IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 28th day of June, 2024

Present: Sri. Manulal V.S. President

                                                                                               Sri. K.M. Anto, Member

C C No. 156/2021  (Filed on 24/08/2021)

O R D E R

Sri. Manulal V.S. President

          The petition is filed under Sec 35 of the Consumer Protection Act 2019.

The complainant is a professional teacher who resides along with her two minor children. The opposite party is a building contractor specializing in projects in and around Changanacherry. The complainant was introduced to the opposite party through a mutual friend, when the opposite party shared extensive details about their experience in the field and the construction projects they had undertaken.

Before commencing work, the opposite party orally estimated that the total construction cost would be approximately Rs. 24,00,000/-. In May 2018, a detailed agreement was drafted between the parties, which the opposite party took to obtain municipal licenses. However, he later claimed that the agreement was misplaced. Subsequently, on 04-06-2018, the parties entered into another agreement where the opposite party committed to complete the construction at Rs. 1,800 per square feet. This amount was to cover all costs, including materials, labour, and other expenses, as specified in the agreement. The agreement also outlined the specifications, brands, and costs of the materials to be used.

According to the approved plan from the Changanacherry municipality, the area of the building to be constructed was 143.66 square meters, equivalent to 1546 square feet. The opposite party commenced construction of the complainant's residential building in June 2018, recording payment receipts on the blank portion of the agreement. The complainant promptly paid the amounts requested by the opposite party.

During the construction process, various building materials were delivered to the site in the absence of the opposite party. Following the opposite party's instructions, the complainant paid approximately Rs. 3,90,000/- for these materials. Despite requesting the opposite party to adjust this amount with subsequent payments, he suggested settling it during the final settlement after completing all construction activities. Relying on his assurance, the complainant continued making payments as requested, totalling Rs. 29,15,600/- and additional costs for articles and Rs. 1,72,000/- for extra works entrusted to him. Even though the opposite party agreed to complete the work within seven months, progress was very slow. He frequently gave excuses such as a severe shortage of building materials and labourers due to the flood in 2018. The complainant insisted that the housewarming of the residential building be conducted in June 2019. The opposite party completed about 80% of the work and obtained a completion certificate from Changanacherry Municipality. Several finishing works were still pending at that time, and the opposite party agreed to complete them after the housewarming without disturbing the complainant and her children. Just before the housewarming, the opposite party approached the complainant and informed her that Rs. 4,26,600/- was still due. Despite knowing the work was not completed, she paid the amount. This brought the total payment to the opposite party to    Rs.29,15,600/-. Additionally, the complainant paid Rs.1,72,000/- for extra work, believing the opposite party would complete the remaining tasks promptly.

The housewarming was conducted on June 12, 2019. After receiving the full payment, the opposite party became irresponsible in completing the work. According to the agreement, the construction cost was Rs. 1,800 per square foot, and the total area to be constructed was 143.66 m², equivalent to 1,546 square feet. Therefore, the total amount to be paid by the complainant was                      Rs.27,82,200/-. However, the opposite party falsely claimed that the constructed area was 1,576 square feet and calculated the cost at Rs. 1,850 per square foot. This discrepancy was not disclosed to the complainant and went unnoticed when she paid Rs.4, 26,600. As a result, the opposite party received Rs.1,33,400 more than what was agreed upon in the contract.

Apart from the mischief mentioned above committed by the opposite party, several defects and unfinished works also remain in the building he constructed. The sunshade installed on the building's ground floor and first floor is inadequate, as it fails to prevent water from falling onto the verandah and balcony. Additionally, a sunshade's standard and recommended width is 90 cm, but the opposite party only provided 60 cm. There is also severe leakage in the wall of the toilet, causing water to seep into the outer walls. Clause 12 of the agreement states that floor and wall tiles worth Rs. 55 per square foot would be used for flooring, and granite slabs worth Rs. 200 per square foot would be used for the kitchen slab and work area. However, the opposite party used very low-quality and second-rate tiles and granite. The colour of the internal walls has changed in several places due to water ingress from poor construction, leading to cracks. Since a concrete belt was not installed above the granite foundation, the upper walls absorb water from the foundation. Several holes have formed in the walls, causing m-sand and other materials to come out. The outer walls are not adequately insulated, resulting in water seepage through the sunshade, open terrace, and cracks, leading to moisture, dampness, and algae formation. Additionally, cracks have already formed in the sloped roof due to a poor concrete mix.

