KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU, THIRUVANANTHAPURAM APPEAL No.647/2002 JUDGMENT DATED 28. 5.08 Appeal filed against the order passed by CDRF, Thiruvananthapuram in OP475/2000 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT .VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1. Mulamoottil Deluxe Constructions, P.M.G., Thiruvananthpauram. : APPELLANTS 2. Reji Thomas Mathew, Proprietor, -do- (By Adv.A.Abdul Kharim) Vs. C.Radhamony Amma, : RESPONDENT Residding at T.C.2/3089, Panachamoodu Lane, Pattom.P.O., Thiruvananthpauram. (By Adv.S.Reghukumar) JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT 1. The appellants are the opposite parties in OP.475/2000 in the file of CDRF, Thiruvananthapuram. The appellants are under orders to pay a sum of Rs.160000/- as part refund of the amount paid as advance and a sum of Rs.85000/- as interest on bank loan and Rs.30000/- as value of timber and Rs.2500/- towards costs to the complainant. 2. The case of the complainant is that as per agreement dated.31.1.2000 the opposite parties/appellants undertook the construction of a residential building in the property of the complainant. The total cost of the building estimated is Rs.876750/-. The total area of the proposed building is 1670 sq.ft. It is alleged that the opposite parties did not execute the work as per the time schedule although the complainant paid a sum of Rs.310000/- which is more than the amount specified in the agreement at the particular stage of construction. The part construction made was defective and with poor quality material. There was an existing building at the site. The same was demolished by the opposite party and the wooden materials available from the old building are to be reused for the construction of the new building. But the opposite party appropriated the wooden materials without re-using the same. The opposite party has abandoned the project. Hence the complainant has claimed a sum of Rs.310000/- to be refunded with interest at the rate of 18% and also sought for the compensation of Rs.50000/- towards the mental agony, monetary loss etc; and also sum of Rs.30000/- for demolishing the works executed by the opposite party and Rs.50000/- towards the cost of timber of the old building and also another sum of Rs.30000/- towards the unfair trade practice and deficiency in service. 3. On other hand, the opposite parties have stoutly denied the allegations. It is submitted that the opposite parties demolished the existing old building, for the above purpose a sum of more than Rs.20000/- was spent. It is denied that the opposite party appropriated timber etc. of the old building. The timber of the old building was of inferior quality, including the remnants of coconut tree which was dis-integrated. As undirected by the complainant the same was kept in the office of the opposite party. The opposite party incurred more than a sum of Rs.20000/- for the demolition of the old building and for unloading of the demolished materials and clearing of the land. It is denied that the above timber was agreed to be re-used for the new building. The complainant did not provide wood for the work of door frames and window frames etc. Hence the door and window spaces were kept blank, although the construction was made up to lintel level. Non supply of wood amounted to breach of agreement. The amount of Rs.50000/- paid on 21.3.2000 and Rs.20000 paid on 11.4.2000 were towards the cost of demolition of the building, clearing of site, transportation of debris, land development and for excavation works. It is denied that the construction is of inferior quality and that the articles used were sub standard. It was on account of the non co operation of the complainant that further works could not be proceeded with. Although a notice was issued dated 2.8.2000 to the complainant intimating the above facts and expressing his willingness to settle the matter the complainant did not respond. The above work was supervised by an expert engineer at the instance of the complainant. The opposite parties have done works for more than the amount paid. 4. The evidence adduced consisted of the testimony of PW1 and 2, DW1, CW1, Exts.P1 to P9, R1(a) to R1(c) , C1 and C2. 5. The Forum has relied on the report of the expert Commissioner and held that the construction was of low quality and the same is the case with the materials used and that the reason mentioned for not completing the construction as per the schedule that the wood was not supplied by the complainant has no basis and that it was found that the wooden items taken from the old building that was demolished has been misappropriated by the opposite party and hence taking to consideration the entire aspects evidenced a sum of Rs.1,50,000/- is valued as the sum due to the opposite party for the construction already carried out and the balance amount out of Rs.3,10,000/- is paid to the opposite party. Thus Rs.1,60,000/- was ordered to be refunded and a sum of Rs,85,000/- is ordered to be paid to the complainant as interest of bank loan