IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 21st Day of April 2021
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri.Stanly Harold, B.A.LLB, Member
CC.73/15
Ayyappan Pillai : complainant
Kalilil Veedu,Kureepuzha
Kollam.
[By Adv.P.N.Gopinathan Nair,
Adv.C.G.Suresh Kumar, Adv.V.K.Rajsankar]
V/s
D.Satheesh Kumar : Opposite party
Chandra Constructions
Engineers and Contractors
Mundakkal, Kollam 1
R/o Chandra Niwas
Mundakkal East, Kollam.
[By Adv.R.Santhosh Kumar]
FINAL ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
1. This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
2. The averments in the complaint in short are as follows:-
The complainant is an N.R.I. working in Bahrain. The opposite party is a licensed contractor who made the complainant to believe that he has successfully carried out so many important building constructions. By believing the above representation the complainant entered into three contracts for the construction of compound wall around his property, shop rooms and a villa for his residential purpose. On 24.03.2011 the complainant he entered into an agreement with the opposite party for constructing compound wall in Sy.No.88/11 in Block No.II of Thrikkadavoor Village. The total cost of the construction of the compound wall agreed was Rs.8,00,000/-. On 31.03.2011 the complainant entered into another agreement with opposite party to carry out the construction work of the shop rooms for an amount of Rs.13,00,000/- in the above property. Yet another agreement dated 29.07.2011 was also executed between the complainant and the opposite party for constructing a residential villa for the complainant. The total construction costs of the said villa agreed was to Rs.57,00,000/-. The time limit fixed was ten months and the complainant agreed to pay proportionate amount from the total agreed construction cost to the opposite party in accordance with the progress of the work. The plans prepared were handed over to the opposite party. It is further alleged that before entering into the above 3 agreements the opposite party was fully aware of and convinced regarding the nature of the works to be carried out and that he calculated the cost of construction which were mutually agreed between the parties. The opposite party accepted amounts at various stages. The complainant was in utter desperate condition as the work was not finished and the opposite party had received more than the entire agreed amount by that time. But the opposite party made the complainant to believe that he would complete the work and if any amount was accepted in addition to the agreed amount it will be refunded. The work of the Villa was dragged on and it almost came to a standstill position. The complainant who was abroad, upon getting knowledge of the real state of affairs came to the scene and found that only 45% of the work of the villa was completed. When confronted, the opposite party sought for further time and asked for a revised agreement. Even though the opposite party violated all the earlier terms, on humanitarian consideration, the complainant was magnanimous enough to execute a supplementary agreement which was executed on 12.05.2014. It was agreed that the entire works will be completed on or before 11.09.2014 and in case of failure a penalty of 0.1% per day was also fixed.
3. The complainant was informed by his wife that there was no improvement in the work. The complainant suddenly came back from Bahrain and found that the opposite party is slowing down the work with the malicious intention of delaying the work to obtain more money from the complainant. When the opposite party demanded more money without any justification, the relationship between the complainant and the opposite party became strained and the complainant was compelled to seek professional advice from a Chartered Engineer who visited the sport and inspected the works and evaluated the same and a detailed report was also furnished. As per the said valuation report the total agreed amount of contract is Rs.68,53,400/- and the value of the total work done was for Rs.47,90,145/. At the same time the opposite party have received Rs.66,34,000/- and the opposite party had received an excess amount of Rs.18,43,855/-. As per the report the cost of the balance work to be done is Rs.28,63,255/- and in view of the escalation of cost, it is liable to be on the higher side and it will come to Rs.35,79,069/. The work is even now pending even after the lapse of more than 3 years. The complainant has been keeping proper records of the payment of money to the opposite party. But to the utter dismay of the complainant the agreed work was not completed. The construction of the compound wall alone seems to be finished and the concrete work of the roof of the outside bathroom remain unfinished and the work already finished is of very substandard nature.
