BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. No. 292/2002 Filed on 11/07/2002

Dated: 31..07..2010

Complainants:

1. COINPAR, Centre of Indian Consumer Protection and Research, Mudavanmugal, Poojappura, Thiruvananthapuram – 12. Represented by its Secretary General, M.A. Vahab.

2. Thomas. G., Block No.15, CF 6/257, P T Chacko Nagar, Medical College – P.O., Thiruvananthapuram – 695 011.

Opposite party:

Girish Kumar. S., Sai Cottage, Valaviavilakom Lane, Viswambharan Road, Pappanamcode – P.O., Thiruvananthapuram.

(By Adv. P.S. Rameshkumar)

This O.P having been heard on 17..04..2010, the Forum on 31..07..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, the 2^nd complainant entered a service agreement on 01/01/2000 with the opposite party for the construction of a residential building in the property of the complainant, that opposite party completed the work only in part and received payment in excess of what is due as per agreement entered into between the parties, that the estimate of balance works to be completed comes to Rs.1,65,000/- , that opposite party used a substandard material, disregarded the technical specifications and used unskilled labour for the construction of the building, thereby the safety of the building is sacrificed, that the estimated cost of rectification of the defects in the building comes to Rs. 50,000/-, that opposite party agreed to finish the construction work of the building within 9 months from the date of agreement and the said period expired on 3/09/2000, time for completion was extended as the request of the opposite party. Further the opposite party was entrusted to do certain extra works and for that an amount of Rs. 3,25,654/- was paid as advance, that even advance payment was made as demanded opposite party was not prepared to complete the work as agreed. It is submitted by the 2^nd complainant that opposite party collected an amount of Rs. 16,87,654/- for the work estimated at Rs.12,50,000/- and for the extra work the 2^nd complainant agreed to pay Rs. 3,50,000/-. Opposite party has collected an excess amount of Rs. 87,654/-. Hence this complaint to direct opposite party to refund excess collection over the agreed amount at Rs. 87,654/- with interest thereon, cost of work left out at Rs.1,65,000/-, cost of rectifiction of defects at Rs.50,000/- and Rs. 1,50,000/- towards compensation and cost of Rs. 5,000/-.

2. Opposite party filed version contending that paras 2 to 14 of the complaint are not fully correct, that 2^nd complainant entered into an agreement with the opposite party for the construction of a residential building, that the 2^nd complainant is a Mechanical Engineer by qualification, that the total cost initially fixed for the construction as per the agreement is Rs.12,50,000/- and the time originally fixed for the performance of the contract is 9 months, that the agreement also specified the payment of Rs. 20,000/- over and above the agreed rate of Rs. 12,50,000/- as goodwill fee to the contractor after a period of 3 months on completion of the construction, that opposite party commenced the work with effect from 5/01/2000 and the foundation rubble work was finished on 30/1/2000 and opposite party was given Rs.75,000/- on 10/2/2000 by the 2^nd complainant as per Annexure – II to the agreement, that the brick work upto lintel level of the ground floor was completed by 23/02/2002 and the second installment of Rs. 1,50,000/- as per Annexure – II of the agreement was paid to the opposite party on 13/3/2000, that the roof concrete of the ground floor was completed on 3/5/2000 and the 3^rd installment of Rs. 1,50,000/- was paid in two installments, Rs.50,000/- on 24/4/2000 and Rs.1,00,000/- on 4/5/2000, that the 4^th installment payable by the opposite party as per agreement is Rs.1,50,000/- before commencement of the first floor roof form work. Opposite party started the first floor roof form work on 19/7/2000 and in the meantime he had completed the wiring and plastering of the ground floor inside simultaneously, that the 2^nd complainant was facing financial problems and therefore he could pay the 4^th installment only in piecemeal as Rs. 35,000/- on 13/6/2000, Rs. 50,000/- on 30/6/2000, Rs.25,000/- on 2/8/2000 and Rs. 40,000/- on 9/8/2000. On account of the delay in the matter of payment of the 4^th installment, further works also got delayed, 2^nd complainant alone is liable for the said unforseen delay. In the meantime, opposite party carried out the extra works as per the instructions of the 2^nd complainant the total amount of which comes to Rs. 1,47,408/-. Opposite party also carried out some additional works in excess of the original measurements in which opposite party has incurred a cost of Rs. 3,06,539/-. Opposite party is entitled to get a balance amount of Rs.3,24,843/-. Opposite party prepared a final bill for Rs. 3,75,273/- which was due to be paid by the 2^nd complainant to the opposite party, that the 2^nd complainant kept silent without paying the final dues. Opposite party is entitled to get interest at the rate of 12% per annum, thereby a total amount of Rs.4,36,617/- became due from the 2^nd complainant for which opposite party has filed a suit before the Sub Court, Attingal as OS No.120/2002. Hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite party in the construction of the residential building of he complainant?

