IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 9th day of October 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri. M.Praveen Kumar,Bsc, LL.B ,Member
CC.No.50/15
Prasad : Complainant
Mammoottil Bhavan
Koonayil, Paravoor P.O
[By Adv.D.Sathyapal]
V/s
- Damseen Antorny : Opposite parties
Thuppayath Builders and Developers
Kottiyam P.O
- Asha(Gladis)
Thuppayath Builders and Developers
Kottiyam P.O
[By Adv.A.Shanavas Khan]
FAIR ORDER
E.M.MUHAMMED IBRAHIM , President
This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act.
2. The averments in the complaint in short are as follows.
The complainant is the owner of 10 cents of landed property in Resurvey No.253/132 of Kottiyam Village in Block No.28. He has obtained a permit for constructing a three storied building from Adichanalloor Panchayath Office. The 1st opposite party Sri.Damseen Antorny is the Chairman and Smt.Asha(Gladis) is the Director of Thuppayath Builders and developers, Kottiyam. The 1st and 2nd opposite parties are mutually husband and wife. The complainant entered into an agreement with Thuppayath Builders and Developers for constructing the above building having 2540 sq.ft each for each of the ground floor and 1st floor and also having balcony on three sides. The opposite parties agreed to carry out all the construction works of the
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building and also the presence and service of expert engineers was also assured. The opposite parties demanded Rs.15 Lakhs as advance for purchasing construction materials. On 15.03.13 the complainant entered into an agreement with the opposite parties for constructing a 2 storied building consisting of 5080 sq.ft and had also given Rs.15 Lakhs as advance. The total amount fixed for the construction of above house building was Rs.68 Lakhs. The complainant paid the agreed amount of Rs.68 Lakhs on 14 instalments after deducting the amount for the construction of 275 sq.ft building which was found less in the construction.
3. The complainant paid Rs.407000/- on 29.10.14 as last instalment and while paying the amount the opposite parties agreed to complete the construction within 15 days and hand over key. But after receiving the last instalment the opposite parties had not to carried out any more work. Though he went to the office of the opposite parties he could not trace out them. Originally the opposite parties agreed to complete the construction work within 7 months. But even after the expiry of 2 years the construction work has not been completed and the opposite parties dragged the construction work stating one reason or other. Substantial portion of the construction work is yet to be completed. The nature of the remaining work and amount required for the same has been narrated in the complaint and according to the complainant the cost of the remaining construction yet to be completed is Rs.1412000/-. He had availing loan from the co-operative bank for raising fund for the construction and he has been paying interest @ 16 % per annum and as the work has been delayed he has sustained heavy loss. As the construction work was not over within the stipulated period the complainant has also sustained mental agony apart from financial loss. The complainant further prays to direct the opposite parties to pay Rs.1412000/- which was received in excess Rs.3 Lakhs as
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compensation for the mental agony along with 16% interest for the amount raised and costs of the proceedings.
