District Consumer Disputes Redressal Forum Civil Station, Palakkad – 678 001, Kerala Dated this the 15th day of October, 2010 Present: Smt.Seena.H, President Smt.Preetha.G.Nair, Member Smt.Bhanumathi.A.K, Member CC. No.140/2008 Thulasibai Amma, W/o.Sasidharan Nair, 11/345, Agricultural Quarters, Manjaloor Amsom & Desom, Palakkad District. - Complainant (By Adv.John John) Vs Balan, S/o.Mani, Vemballur Post, Thiruvemballur, Alathur Taluk, Palakkad. - Opposite party (By Adv.T.S.Praveen Kumar) O R D E R By Smt.Preetha.G.Nair, Member The complainant has entered into an agreement with the opposite party to construct a RCC residential house at the rate of Rs.575/- per sq. ft. on 23/05/2007. The complainant has paid Rs.1,25,000/- to the opposite party as advance on the same date. Thereafter the opposite party has started the work of construction. The complainant has paid a total amount of Rs.6,50,000/- in several instalments above the advance amount of Rs.1,25,000/- to the opposite party and made endorsements on the reverse side of the agreement. But the opposite party has not completed the construction of house. On the inspection the complainant has found that ground floor is having 980 sq. ft. instead of 960 sq.ft and first floor is having 850 sq. ft instead of 940 sq ft. The complainant stated that the stair position is not as per the approved plan resulting in wastage of interior space and in the wood work using wood of inferior quality instead of using wood as mentioned in the agreement. Also the complainant stated that windows in the ground floor and first floor as shown in the plan are not provided by the opposite party. The room arrangements of the first floor are totally changed from the approved plan by the opposite party which has resulted in total disturbance of the plan and the roof plan is also seen changed. The opposite party has not given the elevation as shown in the plan. Due to the low standard of work done by the opposite party there is leakage in the building during rainy season. The foundation work was not built in sufficient strength and horizontal cracks have developed inside the room. The opposite party has stopped the construction work in the month of August 2008 without assigning any reason. The complainant made an assessment of the amount spent for the construction of house by the opposite party with the help of an expert that only an amount of Rs.5,80,000/- is required. But the opposite party has received Rs.7,75,000/- from the complainant. The act of opposite party amounts to deficiency in service. So the work is stopped and it has resulted in mental pain and financial loss to the complainant. The complainant issued a lawyer notice to the opposite party dt. 26/11/2009. But the opposite party has not received the lawyer notice and returned the notice with an endorsement as ’not known’. On 2/12/08 the opposite party sent a lawyer notice to the complainant stating false allegation. Hence the complainant prays an order directing the opposite party to pay an amount of Rs.5,95,000/- with 18% interest p.a as the balance amount, compensation and damage to the structure due to the unskilled manner in which the construction work was done by the opposite party. The opposite party filed version stating the following contentions. The allegation of the complainant that inferior quality articles were used for the constructions of house is not correct and denied. The opposite party admitted that some deviations are made in the construction as per the directions given by the complainant. The case of the complainant that the deviations are made without her knowledge is absolutely incorrect and it is made only for the purpose of filing the complaint. The opposite party stated that some deviations are made in the construction such as, chain stair case, slops on the terrace etc are made only as per the directions given by the complainant. The opposite party stated that the complainant had given only Rs.6,50,000/- including the advance payment of Rs.1,25,000/- to him. The opposite party stated that firstly they decided to construct 960 sq. ft in ground floor and 940 sq.ft in first floor. Thereafter some deviations were done in the plan by the opposite party and complainant. According to the opposite party the ground floor has 1030 sq. ft and first floor has 896.63 sq. ft at the rate of Rs.575/- per sq. ft. The opposite party has spent Rs.9,97,415/- for construction of the house. The complainant has not paid the balance amount of Rs.3,47,415/-. The allegations of the complainant is only made for the purpose to harass the opposite party. Hence the opposite party submitted that the complaint is liable to be dismissed with compensatory cost. Both parties filed chief affidavit and documents. Ext.A1 to A5 marked on the side of complainant and Ext.B1 marked on the side of opposite party. Complainant was cross examined. An expert commissioner filed report. Marked as Ext.C1. Issues to be considered are; 1. Whether there is any deficiency in service on the part of opposite party? 