4.Since the complainant had lost the faith on the integrity and trust worthiness of the opposite party the complainant has already entrusted the work to a competent contractor. The complainant has already invested a huge amount to accomplish his ambition and the attitude of the opposite party has sabotaged the same. The loss of the complainant is now estimated to the tune of Rs.18,43,855/- by way of the excess amount paid to the opposite party. The complainant already demanded to return the excess amount of Rs.18,43,855/- illegally extracted by the opposite party from the complainant with interest at the rate of 18% per annum by sending notice through his advocate. The opposite party deceived the complainant and thereby dishonestly induced the complainant to deliver excess amount totaling Rs.18,43,855/- to the opposite party and committed the offence of cheating punishable under law. There is clear deficiency in service on the part of the opposite party who caused so many other losses also, As per the report the cost of the balance work to be done is Rs.28,63,255/-. The present estimate of the new contractor comes to Rs.40,00,000/-. The complainant was forced to do the work as per the new schedule simply because of the latches on the part of the opposite party and opposite party is liable to compensate that loss also. But the complainant is limiting the unliqudated damages to an amount of Rs.1,00,000/- along with the actual loss of Rs.18,43,855/-.
5.The opposite party resisted the complaint by filing a detailed written version raising the following contentions. The complaint is not maintainable either in law or on facts. The complaint is barred by limitation. The complainant does not fall under the definition of a consumer as defined under the Consumer Protection Act, and disputed matter does not come within the meaning of service. This Forum lacks jurisdiction to entertain the case. The transaction is one of commercial nature the object of the complainant is to make profit out of the transactions.
6.However the following facts are undisputed rather admitted in the written version. The opposite party agreed to construct building in the land belongs to the complainant of Thrikkadavoor Village he entered into 3 separate agreements one for the construction of compound wall, the 2nd for the construction shop rooms and the 3rd agreement for the construction of a residential Villa for the complainant that as per the agreements the opposite party accepted amounts at various stages that the opposite party has almost constructed the compound wall and shop rooms but the construction of the villa remained incomplete even after 2 years of the date of agreement even though the time stipulated is 10 months. A supplementary agreement was executed and as per the supplementary agreement the opposite party agreed to carry out the remaining works on or before 11.09.2014 the work agreed to be carried out as per the supplementary agreement was not completed within the stipulated period. However the opposite party would content that the non-completion of the work was not due to his fault but the complainant has committed default in payment of the amount as per the terms of the agreement.
7.It is also contended that the opposite party never demanded more money as alleged in the complaint. The reason for seeking of advice of the Chartered Engineer is not correct and the report is also not correct and the same was prepared as per the direction and in collusion with the complainant. The said report has been prepared without any bonafides which will not help a fair disposal of the dispute involved in the case. As per the report the cost of the balance work to be done is Rs.28,63,255/- and in view of the heavy escalation of cost it will come to Rs.35,79,069/-. The allegation of the complaint that the opposite party received an excess amount of Rs.18,43,855/- is incorrect. No amount is received in excess nor the opposite party is liable to return any amount to the complainant. It is further contended that more than Rs.8,00,000/- is due from the complainant to the opposite party besides the cost of building materials like ‘M’ sand, bricks (Thabook) and tools for building construction like drum, desk, spade, iron vessals wooden plank, bamboo stump, kattadi stumps etc. The complainant suppressed the true material facts and filed this false complaint without any bonafides with the aid of fabricated documents on experimental basis. The works carry out by the opposite party were done in accordance with the directions and satisfaction of the complainant and his men and in accordance with plan.
8.There is no deficiency in service as alleged in the complaint. The complaint is silent about the nature of deficiency in service. The unliquated damages as stated in paragraph 7 as Rs.1,00,000/- is not correct. No loss or damage is caused to the complainant due to the act of opposite party. There is no proper explanation and supporting documents regarding loss or damages as claimed in the complaint. The opposite party further prays to dismiss the complaint with his costs.
9.In view of the above pleadings the points that arise for consideration are:-
- Whether the complainant is a consumer and the opposite party is a service provider as defined under the Consumer Protection Act 1986?
- Whether the complaint is barred by limitation?
- Whether the construction of villa as per agreement dated 29.07.2011 is for commercial purpose and for making profit as contented by the opposite party?
- Whether there is any deficiency in service on the part of the opposite party in carrying out the construction work as per the agreements and supplementary agreement executed between the complainant and opposite party?
- Whether the complainant is entitled to get the reliefs sought for in the complaint?
- Reliefs and costs?
