DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 29th day of February 2012
Present : Smt.Seena H, President
: Smt.Preetha G Nair, Member
Date of Filing : 19/08/2011
(C.C.No.138/2011)
Sakunthala Parameswaran,
W/o.Parameswaran,
“Sree Nandanam”,
Vrindavan Nagar, Pudussery,
Palakkad – 678 623 : Complainant
(By Adv.P.Prasad)
V/s
C.P.Gireesh Kumar,
D-15, ‘Dhanush’,
Venkateswarapuram,
Puthur,
Palakkad – 678 001
(By Adv.P.Sreeprakash) : Opposite party
O R D E R
By Smt.PREETHA G NAIR, MEMBER
The complainant and opposite party entered into an agreement on 10/9/2010 to construct the first floor of her house as stipulated in the agreement. The opposite party has to finish the entire work of the first floor for Rs.7,80,000/- and the complainant paid Rs.7,65,000/- But the opposite party has not completed the work as stipulated in the agreement. The period is over and there is a balance work of front teak wood door, inside door, plumbing works, partial tile works, painting of doors and windows etc. The pending work comes around Rs.61,724/- The opposite party has not completed the work due to his own negligence and willful laches. When the complainant enquired about the pending work, the opposite party threatened the complainant and her husband and they filed a complaint before the police. The opposite party’s behaviour was changed after he got the money from the complainant and her husband. Thereafter the opposite party issued a notice to the complainant that he had received only Rs.7,55,000/- and he had done some other additional work and there is balance of Rs.2,35,761/- due to him. The agreement is for the first floor construction work and in the notice he has stated some additional work in the ground floor. The contents of the notice is false and not carried out the work as stated in the notice. The complainant sent a reply notice stating that there is a balance work which comes around Rs.60,000/- after receiving Rs.7,65,000/- and the amount is due from the opposite party. As per the agreement the opposite party has to complete the work before 10/6/2011 and not completed the work and sent the notice to escape from the liability. The pending work was assessed by a site supervisor and he had given a detailed report which shows that there is a balance work of Rs.61,724/-. Hence the amount of Rs.46,724/- is due to the complainant. The opposite party had committed unfair trade practice and deficiency of service. Hence the complainant prays an order directing the opposite party to
1. Pay Rs.46,724/- as the cost of balance work kept pending,
2. Pay Rs.50,000/- as compensation for mental agony and financial difficulties,
3. Pay the cost of the proceedings
Opposite party filed version stating the following contentions. The contention in the complaint that the agreement was only for doing the first floor construction is denied by the opposite party. As per clause 6 of the agreement it is made clear that alteration / modification of the work will be stated as addition and the complainant is liable to make payment of the additional work done. A sum of Rs.7,65,000/- was paid by the complainant is false and is hereby denied. Rs.10,000/- was paid by the complainant towards the additional work done at the ground floor. There was no act of threatening the complainant’s husband and the police was convince regarding the falsity of the claim that is why no action was taken on the basis of the complaint filed. The alleged assessment of the pending work by the site supervisor is without any basis and is created for the purpose of the complaint. The person who has allegedly prepared the valuation report has no expertise, qualification or competency to assess the work. The following additional work were done by the opposite party spending money from his pocket on the basis of the specific assurance that the amount will be paid before the completion of the construction.
a) Work area in first floor, having 47.5 Sq.Ft. is constructed as additional work for an amount of Rs.38,000/-
b) As per clause IV work specification except living room all other rooms floorings is in ceramic tile Rs.35/ Sq.ft. work done. Entire floor except work area of vitrified tiles at the rate of Rs.42/ Sq.Ft for an additional amount of Rs.3,906/-
c) Vertified tile agreed cost Rs.40/- Sq.ft. 300Sq.ft. living room cost of tiles paid Rs.42/- for an additional expense of Rs.600/-
d) Provision for Geyser in all three bathrooms as against one in the contract additional expenses of Rs.10,000/-
e) Additional work of provision for pooja room in the drawing cum dining additional expenses of Rs.8,000/-
f) Replacing of roof tile in ground floor additional work Rs.6,500/-
In ground floor additional work done for an amount of Rs.3,78,720.50. Amount received from complainant towards additional work was Rs.2,35,000/- So the balance amount is Rs.1,43,720/- (Rs.3,78,720.50 – Rs.2,35,000 is Rs.1,43,720.50/_ rounded of to Rs.1,43,720/-) Keeping such a huge amount in arrears against the terms of the contract the complainant is complaining about non completion of the work. Since failure to make payment will amount to breach of contract, opposite party is not bound to discharge reciprocal contract. Hence there is no deficiency of service. So the complaint is liable to dismiss with cost.