towards the amount held by the opposite party and also 30,000/- towards value of the timber appropriated from the old building. It is stressed by the appellant that the finding of the Forum that no where it is stated in the agreement that wood has been excluded from the purview of the contract as absolutely incorrect as the agreement specifically provides that the wood has to be supplied by the complainant. It is also pointed out that the complainant has not adduced any evidence as to the availing of the bank loan and hence providing interest on the amount assumed to be obtained by the bank loan is erroneous. It is the case of the opposite party that the construction could not be further proceeded with as the wood was not supplied by the complainant. The agreement ie Ext.P2/R1 (a) contains a specific clause in para 2 therein that it is mutually agreed with the wood for the construction of the said building will be supplied by the 1st party ie the complainant. Evidently there is clear over sight in this regard by the Forum. 6. It is the case of the complainant that wooden items like door frames, window frames etc available from the old building has to be made use of for the new building. According to the complainant there was understanding in this regard between the complainant and the opposite party. It is alleged that the wooden portions of the old building were removed by the opposite party and appropriated. It is the case of the complainant that the opposite party was demanding more payment than is provided vide, the payment schedule of the agreement and was executing substandard construction violating the specifications in the plan. As can be seen from the agreement it was agreed that the construction will be carried out at the rate of Rs.525/- per square feet for the building with the plinth area of approximately 1670 square feet. The total amount agreed to be paid is Rs.8,76,750. As per the payment schedule which is part of the agreement, before the lintel concreting the complainant is to pay a sum of Rs.2,00,000/-. It is admitted that lintel concreting was not done. It is also admitted that a sum of Rs.3,10,000/- has been received by the appellant/opposite party. Hence 1,10,000/- is evidently the amount received in excess. It is the case of the appellant that the appellant carried out demolition of the old building at the site wherein the new building has to be constructed. No amount for the demolition has been mentioned in the agreement. In the version it is mentioned that the appellant had to spent more than Rs.20,000/- for the demolition of the old building and removal of debris etc. As to the cost of the demolition the version of the complainant as well as that of the opposite party is not consistant. It is mentioned in the complaint that the appellant demolished the building. When DW1 was cross examined it was suggested that the complainant herself demolished the building. There is also the statement in the version of PW1 the power of attorney holder of the complainant that the amount required for the demolition was paid by the complainant. On the other hand DW1, the proprietor of the opposite party construction firm has stated that Rs.50,000/- was spent by him towards the cost of demolition and the same was paid by the complainant in February 2000. Hence the opposite party has sought for adjusting the above amount towards the amount paid ie 3,10,000/-. There is only interested testimony of both sides with respect to the amount expended for the demolition of the old building. The fact that it is the opposite party who got the old building demolished is evident from the report of the commissioner as well as from the circumstances of the case and from the version in the complainant. 7. The expert commissioner has filed Ext.C1 and C2 reports. The commissioner was examined as CW1. Objections on the commissioner’s report were filed by the opposite party. It is mentioned in the complaint that the foundation stone was laid on 12.2.2000 which is not disputed. Evidently the work stopped before June, 2000. The intervention of the residential association secretary is mentioned as on 20.6.2000 in the complaint. Further the opposite party has sent Ext.P8 letter dtd. 3.8.2000 to the complainant seeking discussion and alleging that the further construction could not be proceeded with on account of the attitude of the complainant. Accoridng to the complainant the appellant issued the above letter anticipating legal action at the instance of the complainant. Hence evidently construction at that site has taken place for about 4 months only. The demolition might have preceded the laying of the foundation stone. 