10. Evidence on the side of the complainant consists of the oral evidence of PW1 to PW5 and Ext.P1 to P12 documents. Evidence on the side of the opposite party consists of the oral evidence of DW1 to DW3. No documentary evidence has been adduced by the opposite party.
11. Both parties have filed notes of arguments.
12. Heard both sides.
Point No.1&3
13. For avoiding repletion of discussion of materials these 2 points are considered together. The specific case of the complainant is that he is owner of the property in Sy.No.88/11 in Block No.II of Thrikkadavoor Village and for the purpose of constructing a residential villa and shop rooms in front of the residence and a compound wall around his property he entered into 3 agreements with the opposite party for carrying out the above works as per the approved plans. In short the complainant is the owner and the opposite party is the contractor. The first agreement relates to the construction of a compound wall and the agreed amount is Rs.8,00,000/- . The second agreement is dated 31.03.2011. It relates to the construction of shop room for an amount of Rs.13,00,000/-. The third agreement dated 29.07.2011 is for the construction of a residential villa for the complainant for Rs.57,00,000/-. The opposite party contractor would contend that the complaint is not maintainable on several grounds. The major ground of attack is that the complainant does not fall and under the definition of a consumer and the disputed matter does not come within the ambit of service. Another ground of attack is that the transaction is one of commercial nature the object of the complainant is to make profit out of the transaction and in view of the above grounds the complaint is not maintainable according to the opposite party. It is true that Ext.P2 agreement is relating to the construction of a commercial building(shop room). But the complainant has no much dispute regarding the construction carried out as per Ext.P2 agreement. Admittedly the 1st agreement Ext.P1 is for the construction of a compound wall around his compound and the 3rd agreement is for the construction of a villa for the purpose of residence of the complainant. The main allegation in the complaint is regarding the defect in the construction of the two storied residential building (villa) for the complainant. According to the complainant he intended to construct the villa/building for his own use and occupation. In the circumstance we find no merit in the contention of the opposite party that the transaction is of commercial nature and the complainants intention is to make profit out of the construction is devoid of any merit. It is clear from the available materials that the complainant would definitely come under the purview of consumer and the opposite party being the contractor is service provider and the dispute between the complainant and opposite party would come as a consumer dispute as defined under the Consumer Protection Act 1986 and the construction of double storied villa is not for any commercial purpose. The point answered accordingly.
Point No.2
14. Ext.P1 series contains agreement with plan for the construction of compound wall. The agreement is dated 26.03.2011 which is approved by the contractor on 27.03.2011. On going through Ext.P1 series agreement it is seen that the date of completion of the boundary wall is not stated. Ext.P2 is the 2nd agreement for the construction of a commercial building consisting of 108m2 for Rs.10,00,000/-. The said agreement has been executed on 31.03.2011 in which also the date of starting construction or date completing the construction is not specifically stated. But towards the end of the agreement it is stated that the contractor has agreed to complete construction work within four months from the date of starting the work. When he will start the work is not stated anywhere in P2 agreement. Ext.P3 is the 3rd agreement relating to the construction of the residential building. In P3 agreement it is stated that the work will be completed with 10 months from the date of the starting the work. But the date when the opposite party would actually start the work is not stated at all.
15. Ext.P4 is the supplementary agreement to P3 agreement. On perusal of P4 it is seen that it has been prepared on 12.05.2014 wherein the date of restarting work is stipulated as 12.05.2014 and date of completing the work is stipulated as 11.09.2014. On perusal of entire materials available on record it is clear that the said supplementary agreement was executed between the same parties and the reason for executing such a supplementary agreement is to complete the construction work of the residential building of the complainant and also to cure the defects of construction already made by the opposite party as per Ext.P3 agreement. The complainant is seen filed on 28.03.2015 which is within one year of executing the supplementary agreement and 3 odd months within the stipulated date for completing the construction work as per the said P4 supplementary agreement.
16. It is further to be pointed out the opposite party has not raised the question of limitation in his written version. But he has raised such a contention while advancing oral argument. Nothing has been stated regarding the question of limitation in the notes of argument filed by the learned counsel for the opposite party. Since P4 supplementary agreement is in continuation of P3 agreement the complainant is having a continuous cause of action right from 29.07.2011. On evaluating the entire materials available on record we find no merit any of the above contention and we find that complaint has been filed within the statutory period of two years and hence the complaint is well within time. The point answered in favor of the complainant.