4. The opposite parties resisted the complaint by filing a joint written version, by admitting that on 15.03.13 the complainant and 1st opposite party entered into a contract for the construction of building having total 5080 sq.ft for Rs.68 Lakhs and also admitted to have received an amount of Rs.15 Lakhs as advance by the 1st opposite party. But according to the opposite parties the agreement is based on the drawings prepared by another consultant before entering into the contract with opposite parties. However the opposite parties would deny that Thuppayath Builders and Developers is a Company and also deny that Smt.Asha (Gladis) is the Chairman of the said Company. But according to the opposite parties Thuppayath Builders and Developers is a proprietorship concern and Damseen Antony the 1st opposite party is its Proprietor and the complainant has entered into a contract with Damseen Antorny who is the proprietor of the above concern. The agreement was not to construct ground floor and 1st floor having sq.ft of 2540 each is false. The discussion was regarding the construction of the total sq.ft of 5080 which is mentioned in the contract also. The construction of the balcony as such is not included in the contract. But as per the instruction of the complainant the 1st opposite party has constructed the same according to the requirement of the complainant. The construction of hand rails, safety grills in steps using steel pipe was not included in the contract. The allegation that the shutter has not been fixed is incorrect and the same was already fixed properly by the opposite party. The averment that the electrical work and plumbing work is not done is not true. The concealed work with regard to electrical work is completed. The rest of the electrical work is usually done only after the completion of other work like painting. But the work was stopped as there was arguments and disagreement between the complainant and opposite party. The construction
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of septic tank is not done. It is clearly stated in the contract that the construction of septic tank is free. But this was offered by the opposite party as free when all the payments are correctly made by the complainant. The exterior earth filling is not included in the contract. The averment that the interim earth filling is not done is false. The same is properly completed by the counter petitioners. The laying of interlock construction of stair room is not included in the contract, so the same was not done. The complainant came to the opposite parties office and said that he measured the building in the absence of the opposite party and found a shortage of 275 sq.ft. The opposite party believed him and signed the revised area written in a white paper. Later the complainant and opposite party measured the building together and found there is no shortage of area as shown in the contract. Hence the complainant is liable to pay the remaining Rs.368000/- as per contract to complete the work. Over and above the opposite parties have constructed balcony which is measured on 401 sq.ft. That construction was done under the instruction of the complainant and he has agreed to pay the additional amount at the rate of contract. Hence the petitioner is liable to pay 401x1300 Rs./sq.feet Rs.5,20,000/- as charges for construction. The complainant has delayed the construction by not clearing the dues and raising unnecessary arguments and finally filing a petition before this Forum. The labour charges and the cost of the tiles has increased in the present date. The delay in the construction was because of the complainant’s non payment and unnecessary interference. Hence the opposite parties are entitled to get excess amount as shown above from the complainant. The opposite parties further pray to dismiss the complaint with costs and compensatory costs.
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5. In view of the above pleadings the points that arise for consideration are:-
- Whether the complainant would come within the ambit of “consumer” as defined under Section 2(1)(d)(ii) of the Consumer Protection Act 1986?
- Whether there is any deficiency in service on the side of the opposite parties?
- Whether the counter claim raised by the opposite parties is maintainable?
- Whether the opposite parties have completed the construction work and handed over the key as stipulated in Ext.P1 agreement?
- Whether the complainant is entitled to get refunded Rs.14,12000/- as cost of construction work yet to be completed?
- Whether the complainant is entitled to get compensation? If so what would be the quantum of compensation to be awarded?
- Reliefs and costs.
6. Evidence on the side of the complainant consists of oral evidence of PW1 and PW2 and Ext.P1 to P23 documents. Evidence on the side of the opposite parties consists of the oral evidence of DW1 and Ex.D1(subject to proof). The report of the expert commissioner has been marked as Ext.C1.
7. The learned counsel appearing for the complainant and opposite parties have filed notes of arguments. Heard both sides.
Point No.1
8. The crux of the complainants case is that the opposite parties entered into Ext.P1 contract with the complainant for constructing a two storied shoping complex consisting of 5080 sq.ft within a period of 7 months for a total consideration of Rs.68,00,000/- and out of the said amount Rs.15,00,000/- was received by the 1st opposite party as advance. But the opposite parties after receiving the entire consideration for construction have not completed the construction even after the period of 2 years. It is the further case of the
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complainant that it is stipulated in Ext.P1 agreement the construction work has to be completed within 7 months and possession of the shopping complex has to be handed over to the complainant. According to the complainant the opposite parties dragged the construction work stating one reason or other and a substantial portion of the work is yet to be completed and the costs of construction yet to be completed is Rs.1412000/-. The complainant has availed loan from the Co-operative Bank for raising fund for the construction and has been paying interest @ 16% p.a and as the completion of the work has been delayed he has been paying the interest at the bank. Furthermore as the construction work has not over within the stipulated period the complainant sustained mental agony apart from financial loss. In the circumstance the complainant prays to pass an order directing the opposite party to refund the excess amount received from the complainant, compensation and costs.
