DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 11th day of July, 2023
Present : Sri. Vinay Menon V., President
: Sri. Krishnankutty N.K., Member Date of Filing: 11/11/2019
CC/259/2019
Umaiba Ammal K.,
W/o.Late P.T.Shahul Hameed,
S Villa, Krishna Road,
Pirayiril (PO),
Palakkad - Complainant
(By Adv. Sreeprakash)
Vs
Girish K.,
S/o.Krishnankutty,
Contractor,
Kanjikulam House,
Marutha Road,
Palakkad - Opposite party
(O.P. by Adv.C.Nandakumaran)
O R D E R
By Sri. Vinay Menon V., President
- Essential pleadings of the complainant are that she handed over the construction works of her house, after part being completed to the O.P. Cost of construction was estimated at Rs. 21, 25,495/-. But the O.P. party failed to execute the construction completely and meticulously. Hence the complainant had to complete part of the construction. The O.P. is in possession of extra amounts. This complaint is filed seeking return of extra amounts and for compensation for deficiency in service.
- O.P.s stoutly contested the plaint pleadings stating that the O.P. had carried out the works efficiently and that he had carried out extra works as per the direction of the complainant. Receipt of Rs. 20,50,900/- is admitted . The O.P. had incurred additional expense of Rs. 3,71,641/- for the extra works carried out, but complainant failed to pay this amount. Hence the O.P. filed a suit for money as O.S. 94/2020 before the Munsiff’s Court, Palakkad. Thus the complaint only needs to be dismissed.
- The following issues needs consideration to adjudicate the dispute:
1. Whether the complainant has succeeded in proving that she is entitled to receive Rs. 5,50,405/-?
2. Whether there is any deficiency in service or unfair trade practice on the part of opposite party?
3. Whether the complainant is entitled to receive any of the reliefs sought for?
4. Any other reliefs?
4. (i) Complainant filed proof affidavit and marked Exts. A1 to A4. Complainant was
examined as PW1.
(ii) Report of the expert commissioner was marked as Ext.C1.
(iii) Opposite party filed proof affidavit, but did not file any documentary evidence in support of their pleadings.
Since, from the start of evidence stage, the O.P. failed to comply with the directives of this Commission, the O.P. was refused the opportunity to stand trial by dismissing an application (I.A. 349/2023) which they filed at the fag end of the proceedings. Any adverse presumptions can be availed as against the O.P.
Issue No. 1
5. Statement of account, as can be assimilated from a reading of the complainant’s pleadings, is as herein below:
1. Expense for works completed at the time of
handing over of site to O.P. :: Rs. 3,00,000/-
2. Amount that O.P. had agreed to return :: Rs. 2,50,000/-
3. Contractual amount as per Ext. A1 :: Rs. 21,25,495/-
4. Amount paid by complainant :: Rs. 20,50,900/-
5. Cost of works actually carried out :: Rs. 18,25,405/-
6. Difference [(4) – (5)] :: Rs. 2,25,405/-
7. Cost of works carried out by complainant
as O.P failed to carry out the work :: Rs. 75,000/-
8. Complaint claim [(2) + (6) + (7)] :: Rs. 5,50,405/-
6. Per pleadings and reliefs sought for, complainant has to prove that she is entitled to return of the aforesaid amount of Rs. 5,50,405/-. In order to appreciate the sustainability of her pleadings, it requires that the complainant prove 3 essentially integral facts:
(1) that O.P. had agreed to return Rs. 2,50,000/-;
(2) that cost of works carried out were only to the tune of Rs. 18,25,405/-; and
(3) that she had carried out works to the extent of Rs. 75,000/-.
7. (a) First claim that requires adjudication is regarding the return of Rs. 2,50,000/-. Documentary evidence of the complainant comprise of Exts. A1 to A4. Ext. A1 is the agreement entered into between the parties hereto stating the works to be carried out and the schedule of payments to be effected. There is no mention of returning of any amounts in Ext. A1. Further, if the work of foundation was already finished, we fail to see the logic behind the pleading that the O.P., who took up the work a later stage, undertook to return the cost of works carried out at an earlier stage by someone else, who, in the facts and circumstances of the case, is a third party.
