DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 19th day of June 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 08/11/2010
(C.C.No.139/2010)
Manoj
S/o.Parameswaran Nair,
Cholayil House,
Edakkurussi Kunnu,
Siruvani Junction,
Karimba (PO),
Karimba Village,
Mannarkkad Taluk,
Palakkad - Complainant
(By Adv.John John)
V/s
Gopalakrishnan,
S/o.Vasudevan,
Pullayil Veedu,
Edakkurussi Kunnu,
Siruvani Junction,
Karimba (PO),
Karimba Village,
Mannarkkad Taluk,
Palakkad
(By Adv.K.K.Sreenivasan) - Opposite party
O R D E R
By Smt.PREETHA G NAIR, MEMBER
The complainant is working as a cable T.V. Operator, hence he was not in a position to supervise construction of an RCC house in his plot. So the complainant and the opposite party entered into an agreement on 6/12/2009 to construct a RCC house for a total amount of Rs.10,80,000/- . The complainant paid an amount of Rs.75,000/- to the opposite party as advance amount. The opposite party started the work of building construction and as the work progressed the complainant paid a total amount of Rs.6,20,000/- in several installments and the opposite party paid endorsements in the agreement. Till this date the work completed by the opposite party are the foundation work, construction of walls, roof concreting, floor concreting, fixing window frames, door frames, plastering work of inside wall of ground floor except certain areas.
On inspection, it was found that instead of using good laterite stone, the opposite party used low quality laterite stone. The opposite party had not provided three meter height for the wall as mentioned in point No.2 of the agreement. Further the opposite party failed to provide sunshade on the left side and also failed to construct the sunshade in sloping position as mentioned in the agreement. As per the terms of the agreement the roof is to be sloping in nature, but now the opposite party constructed a flat roof. The opposite party had failed to provides showcase in dining hall and bed room as agreed in the agreement. The opposite party had used very low quality sand for the construction. Further instead of using good quality of wood, the opposite party had used inferior quality wood in the construction.
On the first floor, instead of providing wooden frame for the window, the opposite party had used cement frame for the windows. No adequate landing is provided for the stairs constructed by the opposite party. The opposite party had also not done the plumbing work and electrical wiring work as agreed in the agreement. The opposite party had also failed to provide proper projection on the roof, as a result of which the rain water is flowing on the wall of the building. The opposite party had constructed the house deviating from the approved plan as a result of which the complainant was forced to purchase half a cent of property on the western side as the water from the roof started falling on his property. When the complainant consulted an expert it was informed by the expert that the complainant will have to buy another half cent of property on the eastern side, failing which the water from the eastern roof will fall on other’s property. The opposite party had also failed to use TMT rod as agreed in the agreement. The opposite party had also miserably failed to provide proper foundation height as a result of which the rain water and sewage water will enter the house. The opposite party had also omitted to provide hand rail poles to stair case. The complainant made an assessment of the amount spent for the work completed with the help of an expert that only an amount of Rs.4,50,000/- is spent for the work done by the opposite party.
On 8/10/10 the complainant sent a lawyer notice to the opposite party while issuing the notice a clerical mistake had crept, whereby instead of mentioning Rs.4,50,000/- it was mistakenly written as Rs.5,50,000/- and instead of mentioning Rs.1,70,000/- Rs.70,000/- was mentioned. The above mistake is only a clerical mistake. After receiving the notice the opposite party had caused a notice dated 4/10/10 raising false and baseless contentions. The complainant received the notice dated 4/10/10 only on 12/10/10 the complainant sent a detailed reply. The complainant suffered serious loss and mental agony due to the deficiency and negligence in service of opposite party. Hence the complainant prays an order directing the opposite party to pay an amount of Rs.4,70,000/- as compensation with 18% interest till realization and cost.
Opposite party filed version stating the following contentions. It is true that the opposite party undertaken the construction of the house belongs to the complainant and the work is almost completed. It is true that the complainant has paid Rs.6,20,000/- towards the construction of the building. The opposite party had used good quality laterite stones for construction of the residential building of the complainant. It is not correct to say that the opposite party has not provided 3 meter height for the wall of the building. As per the request made by the complainant at the time of construction the opposite party provided flat roof without roof projection on eastern side since the party wanted to provide sloping roof with truss work. All initial electrical and plumping work are done by the opposite party and usually entire electrical work and plumbing work will be done at the time of completion of the building. There is no necessity to purchase any land for the flowing of rain water from the building. Good quality TMT steel rod also provided by the opposite party for the construction of the building.
The opposite party had spent more than 9 lakhs for the construction of the residential building belonging to the complainant. It is not correct to say that an amount of Rs.4,50,000/- only is spent for the work completed by the opposite party. All the statements made in the complaint clear that the intention of the complainant is to get over from the liability to pay the balance amount due to the opposite party.