9.The opposite parties would admit the execution of Ext.P1 agreement, but raised many fold arguments to resist the complaint. The 1st argument is that the complaint is not maintainable in law as the complainant is not a consumer and therefore the forum has no jurisdiction to entertain the complaint and the opposite parties pray to dismiss the complaint without going into the merit of the same. The learned counsel for the opposite parties would content that the agreement is for the construction of a shopping mall which is not for the personal use of the complainant to earn his livelihood and it is for commercial use. Hence the complainant would not come within the definition of a consumer. The learned counsel for the opposite parties has relied on as much as 5 decisions of the Hon’ble High Court of Kerala, National Commission and the Supreme Court which are mentioned in Page No.2 of the argument note. But none of the above decisions are applicable to the facts of the present case.
10. Before considering the merit of the above argument it is to be pointed out that the opposite parties are having no contention that the
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complainant is not a consumer in their written version. They have been raising such an argument in the argument notes for the 1st time. The learned counsel for the opposite parties have argued that maintainability is a question of law and the same can be raised at any time and even at the appellate stage. As the maintainability on the ground of a question of law has been argued we are inclined to consider the same.
11. It is well settled that, the term consumer has to be understood in the facts and circumstances of each case and also keeping in view of the object of the Consumer Protection Act 1986. It is to be pointed out that the object of the Act is to protect the economic interest of a consumer as a purchaser of goods or
user of service. Here in this case the complainant is the land owner and the user of the service of the builder for consideration. The term consumer has been defined under Section 2(1)(d)(ii) of the Consumer Protection Act 1986. As per Section 2(1)(d)(ii) any person who hires or avails of any service for consideration which has been paid or promised or partly paid and partly promised and includes any beneficiary of such service other than the person who hires or avails of the services for consideration. But does not include a person who avails of such service for any commercial purpose. In view of the dictum laid down by the National Commission in Secretary Consumer Guidance and Research Society of India Vs M/s BPL India Ltd. Reported in 1(1992) CPJ 140 (N.C) it is clear that if the following two tests are satisfied then only the availing of service can be termed for commercial purpose.
i.Service must have been availed for being used in profit making activity engaged in a large scale.
ii.There should be close and direct nexus between the availing of service and profit making activity. By applying the above two test to the facts of the present case it can be said that the service of the contractor was used not for profit
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making activity and there is no nexus between the construction of the building and profit making activity even though the building is a shopping mall.
12. Learned counsel for the complainant by relying on the dictum laid down by the Hon’ble Supreme Court reported in Bunga Daniel Babu Vs M/s Sri.Vasudeva Construction and others reported 2016 KHC 6499(SC) has argued that if there is availing of service of builder by land owner for a building construction for consideration to that extent land owner is a consumer. We find force in the above argument. Even if it is considered that the P1 contract is to build a shopping mall it would not implies that it was built for letting it for rent. The owner himself can use the shopping mall for conducting shops to earn his lively hood. Even if the complainant is intending to let the rooms on rent it would not attract the term commercial purpose or a profit making activity as argued by the learned counsel for the opposite parties.
13. In view of the dictum laid down by the National Commission and Supreme Court and in the light of the above discussion we are of the view that as the complainant who is the land owner has entrusted the opposite parties by executing Ext.P1 contract to construct a double storied building for consideration and as the complainant is having complaint of deficiency in service with regard to the construction of the building, the complainant would come within the definition of consumer under Section 2(1)(d)(ii) of the Consumer Protection Act. In the circumstance we hold that the complaint is maintainable. The point answered accordingly.
Point No.2 to 6
14. For avoiding repetition of discussion of materials these 5 points are considered together. The following are the un disputed rather admitted facts in this case. The 1st and 2nd opposite parties are mutually husband and wife . That they have entered into Ext.P1 contract with the complainant for constructing
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double storied building having a plinth area of 5080 sq.ft for Rs.68,00,000/-. Out of the said consideration Rs.15,00,000/- was received as advance by the 1st opposite party. The plinth area of each floor is 2540 sq.ft as per Ext.P2 approved plan.
