Kerala

Kollam

CC/15/2016

P.L.Babu, - Complainant(s)

Versus

Bhasi, - Opp.Party(s)

Adv.G.DEVARAJAN

29 Jun 2018

ORDER

Consumer Disputes Redressal Forum
Civil Station , Kollam.
 
Complaint Case No. CC/15/2016
( Date of Filing : 21 Jan 2016 )
 
1. P.L.Babu,
Dawn,Pattathanam.P.O,Kollam.
...........Complainant(s)
Versus
1. Bhasi,
P.W.D.Contractor,Reg.No.179.B,Nandanam,Near Railway Gate,Eravipuram,Kollam.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE E.M.MUHAMMED IBRAHIM PRESIDENT
 HON'BLE MR. M.PRAVEENKUMAR MEMBER
 
For the Complainant:
For the Opp. Party:
Dated : 29 Jun 2018
Final Order / Judgement

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

Dated this the    29th  day of June  2018

 

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Sri. M.Praveen Kumar,Bsc, LL.B ,Member

                                                         

       CC.No.15/2016

P.L.Babu                                          :         Complainant

Dawn

Pattathanam P.O, Kollam

[By Adv.G.Devarajan]

V/s

Bhasi                                                 :         Opposite party

P.W.D Contractor

Register No.179.B

Nandanam,Near Railway Gate

Iravipuram, Kollam

ORDER

E.M.MUHAMMED IBRAHIM , President

 This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act seeking compensation for breach of contract and  deficiency in service on the part of the opposite party.

          (2) The averments in the complaint in short are as follows.

          The complainant who is the owner of  20 cents of property in Survey Number 554/3 of  Thevalakkara Village is  a retired bank employee. For the purpose of  constructing new building in the said property, the complainant contacted the opposite party who is a PWD contractor  with building plan and requested him to construct a new building in accordance with the plan.  The opposite party agreed for the same for an approximate amount of  Rs.43,0,0000/- .  The complainant who had a long acquaintance with the opposite party by believing the words of the opposite party regarding cost of construction executed an agreement with him on 20.08.14.  In the said agreement the opposite party agreed to construct a new building for an approximate amount of Rs.43,00,000/-with in a period of 1 year from date of

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agreement and also agreed to handover the key of the building  on completion.  The opposite party has also agreed to construct the building in 14 stages and the complainant agreed to pay the amount required for the construction of each stage in advance.  In case there is any excess in the plinth area of the building while taking measurement  after completion the  complainant agreed to pay excess amount according to the agreed rate and if the plinth area is less  than  as stipulated in the plan the opposite party agreed to reduce the amount proportionately.  It is also stipulated in the agreement that the wood  required for the construction of the building has to be supplied by the complainant.  Accordingly the opposite party started construction of the building but he failed to complete the construction work  within the stipulated period.  The main reason for the failure is that the opposite party has been engaged in constructing three other building on contract basis during the construction  of the complainant’s building.  Opposite party used to conduct the construction work of  complainant’s building for one week, then after stopping the same, he would take the workers  of the building to the another building site and engage them there.  Hence opposite  party took more than two months for the construction of first stage of the building.  Complainant when reminded the opposite party about the delay caused in the construction of complainant’s building, opposite party then told the complainant that he had to complete the construction of other two building urgently, otherwise, he would incur huge loss.  Thus complainant in spite of that delay paid to the opposite party each stage’s amount regularly in advance through cheques.  As per  the contract agreement, opposite party ought to have completed the construction of the building before 20.8.15 but opposite party by that time could not complete the 10th stage of the building.  Complainant then complained to the opposite party about the delay caused in the construction.  Opposite party then assured that he would complete the construction of  building before 03.10.15.  In spite  of that  assurance  opposite