2. If so, what is the relief and cost? Issues 1 & 2: We perused relevant documents on record. The complainant was cross examined. Admittedly the complainant had entered into an agreement with the opposite party to construct a residential house and Rs.1,25,000/- was paid as advance on 23/05/2007. As per Ext.A1 the complainant and the opposite party executed agreement for construction of house at the rate of Rs.575/- per sq. ft. On the reverse side of the 1st page of Ext.A1 date of the payment and amount was clearly stated and signed by the opposite party. The opposite party has not raised any objection to marking of Ext.A1 document. As per Ext.A1 on 11/06/2007, 23/08/2007, 29/10/2007, 27/12/2007 and 17/04/2008 the opposite party has received 1 lakh each. On 24/05/07, 15/12/2007, 20/02/08 and 8/03/08 the opposite party has received Rs.25,000/- each and on 12/06/08 received Rs.50,000/-. The complainant has paid Rs.1,25,000/- on 23/05/07 as advance payment. Then the complainant has paid total amount of Rs.7,75,000/- to the opposite party. But the opposite party submitted that he has received only Rs.6,50,000/- and he spent Rs.9,97,415/- for construction of the house. No evidence was produced by the opposite party to show the total cost Rs.9,97,415/-. The commissioner filed report and marked as Ext.C1. In the commission report the commissioner clearly stated works incomplete and deviations in construction with respect of drawings. According to Ext.C1 the total cost of construction was Rs.6,50,000/- as per the cost of materials and labour is considered in the date of agreement. No contrary evidence produced by the opposite party. According to the commission report, Rs.4,51,500/- was estimated for the completion of house. The commissioner stated that the estimate for completion the present rates of material and labour is considered. The commission report was filed on 23/01/2009. In the present stage, the cost of building materials is increasing daily. The complainant is a retired Govt employee. At the time of filing the complaint, the complainant was residing in quarters provided by the Agricultural Department. Then the complainant has to vacate the quarters on 31/03/2009. So the complainant has filed IA seeking permission to complete the construction work of her house and IA allowed in the year 2009. The commissioner stated that wood work for doors and windows are of inferior quality. According to Ext.A1 clearly stated the quality of wood work. But the opposite party has not constructed the windows and doors in good quality woods. As per Ext.B1 the opposite party has sent a lawyer notice to the complainant. The opposite party has not taken further steps as per Ext.B1. The complainant stated that the ground floor is having 980 sq. ft instead of 960 sq. ft and first floor is having 850 sq. ft instead of 940 sq. ft. Therefore the opposite party has constructed more than 20 sq. ft in the ground floor. And in the first floor opposite party has constructed 850 sq ft only. The cost of building construction was increased in the ground floor than the first floor. The opposite party has not completed the construction of house within the period mentioned in Ext.A1 agreement. In the present case the complainant is retired from the Govt service. The complainant has decided to construct the house for enjoying the retired life. But the opposite party has failed to construct the house completely and the construction was not in good condition. As per Ext.A1 both parties agreed to construct house in total area of 1900 sq. ft @ Rs.575/- per sq. ft. The total amount is Rs.10,92,500/-. Opposite party has received Rs.7,75,000/- from the complainant. As per Ext.A1 the complainant has to pay Rs.3,17,500/- for completion of work. As per Ext.C1 the commissioner estimated Rs.4,51,500/- for completion of work. The complainant has incurred an additional amount of Rs.1,34,000/- by the act of opposite party in non-completion of work in the stipulated time. In view of the above discussions, we are of the view that there is deficiency in service on the part of opposite party. Hence the complaint allowed. We direct the opposite party to pay Rs.1,34,000/- (Rupees One lakh thirty four thousand only) with 12% interest p.a from the last payment date i.e 12/06/2008 to date of order and Rs.5,000/- (Rupees Five thousand only) as compensation and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings to the complainant. Order to be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a from the date of receipt of order till realisation. Pronounced in the open court on this 15th day of October, 2010 Sd/- Smt.Seena.H, President Sd/- Smt.Preetha.G.Nair, Member Sd/- Smt.Bhanumathi.A.K, Member Date of filing: 11/12/2008 Appendix Witnesses examined on the side of complainant PW1 – Smt.Thulasibai Amma Witnesses examined on the side of opposite party Nil Exhibits marked on the side of complainant Ext.A1 - Agreement Ext.A2 - Plan Ext.A3 – Copy of lawyer notice dt.26/11/08 Ext.A4 – Postal receipt Ext.A5 – Letter returned unserved Exhibits marked on the side of opposite party Ext.B1 – Copy of lawyer notice dt.2/12/08 Ext.C1 – Commissioner’s report Cost (Allowed) Rs.2,000/-(Rupees Two thousand only) as cost of the proceedings to complainant
| | [HONORABLE Smt.Bhanumathi.A.K] Member[HONORABLE Smt.Seena.H] PRESIDENT[HONORABLE Smt.Preetha.G.Nair] Member | |