15. The definite case of the complainant is that M/s Tuppayath Builders and Developers is a Company, that the 1st opposite party Damseen Antony is the chairman and his wife Asha(Gladis) is the Director of Tuppayath Builders and Developers which entered into Ext.P1 agreement for the construction of the building for the complainant. Bu according to the opposite parties Tuppayath Builders and Developers is not a company but a proprietorship concern and Sri.Damseen Antony is its proprietor and the complainant has entered into a contract with Damseen Antony who is the proprietor of the above concern and Smt.Asha(Gladis) is having no connection with the agreement. A plain reading of Ext.P1 agreement and other materials available on record would not indicate that Thuppayath builders and Developers is neither a company nor a partnership firm. The above Tuppayath Builders and Developers is the 2nd opposite party to Ext.P1 agreement. The address of the 2nd opposite party is shown as Tuppayath Builders and Developers which is an institution which has been offering construction of building of other structure and its sales. The seal of the 2nd opposite party to the agreement would read Tuppayath Construction and Developers, Kottiyam, Kollam. Neither the address nor the seal of the 2nd party to the agreement would indicate that it is a company. However in the name of the institution the terms like “Builders” and “Developers” are used in plural and not in singular. The opposite party have not produced any documentary evidence such as registration certificate or any other document to indicate that it is a proprietary concern. In view of the facts and circumstances available on record the said institution can be considered as an unregistered association of both 1st and 2nd opposite party who are mutually husband and wife. Though
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Ext.P1 is seen signed only by 1st opposite party and the complainant it is clear from the other circumstances including the admission of DW1 that she has also actively engaged in the construction of the building and its supervision and even in the preparation of Ext.P1 agreement. DW1 would specifically admit that she has supervised the work of construction on the basis of the approved plan. In view of the admission of DW1 that she has actively involved in the preparation of Ext.P1 agreement, supervision of the construction work etc. it cannot be held that 1st opposite party alone is liable for the deficiency in service if any and she is also equally liable for any deficiency in service if proved and opposite party 2 cannot be exonerated simply because she has not signed in Ext.P1 agreement.
16. It is an admitted case that Ext.P1 agreement was for constructing the building according to the approved plan drawings and specifications which were hand over to the 1st opposite party Damseen Antorny. Ext.P2 is the approved plan which would indicate that the proposed building is a three stories building, each floor is having a plinth area of 236 sq.mtr which is admittedly equalent to 2540 sq.ft and the total plinth area of ground floor and 1st floor are 5080 sq.ft. It is an admitted case that though the approved plan is for the construction of three floors, the parties have agreed as per Ext.P1 to construct only ground floor and 1st floor. Therefore the opposite parties are bound to construct ground floor consisting of 236 sq.mtr and 1st floor consisting of 236 sq.mtr. The main grievance of the complainant is that the opposite parties have not constructed the entire plinth area of building consisting of ground floor and 1st floor as agreed in Ext.A1 and A2 documents. Though the opposite parties disputed the above claim of the complainant to the effect that the plinth area of the building constructed is less than the area shown in the approved plan and Ext.P1 agreement. According to the opposite parties the area is in excess of the agreed area and hence the opposite parties are entitled to get more amount from
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the complainant. However the materials available on record including the oral evidence of DW1 and PW2 coupled with Ext.C1 report of the Expert Commissioner would probablies the case of the complainant and falsifies the above contention of the opposite parties in this regard. DW1 who is none other than the wife of the 1st opposite party contractor and also engaged in supervision of the construction work undertaken by Tuppayath Builders and Developers would admit during cross examination that the total plinth area of the building stated in C1 report is 4591 sq.ft which is short of 489 sq.ft.