8. So for as the defects in the construction is carried out is concerned the evidence available is that of the expert commissioner. CW1 the commissioner has proved Ext.C1 and C2 reports. Ext.C2, the 2nd report on the second inspection is confined to the alleged misappropriation of wooden articles from the old building. The commissioner in Ext.C1 report has noted that the foundation has been constructed and also the walls upto lintel level in most of the area. The height of the walls are not uniform. At the front portion the walls have been constructed to a height on 2.5 meters. But in the rear side the bed room wall was constructed upto 1.30 meter height and in the kitchen side only up to 80 cm and 60 cm over which platforms slab. In the car porch portion even the foundation is not laid. It is also noted that the construction has been carried out leaving doors and windows portion open without fitting the frames which the commissioner has noted as a defect. Plain cement concrete has not been provided although it is provided in the plan instead random rubble work has been executed at the foundation. Although the commissioner has not found that the above has not weakened the construction, he has observed that the above substitution by the appellant is an inappropriate action. As per the conditions prevailing at the site it is advisable to have the plain cement concrete. The quality of the construction of rubble is poor in quality it is noted. No watering in cement construction is seen done. Inadequate quantity of mortar used in the low quality of mortar used and existence of 2 cracks in the brick work of which one crack is
somewhat serious in nature is noted. It is observed that the omission of placing door and window frame as a defect affecting the strength of the structure. It is also noted that the rubble and metal supplied by the builder is of good quality. 9. CW1 the commissioner has stuck to his findings in his examination before the Forum. A perusal of Ext.C1 and evidence of CW1 would show that there is no very major defects so for as the construction is concerned and that the defects noted can be rectified. But the appellant has deviated from the specifications in the approved plan without the authority of the complainant, which he is entitled to. In Ext.C2 the commissioner has noted that a number of wooden items from the old building is seen stocked at the office of the opposite party. The commissioner has rightly observed that unless and otherwise the appellant had to agreed to use the dismantled articles in the new construction proposed there is no valid reason to take away the dismantled articles to their place. Evidently in this regard evidence of the complainant and of the commissioner is reliable as opposed to the version of DW1. 10. Clearly the appellant has received excess amounts than mentioned in the payment schedule. Upto lintel level he would have been entitled to receive only Rs.2,00,000/- whereas he has received Rs. 1,10,000 in excess and the work was also not carried out further. But so far his contention that the amount of cost of demolition of the old building is not included in the agreement appears true. Although he has mentioned that the amount involved for the demolition as Rs.50,000/- the amount claimed in the version is only Rs.20000/-. We find that the appellant is entitled to have the amounts spent for demolition of the old building. The finding of the Forum valuing the construction executed at Rs.1,50,000/- appears reasonable. But the direction to deduct 1,60,000/- as such requires modification. The complainant is liable to deduct Rs.20,000/- towards cost of demolition from the above amount. Hence in this regard the appellant is liable to pay only 1,40,000/- to the complainant. 11. Of course, complainant has not produced documents with respect to the availing of the loan etc . It is mentioned in the complaint itself and it has also come out in evidence that the appellant has prepared an estimate for submitting to the Syndicate bank. But the direction to pay 85000/- to the complainant towards interest on the loan amount is not supported by specific evidence. In the circumstance we would modify above portion of the order to pay Rs.50,000/- as compensation for the vexations and tiresome proceedings she had to initiate against the appellant and for delay in the construction of her residential building. The direction to pay Rs.30,000/- at the value of the timber appropriated from the old building is only just as the evidence would indicate that considerable wooden articles of the old building is in the custody of the opposite party. 12. In the circumstances the appeal is allowed in part. The relief portion is modified as follows: the appellant/opposite party is to pay to the complainant a sum of Rs.1,40,000/- as part of the refund of the amount paid as advance; as well as a sum of Rs.50,000/- towards compensation; Rs.30,000/-towards value of the timber appropriated and Rs.2500/- as costs. There will be no order as to costs for the proceedings herein. Appellant would pay the amount to the complainant within 2 months from the date of this order failing which the amounts except costs would carry interest at the rate 12% per annum from the date of order of the Forum ie 29.7.02. JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT .VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER ps
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.S.CHANDRAMOHAN NAIR | | 