2. Whether opposite party has collected excess amount from the complainant?

3. Whether complainant is entitled to compensation, if so, at what amount?

4. Whether complainant is entitled to get cost?

In support of the complaint, 2^nd complainant has filed affiavit and has marked Exts. P1 to P4 and Ext. C1. In rebuttal, opposite party has not field affidavit or documents.

4. Points (i) to (iv) : Admittedly, the complainant entrusted opposite paty with the construction of the residential building vide agreement dated 01/01/2000. Ext. P1 is the conditions of contract dated 1/1/2000 executed by the complainant and opposite party. As per Ext. P1, the net figure quoted for construction of the building comes at Rs.12,50,000/-, that the contractor (opposite party) agreed to finish the construction work within a period of 9 months from the date of agreement. Both parties agreed to the schedule of payment as per Annexure – II of the agreement. On satisfactory completion of the project, the client agreed to pay an additional amount of Rs. 20,000/- over and above Rs. 12,50,000/- as a goodwill fee. The said amount will be kept in retention for a period of 3 months and will be used for any defective work or damage arise in the building, if not, the entire amount will be paid to the contractor in full on completion of retention period. It is further agreed that complainant has to pay a mobilisation advance of Rs.1,00,000/- to start the building work on the date of the agreement which will be retrieved in 10 equal bills as per the schedule of payment. Any alterations as requested by the claimant may be carried out by the contractor and the difference of costing from the schedule of rates may be claimed extra. Ext. P2 is the copy of the letter dated 8/5/2001 from the complainant to opposite party stating that he has effected all the payments according to the contract agreement, but opposite party failed to fulfill many conditions in the contract. As per Ext. P2 complainant proposed to invoke clause 15 of the agreement ie., termination of construction work. In the said Ext. P2 it is seen stated that if complainant does not receive any communication from the opposite party it will be presumed that opposite party is not interested in completing the remaining work and further action will be initiated for completion of this work at his risk and cost. Ext. P3 is the copy of the notice from the complainant to opposite party dated 4/8/2001 informing him that in exercise of the powers conferred by virtue of clause 15 of the agreement, the contract work of his building stands terminated with effect from 4/8/2001 through Ext. P3. Opposite party was requested to handover the keys of the building immediately. Ext. P4 is the details of payment made to opposite party. On perusal of Ext. P4 it is seen that complainant remitted Rs. 1,00,000/- on 1/1/2000, Rs.75,000/- on 10/2/2000, Rs.1,50,000/- on 13/3/2000, Rs.50,000/- on 24/4/2000, Rs.1,00,000/- on 4/5/2000, Rs.35,000/- on 13/6/2000, Rs.50,000/- on 30/6/2000, Rs.25,000/- on 2/8/2000, Rs.40,000/- on 9/8/2000, Rs.1,50,000/- on 5/9/2000, Rs.1,50,000/- on 20/9/2000, Rs.1,50,000/- on 6/10/2000, Rs.1,50,000/- on 30/10/2000, Rs.1,00,000/- on 13/12/00, Rs.19,654/- on 17/2/2000, Rs. 1,13,000/- on 15/12/2000, Rs. 90,000/- on 3/01/2001, Rs. 1,00,000/- on 28/3/2001 & Rs.40,000/- on 12/9/2001 altogether complainant remitted an amount of Rs.16,87,654/-. The extra construction pointed out by the Commission vide Ext. C1 are as follows: (1) Family Lounge in the first floor has been extended upto the even line boundary of work area and floor over work area has been constructed as first floor which comes to 26.06m2 .(2) Open terrace in front has been converted as an open balcony by casting roof slab area over brick wall pillars (Area 4.85 x 3.85 = 14.822 sqm). (3) Open terrace over the rear bed room has been similarly converted by providing roof slab over brick pillars (Area 21.98sqm) (4) Ward Robs with teak wood shutters, plywood partitions. As per the agreement it has been specified that the wood work for doors and windows with approved quality teak wood/country wood. As per the work executed, the frames or doors and windows are done with Anjili wood and shutters with teak wood. Touch wood finishing to wood work in place of enamel paint. Plastic emulsion and putty finish in place of cement water proof paint inside walls. Commissioner has assessed the total value of extra work done as Rs.2,46,580/-. It is pertinent to point out that commissioner has pointed out some limitation in evaluating the value of extra work done by the opposite party on the following grounds. "The opposite party did not co-operate with the commission work. So whatever explicitly seen in the site could only be noted for evaluation. Opposite party's version was available but commissioner pointed out that it was difficult to fully take into account of the version. One example is there brick work for the entire building as per agreement is 96.359 cum vide item No. 7 of schedule of rates (Annexur-I). But in his version opposite party has claimed to have done 90 cum of brick work additional. According to commission, if opposite party had been assisted him in pointing out the extra works executed more realistic evaluation of extra works done by him could have been possible. Commissioner pointed out that since the work is almost completed there are limitations to find out exactly all the works already executed. The cost of extra work of Rs. 2,46,580/- is arrived in view of the said limitations.