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party could not complete the 11th stage of the building on 05.10.15.  Misusing long acquaintance with the complainant, opposite party cunningly collected two lakhs rupees for starting the 12th stage  of the building on 05.10.15.  But he did not continue the 12th stage work.  After receiving the amount of two lakhs on 05.10.15 opposite party without continuing the 12th stage work, left the building site and failed to turn up later.  Complainant then tried to contact  the  opposite party through telephone and through other means but opposite party failed to answer such contracts.  Complainant then tried to contact the opposite party through telephone and through other means but opposite party failed to answer such contracts.  Complainant then tried to contact the opposite party through respected persons but opposite party conveniently avoided the complainant.  Opposite party left the site after conducting 75% of building construction and failed to conduct remaining 25% of building construction.  Hence complainant caused to sent an advocate notice on the opposite party on 22.12.15 calling upon him to complete the construction of building within one month.  Opposite party did not comply the demand stated in the notice, instead he sent a reply notice to the complainant stating false and baseless allegations and claims.  Hence the complaint.

          (3)The opposite party resisted the complaint by filing written version raising the following contentions.  The delay caused in completing the construction work of the building was due to failure of the complainant in paying the amount in each stage of the construction in time.  That he constructed the building exceeding the plinth area mentioned in the building plan.  He has almost completed the construction work and the remaining part is only nominal.  He is entitled to get more than six lakhs rupees for the additional work of 126 sq.ft done in the construction of the building in advance.   That he was forced to stop the construction work due to the failure of the complainant in paying the amount for the additional construction work carried out by him. 

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That he constructed the building as per the terms of the agreement.  He completed the 12th stage of the work as per the agreement during the span of 12 months.  That he is entitled to get Rs.2,92,000/- towards the additional work carried out by him and also he is bound to construct the   13th  and 14th  phases of the  building only on getting the amount due to him.  When he demanded the above amount the  complainant  refused  to  pay the same and also stated that he  would  not  pay any more amount other than Rs.43,00,000/- stated in Ext.P1 agreement and not prepared to give any amount towards additional construction.  The complainant intended to avoid the opposite party by filing the case  without paying the amount due to him.  According to the opposite party the delay occurred in the building construction was not due to his fault and if the complainant is ready to issue cheque for Rs.6,00,000/- he is ready to complete the balance work within one month.  He has also attached a statement showing the balance amount of Rs.6,17,500/- due to him from the complainant and also a sketch showing measurements and calculations of plinth area of the building constructed for the complainant.

(4)     In view of the above pleadings the points that arise for consideration are:-

  1.  Whether  there is any deficiency in service or unfair trade practice  on the part of the opposite party/contractor?
  2. Whether the complainant is entitled to get back any amount and compensation from the opposite party as claimed in the complaint?
  3. Whether the opposite party is entitled to get an order allowing the counter claim raised in the written version?
  4. Reliefs and costs.

(5) Evidence on the side of the complainant  consisted of the oral evidence of PW1 and 2, Ext.P1 to P4 and Ext.C1 series technical report, plan and photographs.

 

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(6)The opposite party has conducted the case by himself.  He himself  has been examined as DW1 but not marked any documents in evidence.  However he has seen produced three  documents along with his written  version which he failed to mark in evidence. 

Point No.1to 3

(7) For avoiding repetition of discussion of materials these three points are considered together.   There  is  no  dispute  with  regard  to  the  fact  that the complainant is the owner of the newly constructed building and the opposite party is the contractor.  Execution of the P1 agreement for constructing the building  and the terms and conditions stipulated in P1 agreement are also  not under dispute.  It is also an admitted case that as per the terms of  P1 agreement the construction work has  been  started  and to be  completed in  14th stage  on or before 20.08.15.  The main allegation of the complainant against the opposite party is that the later has failed to complete the construction of the building within the stipulated period and also stopped the construction work after accepting Rs.2,00,000/- towards the 12th stage of  construction of building.  According to the complainant though the opposite party obtained amount due to the 12th stage he has partially completed 11th stage of the construction work and thereafter obtained amount for the  12th stage  but failed to continue the 12th stage of construction work. Instead of continuing the construction work he stopped the same and left  the building site.  According to the complainant  only 75%  of the construction work has been completed.  According to the opposite party he constructed up to 12th stage of the building.  He has to make several changes in the construction work as suggested by the complainant and also carried out additional work to the tune of  126 sq.ft and he is entitled to get Rs.2,93,800/- towards the excess work he already carried out that the  findings of the expert commissioner that the contractor has completed only 75%  of the work of the building is incorrect and only a negligible portion of the work

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remains to be completed and he left the work site not on his own accord.  But he was not in a position to continue the  construction work as the complainant refused to pay the amount due to him for the excess construction including the construction of compound wall.

