, 2010.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No. 375/2003 APPENDIX I. Complainant’s witness: PW1 : Jose Raj. J.L II. Complainant’s documents: P1 : Agreement between the complainant and opposite party. P2 : Receipt dated 24/9/2004 P3 : Water Meter Test Receipts P4 : Cash/credit bill No.121 dated 30/9/2004. P5 : Cash bill No.001411 dated 23/7/2003. P6 : Calculation statement by Furnishing Avenue P7 : Cash bill dated 15/8/2003 P8 : Cash/credit bill dated 14/8/2003 P9 : Agreement showing handover key P10 : Statement regarding the list of items P11 : Copy of advocate notice issued to the opposite party P12 : Reply notice from the opposite party P13 : Postal receipts and acknowledgment cards P14 : Power of Attorney P15 : Receipt dated 4/8/2003 P16 : Copy of charge sheet issued from the Chief Judicial Magistrate Court, Tvpm.
Opposite party’s witness : NIL
IV. Opposite party’s documents : NIL
V. Court witness: CW1 : V.K. Rajendran VI. Court Exhibits:
C1 : Commission Report.
PRESIDENT ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 375/2003 Filed on 22/03/2003
Dated: 30..01..2010
Complainant:
Krishnalal, T.C.17/1521, Mangalya, Poojappura, Thiruvananthapuram. Represented by his Power of Attorney Shri. Jose Raj. J.L., S/o P. Jerome, T.C. 13/70, Pallimukku, Pettah – P.O., Thiruvananthapuram.
(By Advs. M.R. Anandakuttan & S.V. Shaji) Opposite party:
B. Satish Nair, Managing Director, M/s. Trans India Constructions, Krishna Arjuna, Kochar Road, Thiruvananthapuram. (By Adv. Koliacode K. Rajeev)
This O.P having been heard on 15..12..2009, the Forum on 30..01..2010 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that, complainant entered into the contract with the opposite party on 5/2/2002 for the construction of a residential building in his property strictly in accordance with the enclosed drawing, specification, wood work, spread sheet and payment schedule, that the complainant wanted the work to be completed strictly in accordance with the specifications before 31st July 2002 and the key had to be handed over to him, that the building was not completed within the agreed period, that opposite party handed over the completed structure after a lapse of one year and that too not in accordance with the specifications made in the contract, that opposite party deliberately committed the short delivery of the following items such as items 5,8,9,10,11,13,14,15,17 & 18 stated in Annexure III and items such as Electric chimney, Large sink on work area, Arakallu, Tap and cemented area outside work area with wash rock, Couple of garden rocks, Grilled steel shelf above wash basin in the kitchen, Flooring in the kitchen, shelf under work area counter, Bed, head board etc.... stated in Annexure IV, and that violating the contract and assurance given to the complainant opposite party followed substandard work in the construction. The pillars as per Annexure IV do not confirm the specification or the quality of work, instead of making the dining table with violet wood, the tabletop is made up of plywood, instead of making sofas in violet wood, the scope bottom box frame is with plywood, instead of Indian type closet & European type closet is fixed in right side room, instead of making 5 beds with on the base, the whole is drilt up with plywood. The complainant has performed his part of the contract without any delay and hesitation and he had given the entire amount of Rs. 16,17,000/- as per the payment schedule as Annexure V therein the contract. Opposite party constructed the house using substandard materials and committed alterations only with the intention of making huge and illegal profits. Hence this complaint directing the opposite party to pay an amount of Rs.5,00,000/- with interest to complainant towards compensation along with cost.
2. Opposite party filed version contending that he entered into a contract with the complainant to construct a residential building in his property, that the construction work was carried out timely in accordance with the specifications and in compliance with the changeful suggestions put forth by the complainant and as per his directions and hence there happened a little delay and so there was no failure from the part of opposite party in fulfillment of the contract, that opposite party used standard and high quality materials and construction work was carried out in conformity with the specification and terms of contract, that the complainant has not performed his part and total amount incurred for the completion of construction has not been paid to the opposite party, that the construction was carried out as per the changeful suggestions and directions put forth by the complainant to his satisfaction during the course of contract and accordingly the complainant given assurance and promise to the opposite party for the payment of extra amount incurred by him to the successful completion of the construction work thereby the opposite party incurred an extra amount of Rs. 4,00,000/- for the completion of the construction work and an amount of Rs. 16,17,000/- totally given by the complainant and Rs. 4,00,000/- is due to the opposite party from the complainant. Hence opposite party prayed for an order in his favour and against the complainant as per the counter claim amount of Rs.4,00,000/- with interest thereon along with cost of the proceedings.
3. The points that arise for consideration are: Whether there is deficiency in service on the part of the opposite party in the construction work vide agreement dated 5/2/2002? Whether complainant is entitled to get a compensation of Rs.5,00,000/-? Whether opposite party is entitled to get Rs. 4,00,000/- from the complainant? Whether complainant is entitled to get cost? If so, at what amount?
