IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 20th Day of May 2019
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
CC No.219/2018
Deepa.C.R : Complainant
Poykavila veedu
Kottara, Meeyannoor P.O
Kollam-691537
[By Adv.V.Dayas]
V/s
Bineesh.B.H : Opposite party
Haridas Bhavan
Kattadi, Pooyappally
Kottarakkara.
ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a consumer complaint filed Under Section 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
Opposite party is a building contractor. On 14.11.17 the complainant and the opposite party entered into a contract to construct the house building of the complainant as per the plan and estimate after demolishing a portion of the existing house building. The opposite party agreed to construct a house building for a total consideration of Rs.16,00,000/- within a period of 4 months. The opposite party has only completed half of the agreed work after receiving Rs.14,00,000/-. He was not even completed the construction work for the amount received. Hence the complainant approached the local police station and filed the complaint and there occurred a mediation talk and in the mediation the police suggested a settlement. But the opposite party was not amenable to continue the work as per the terms of the settlement. The
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complainant by anticipating that the construction of the house building will be completed within 4 months, taken out a house building on rent for 4 months by agreeing to pay Rs.4000/- per month as rent and shifted his residence in the said rented building. As the construction was not over the complainant has been continuing his residence in the rented building inspite of the request of the landlord to vacate the building. The complainant has sustained unlawful loss of Rs.50,000/- on account of his residence at the rented building. The opposite party has constructed part of the building by using substandard materials. Though the opposite party has installed the window and door frames he has not fitted the shutter of those frames. Inorder to construct the shutters the complainant has to spent Rs.1,00,000/-. The opposite party has not fitted 23 window shutters for which the complainant has to spent an amount of Rs.50,000/-. The opposite party has not fitted the fibre doors of 4 bathrooms for which Rs.15,000/- is required. The opposite party has agreed to construct 2 pargolas infront of the house building but the construction work of the said 2 pargolas remain incomplete. The plastering work worth Rs.20,000/- remains to be completed apart from that water tank, ventilation above the bath room etc. has to be fitted for which the amount of Rs.10,000/- is required. An amount of Rs.15,000/- is required to complete the work of the car porch. For cleaning the courtyard by removing the stone, soil and other waste articles of the construction work requires Rs.20,000/-. The rain water, waste water pit etc. has to be constructed by paying Rs.20,000/-. The steel work of the sit out and stair case was not to be done for which Rs.50,000/- is required. As the opposite party has bought granite rubbles and other construction materials in a heavy vehicle the gate and ground has been damaged. Hence the same has to be re-constructed by spending Rs.20,000/- apart from that the complainant has paid Rs.11,500/- to workers who engaged in laying tile and granite and Rs.8000/- to the electrical workers. The opposite party has used low quality and substandard
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electrical materials such as switches and there by cheated the complainant. The complainant has to replace the same by spending Rs.18,000/-. He has also paid Rs.32,000/- as suggested by the police to the Raj Brothers from where construction materials were purchased by the opposite party. Though the opposite party has purchased tiles etc. for the construction of the building from Thushara Marbles on 12.06.18 by agreeing to pay the amount later. But the proprietor was not amenable to release the articles. Hence the complainant paid Rs.14,000/- and the opposite party issued a cheque for Rs.89,000/- by agreeing to pay the said amount within 2 week. But he has not paid the amount as agreed. But the opposite party has not paid the amount subsequently the complainant paid the amount Rs.89,000/- to Thushara Marbles and received back the cheque. The complainant is entitled to get Rs.1,00,000/- on that count from the opposite party. It is further alleged that the opposite party has deputed unskilled labours and also used substandard materials for the construction work and as a result there are several defects in the construction work and the complainant has rectify the defects. In view of the above grounds the complainant altogether is entitled to get Rs.5,25,000/- from the opposite party as compensation for the loss sustained during the construction apart from that the opposite party has deliberately delayed the construction work and also used substandard articles and has not constructed in accordance with the plans and thereby cheated the complainant for which the complainant is entitled to get compensation for the tune of Rs.50,000/- from the opposite party. Hence the complaint.
Though notice was issued from this forum the opposite party refused to receive the notice and the same returned with endorsement to that effect. Hence the opposite party has been declared exparte.
