IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 24th day of June, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No. 134/2012 (Filed on 02.08.2012)
Between:
Thomas. K. Thomas, aged 67,
Anandamadham,
Thattakkadu Muri,
Koipuram Village,
Kumbanad.P.O.,
Pin – 689 547.
(By Adv. R. Gopikrishnan) …. Complainant
And:
M/s. Ferro Technologies,
Aysha Arcade/Towers,
2nd Floor, Changanassery. P.O.,
Pin – 686 102.
Rep. by the Director,
Varghese Pappy Johnson.
(By Adv. S. Manoj) …. Opposite party
O R D E R
Smt. K.P. Padmasree (Member):
Complainant approached this Forum for getting a relief against the opposite party.
2. Brief facts of this complaint is as follows: The complainant is a retired engineer. Opposite party made the complainant to believe that he is very much skilled and experienced in building construction by using Ferro Technology – a cost effective and time saving construction. Accordingly, the complainant and the opposite party entered into an agreement on 09.12.2011 for constructing a residential building for the complainant by using Ferro Technology within 6 months from the date of starting the work. The approximate plinth area is 1846 sq.ft. and total construction cost agreed as Rs. 17,54,100/-. The complainant strictly adhered the provisions of the agreement. But from the very beginning of the construction, opposite party did not show any sincerity and purposely lagged the construction. The construction period ended on 09.06.2012. Before the said period, opposite party has stopped the construction arbitrarily. Till then opposite party had collected an amount of Rs. 12 lakhs from the complainant. In the circumstances, complainant contacted the opposite party in person, through letters and through mediators and requested him to complete the work as per the agreement. But opposite party has not heeded the request of the complainant. Opposite party had completed only 35% of the work and opposite party collected a total amount of Rs. 8,03,581/- for the said work. But if the construction is not completed within a short span of period, the construction cost will increase and it will adversely affect the financial condition of the complainant. Moreover, so many defects were also seen in the construction. The major defects noticed are as follows. Sun shades and air holes were not provided, electrical junction box and switch boxes are not in alignment, wall plastering is defective, car porch and sit out are not completed and major works in the ground floor is remaining. Before applying the epoxy primer in the steel structure, the opposite party had plastered the same. All the said defects will affect the structural stability of the building for curing these defects, Rs. 2 lakhs is necessary. Opposite party failed to cure the said defects in spite of the complainant’s request for the same. Because of the non-completion of the construction of the building the complainant and his wife, who are senior citizens who are also suffering from many diseases are compelled to reside in a rented house by paying Rs.3,000/- as monthly rent. All the above said act of the opposite parties are against the terms and conditions of the agreement and said act is a clear deficiency in service which caused financial loss and mental agony to the complainant and opposite party is liable for the same. Hence this complaint for the realization of Rs. 8,03,581/- the excess amount collected along with compensation of Rs. 1 lakh and cost of this proceedings from the opposite party.
3. Opposite party entered appearance and filed version with the following contentions. Opposite party admitted the execution of the agreement with the complainant for the construction of the complainant’s building by using Ferro Cement Technology. Opposite party is well experienced in Ferro Cement Technology and the complainant entrusted his work after fully convinced of the opposite parties experience in the field. The plinth area of the building as per the plan initially approved and accepted by the complainant is 1846.67 sq.ft., which includes 1212.08 on the ground floor and 634.59 on the 1st floor and the total amount of construction was Rs.17,54,100/-. But as per the suggestion of the complainant the total plinth area is changed as 1976.69 sq.ft. and cost of construction is raised to Rs.18,77,855/- which was accepted and approved by the complainant. As per the terms and conditions in the agreement the complainant has to pay 50% of the total costs at the time of the execution of the agreement. But the complainant has paid only Rs. 4 lakh instead of the 50% of the total construction cost. Moreover the complainant has caused delay in providing electricity, water, lockable storage space and labours accommodation which caused delay in commencing the work. The statement in the complaint that the term of agreement ended on 09.06.2012 is not correct. Complainant also failed to provide door frames and window frames. The allegation that the opposite party has terminated the work is also false. The work of the ground floor of the complainant’s residential building is completed. The complainant has not paid even 60% of the construction cost instead of 90% of the construction cost for the works carried out as per the terms and conditions of the work. The allegation that the opposite party had collected excess amount is also false. The delay in the construction if any has caused is due to the laches on the part of the complainant and the opposite party has not caused any delay in the construction. The works already executed is perfect and good in quality. The sunshades will be constructed only after the completion of the roof. The complainant himself has suggested that no air hole is required as he is intending to fix A/c in all rooms and provision for A/c is also provided in all rooms. The allegation about the alignment of the switch boxes, junction boxes, plastering, non-completion of car porch, sit out, epoxy coating and structural stability are false. The complainant has not sustained any mental agony or financial loss due to the act of the opposite party. Opposite party has carried out more than 75% of the work for which he is entitled to get Rs. 14,00,000/-. However, opposite party is ready and willing to continue the work complying the terms and conditions in the agreement executed on 09.12.2011. With the above contentions, opposite party prays for the dismissal of the complaint as he has not committed any deficiency in service as alleged by the complainant.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral deposition of PW1, CW1, DW1 and DW2 and Ext.A1 to A6 series, Ext.C1 and C2 series and Ext.B1 to B6. After closure of evidence, opposite party filed hearing note and both sides were heard.