(8) In view  of the materials available on record including Ext.C1 series technical report it is clear that the construction of the building was not carried out in accordance with the plan and agreement but certain changes  have been made in the construction that the veranda and sit out has been extended to the place earmarked    for the car porch and the car porch has been constructed in the front side of the building.  Certain changes have been made in the construction of the 1st floor also.   According  to  the  complainant the expert commissioner  has  not  noted  any enhancement in the plinth area of the building constructed by the opposite party in Ext.C1 series technical report  and hence  the  opposite party’s  claim  for  additional  work  done  in  the construction of the building is baseless.   In this connection it is pertinent to point out the admission of PW1 during cross examination by the opposite party.  that as per the approved plan the total plinth areas in 224.65 sq.mtr.  But when the building is finished the total plinth area is 2515 sq.ft.  The rate per sq.ft is Rs.1800/-.  It is crystal clear from the above admission of PW1 that after finishing the construction the plinth areas was in excess of agreed plinth area.  He agreed to pay the charges for the excess area @ Rs.1800/- per sq.ft and the same is stated in P1 agreement also.  If that be so the opposite party is entitled to get Rs.45,27,000/- on completion of the building at the rate of  Rs.1800/- per sq.ft. It is also brought out in evidence that the opposite party/contractor was forced to construct the building deviating from the approved plan and shifting the car porch from outside the building and also forced to construct the compound wall on 3 sides of the property which is not included in P1 contract the delay of 3-4 months in completing construction is not a serious lapse on the

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side of the opposite party contractor and he alone cannot be blamed for the delay.

 (9)  It is also admitted by PW1 during cross examination that the opposite party has undertaken the construction work of the building alone as per the P1 agreement and construction of the compound wall was not stipulated in the agreement.  Usually the compound wall is constructed after completing the house building.  But in this case even though there was no provision in Ext.P1 agreement the contractor was forced to construct 3 sides of the compound wall  for which he is entitled to get Rs.63,000/- from the complainant.  It is clear from the available evidence that  the complainant was forced to divert his men and attention to construct the compound wall which also consumed considerable time.

 (10) It is pertinent to note that PW1 himself  would admit that he caused some delay in giving the  amount due to the opposite party relating to  the 2nd stage of construction. 

(11)  Admittedly there was change in the construction of the building deviating from the approved plan and permit and also deviating the terms of the agreement which may have caused delay in completing the construction work of the building. 

(12)  Furthermore  PW1 would further admit that he agreed to hand over wood for the building construction as per P1 agreement.  But he has admittedly handed over  trees standing on the earth and the opposite party has cut the trees seasoned,  sawed and constructed wooden articles such as windows, doors and other wooden articles for constructing the building and the expenses cutting down the trees transportation and sawing the same were also met by the opposite party.  It is indeed a  violation  of the contract.  The complainant after violating the terms of P1 agreement is not expected to direct the opposite party

 

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to complete the construction work within the agreed period is highly unfair especially when time is required for converting standing tree to wood articles. If

wooden materials are constructed from the standing tree after cutting and sawing  it and making door and window frames,  it would definitely take 2,3 months for seasoning the wood.  The complainant has no case that the opposite party has not constructed the wooden materials for his house building without seasoning the same. PW2 technical expert has also not noted any  such  defects. Definitely there must be delay in doing so for which the opposite party alone cannot be blamed.

(13) According to the complainant the reason for the delay is that the opposite party/contractor has been engaged in the construction of other 3-4 buildings and he deputed  the labourers for those construction and hence  delay occurred in the construction of his building.   DW1  would  admit  that  he was engaged in the construction of other buildings also at the same time.  But it was constructed by deputing sub contractors.