4. Points (i) to (iv): It is not in dispute that on 5/2/2002 an agreement for construction was executed between the complainant and the opposite party. According to complainant the building was not completed within the agreed period, that opposite party handed over the completed structure even after a lapse of one year than that of the contractual period, and the construction was not in accordance with the specifications made in the contract, that opposite party constructed the house using substandard materials and committed alterations only with the intention of making huge profits. It is argued by opposite party that the construction work was carried at timely in accordance with specifications and in compliance with the changeful suggestions put forth by the complainant and delay in the construction works was not due to the failure of the opposite party in fulfillment of the contract but due to the changeful suggestions put forth by the complainant, opposite party used standard and high quality materials in the construction work. It is further submitted by opposite party that complainant had given assurance and promise to opposite party for payment of extra amount incurred by him to the successful completion of the contractual work which comes to an amount of Rs.4,00,000/- which is due to the opposite party from the complainant. Ext. P1 is the agreement executed between the complainant and opposite party on 12th February. As per Ext. P1 the complainant has agreed to award the construction and the opposite party has agreed to undertake the construction of the residential building designed by the opposite party in accordance with enclosed drawing (Annexure I), enclosed specifications (Annexure 2), wood work (Annexure 3), client specification spreadsheet (Annexure 4) at a fixed contract value of Rs.16,17,000/-. The above said Annexures are part and parcel of the agreement and subject to change only with mutual consent. It is specifically agreed in Ext. P1 that timely and satisfactory completion of the project subject to the timely and satisfactory payment of each installment is the essence of the contract. It is made clear that opposite party shall set out the building according to the drawing strictly following the specifications and the attached client specification spread sheet. It is specifically stated in Ext. P1 that a guarantee is given by the opposite party for the finished house and all the materials in it for a period of six months and for roof and wood work including furniture for a period of 10 years, breakage not covered and loss due to mishandling not covered. It is further stated in the agreement that all changes to specification of materials and alterations in the drawing after the contract is signed shall be done at additional cost. It is stated further that any such changes should only be made after the opposite party receives a written request from the complainant to do so and the complainant agrees in writing to the opposite party that the additional cost towards that work is acceptable. As per Annexure 5 payment schedule enclosed in Ext. P1 contract – total contract value is Rs.16,17,000/-, initial payment Rs. 5,27,000/- vide cheque No.167461 dated 20/2/2002 of Union Bank, Thiruvananthapuram, balance Rs. 10,90,000/-, Advance already paid Rs.50,000/-, Balance Rs. 10,40,000/-, which is divided into 4 monthly installments of Rs. 2,25,000/- payable on 15th of every month starting from 15th March and a final payment of Rs.1,40,000/-, payable on 31st July 2002 on handing over the key. It is specifically stated that building shall be handed over on July 31/2002. Ext. P2 series include receipts issued by Kerala Water Authority. Ext. P3 is the test certificate of water meter. Ext. P4 is the bill for Rs.6,058/- issued by Ganapathi Traders in the name of complainant. Ext. P5 is a cash bill for Rs. 4,936/- issued by Travan-Co Sanitations, from Ext. P5 it is not clear to whom the said bill is issued. Ext. P6 is a calculation statement by Furnishing Avenue. It is uncertain in whose favour the said statement is given. Ext. P7 is a bill for Rs. 1,996/- issued in the name of complainant by Santha Paint House. Ext. P8 is a bill for Rs. 1,197/- issued by Arunachalam & Sons. The person upon whom the said bill issued is not mentioned in Ext. P8. Ext. P9 is a document evidencing handing over the key to the complainant. Ext. P10 is a statement regarding the list of items not delivered. Ext. P11 is the copy of Advocate notice dated 14/8/2003 issued by complainant addressed to the opposite party. Ext. P12 is the reply notice dated 2/9/2003 to Ext. P11 advocate notice given by the opposite party. Ext. P13 series are postal receipts and acknowledgment cards and Ext. P14 series are rent receipts (12 in Nos.). Ext. P16 is the certified copy of charge sheet issued from the Chief Judicial Magistrate Court, Thiruvananthapuram. Ext. C1 is the Commission report against which complainant has filed objection stating that Ext. C1 report is not fully correct, that Commissioner has omitted to note down so many hair line cracks seen in the roof of the building causing leakage, that Commissioner omitted to note down the substandard woods used in the doors and windows of the building. As per Ext. C1 the plinth area of the completed building comes to 207.67 m2 . It is stated by the Commissioner that the building was constructed approximately according to the agreed plan except a middle slab of area 16.70m2 which was constructed internally and for valuation it will be taken as a 1st floor and the total cost arrived accordingly. Due to to the said changes, the plinth area comes to 2234.53 sq.ft against the agreed area of 2025 sq. ft. Commissioner also noted so many hairline cracks are seen developed in the floor finish. According to the Commissioner as per agreed Annexure 3 in the agreement there are 18 items to be supplied by the opposite party out of which only 9 items are supplied. The cost of balance items to be supplied comes to Rs. 1,92,750/-. The cost of work was assessed on the Technical Circular