Point No.4&5
17. PW4 is the complainant himself and PW1 is the wife and power of attorney holder of the original complainant(PW4) The oral evidence of PW1and PW4 would establish the reason for executing supplementary agreement. It is brought out in evidence through PW1 and PW4 that on 29.07.2011, PW4 and opposite party entered into Ext.P3 agreement for constructing a residential villa at the property owned by PW4 for a total amount Rs.57,00,000/-. The time limit fixed for completing the construction was 10 months and it was further agreed that the proportionate amount from the total agreed construction cost will be paid to the opposite party as per the progress of the work. The specific allegation in respect of the above building construction is that the opposite party has received excess amount than the agreed amount. But the construction work was not completed by the opposite party and that the work already done was substandard in nature and thereby the opposite party has committed deficiency in service and unfair trade practice. The materials available on record would indicate that even before executing the agreement the opposite party was fully convinced regarding the nature of the works to be carried out. The plan prepared for the construction of the residential villa was also handed over to the opposite party. It is also brought out in evidence that the opposite party after having studied the nature of work calculated the cost of construction which were mutually agreed between the parties. It is brought out in evidence through PW1 and 4 that the opposite party accepted the amount at various stages and the amount paid exceeded the agreed amount but the work was not finished by the opposite party. According to PW1&PW4 the opposite party had received more than the entire agreed amount before completing the construction work. It is also brought in evidence that the work of the villa was dragged on and finally it came to a standstill position.
18. According to the PW4 he was working abroad during this time and getting information regarding the real state of affairs from PW1 he came to the scene and found that only 45% of the work was completed. When the complainant enquired regarding the delay of completing the construction work the opposite party sought further time and asked to execute a supplementary agreement. Accordingly the entered into Ext.P4 supplementary agreement on 12.05.2014 with the opposite party. In the said P4 document it is stated that the entire work will be completed on or before 11.09.2014 and a penalty clause for non-completion of the work within the agreed period was also stated in the P4 supplementary agreement. Accordingly the opposite party is bound to pay 0.1% per day as penalty. The above evidence of PW1 and PW4 remains unchallenged. Hence it is treated as undisputed.
19. Now it is to be considered whether there is any deficiency in service or unfair trade practice on the part of the opposite party contractor in the construction of the villa belongs to the complainant. The learned counsel for the complainant has vehemently argued that the execution of Ext.A4 supplementary agreement itself would indicate that the complainant has not completed the construction work within the prescribed period and the construction work was not carried out in accordance with the terms of agreement. It is also clear from the oral evidence of PW1&4 and Ext.P4 document that there was fault, imperfection, inadequacy in the quality, nature and manner of construction work carried out by the opposite party. It is also brought out in evidence that the opposite party has obtained more amount from the complainant in violation of the terms of agreement. The agreement between the parties admittedly stipulates that the complainant has to pay the amount proportionate to the work carried out. But according to PW1 and PW4 the opposite party has received Rs.1843855/- in excess of the agreed amount for the construction work he has already done. It is the further case of the complainant that the value of work carried out by the opposite party is Rs.4790145/-. The oral evidence of PW1,PW3 and PW4 and Ext.P5 report would support the above case of the complainant. PW2 is the expert commissioner deputed by this Forum/Commission to ascertain the quantity and quality of the work carried out by the opposite party. P5 is the valuation report filed by the expert which would indicate that the Commissioner has carried out a detailed verification of the work and come to the conclusion that the total value of work carried out by the opposite party till that date was Rs.4790145/- and the complainant has paid altogether Rs.6434000/- and the excess amount received by the opposite party contractor is Rs.18,43,855/-. Ext.P6 series receipt and P7&P8 bank statement would probabilise that he has received the amount of Rs.64,34,000/- as claimed by the complainant.
20. DW1 Santhosh Kumar is none other than the opposite party. he has admitted while in the witness box that he received Rs.63,92,000/-. But he would state that the above amount would include Rs.3,60,000/- which is due from the complainant towards the construction of a flat at Ramankulangara. But he has no such case in the written version. Therefore the above claim of the opposite party cannot be considered at all especially when he has not produced any evidence to show that the opposite party has constructed flat at Ramankulangara for the complainant and the said amount is due to him from the complainant.