(14)   In view of the materials discussed above especially the admission of PW1 during cross examination by the opposite party and also in view of Ext.C1 report it is clear that the delay in non completion of the disputed building within the agreed period is not due to the lapse or latches on the part of the opposite party but due to several factors contributed by the complainant himself such as non payment of 2nd instalment in time, due to the changes brought out in the construction work and excess construction due to the non supply of seasoned wood and also due to the construction of compound wall before  completing the building construction. In the circumstance we are of the view that no lapse, or larches or deficiency in service can be attributed on the opposite party account of delay in the completing construction especially when the quality of work done by the contractor even according to the technical expert is satisfactory

 

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except the levelling of floor which can be easily corrected while laying times on the floor. 

(15) It is true that in Ext.P3/C1 series technical  expert is  seen stated that  the opposite party has carried out only 75% of the construction work.  It is also stated that the compound wall and gate has already been installed.  PW2 the technical expert in page No.6 of  Ext.P3/C1  series report has seen stated that statutory requirements such as septic tank, rain water harvesting , tank and pipe connection  towards  that  tank  etc.  are also included in the plinth areas rate.  However it is admitted in the C1 report that construction of structural work has also been completed.  He has  specifically stated further in C1 report  that the building has been constructed in a satisfactory level but by deviating from the approved plan and therefore  the construction is not in accordance with the agreement.  However even according to the technical expert the opposite party has carried out the construction work to the tune of Rs.36,50,000/- and the total amount as per the agreement is 43,00,000/- @ 1800/sq.ft apart from supplying wooden article required for the construction of the building.     If that be so  assessment of  the expert that the opposite party has constructed only about 75%  appears to be incorrect and baseless as per the arithmetic calculations which is as follows.

36,50,000 x 100 =  84.88%

     43,00,000                          

(16)   Even if the above calculation is accepted the work carried out by the opposite party  would be 84.88% for which he is entitled to get 36,49,840/- as per the terms of P1 agreement.  On evaluating the entire materials available on record we are of the view that Ext.C1 report of the technical expert as such cannot be relied upon due to several reasons which will be discussed here under.

(17) The actual percentage or extent of work to be carried out can be calculated in another way.  Accordingly the construction cost of the entire work if

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completed (2514.5 sq.ft x 1800 per sq.ft) is to  be calculated first.  Then the cost required for the construction to be carried out has to be deducted.  Then the cost of work actually completed can found out and the percentage of work to be completed also can be found out easily.   According to the technical expert the total plinth area of the double storied  building constructed by the 1st opposite party is 2367 sq.ft.  In addition to that the opposite party has constructed car porch having an extent of 147.5 sq.ft.  Therefore  the total plinth area constructed  is 2367 sq.ft + 147.5 sq.ft = 2514.5 sq.ft.  If the entire construction work as per the terms of Ext.P1 agreement is carried out the opposite party  is entitled to get Rs.2514.5 sq.ft x 1800 = 45,26,100/- out of which the opposite party has admittedly received Rs.40,00,000/- only.  In other words if the remaining works also carried out the complainant is liable to pay Rs.5,26,100/- more to the opposite party.

(18) The specific contention of the opposite party is that he has completed almost all work and also purchased and stored materials for the remaining work  and the remaining work to be carried out is only negligible work  amounting to Rs.51,300/- only and he is entitled to get back Rs.7,91,086/- including the cost of   additional  construction  and  the  value  of  materials purchased and stored at the work site and also the value of implements and implements belongs to him stored at the work place. DW1 has sworn in the chief affidavit that he obtained the amount up to 12th phase and almost carried out the 12th phase of the  work but not completed that phase  and he demanded the amount for the additional plinth area constructed by him and also the expenses incurred by him for the compound wall.  But the complainant was not amenable for the same by stating that he is ready to pay only Rs.43,00,000/- offered as per  Ext.P1  and no amount other than Rs.43,00,000/- stated in P1 agreement  would be given and also quit the opposite party from the work site  without allowing him to carry out the work.  According to DW1  he  left  the  work  place  after  keeping the  

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materials and his implements necessary for carrying out the remaining work.  DW1 has further sworn that the construction equipments worth Rs.2,00,000/- belongs to him were kept at the work site and all those articles were appropriated by the complainant after quitting him from the work site.  The above version of DW1 stated in paragraph 1 of proof affidavit remains un challenged  and hence the above version stands proved as unchallenged.

