IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Wednesday the 18th day of July, 2018.
Filed on 17/10//2015
Present
1. Sri.E.M. Muhammed Ibrahim (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.310/2015
Between
Complainant:- Opposite Parties:-
Sri.Antony Francis Sri.Giri Kumar.P
Kattapuram House, Kuravan Parambil House,
Pandankary.P.O, Pathirappally P.O,
Edathua. Alappuzha.
(By Adv. Vinod Varghese) (By Adv. G.Priyadarsan Thampi)
ORDER
SRI. ANTONY XAVIER (MEMBER)
The complainant case in short is as follows:-
The complainant is a retired Sub Inspector. The complainant for the purpose of putting up a residential building on 21th November 2014 entered into an agreement with the opposite party. The opposite party agreed to complete the residential building before 30th May 2015. The complainant intended to conduct his wife’s retirement and daughter’s marriage function in the newly constructed residence and that facts had been duly impressed upon the opposite party. The opposite party has obtained an amount of Rs.28,00,000/- (twenty eight lakhs only) out of Rs.28,14,268/- the total cost calculated. Thereafter, the complainant noticed poor quality of materials being used in the work particularly the wood used were of different sorts that too fixed improperly. Similar was the case with the construction of the bath rooms. The bathrooms are unworthy of usage wherein closets are fixed inappropriately. Unhygienic water is seemingly seeping out over there. The pergola roofing of the building has been put up imperfectly using poor quality of glasses which not only bore an unpleasant appearance but also allows rain water percolating into the building. The doors and windows fixed apparently look shaky and unstable. The hinges and bolts were left fastened improperly, and the door was virtually drooping sown from the frame leaving extensive fissure between the door and the frame which badly affects the privacy of the rooms. On the roof there are visible fissures began to appear in the concrete that inevitably lead to the deterioration of the building. The plastering of the wall has been effected unevenly which caused a disgraceful appearance. The complainant brought all these defects to the notice of the opposite party. But the opposite party opted to abandon the work in the middle, and left the place. The opposite party contrary to the agreement, unauthorisedlly had used the complainant’s own bricks and sands for the construction. The complainant had to employ other workers to continue the work of the building to get the same completed. The opposite party fleeced huge amount from the complainant on dishonestly delivering materials of inferior quality and flawed workmanship. The complainant had already effected a total payment of Rs.28,00,000/- to the opposite party. As such, the complaint is entitled to get back Rs.7,00,000/- from the opposite party. The opposite party absolutely failed to carry out the work as agreed between the parties. The opposite party abandoned the work in the middle after obtaining excess amount from the complainant. What is more, whatever work carried out was of inferior quality. The opposite party caused mental as well as monetary woes to the complainant. On got aggrieved of this, the complainant approached this Forum for compensation and other relief.
2. On notice being sent, the opposite party turned up and filed version. The opposite party contends that the complainant suppressed material particulars, and approached this Forum. Initially, in the receipt given to the complainant it was stated that the work would be completed within 30th May 2015. However in the quotation dated 4th November 2014 it was agreed upon by both the parties that the work would be completed within 12 months from the date of the quotation. The opposite party proceeded on with the construction work in line with the plan given to him. However on many occasions the complainant requested to demolish the almost finished walls or other structures, and the opposite party was constrained to carry out the work in line with the complainant’s and his daughter’s fresh ideas. The kitchen and bed room walls already built were replaced, and the opposite party in that process had to incur excess expenditure. The bathroom-work and roof-concrete were carried out using skilful workmanship. Qualitative fittings and iron rods were used with abundant care and absolute workmanship under the supervision of both the parties. At the material time, the complainant or his daughter who were always overseeing the work never raised any voice of discontent. The instant attempt of the complainant is to evade the payment of Rs.5,00,000/- due to the opposite party. Notwithstanding co-operation of the complainant, the opposite party completed the work save some finishing touches. Whatever a bit work was left behind incomplete; the same was solely due to the non-co operation of the complainant. The complainant never made make prompt payments as agreed by him. According to the opposite party, the complainant never complied with the provisions of the agreement. The complainant’s allegation as to poor quality of materials and inferior workmanship are baseless. The opposite party has used qualitative glasses in the pergola. Roof and the bath rooms were constructed properly. The complainant’s contention as to excess payment received by the opposite party is absolutely baseless. The complaint is without any basis and the same is only to be dismissed with cost to the opposite party.
3. The complainant evidence consists of the testimony of the complainant as PW1 and the documents Ext.A1 to A6 were marked. On the side of the opposite party, the opposite party was examined as RW1, and two other witnesses were examined as RW2 and RW3, and the documents Ext.B1to B3 were marked. The commission report submitted was marked as Ext.C1, and the photographs as Ext.C2.