21. The oral evidence of DW3 Manu who is an electrician cum plumber would show that he has carried out the wiring works a fresh in the newly constructed building belongs to the complainant. It is also brought out in evidence through DW3 that electrical works were carried out not as per the drawings. Hence he has rewired the concealed work as instructed by the complainant. The opposite party would further content that no vouchers has been produced after the date of execution of Ext.P4 supplementary agreement. However the opposite party has admitted that after the execution of supplementary agreement he has received Rs.3,27,000/- through bank which is probabilised by Ext.P11 receipt.
22. The learned counsel for the opposite party has argued that the expert commissioner (PW2) appeared before Forum and given evidence without receiving any summons. Admittedly PW2 appeared before the Forum/Commission as instructed by the complainant’s counsel. How the witness appeared before the Forum whether after receiving summons or not is not much material. The fact to be considered by the Forum/commission is whether the witness has deposed the facts correctly without any bias or prejudice. A witness can said to be an interested witness only if it is proved that he is interested in the outcome of the case. Here in this case even the opposite party has no case that PW2 is a hired witness or he is interested in the outcome of the case. Hence we are inclined to accept the oral evidence of PW2 and Ext.P5 report filed by PW2.
23.According to the opposite party no amount is due from the opposite party to the complainant but more than Rs.8,00,000/- is due from the complainant apart from the cost of material and tools kept at the premises of the complainant. It is well settled that a counter claim raised by the opposite party cannot be considered by the Forum. It is further contented that the complainant has filed the present complaint on the basis of P5 valuation report which according to the opposite party is not admissible in evidence and therefore the complainant is not entitled to get any amount as stated in the memo of account. In the light of the materials available on record and also in view of the admission of the opposite party while in the witness box we find no merit in the above contention. On evaluating the entire materials available on record we come to the conclusion that the opposite party has received Rs.18,43,855/- in excess of the agreed amount and the opposite party is liable to return the said amount to the complainant. It is also brought out in evidence that as the opposite party has not carried out the construction work as per the terms of Ext.P1 to P3 agreement and Ext.P4 supplementary agreement the complainant has sustained much mental agony apart from financial loss. Therefore the complainant is also entitled to get compensation for mental agony and financial loss. The points answered accordingly.
Point No.6
In the result the complaint stands allowed in the following terms.
- The opposite party is directed to pay Rs.18,43,855/- to the complainant being the excess amount received along with interest @ 6% p.a from the date of complaint till realization.
- The opposite party is also directed to pay Rs.1,00,000/- as compensation for the mental agony caused due to deficiency in service committed by the opposite party along with interest @ 6% p.a from the date of complaint till realization.
- The opposite party is further directed to pay Rs.10,000/- as costs of the proceedings to the complainant
- The opposite party is directed to comply with the above directions within 45 days from the date of receipt of copy of this order failing which the complainant is entitled to recover the above amount with interest @ 9% p.a except for costs from the date of complaint till realization from the opposite party and his assets.
Dictated to the Confidential AssistantSmt. Deepa.S transcribed and typed by her corrected by me and pronounced in theOpen Commission this the 21st day ofApril 2021.
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 :Sreeja
PW2 :Koshy John
PW3 :A.John
PW4 :Ayyappan Pillai
PW5 :Livin
Documents marked for the complainant
Ext.P1 : Work agreement dated 24.03.2011
Ext.P2 :Agreement dated 31.03.2011
Ext.P3 : Agreement dated 29.07.11
Ext.P4 : Agreement dated 12.05.2014
Ext.P5 : Valuation report
Ext.P6series : Receipts/vouchers
Ext.P7 : Statement of account
Ext.P8 :Statement of account
Ext.P9 :Copy of payment statement
Ext.P10 series: Receipts
Ext.P11 series:Receipts
Ext.P12:Payment statement
Witnesses Examined for the opposite party:-
DW1 :Satheesh Kumar
DW2 : Thulaseedharan Pillai
DW3 : Manu
Documents marked for opposite party:- Nil
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