6. The Point:- The complainant’s case is that he had entrusted the construction of his residential building with the opposite party and also executed an agreement for the same. As per the agreement dated 09.12.2011 opposite party has to complete the construction within 180 days from the date of commencement of the work by using Ferro Technology. The total plinth area of construction was approximately 1864 sq.ft. and the total construction cost was calculated as Rs. 17,54,100/-. The complainant strictly adhered and pursued the terms and conditions of the agreement. But from the very beginning of the construction, opposite party has not showed any sincerity with the works and he had purposefully lagged the construction. The complainant had already paid Rs. 12 lakhs and the agreed period was ended on 09.06.2012. The opposite party has completed near about 35% of work and excessively collected an amount of Rs. 8,03,581/-. Major work of the building is still remaining. The completed construction works were imperfect and there are so many visible defects also. The main defects are as follows: Sunshade and air holes not provided, electric junction box and switch boxes are not in alignment. Wall plastering is defective; car porch and sit out are not completed. So many major works in the ground floor is still remaining. Epoxy primer is not applied in the steel structure before plastering. All the said defects were brought to the notice of the opposite party by the complainant and requested for curing the defects and for completing the construction, personally and through written letters and through mediators. But opposite party has not done anything positively and he also stopped the constructions. As the construction is not completed, the complainant is compelled to take a rental house for his stay by paying monthly rent of Rs.3,000/-. The above said act of the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant and opposite party is liable to the complainant for the same and hence the complainant prays for allowing the complaint.
7. In order to prove the case of the complainant, complainant filed proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, complainant was examined as PW1 and documents produced were marked as Exts.A1 to A6 series. Ext.A1 is the photocopy of the agreement dated 09.12.2011 executed by the parties. Ext.A2 is the plan/layout of the proposed building of the complainant. Ext.A2(a) is the ground floor plan of the proposed building and Ext.A2(b) is the 1st floor plan of the building. Ext.A3 series (Ext.A3(a) to A3(h) ) are the cash receipts issued by the opposite party for the receipt of a total amount of Rs.12 lakhs. Ext.A4 to A4(c) are the copies of letters sent by the complainant in the name of the opposite party. Ext.A5 to A5(c) series are the postal receipts of Ext.A4 series letters. Ext.A6 to A6(c) are the acknowledgment card of Ext.A4 letters which are signed by the opposite party.