No. D8/59974/90 dated 7/9/1999 of the Chief Engineer. It is further reported by the Commissioner that additional work or extra work is done only for providing a middle RCC slab for an area of 16.70 m2 with additional height of brick work for wall and other finishing works. The cost of the extra work assessed by the Commissioner comes to 73,746/-. According to the commission the total admissible amount to contractor comes to Rs. 12,07,030/-. It is pertinent to note that there is no dispute regarding the contracted amount. The main dispute is with regard to delay in the construction of the building and construction by using substandard materials. As per Commission report out of 18 items to be supplied by the above contractor vide Annexure 3, in the contract, only 9 items were supplied, the cost of supplied items comes to Rs. 1,92,750/-. Commissioner was estimated the total cost of the building was at Rs.11,36,530/- to which additional cost of furniture Rs. 70,500/- is added. So total cost comes to Rs. 12,07,030/-. Since both parties agreed cost of construction at Rs. 16,17,000/- and since there was no dispute with respect to the total constructed value, we are not in a position to accept the admissible amount as stated by the Commissioner in his report. As per Ext. P1 contract all changes to specification of materials and alterations in the drawing after the contract is signed shall be done at additional cost and such changes should only be made after the opposite party receives a written request from the complainant and complainant agrees in writing to the opposite party that the additional cost towards that work is acceptable. After execution of the said agreement no supplementary agreement is seen executed between parties for extra work or additional work. It is the specific case of the complainant that the alteration was made by the opposite party with intention of making huge profit, without supplementary agreement or written request if any alteration is made by the opposite party, ie against the terms and conditions of the contract. As such the bill for Rs.1,68,250/- issued by opposite party is against the spirit of the contract. The Commissioner in his report has mentioned the cost of the additional work other than the agreed items at Rs. 73,746/-. Since additional work does not form the part and parcel of the contract Rs.1,68,250/- claimed by the contracting agency without the consent of the complainant is illegal. Commissioner has been examined by both parties. In his examination in chief Commissioner (CW1) has deposed that what he has stated in Ext. C1 is correct. He has also deposed that at the time of inspection of the site complainant had given an application to ascertain to examine leakage in the roof. But he has not mentioned the same. In his cross examination he has deposed that at the time of inspection the said building was almost completed. He has assessed the construction work using two methods - PWD circular and existing rates. At the time of inspection the circular 1999 was in force. On the basis of the said circular the value was determined thereafter 25% additional works also given. On a perusal of Ext. C1 Commission report it is not clear how CW1 has arrived at the cost of balance items as stated in Annexure 3 in the agreement at Rs. 1,92,750/-. Regarding the leakage in the roof nothing has been mentioned in the commission report. There is no evidence to show that the building was completed within the agreed period, Commissioner has not mentioned in his report about the substandard materials. The opposite party did not file affidavit nor did he furnish any documents to show that he has performed his part of the contract, nor did he furnish anything to show that he was entrusted with extra work. As such what is mentioned in the version cannot be accepted. In view of the commission report, agreement executed between parties with their terms therein, it is crystal clear that there is delay in the completion of construction and handing over the key to the complainant and 9 items were not supplied as per the agreed Annexure 3 worth Rs. 1,92,750/-. The same was not challenged by opposite party. In view of the above the non supply of agreed items and delay in the completion of construction would amount to deficiency in service. Since the cost of items as per the agreed Annexure 3 has not been mentioned separately in Ext. P1, the cost of balance items to be supplied assessed by the Commissioner as such is not acceptable. Taking into consideration of the totality of circumstance we are of the considered opinion that justice will be well met if complainant is given a compensation of Rs. 1,00,000/- along with a cost of Rs. 3,500/-.
In the result, complaint is partly allowed. Opposite party shall pay the complainant a sum of Rs. 1,00,000/- towards compensation along with a cost of Rs.3,500/- . The said amounts shall carry interest at the rate of 12% if not paid within two months from the date of receipt of this order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of January, 2010.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad.
O.P.No. 375/2003 APPENDIX I. Complainant’s witness: PW1 : Jose Raj. J.L II. Complainant’s documents: P1 : Agreement between the complainant and opposite party. P2 : Receipt dated 24/9/2004 P3 : Water Meter Test Receipts P4 : Cash/credit bill No.121 dated 30/9/2004. P5 : Cash bill No.001411 dated 23/7/2003. P6 : Calculation statement by Furnishing Avenue P7 : Cash bill dated 15/8/2003 P8 : Cash/credit bill dated 14/8/2003 P9 : Agreement showing handover key P10 : Statement regarding the list of items P11 : Copy of advocate notice issued to the opposite party P12 : Reply notice from the opposite party P13 : Postal receipts and acknowledgment cards P14 : Power of Attorney P15 : Receipt dated 4/8/2003 P16 : Copy of charge sheet issued from the Chief Judicial Magistrate Court, Tvpm.
Opposite party’s witness : NIL
IV. Opposite party’s documents : NIL
V. Court witness: CW1 : V.K. Rajendran VI. Court Exhibits:
C1 : Commission Report.
PRESIDENT |