17. However the opposite parties would raise a counter claim of Rs.5,20,000/- towards the costs of excess construction of 466.24 sq.ft in the balcony. In this connection it is to be pointed out that there is absolutely no provision in the Consumer Protection Act to consider a counter claim raised by the opposite parties in a complaint filed alleging deficiency in service. However it is to be pointed out that DW1 would admit that the balcony has been constructed less than 200 sq.ft as agreed which would indicate that even as per the approved plan and drawings there is provision for balcony which is more clear from the pleading in the complaint and oral evidence of PW1. The opposite parties have not raised any such claim of additional construction of Balcony in Ext.P23 reply notice which is the earliest version of the opposite parties. In view of the materials available on record and in the absence of any specific provision in the Consumer Protection Act we find no merit in the counter claim raised by the opposite parties.
18. It is the further case of the complainant that the opposite parties have constructed the basement not in accordance with Ext.P1 agreement and Ext.P2 plan. Hence there is deficiency in service on the part of the opposite parties. It is to be pointed out that as per Ext.A2 plan the height of the basement will be 1 meter above the ground level(road level). The opposite parties have also undertaken in Ext.P1 agreement that they would construct the building strictly
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in accordance with the approved plan and specifications. But the materials available on record would indicate that the opposite parties have constructed the basement below the agreed height and there is chance of flowing dirty water from the NH road towards the building and on that count the opposite parties have saved the construction cost. DW1 would admit during cross examination that the basement was constructed below the road level and that the building situates at the northern side of the NH road. However now dirty water from NH has not been flowing towards the building. But PW2, the expert commissioner has reported as Item No.2 in page No.1 of Ext.C1 report that the shop building was constructed on the existing ground level which is about 1 meter below the NH road level. Usually if a building is constructed at the side of the NH or any other road it is being constructed above the road level by anticipating the future development of the road. In this case also as per Ext.P1 agreement and P2 plan the building is expected to be constructed 1 metre above the ground level if that be so it will be above the present road level and there is no chance of entering dirty water flowing from the NH road into the building or at the premises of the building. It is pertinent to note that the opposite party is expected to construct the basement of the building and the structure of the building as per the structural and other plans approved by both parties and admittedly the said structural plan which would indicate the height of the basement from the ground level is in the possession of the 1st opposite party has not been produced before the forum. Therefore adverse inference has to be drawn to the effect that if the structural plan is produced by the opposite party it would show that the basement is to be constructed 1 meter above the ground level. However the plan approved by the municipality which is marked as Ext.P2 would show that the basement is to be constructed above 1 meter from the ground level. But in this case even DW1 has not denied that the building is far below the road level and there is likely hood of entering dirty water from
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NH road into the building but according to DW1 at present that possibility is blocked. The oral evidence of PW2 and Ext.C1 report of the expert also would probabilise the above allegation of the complainant. In this circumstance it is crystal clear that there is deficiency in service on the side of the opposite party 1&2 as the 2nd opposite party has constructed the said basement under the active supervision of the 1st opposite party in violation of the terms of Ext.P1contract and Est.P2 plan and there by the complainant has sustained mental agony apart from monitory loss and the opposite parties have gained a substantial amount in the construction work on that count. The opposite parties have not specifically denied the above version of PW1 in his proof affidavit. However the complainant has not claimed any amount or compensation on this count except claim of compensation of Rs.3,00,000/- towards mental agony.