8. On the other hand, the contention of the opposite party is that the agreement executed on 09.02.2011 is for the construction of a residential building as per the plan initially approved and accepted by the complainant for 1846.67 sq.ft. which includes 1212.08 on the ground floor and 634.59 on the 1st floor and the total amount of construction cost was Rs. 17,54,100/-. Later the plan was changed and the plinth area is increased to 1976.69 sq.ft. and the cost was estimated as Rs.18,77,855/-. Some delay has occurred in starting the construction due to the delay in providing the basic facilities by the complainant as against the terms and conditions of the agreement including the non-payment of the first instalment in full. Opposite party has not committed any delay in the work and he worked sincerely and the works done are perfect. The complainant also failed to supply window frames and door frames and other materials which has to be provided by the complainant as per the terms and conditions of the agreement which also caused delay in finishing the work and the defect if any in respect of that work are the responsibility of the complainant and can be rectified at the finishing stage. The allegation regarding the structural stability is baseless. The sun shades and air holes can be constructed at the finishing stage. The allegation that the opposite party had abandoned the work is not correct. Opposite party was constrained to stop the work due to the non-compliance of the terms and conditions in the agreement by the complainant. The commission report cannot be accepted as it does not contain necessary technical details required in the nature of this complaint and as the commissioner is not qualified or experienced in the field of Ferro Technology. Opposite party also submitted that he is willing and prepared to complete the work of the complainant if the complainant is ready and willing to comply the terms and conditions of the agreement. The claim for the realization of Rs.8,03,581/- as alleged by the complainant is baseless and it is without any convincing evidence. At the same time, opposite party had done more works than the amount received by him and hence the complainant is liable to pay the balance amount to the opposite party. Thus according to the opposite party this complaint is not allowable as he had not committed any wrongs as alleged by the complainant and argued for the dismissal of the complaint.
9. In order to prove the contentions of the opposite party, opposite party filed proof affidavit in lieu of his chief examination and produced certain documents and examined one witness.
10. On the basis of the proof affidavit, opposite party was examined as DW1 and the witness who is a qualified expert in the field of Ferro Technology was examined as DW2. Out of the total documents produced by opposite party, two documents were marked through PW1 as B1 and B2 and other documents were marked as B3 to B6 through DW1. Ext.B1 is the revised plan of the ground floor of the complainant’s residential building prepared by the opposite party. Ext.B2 is the revised plan of the 1st floor of the complainant’s residential building prepared by opposite party. Ext.B3 is a photocopy of a letter dated 09.04.2012 issued by the opposite party in the name of the complainant. Ext.B4 is the photocopy of another letter dated 17.04.2012 issued by opposite party in the name of the complainant. Ext.B5 and B6 are the copies of Electrical and Plumbing lay out of the complainant’s building prepared by the opposite party.
11. Apart from the above evidences, an expert commissioner appointed by this Forum who inspected the site and prepared mahazar and took photographs which are produced before this Forum. The said commissioner was examined as CW1 and the mahazar submitted by the commissioner is marked as Ext. C1 and the photographs produced were marked as Ext.C2 series.
12. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that parties have no dispute with regard to the agreement executed by them and the constructions so far done by opposite party and regarding the payment subject to the allegations raised by the complainant. The allegation of the complainant is that the opposite party had collected an excess amount of Rs.8,03,581/- without completing the works within the stipulated time and abandoned the work and the works done are imperfect having so many defects and this complaint is filed for resolving the said alleged grievances. But the complainant’s main prayer in the complaint and in the proof affidavit is only for the realization of the excess amount collected by the opposite party. But there is no specific prayer for redressing the grievances of the complainant in respect of the alleged defects in the construction. Though the complainant claims that the opposite party had collected an excess amount of Rs.8,03,581/-, he had not adduced any direct evidence or he had not even produced any materials to show that how he had reached the conclusion that the opposite party had collected the said excess amount. At the same time, the complainant is relying the commissioner’s report as his evidence. But on a perusal of Ext.C1 commissioner report it is seen that the C1 mahazar is not helpful for taking a decision in this case for the following reasons.
(a) The commissioner’s mahazar is not consistent with the request/matters sought to be ascertained in the Commission Application.
(b) The calculations made by the commissioner in his mahazar is not corresponding to the terms and conditions of the agreement executed by the complainant and opposite party.
13. The commissioner has calculated the amount required for the wooden items which has to be supplied by the opposite party. But in the deposition of PW1 he had categorically stated that he is responsible for the supply of doors etc. If that be so, the calculations made by the commissioner cannot be accepted to that extent.