 (19) Admittedly both parties are bound by Ext.P1 agreement and he has to carry out the work as per the terms  of the said agreement and not expected to carry out any other work which are not stated in the agreement as part of the construction of the house building.  But if any such work has been carried out as additional work for which the complainant is bound to pay  at the agreed rate.  The opposite party would claim that he is entitled to get an amount of Rs.63,000/- towards the construction of the compound wall.    Even according to the technical expert the compound wall has been constructed and gate has been installed and he has not included  the expenses  for the same in his calculations as it is not included in Ext.P1 agreement.  Therefore it is clear that if any compound wall has been constructed and gate has been installed the complainant is expected to pay all construction cost  to the contractor who constructed it as additional work.  According to DW1  he is   entitled  to get Rs.63,000/- towards the construction of compound wall.  DW1 has sworn that fact in the proof affidavit but the same   remains unchallenged.  Hence it is proved Rs.63,000/- is also due to the opposite party on account of the construction of compound wall as additional work.

(20) In the light of the materials available on record we shall calculate  the amount required for completing the remaining construction of the complainant’s building.

(21) It is true that PW2 the technical expert has listed at the end of page no.4 and also in page No.5 of C1 report, the details of  9 items (item No.a to i)  of

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work to be completed by the opposite party.  It is clear from the oral evidence of PW2 coupled with Ext.P3/C1 technical report that PW2  has calculated the remaining 25% of the work  on the basis of the above 9 items of work yet to be completed by the contractor.  Now we shall consider whether the opposite party is liable to carry out all the 9 items of work included by the technical expert in C1 report or whether the Ext.P1  agreement would insist the contractor to carry out all the above 9 items of work and those works would cost as suggested by PW2.

(22) Item No.(a) of unfinished work is completing the levelling of floor and tile work for which the expenses required according to PW2  is Rs.2,50,000/-. The contentions of the contractor in this regard is that this work is included in phase 13 for which he has not obtained any amount.  In the circumstance it is clear that the contractor has not collected any materials for this work.  However the amount calculated to be need to do this work noted by PW2 technical expert appears to be excessive and we are of the view that Rs.2,00,000/- will be reasonable and sufficient to carry out this work as per the specification of tiles in P1 agreement.

(23) Next item of work (item No.(b) ) to be carried out is  painting work inside and  outside for  which  the  technical  expert  has  calculated   Rs.1,75,000/-.  According to DW1 is highly excessive.  However we are of the view that a building and car porch having 2500 and odd sq.ft requires an  amount of Rs.1,25,000/- for carrying out painting  as stipulated in Ext.P1 agreement. 

(24) The  unfinished work stated as Item No.(c) by the technical expert is stainless steel hand  rails for  which the expert  calculated is  Rs.60,000/-.  But

according to DW1 in page No.4 of the proof affidavit all articles necessary for fitting stair hand rails were purchased and kept by him at the site and for fitting the same  an amount of Rs.5000/- alone is  necessary. In view of  averments in page no.5 of the proof affidavit that he has collected materials to carry out the

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remaining work and those materials are stored at the work site itself remains unchallenged.  The above work is included in phase no.12 in P1 agreement.  Even according to the complainant he has not completed the phase no.12 after receiving the amount.  However the complainant’s counsel has not challenged the evidence tendered by DW1 that he has purchased materials  necessary for installing stainless steel hand rails.  Therefore it is clear that only fitting  charge alone need be included as expenses for this item.  In the circumstances the fitting charges claimed to be necessary according to  the opposite party is Rs.5000/-. But we are of the view that Rs.7500/- is needed as labour charge for fitting hand rails.  Therefore Rs.60,000/- claimed under head (c) stainless steel hand rails is to be reduced to be Rs.7500/- only and the remaining Rs.52,500/- is to be deducted from the total claim of Rs.8,00,000/-.