19. Yet another allegation of the complainant is that the 1st opposite party inspite of obtaining all instalment amount including the last instalment amounting to Rs.4,07,000/- on 29.10.14, has not completed the building as agreed by him nor handed over the key within 15 days as agreed. The oral evidence of PW1, admission of DW1 coupled with Ext.P22 lawyer notice would indicate that the complainant has paid the entire amount of Rs.68,00,000/- according to the progress of the construction work and as demanded by the 1st opposite party. However the opposite parties had not carried out construction of the building as shown Ext.P1 and P2 and has also not cared to carry out several items of work. It is the further allegation that though the opposite parties have agreed to complete the construction within 7 month they have not completed construction work even after the expiry of 2 years. According to the complainant a substantial portion of the work is yet to be completed but the 1st opposite party has received the full payment less payment for the reduction of the plinth area to the extent of 291 sq.ft and the cost of remaining construction yet to be completed has been calculated by the
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complainant to the tune of Rs.14,12,000/-. The above allegation of the complainant has been resisted by the opposite parties in the argument note mainly on the ground that the delay in completing the construction is due to the fault of the complainant that he has not paid the full amount as per the agreement and Rs.4,26,000/- is due from the complainant towards the construction work carried out by them and without receiving the same they could not complete the construction work. But they have no such contention in their written version dated 14.10.15. The materials available on record including the admission of DW1 would indicate that the 1st opposite party has received all the instalment payment from the complainant as demanded by him in each stage and the final payment was received on 29.10.14 whih is evident from Ext.P4 to P18 receipts signed by the 1st opposite party. But even after months of receiving the final payment the opposite parties have not completed the construction work which is evident from the admission of DW1.In the circumstance the allegation of non payment of instalment amount in time is not a valid ground to justify the non completion of the construction work.
20. The further contention of the opposite parties is that the complainant insisted additional work such as construction of slab on 4 sides of the ground floor and as he constructed the same and white washed it and on that count the complainant is bound to pay Rs.1,96,575/-. He has also constructed slab on 4 sides of the 1st floor also for which he is entitled to get Rs.4,44,902/-. But unfortunately the opposite parties has no such contentions in their joint written version. Therefore it is clear that if at all the opposite parties have constructed any slab on the ground floor and 1st floor the same is to be considered as part of the original construction agreed as per the terms of Ext.P1 agreement and Ext.P2 plan. If that be not so he could have raised such a claim in his Ext.P23 reply notice as well as in the written version especially when the alleged excess construction involves Rupees five and odd lacks. In the circumstance we are
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not inclined to accept the above contention of the opposite parties regarding excess construction or demand of the cost of excess construction as a ground or justification for the inordinate delay in completing the construction work.
21. However DW1 would admit during cross examination that the extent of total plinth area stated in the expert report is 4591 sq.ft only and the same is true and correct and that the allegation that basement of the building has been constructed below the ground level is also correct and that only in one case the contractor is entitled to realise extra charge which is for laying vitrified tiles. In other words if the complainant is inclined to change the vitrified tiles according to his choice the difference between the costs agreed as stated in Ext.P1 agreement and the cost to be paid for purchasing high quality vitrified tiles is to be borne by the complainant himself and in no other situation the complainant is expected to pay any additional charge.
22. DW1 would further admit during cross examination that as stair room has not been completed neither the completion certificate nor the building number has been received. Though DW1 would claim that she is not a party to Ext.P1 agreement nor involved in the construction work and she has only supervised the work and the 1st opposite party has engaged in the construction work and if at all there is any deficiency in service she is not responsible for the same. However it is clear from the admission of DW1 during cross examination that she has received Ext.P22 notice and sent Ext.P23 reply through Adv.Sathyavrathan and what is stated in P22 and P23 are relating to construction of the building involved in this case. Though DW1 denied having prepared structural, architectural, electrical and plumbing designs, she would admit that what is stated in page No.5 of P1 agreement that she had prepared the above plans with the knowledge and consent of the complainant is correct.
23. The specific case of the complainant is that the area of the two storied building constructed by the opposite party is short of plinth area and therefore
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the opposite parties are not entitled to get the full construction cost stated in Ext.P1 agreement PW1 has also deposed to that effect. The above version of PW1 stands probabilised by the oral evidence of PW2 and admission of DW1 and Ext.C1 report. DW1 during cross examination by the learned counsel for the complainant would admit that the shopping mall has been constructed not in accordance with approved plan and there is shortage in the plinth area and what is stated in the expert report that total plinth area of the building is only 4591 sq.ft is correct. In this connection it is to be pointed out that the earlier version of DW1 that the plinth area constructed is 5080 sq.ft is wrong. Subsequently she has admitted that plinth area stated in Ext.C1 Expert Report
is correct. In the circumstance it is clear that the plinth area of the building is only 4591 sq.ft as noted by the expert commissioner in Ext.C1 report. Hence there is a substantial difference in the plinth area of the building constructed and agreed. It is further to be pointed out that even according to DW1 the entire construction work has not been carried out. The oral evidence of PW2 expert commissioner coupled with Ext.C1 report would indicate that a number of substantial construction works in the building is yet to be completed. In the circumstance it is crystal clear that the claim of the opposite parties that they have constructed the building as per the approved plan, permit and other specifications is totally incorrect.