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The complainant filed IA 374/18 praying to depute an advocate as Commissioner to ascertain and report the defects and also the work left by the contractor in the construction. In the said IA also notice was issued and served to the opposite party. But the opposite party called absent. The commission application was allowed and Sdv.T.S.Sreekumar was appointed as Commissioner who executed the Commission warrant and filed report and photographs.
The complainant filed proof affidavit by re-iterating the averments in the complaint and also appending a schedule of various items of loss sustained by him during the construction work and also got marked Ext.A1 to A7 documents and Ext.C1 series Commission report and photographs. The learned counsel for the complainant has also filed notes of arguments.
Ext.A1 is the agreement dated 14.11.17 executed between the opposite party and the complainant in respect of the house construction which would indicate that as on the date of executing the agreement the opposite party has received Rs.5,00,000/- as advance amount for the construction. The reverse side of the last page would contain the details of the amount received with respective date. Ext.A2 is the copy of the plan of the ground floor and 1st floor of the building to be constructed. Ext.A3 is the front elevation of the house building. Ext.A4 is the photo copy of the cheque for Rs.89,000/- issued by the opposite party in favour of Thushara Marbles obtained by the complainant by paying the amount. Ext.A5 is the photocopy of the rent agreement regarding the house building taken by the complainant for his residence during the period of construction. Ext.A6 is the photocopy of the voucher obtained for carrying out electrical work. Ext.A7 is the photocopy of the voucher issued by the tile and granite worker in favour of the complainant and Ext.C1 series is the report of the commission and photographs. In view of the unchallenged averments in
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the affidavit coupled with Ext.A1 to A7 documents and C1 series commission report and photographs of the disputed building the complainant has proved that there is deficiency in service on the part of the opposite party contractor as he is proved to have constructed the building by violating the terms of Ext.A1 agreement. Hence the opposite party is bound to make amend the loss caused to the complainant and also to pay compensation to the complainant.
The claim of the complainant is that he is entitled to get Rs.5,25,000/- as loss sustained on account of the defective construction and incomplete construction of the house building by violating the terms and stipulations in the Ext.A1 agreement. The above amount is due to the complainant only if the entire amount of Rs.16,00,000/- had been paid to the opposite party. But admittedly the complainant had paid only Rs.14,00,000/- till the date when the opposite party left the work site. In other words the work has to be completed on getting Rs.16,00,000/-. An amount of Rs.5,25,000/- is required to complete the work even according to the complainant out of which Rs.2,00,000/-(16,00,000-14,00,000) has to be deducted. In the circumstance we are of the view that the complainant is entitled to get Rs.3,25,000/- only(5,25,000-2,00,000) from the opposite party.
It is also clear from the available materials that the complainant has sustained much mental agony apart from financial loss for the defective construction and incomplete construction and also due to the inordinate delay in completing construction work. Therefore the complainant is entitled to get compensation to the tune of Rs.50,000/- as claimed in the complaint.
In the result the complaint stands allowed in the following terms:
The opposite party is directed to pay Rs.3,25,000/- on account of the loss caused to the complainant due to the no completion of the work and defective
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construction work carried out by the opposite party by deputing un skilled labours and substandard materials. The opposite party is also directed to pay Rs.50,000/- as compensation for the mental agony sustained by the complainant on account of the non completion and delayed and defective construction of the house building. The opposite party is also directed to pay Rs.10,000/- as costs of the proceedings to the complainant.
The opposite party is directed to pay Rs.3,25,000+50,000 along with costs Rs.10,000/- within 30 days from the date of receipt of copy of this order failing which the complainant is entitled to recover Rs.3,75,000/- with interest @ 9% p.a from the date of complaint till realisation along with costs Rs.10,000/- from the opposite party and from his assets.
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 20th day of May 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.A1 : Building construction agreement dated 14.11.17
Ext.A2 : True copy of house building plan
Ext.A3 : Front elevation of the house building
Ext.A4 : Photo copy of the cheque for Rs.89,000/-
Ext.A5 : Photocopy of the rent agreement
Ext.A6 : Photocopy of the voucher obtained for carrying out
electrical work.
Ext.A7 : Photocopy of the voucher issued by the tile and
granite worker
Ext.C1 series : Commission Report & Photographs.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