Both parties filed affidavit. Ext.A1 to A7 marked on the side of the complainant. Ext.C1 is the commission report filed by the expert Commissioner. Matter heard.
Issues to be considered are
- Whether there is any deficiency in service on the part of opposite party ?
- If so, what is the relief and cost ?
Issue No.1 & 2
Admittedly both parties entered into an agreement to construct the first floor of house and completed the construction work within nine months for an amount of Rs.7,80,000/- The opposite party stated in Ext.A3, the notice a sum of Rs.7,55,000/- received. The complainant stated that she had paid Rs.7,65,000/- No documentary evidence for payment produced by both parties. So we taken the view in favour of the complainant that paid Rs.7,65,000/- to the opposite party. In Ext.A1 page No.3 of the agreement – payment details shows that Door, Window shutter fixing stage amount of Rs.39,000 and on finishing and handing over amount of Rs.39,000/-. In Ext.C1 the Commissioner noted the pending works and the approximate cost is Rs.42,700/- In the present case the complainant submitted that the work was not completed and she had paid Rs.7,65,000/- In Ext.A1 clearly shows that the agreement is to construct the first floor as per the plan attached the agreement. According to the complainant the period is over and there is a balance work of front teak wood door, inside door, plumbing work, partial tile work, painting of doors and windows for an amount of Rs.61,724/- The commissioner also noted the pending work on doors, windows, plumbing work, flooring, bathroom tiles, painting, polishing, lock fittings, wash basin, kitchen sink, tap and allied things, unforeseen and miscellaneous work for an amount of Rs.42,700/- In Ext.A1 page 2 both parties agreed to construct the 1st floor of the existing house No.30 at the rate arrived at Rs.800/- sq.ft. for a total area of 975 sq.ft. for the total sum of Rs.7,80,000/-
Page 2 of Ext.A1 clause 6 states that during the course of construction demanded any addition, alteration and modification of work will be treated as additional. Payments of additional bill have to be settled along with the next stage payment dues and not during final settlement.
In the affidavit opposite party stated that additional work bill amount (ground floor) was Rs.3,78,720.50/ and amount received towards additional work (ground floor) was Rs.2,35,000/- Balance amount (ground floor) was Rs.1,43,720/-. The opposite party has not produced documentary evidence to prove the additional work amount of Rs.3,78,720.50/-.
But in C1 report, Commissioner noted the additional work done by the opposite party as per the work memo filed by him Commissioner assessed the cost of additional work was Rs.1,59,500/- The opposite party admitted in the version and affidavit that he has received Rs.2,35,000/- from the complainant towards additional work (ground floor). Both parties not produced documentary evidence to prove the additional work and payment. As per the commission report the opposite party received excess amount towards the additional work. In the present case the complainant has no dispute regarding the payment of additional work. Moreover the Ext.A1 agreement is to construct the 1st floor of the house. Opposite party filed objection to Commission Report. But the opposite party has not taken steps to examine the commissioner. Ext.A1 shows that on finishing and handing over amount of Rs.39,000/- to opposite party. The construction of the house not completed and the complainant has not paid the balance amount of Rs.15,000/-.
The complainant sated that she paid only Rs.7,65,000/- Then the balance amount as per the agreement is Rs.15,000/- The commissioner stated the cost of pending works is Rs.42,700/- So the opposite party has to pay Rs.27,700/- (Rs.42,700 – Rs.15,000 = Rs.27,700/-) as the cost of balance works. The opposite party has failed to complete the construction work within the stipulated period and the prices of the building materials are increasing day by day.
In view of the above discussions, we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay the complainant an amount of Rs.27,700/- (Rupees Twenty seven thousand seven hundred only) as the cost of balance works and pay Rs.5,000/- (Rupees Five thousand only) as compensation for mental agony and pay Rs.3,000/- (Rupees Three thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.
Pronounced in the open court on this the 29th day of February 2012.
Sd/-
Seena.H
President
Sd/-
Preetha G Nair
Member
APPENDIX
Exhibits marked on the side of the complainant
1.Ext. A1 – Agreement dated 10/9/2010 (Original)
2. Ext. A2 – Copy of complaint filed by the complainant at Kasaba Police station
dtd.29/6/11
3. Ext. A3 – Notice sent by opposite party to the complainant dated 28/6/11
4. Ext. A4 – Reply to notice sent dated 14/7/11
5. Ext.A5 – Postal receipt
6. Ext.A6 – Acknowledgement card
7.Ext.A7 – Report of Site Supervisor (original)
Exhibits marked on the side of the Opposite Party
Nil
Commission Report
Ext.C1 – Commission Report
Costs
Rs.3,000/- allowed as cost of the proceedings.