24. It is further to be pointed out that the 1st opposite party has not mounted the box and given evidence. But the 2nd opposite party has filed affidavit and has been cross examined as DW1. According to DW1 she is having no relationship with the day to day business of Tuppayath Builders. But as the complainant has included her name in the complaint he has filed proof affidavit and has not filed the same for and on behalf of the Unregistered Association by name Thuppayath Builders and Developers or on behalf of 1st opposite party. In the circumstances it is clear that the evidence tendered by
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DW1 is on behalf of herself and not on behalf of 1st opposite party. As the 1st opposite party has not mounted the witness box and given evidence in the support of his contentions adverse inference has to be drawn against the 1st opposite party as provided under Section 114(g) of the Indian Evidence Act.
25. The oral evidence of PW2 the Expert commissioner who is a retired Executive Engineer of PWD would show that {Kuv seh-en \n¶pw ¹m³ {]Imcw hS¡phiw Hcp aoäÀ Db-c-Ww, sX¡v hiw 1.90 aoäÀ Db-c-Ww. Rm³ sN¶v I-t¸mÄ hS¡v hiw Xd \nc¸v am{Xta DÅq. DbÀ¯n-bn-«nà F³.-F¨v  \n¶pw aen-\-Pew sI«nS-¯n-te¡v hcm³ km²-y-X-bp-v. sÌbÀ dqw Iw¹oäv sNbvXn-«n-Ã. sk]vänIv Sm¦v sI«nbn-«n-Ã. F{Kn-saân Dv. Ipfn-ap-dn-bn Xd-tbmSpw `n¯n-bn ssSepw H«n-¨n-«n-Ã. {Kuv ^vtfmdn hS¡phiw tSmbn-eäv ]Wn-tb-n-S¯v I« h¨p sI«nXncn-¨n-t«-bp-Åp. Ce-Iv{Sn-^n-t¡-j³, ¹Kv t]mbnâv am{Xw ]nSn-¸n-¨n-«pÅp. PW2 commissioner has further reported under the head balance work to be done [at the end of page No.4, 5 and 6 ] as much as 6 items of works which are as follows.
1. Flooring with vitrified tiles in ground floor, 1st floor and closet room.
2. To complete the remaining electrification work.
3. Plumbing work including closet fitting and safety tank work.
4. Construction of parapet wall on balcony and hand rail to the stair case and patch plastering if any.
5. Front step.
6. Construction of two numbers of stair case room.
Further down the commissioner has noted the approximate amount required for the completion of the above work as per the market rate as follows.
1.Flooring tile work = 5,10,000/-
2.Remaining works item No.2to5 = 2,15,000/-
3.Temporary stair case room 2 No.s = 2,00,000/-
=======
Total = 9,25,000/-
=======
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The above version deposed by PW2 expert commissioner and also stated in Ext.C1 report though challenged by the opposite parties severally by filing objection to commission report and also by cross examining PW2, nothing materials has been brought out to disbelieve Ext.C1 report and the oral evidence of the expert commissioner when he was in the witness box as PW2, especially in the light of the admission of DW1 regarding the works yet to be carried out. The above evidence of PW2 and DW1 coupled with Ext.C1 report would probabilise the case of the complainant that the opposite parties have not completed the construction work as stipulated in Ext.P1 agreement and Ext.P2 plan and therefore the opposite parties are not entitled to get the entire cost of construction as claimed in the written version. In view of the above materials on record it is clear that the cost of construction yet to be completed is Rs.9,25,000/- as pointed out by PW2 the expert commissioner in his Ext.C1 report and the complainant is entitled to realise the same from the opposite party No.1&2.