5. As regards the defects in the construction, Commissioner has reported that in many places in the brick wall construction cracks are developed mainly the following:

1. Vertical crack in the wall between car porch and kitchen extended to the floor of car shed.

2. In wall between car porch and dining hall.

3. There are numerous hair line cracks in the walls of front of bed room ground floor due to insufficient watering after plastering.

4. In walls of living ground floor due to insufficient curing

5. Where the parapet joins side wall in terrace front portion over the roof. Due to difference in thermal coefficient.

6. In parapet where the rear stair joins the roof outside. Due to differential thermal coefficient.

7. Several Hair line cracks vertical in plastering parapet inside

8. Total hair line cracks in the plastering finish of roof slab etc....

Commissioner has assessed the rectification cost at Rs. 17,800/-. As regards works remained to be carried, commissioner has pointed out the following: Anti termite treatment quantity, completion of shutter to wardrob in dining, plastering over RCC work, floor finish with ceramic tiles, providing granite slab, glazed tiles along the walls of bath rooms, painting second coat windows and ventilators, providing M.P tiles, water supply and sanitary fittings and miscellaneous such as connecting pipe, C.P fittings, electrical work etc.... Commissioner has assessed the cost of remaining work to the tune of Rs. 90,888/-. Opposite party never filed objection to Ext. C1 report nor did opposite party cross examine the 2^nd complainant or the expert commission to disprove the contention of the complaint and Ext. C1 report. Opposite party never filed affidavit in support of their version nor did opposite party furnish any documents to challenge the contention of the complaint and Ext. C1 report. Altogether commissioner has pointed out the cost of works remained to be carried out to the tune of Rs. 90,888/-, rectification cost is worked out Rs. 17,800/-, value of additional works is worked out to Rs. 2,46,580/-. In the affidavit filed by the 2^nd complainant it is admitted that the extra work estimated at Rs. 3,50,000/-. It is pertinent to point out that extra work is done after the execution of Ext. P1 agreement as such the nature of the said work is not included in the said agreement. Further commissioner himself has pointed out that the limitation of evaluation of extra work. 2^nd complainant has never raised any allegation in regard to extra work. Moreover 2^nd complainant already estimated extra work at Rs.3,50,000/- done by the opposite party. As such we fix the cost of extra work at Rs.3,50,000/-. Admittedly, as per Ext. P1 the work estimate was at Rs. 12,50,000/-, out of which commissioner has pointed out that the agreed cost of work remains to be carried out to the tune of Rs. 90,888/-, cost of rectification of defects comes to Rs.17,800/-. So as per the agreement we find opposite party is entitled to get Rs. 11,41,312/- (that is, Rs.12,50,000 - 90,888 – 17,800) + cost of additional work of Rs. 3,50,000/-. Altogether opposite party is entitled to get Rs. 14,91,312/-. While as per Ext. P4 receipts issued by opposite party. Opposite party had received Rs. 16,87,654/-, that means, complainant has collected an excess amount of Rs. 1,96,342/- ( 16,87,654 – 14,91,312). In view of the foregoing discussion and evidence available on records we find there is deficiency in service on the part of opposite party in the construction of residential building of the complainant. Complainant is entitled to get Rs. 90,888/- towards the cost of works remained to be carried, Rs. 17,800/- towards the cost of rectification of defective works and Rs. 87,654/- towards excess amount. Deficiency in service proved.

In the result, complaint is allowed. Opposite party shall pay the 2^nd complainant a sum of Rs. 1,96,342/- which includes Rs. 87,654/- towards excess collection, Rs. 90,888/- towards cost of works remained to be carried out and Rs.17,800/- towards cost on rectification of defective works. Opposite party shall also pay Rs.20,000/- towards compensation and Rs.5,000/- towards cost. The above said amount of Rs. 1,96,342/- will carry interest @ 12% per annum, if not paid within 2 months from the date of receipt of this order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of July, 2010.

G. SIVAPRASAD,

PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.292/2002

APPENDIX

I. Complainants' witness: NIL

II. Complainants' documents:

P1 : Copy of conditions of contract dated 1/1/2000 executed by the complainant.

P2 : Copy of the letter dated 8/5/2001 from the complainant to opposite party.

P3 : Copy of the notice from the complainant.

P4 : Details of payment made to opposite party.

III. Opposite party's witness : NIL

IV. Opposite party's documents : NIL

5. Court witness : NIL

6. Court Exts

   C1 : Commission Report.

PRESIDENT