(b) Ext. C1 is the Commission Report filed by the expert commissioner. Eventhough both the parties had filed their respective memos and got the cost for construction of foundation reported, observation of the commissioner that the cost is Rs. 2,50,000/- is not enough to show that the O.P. had undertook to pay for construction of the same.
(b) Thus we hold that the complainant has failed to prove that the O.P. is liable to pay the complainant Rs. 2, 50,000/-
8. (a) The second claim of the complainant is with regard to the return of Rs. 2,25,405/-, being the difference between the amounts actually paid by the complainant and the cost of actual extent of works carried out.
(b) Receipt of Rs. 20,50,900/- is admitted by the O.P. Complainant alleged that the actual works carried out was for Rs. 18,25,405/- alone.
(c) As already stated supra, Exts. A1 to A4 are the documentary evidence of the complainant. Ext. C1 is the Commission Report filed by the expert commissioner, to which a routine objection without any substantial material was filed by the O.P. Complainant had no objection to the commission report. Eventhough both the parties filed their separate memos, the total cost of construction is not sought to be ascertained.
(d) Thus the complainant has failed to prove the liability of O.P. to pay her Rs. 2,25,405/-
9. (a) The 3rd claim is with regard to Rs. 75,000/- which the complainant claims were the works the O.P. had failed to carry out, but was carried out by her at her expense.
(b) Eventhough Ext. C1 report makes observation with regard to the expenses that would incur on this count, there is nothing to prove who the author of this construction is.
(d) Thus on this count also the complainant has failed to prove her case.
10. Complainant having failed to prove her claims for Rs. 5,50,000/- (as concluded in paras 7,8 and 9), we dismiss her claim on this count.
Issue No. 2
11. The next question is with regard to any other defects in construction as alleged by the complainant.
12. Eventhough she has stated a number of defects, we need not refer to each one of them as the complainant has taken out an expert commissioner and his report was marked as Ext. C1. Ext. C1 was unopposed by the complainant. As already stated, the O.P. had filed a vapid objection. No steps were taken by the O.P. to have the expert examined. Hence we can safely rely on Ext. C1 to come to a studied conclusion to answer this Issue.
13. Ext. C1 has discussed the findings of the commissioner and has answered the matters sought to be ascertained as seen in the memo filed by respective parties. In page 2 of Ext. C1, there are two schedules showing the cost of defective works. (In the 1st item in the 1st schedule, there is a calculation error, wherein 7 x 15,000 is shown to be 10,50,000/- whereas the correct value is 1,05,000/-. This error is seen corrected in the 2nd schedule). We take the contents in these schedules to be the areas that need re-working.
Off the two schedules, the 2nd schedule shows the total amount required to rectify the defective door windows and carry out the repairs to be Rs. 3,50,000/-.
14. Ext. C1 conclusively prove that the building constructed by the O.P. suffers damage requiring the complainant to expend a further amount of Rs. 3,50,000/- as on 10.02.2021, the date of visit of the commissioner.
15. Thus we find that there is deficiency in service on the part of the O.P.
Issue Nos.3&4
16. Resultantly, based on the findings in issue No. 2 and Ext. C1, we hold that that the complainant is entitled to receive compensation as follows:
1. Opposite parties shall pay an amount of Rs.3,50,000/- to the complainant.
2. This amount shall have enhancement of 20% per annum considering cost escalation for construction per annum till date of payment.
3. The complainant is entitled to a compensation of Rs. 1,00,000/- for deficiency in service.
4. The complainant is entitled to a cost of Rs. 25,000/-.
5. If the orders above are not complied within 45 days of receipt of this Order, the complainant shall be entitled to a solatium of Rs. 500/- per month or part thereof from the date of this Order till the date of final payment of the amounts ordered above.
Pronounced in open court on this the 11th day of July, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Original work agreement dated 14/09/2018
Ext.A2 – Print out of transaction details of A/c No.0940053000000780
Ext.A3 – Set of 21 photographs
Ext.A4 – Endorsements on the reverse of page 4 of Ext.A1
Exhibits marked on the side of the opposite party:
Nil
Court Exhibit:
Ext.C1 – Commission report dated 17/02/2021
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Umaiba Ammal, Complainant
Witness examined on the side of the opposite party:
Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