26. In view of the oral evidence of PW1 and PW2 coupled with the admission of DW1 and Ext.C1 expert report it is clear the opposite parties have not carried out the construction of the building in accordance with Ext.P1 agreement and Ext.P2 plan and other specification in the structural drawings that they have also constructed the basement of the building one metre below the NH road level which is against Ext.P2 approved plan. Hence there is clear deficiency in service on the side of 1st and 2nd opposite party and the same has also caused mental agony to the complainant apart from monitory loss as deposed by PW1. Hence the complainant is entitled to get compensation for the same. In view of the facts and circumstances of the case we are of the view that compensation to the tune of Rs.2,00,000/- will be reasonable and sufficient. In the facts and circumstance of the case the complainant is also entitled to get
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costs of the proceedings and we find that Rs.10,000/- will be reasonable and adequate costs. The points answered accordingly.
Point No.7
In the result complaint stands allowed in the following terms.
- The opposite parties No.1&2 are directed to pay Rs.9,25,000/- as cost of construction yet to be completed along with interest @ 6% p.a from the date of complaint till the date of order.
- The opposite parties are also directed to pay Rs.2,00,000/-(Two lakhs only) as compensation along with interest @ 6% p.a from the date of complaint till the date of order.
- The opposite parties are further directed to pay Rs.10,000/- as costs of the proceedings.
- Opposite party No.1&2 are directed to pay the above amount of
Rs.11,25,000/- (9,25,000+2,00,000) along with interest and costs as ordered above within 30 days from the date of receipt of copy of this order failing which the complainant is allowed to realise Rs.11,25,000/- with interest at the rate of 6% till the date of order and there after interest at the rate of 9% per annum till realisation with costs Rs.10,000/- from opposite party No.1&2 jointly and severally and from their assets by filing execution petition under section 25 or 27 of the Consumer Protection Act 1986.
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 9th day of October 2018.
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:Sd/-
Forwarded/by Order
Senior Superintendent
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INDEX
Witness Examined for the Complainant
PW1 : Prasad
PW2 : T.K.Jayakumar
Documents marked for the complainant
Ext.P1 : Original agreement between the complainant and
opposite parties
Ext.P2 : Plan of the building
Ext.P3 : Building permit
Ext.P4 : Receipt for Rs.15,00,000/-
Ext.P5 : Receipt for Rs. 7,00,000/-
Ext.P6 : Receipt for Rs.3,50,000/-
Ext.P7 : Receipt for Rs.3,50,000/-
Ext.P8 : Receipt for Rs.3,50,000/-
Ext.P9 : Receipt for Rs.3,50,000/-
Ext.P8 : Receipt for Rs.3,50,000/-
Ext.P9 : Receipt for Rs.3,50,000/-
Ext.P10 : Receipt for Rs.3,50,000/-
Ext.P11 : Receipt for Rs.1,00,000/-
Ext.P12 : Receipt for Rs.2,50,000/-
Ext.P13 : Receipt for Rs.6,75,000/-
Ext.P14 : Receipt for Rs.4,20,000/-
Ext.P15 : Receipt for Rs.2,10,000/-
Ext.P16 : Receipt for Rs.4,20,000/-
Ext.P17 : Receipt for Rs.4,07,000/-
Ext.P18 : Total outstanding Rs.4,07,000/-
Ext.P19 : Agreement form
Ext.P20 : Notice
Ext.P21 : Copy of notice
Ext.P22 : Copy of notice
Ext.P23 : Reply notice
Witnesses examined for the opposite parties
Ext.DW1 : Gladys.D.Antony
Documents marked for the opposite parties
Ext.D1 : Photograph
Ext.C1 : Expert Report
Muhammed Ibrahim:Sd/
M.Praveen Kumar:Sd/-
Forwarded/by Order
Senior Superintendent