There is no deficiency in service on the part of opposite party. There is no damage to the structure of the building. Actually the complainant has to pay the balance construction amount to the opposite party. He had sent correct replies to the notices sent by the complainant. The nature of work is completed as per available top standards of building construction. The complainant has not suffered any loss or mental agony from the side of opposite party. The opposite party had already filed a suit before the sub court, as O.S.416/2010 for recovery of the amount due from the complainant on 14/12/2010 and the property of the complainant was attached. Hence opposite party prayed that dismiss the complaint with cost.
Both parties filed affidavit and documents. Ext.A1 to A7 marked on the side of the complainant. Ext.B1 to B3 marked on the side of the opposite party. Commission reports marked as Ext.C1 and C2. Commissioner was examined as CW1. Matter heard.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite party ?
2. If so, what is the relief and cost ?
Issue No.1 & 2
Heard both parties and perused relevant documents on record. In Ext.A1 the copy of the agreement in page 2 mentioned that k¬tjUv ap³hi¯pw, ASp¡fhi¯pw 75cm hoXnbn ]Wnbp¶XmWv. (sNcn¨phmÀ¸v) aÁv cv hi¯v 60cm hoXnbn ðmÁvk¬ tjUpw sN¿p¶XmWv. In C2 the Commissioner stated that the structure work of both floors is completed. Inside plastering of ground floor is approximately 60% completed. Further Commissioner noted that instead of sloping roof, flat roof without roof projection is provided on eastern side.
At the time of examination of Commissioner deposed that minute deviations noted in the construction work. Also he deposed that the amount spent so far is approximately Rs.8,00,000/- as per the local rate. The complainant stated that he paid a total amount of Rs.6,20,000/- and the opposite party admitted that received an amount of Rs.6,20,000/- towards construction of the building.
In C1, the Commissioner noted that “the nature of work seems to satisfy standards for ordinary building construction and the materials are also satisfies the standard in visual examination. The quality of sand and wood are also not bad in visual examination but the exact values can be ascertained only after detailed examination at laboratory”.
During the pendency of complaint, complainant filed I.A.143/11 to grant permission to complete the construction of the house. Opposite party filed counter stating that suit for recovery of balance amount filed by them is pending before Hon’ble Sub Court, Ottapalam and the property was attached as per order in I.A. The expert commissioner already appointed has noted the volume of work done, works to be done and also regarding the various defects in the construction. Hence the I.A. allowed.
Complainant and opposite party filed objection to C1 report. Thereafter the Commissioner filed a detailed report marked as Ext.C2. The opposite party produced the certified copy of the petition and order of the Sub Court, Ottapalam and marked as Ext.B2 series. As per the Commission report the complainant will be paid additional amount to the opposite party and the construction of the house was not complete. The cost of the building materials increased day to day. Also the construction is not completed caused financial loss and mental pain to the complainant. According to the opposite party, not providing money for completion of the building by the complainant. Further opposite party sated that as per Ext.B3 there is no approved plan while entering the agreement. So there are some slight variations observed by the Commission from the approved plan. But the opposite party has not produced evidence to show that the consent of the complainant made to change the approved plan.
According to the complainant, purchased ½ cent of property on the western side as the water from the roof started falling on his property. No evidence was produced by the complainant to show that he purchased ½ cents of property due to the failure of opposite party. The opposite party has not produced evidence to show that as per the request made by the complainant he provided flat roof without roof projection on eastern side. As per the Commission report the opposite party has made some deviations from the Ext.A1 agreement.
In the above discussions we are of the view that there is deficiency in service on the part of opposite party . In the result complaint partly allowed. We direct the opposite party to pay complainant an amount of Rs.10,000/- (Rupees Ten thousand only) as compensation for mental agony and pay Rs.3,000/- (Rupees Three thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.
Pronounced in the open court on this the 19th day of June 2012.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of the agreement dated 6/12/09 signed between the
complainant and opposite party
Ext.A2 – Copy of lawyer notice dated 8/10/10 sent to opposite party
Ext.A3 - Postal receipt dated 8/10/10
Ext.A4 – Postal acknowledgement card dated 9/10/10
Ext.A5 – Lawyer notice dated 4/10/10 sent to complainant
Ext.A6 – Reply to lawyer notice dated 20/10/10 sent to opposite party
Ext.A7 – Postal receipt dated 21/10/10
Exhibits marked on the side of the opposite party
Ext.B1 –Copy of proceedings of Mannarkkad Police dated 14/9/10
Ext.B2 series – Certified copy of the petition and order of the Sub Court,
Ottapalam
Ext.B3 – Copy of proposed building plan
Commission Report
C1 – Mohandas.K.A
C2 –Mohandas.K.A
Examination of Commissioner
CW1 – Mohandas.K.A
Cost Allowed
Rs.1,000/- allowed as cost of proceedings.