14. In the mahazar, commissioner has observed that the car porch and sit out are constructed without any support. But as per the deposition of DW2, the supports constructed is sufficient as per Ferro Technology. Further the commissioner excluded the stair case room, car porch and sit out from his calculations by saying that the said constructions are incomplete. It is an admitted fact that the constructions are incomplete. In view of the said facts the commissioners observations and calculations are beyond realities. Therefore, we are not in a position to accept C1 mahazar for taking a decision in this case either for allowing the complainant’s demand for money or for a finding regarding the alleged defects in the construction.
15. The prayers in the complaint are not based on the allegations raised in the complaint and the prayer’s in the complaint is not supported with evidence and the commissioner’s evidence cannot be treated as conclusive. Further, the recitals in Ext.A1 agreement is not clear and not self explanatory. The available evidence shows that the first payment was not paid by the complainant in accordance with the terms and conditions of Ext.A1 agreement and the complainant also committed delay in providing initial facilities to the opposite party. At the same time, opposite party also committed certain laches in his works. In view of the aforesaid short comings of this case, we are of the opinion that both parties committed laches in complying the terms and conditions of the agreement and in the completion of the construction. Therefore, we find that both parties are equally liable and responsible for the issues involved in this case. In the circumstances and in the absence of better evidence, we cannot allow this complaint as prayed for. However, the terms and conditions of Ext.A1 agreement is binding on both parties. At the same time, there is an undertaking from the opposite party that he is ready and willing to complete the works. In such a situation, it is better to pass the following order rather allowing or dismissing the complaint. Accordingly, this Forum passed the following orders, thereby
(1) Opposite party is directed to finish the work in the presence of the complainant or his representative on the basis of the revised plan and as per the terms and conditions contemplated in Ext.A1 agreement within 90 days from the date of receipt of this order, without demanding any further amount from the complainant till the completion of the work.
(2) Opposite party is further directed to rectify the defects, if any, brought to the notice of the opposite party by the complainant, without any hesitation.
(3) Complainant is directed to supply the materials to be supplied by him before starting the works and to pay the balance amount to be paid as per the initial plan and the revised plan on completion of the work by the opposite party.
(4) In the nature and circumstances no orders for cost and compensation.
Declared in the Open Forum on this the 24th day of June, 2013.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Thomas. K. Thomas.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the agreement dated 09.12.2011 executed
between the complainant and opposite party.
A2 : Plan and Layout of the building of the complainant.
A2(a): Ground floor plan of the proposed building.
A2(b): 1st floor plan of the building.
A3 series (A3(a) to A3(h) ) : Cash receipts issued by the
opposite party.
A4 : Copy of letter dated 09.04.2012 sent by the complainant
to the opposite party.
A4(a) : Copy of letter dated 16.04.2012 sent by the complainant
to the opposite party.
A4(b) : Copy of letter dated 01.05.2012 sent by the complainant
to the opposite party.
A4 (c) : Copy of letter dated 07.06.2012 sent by the complainant
to the opposite party.
A5 to A5(c) series : Postal receipts of Ext.A4 series letters.
A6 to A6(c) : Acknowledgment cards of Ext.A4 letters.
Witness examined on the side of the opposite party:
DW1 : Varghese Pappy Johnson
DW2 : G. Hari
Exhibits marked on the side of the opposite party:
B1 : Photocopy of the ground floor plan prepared by the
opposite party.
B2 : Photocopy of the 1st floor plan prepared by opposite party. B3 : Photocopy of a letter dated 09.04.2012 issued by the
opposite party in the name of the complainant.
B4 : Photocopy of letter dated 17.04.2012 issued by opposite
party in the name of the complainant.
B5 & B6 : Photocopy of Electrical and Plumbing lay out of the
complainant’s building prepared by the opposite party.
Court Witness
CW1 : M.T. Jayaprakash
Court Exhibits:
C1 : Mahazar prepared by M.T. Jayaprakash, Superintendenting
Engineer (Retd.), Kerala Public Works Dept.
C2series (C2 to C2(e) : Photos.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Thomas. K. Thomas, Anandamadham,
Thattakkadu Muri, Koipuram Village,
Kumbanad.P.O., Pin – 689 547.
(2) Director, M/s. Ferro Technologies, Aysha
Arcade/Towers, 2nd Floor, Changanassery. P.O.,
Pin – 686 102.
(3) The Stock File.