(25)  Item No.(d) of the unfinished work stated by the commissioner is balance electrical work including testing and commissioning for which Rs.25,000/- is  included.  Dw1 in page No.4 of the proof affidavit has sworn that he had purchased and kept electrical materials for carrying out the remaining work and the labour charge for the same alone is required.  The above version of DW1 in proof affidavit also remains unchallenged.  It is clear from the available materials that the opposite party has purchased almost all electrical items  and carried out substantial portion of electrical work. In this connection it is to be pointed out that PW2 has noted in Ext.C1 technical report in page No.2 that about 80% the Electrical works were already over.  In view of the above report of PW2 expert and also in view of the unchallenged version of DW1 in the proof affidavit it is clear that he has stored  the remaining items of the  electrical  materials at the work site itself  and the same is to be fitted only.  Therefore Rs.25,000/- shown under the head is highly excessive.

(26) Similar is the case of plumbing and sanitary fittings(item No.(e) of the unfinished work).   According to DW1 he has purchased and  completed

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almost all substantial plumbing and sanitary works and also kept stored all the remaining plumbing and sanitary items required for the remaining works at the work place itself.  The plumbing and sanitary fittings is included in phase no.8 even the complainant has no case that work specified in phase No.8 of P1 agreement has not been completed after receiving  the amount due for that work Even the complainant has no case that  after obtaining  Rs. 2,00,000/- in  phase no.8 the contractor has swallowed the same without purchasing necessary articles and equipments for plumbing and electrical works.  In this connection it is to be pointed that PW2 has reported in page No.2 last of his technical report that plumbing work is almost over and the work remaining is fitting of sanitary item, commissioning and giving connection to the safety tank.   In view of the above report of PW2 coupled with the evidence tendered by DW1 it is clear that plumbing and sanitary work is almost over and remaining work is only giving connection for which no much amount is required especially when the materials to carry out the remaining work is available in the site itself. In view of the facts and circumstances of the case we are of the view that Rs.7,500/- for each item is sufficient for carrying out the final round work of fitting necessary materials for connecting and commissioning the work under the head ‘c’ ‘d’ and ‘e’.   The amount required according to PW2 under the above 3 heads is Rs.60,000  +25000+60000=1,45,000/-.  But according to us the amount need is Rs.22,500/.  Hence an amount of Rs.1,22,500/- is also required to be  reduced from 8,00,000/- calculated by PW2.

(27) Item No.(f) of the unfinished work pointed out by the expert commissioner is installing syntex door, exhaust fan and other wooden works, glass works etc.  There  is no provision to install any syntax door, but the provision is to install PVC doors.  There is no provision in Ext.P1 to provide exhaust fans as claimed by PW2. The cost of  PVC door at the rate of Rs.2500/- each is stipulated in P1 agreement.  The value of exhaust fan is not seen furnish  by any of the parties. 

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Therefore we are of the view that Rs.30,000/- is to be treated as sufficient for installing PVC doors  to all the bath rooms and other wooden work and installing mirror. The amount required for purchasing and installing exhaust fan has to be completely reduced.  Hence Rs.10,000/-  can be reduced from Rs.8,00,000/- calculated for  remaining work. 

 (28) The labour charges for making  kitchen cabinets and cupboards is item No.(g) of the unfinished work for which Rs.40,000/- has been claimed.  Admittedly kitchen cabinet and cupboards were not  constructed for which Rs.40,000/- calculated by  PW2 is reasonable. 

(29) Another item of unfinished work item No.(h) is granite slab works to the kitchen and work area.  There is provision in Ext.P1 agreement to provide black colour granite slab to kitchen slab  and work area slab.  However the value of black coloured granite slab is not stated or supplied.  In the circumstance we are of the view that Rs.25000/- on this count is excessive and the same can be  reduced to Rs.15,000/-.  Hence Rs.10,000/- can also be reduced  from the total amount on this count.