4. Bearing in mind the contentions of the parties, the questions that crop up before us for consideration are:-
(a) Whether the opposite party has committed deficiency in service?
(b) Whether the complainant is entitled to get any relief?
5. Heard both sides. The learned counsel for the complainant has filed notes of argument.
6. Point No.1 & 2
The complainant is a retired Sub Inspector. According to the complainant for the purpose of putting up a residential building for himself on 21th November 2014 entered into an agreement with the opposite party. The opposite party agreed to complete the residential building before 30th May 2015. The opposite party obtained an amount of Rs.28,00,000/- from the complainant out of the total construction cost of Rs.28,14,268/-. However the opposite party left the construction work in the midway without investing the entire amount the opposite party obtained from the complainant and that the construction work carried out by the opposite party was inferior quality. According to the complainant, the opposite party dragged and delayed the work on unfounded flimsy reasons. The opposite party would contend that the complainant suppressed material particulars, and approached this forum. In the quotation dated 4th November 2014 it was agreed upon by both the parties that the work would be completed within 12 months from the date of the quotation. According to him, the complainant never complied with the payment schedule. The opposite party has finished the entire work except the final round touches. The complainant’s allegations and artifices are mere strategy either to prolong the payments of the work done hitherto or to evade payment for ever. Bearing all these contentions in mind we went through the materials available on record. Admittedly the complainant had entrusted the construction work of his residence to the opposite party. The opposite party has seriously contends that he has completed the work using higher quality of materials, and on insistence of the complainant and his daughter he had to demolish and reconstruct the building virtually deviating from the actual plan. Towards the aforesaid point the opposite party had to invest excess amount than what had been handed over by the complainant. According to the complainant, the opposite party obtained Rs.28,00,000/- from the complainant and left the work unfinished after without putting in the entire amount the opposite party procured from the complainant. The opposite party contends that it was the complainant who stood in the way of the completion of the construction work.
7. Going by the factual matrix of the case in hand, it appears that the thrust of the complainant’s contention mostly rest on his allegations as to the inferior quality of the materials used and the workmanship employed. Keeping the aforesaid complainant’s allegations in view, we made a searching survey of the materials let in by the parties. We went through the Ext.C1commission report, the testimonies of witnesses and other documentary evidences brought on record by the parties. On an analysis of the evidence so available, particularly the commission report and the depositions of RW1 to RW3, it does appear that the complainant’s contention does not inspire confidence in the mind of this Forum. In this backdrop, the only question that arises for consideration is whether the opposite party obtained excess amount from the complainant than the sum he invested for the construction. Towards this aspect, the opposite party contends that on the insistence of the complainant and his daughter, on a couple of occasions the opposite party was constrained to pull down the already raised walls to put up new ones in line with the new ideas on the complainant’s part. In the said process of demolition and reconstruction, and the resultant deviation from the actual sketch and plan, the opposite party had to spend more amount than what actually the complainant had handed over to him. On a perusal of the plan of the disputed building produced before this Forum, it is manifest that the same does not bear the seal or any endorsement of the concerned Panchayat which would establish the authenticity of the said document. What is more the complainant seemingly did not make it a point to bring on record the alleged agreement which is sufficient and satisfactory piece of material either to substantiate or to support his allegations. On evaluating the entire materials available on record we are not inclined to place reliance on the complainant’s case.
In short the complaint failed to establish his case and therefore he is not entitled to get any relief sought for in the complaint. These points answered accordingly. In the result the complaint stands dismissed.
The parties are directed to suffer their respective costs.
Pronounced in open Forum on this 18th day of July 2018.
Sd/-Sri. Antony Xavier (Member) :
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Antony Francis (Witness)
Ext.A1 - Agreement Receipt
Ext.A2(series) - Cash Receipts (8 Nos.)
Ext.A3 - Copy of reply notice dated 26-10-2015
Ext.A4(series) - Vouchers (16 Nos.)
Ext.A5(series) - Bills (11 Nos.)
Ext.A6 - Plan of building
CW1 - Cyril Sebastian( Court Witness)
Ext.C1 - Commission report
Ext.C2(Series) - Photos (11Nos.)
Evidence of the opposite parties:-
RW1 - Girikumar. P (Witness)
RW2 - Suseelan. R (Witness)
Ext.B1 - Copy of registered notice
Ext.B2 - Copy of the photo of Building
Ext.B3 - Details of construction of building
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