(30) Last item of unfinished work (item No.(i)) shown by the expert in Ext.C1 report is roof tiling work with Mangalore tile after water proofing for which Rs.1,25,000/- provided.  But  unfortunately  there  is no  provision in  Ext.P1 agreement  to provide roof tiling work.  Therefore Rs.1,25,000/- provided for this work is to be reduced from the total  expenses of the  remaining unfinished work.

(31) In view of the materials discussed above we are of the view that amount required for carrying out the remaining work is Rs.4,32,500/- ie Rs.200000+125000+7500+7500+7500+40000+30000+15000/- for item No.(a) to (i).In the circumstances claim of the complainant by relying on Page No.4 and 5 of Ext.C1 series technical report that balance item of work to be carried out is 25 % for which an amount of Rs.8,00,000/-  required is incorrect and

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inflated.  In the light of the above materials on record  we  are of  the  view that Rs.4,32,500/- is sufficient enough to carry out the remaining work. In the light of the above discussion it is clear that the work yet to be carried out by the opposite party contractor is    100 x 4,32,500   = 9.56%  rounded to 10% of the                                             45,26,100              

total work. If  that be so the amount of Rs.40,00,000/-received by the complainant is less amount than the  proportionate to the work carried out by the contractor.  The opposite party contractor is entitled to get 90% of the construction cost which will be Rs.40,73,850/-  out of which he has already received Rs.40,00,000/- (Forty Lakhs only).  Hence the complainant is not entitled to get back any amount from the opposite party as claimed in the complaint.

 

(32)  It is clear from the available materials that the opposite party/contractor   is  entitled to receive the balance amount due as per the above calculation amounting to Rs.73,850/- and Rs.63,000/- towards  the construction of compound wall  cost of construction materials belongs to him kept at the work site.  However there is no provision in the Consumer Protection Act to consider counter claim of  the opposite party in a consumer complaint for which the opposite party  has to file civil suit.  The scope of consumer complaint is to ascertain whether  there is any deficiency in service or unfair trade practice on the side of the opposite party contractor while constructing the house building. Hence the question of allowing the amount due to the contractor as indicated above is not considered.  The points answered accordingly.

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Point No.4

          (33)In view of the materials discussed above it is clear that the complainant has not established any deficiency in service or unfair trade practice on the part of the opposite party contractor and therefore there is no merit in the complaint and the same is only to be dismissed.

 (34) It is clear from the available materials that the opposite party contractor is entitled to get the balance amount of Rs.73,850/- as stated above balance amount of Rs.63000/- towards the construction of compound wall and the cost of materials  kept at the work site  raised in the counter claim for which the  consumer forum has no jurisdiction to pass any  order. 

 

In the result the complaint stands dismissed.  Counter claim raised in the written version is also dismissed being not maintainable.  The 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 Forum on this the   29th   day of  June  2018.      

 

E.M.Muhammed Ibrahim:Sd/-

   President

M.Praveen Kumar:Sd/-

    Member

Forwarded/by Order

Senior Superintendent 

 

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I N D E X

 

Witnesses Examined for the Complainant

PW1:-         P.L.Babu

PW2:-         Aswani Kumar

Documents marked for the  complainant

Ext.P1: -     Copy of  Agreement

Ext.P2:-      Advocate Notice

Ext.P3& Ext.C1 series:-          Technical report, plan and photographs.

Ext.P4:-      Copy of agreement

Witness examined for the opposite parties

DW1:                   Bhasi.B

Documents marked for the  opposite parties:-Nil

        

E.M.Muhammed Ibrahim:Sd/-

                                                                         President

                                                                        M.Praveen Kumar:Sd/-

Member

                                                                 Forwarded/by Order

                                                                Senior Superintendent

 
 
[HON'BLE MR. JUSTICE E.M.MUHAMMED IBRAHIM]
PRESIDENT
 
[HON'BLE MR. M.PRAVEENKUMAR]
MEMBER

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