The wiring in the compound wall for installing lamps is improperly done, posing a risk of electric shock. Additionally, the hooks installed in the windows are of poor quality, with many of them already damaged. Clause 14 of the agreement states that PVC doors worth Rs. 2,200 each would be used for the toilets. However, very low-quality PVC doors were installed and have already been damaged. Additionally, the opposite party installed cheap fiber tiles instead of the specified clay roofing tiles, violating Clause 18 of the agreement.

Furthermore, the peephole lens was installed in the back door instead of the front door. The balcony is at a lower height than the rest of the floor, causing rainwater to accumulate and resulting in leaks. The inner walls of the first floor are bent, and the painting is incomplete in several areas. Rainwater seeps into the residential building through almost all the openings. The door handles are damaged due to poor quality. The back door on the first floor opens by itself because of improper lock installation. There are large gaps between the tiles, accumulating dirt. The bathroom floor on the first floor is higher than the rest of the floor, preventing water from flowing properly and causing moisture in the upper walls of the ground floor.

The ground floor walls are thinner than those on the first floor, raising concerns about the potential collapse of the building in the near future. There is no access to the terrace despite the opposite party agreeing to install a steel staircase, which still needs to be installed despite several requests from the complainant. The doors are poorly installed and of inferior quality, with broken handles, making them difficult to close properly. Gaps between the door and window frames and the side walls have allowed small insects, ants, and termites to infest these areas. Similarly, switchboards have also become infested, causing several switches and plug points to malfunction.

Additionally, the steel bars in the windows have rusted heavily due to their inferior quality. The rainwater harvesting tank was installed improperly, causing water to flow backward through the pipes and flood the interior of the residential building for a period. After numerous requests, the opposite party disconnected the line, rendering the tank useless. Almost all the pipes and pipelines are leaking, leading to water wastage and damage to walls. Additionally, the service line from the KSEB (Kerala State Electricity Board) is carelessly knotted on the metal backrest of the balcony, posing a risk of electric shock at any time.

In addition to the aforementioned complaints, several other defects exist in the residential building constructed by the opposite party. An architect consulted by the complainant assessed the construction's value at less than Rs. 20, 00,000. The complainant initially entrusted the work to the opposite party in good faith, expecting it to be completed properly and without defects. Despite assurances from the opposite party to rectify the defects, they failed to do so even after repeated demands, leading to this complaint. The complainant had to spend approximately Rs. 10,00,000/- to rectify the construction defects. She is entitled to recover this amount from the opposite party and their assets. Additionally, she is entitled to recover Rs. 1,33,400/-, the excess amount obtained by the opposite party beyond the agreed sum, and Rs. 7,82,200/-, which exceeds the estimated value of the total constructions made by him. These factors collectively demonstrate the opposite party's deficiency in service and unfair trade practices. Hence, this complaint is filed by him complainant praying for an order to direct the opposite party to pay Rs. 10,00,000/- to rectify the defects that occurred in the construction of the residential building by the opposite party and to pay   Rs. 1,33,400/- being the amount obtained by the opposite party in addition to the agreed amount, and Rs.7,82,200/- being the amount obtained by the opposite party in excess of the constructions made by him. It is further prayed that an order be passed to direct the opposite party to pay Rs. 7,50,000/-  as compensation  for the mental agony caused to the complainant due to deficiency in service and unfair trade practice.

Upon notice from this commission, the opposite party appeared before the commission and filed version contending as follows:

The opposite party has not given an oral estimate for the construction of the house and has not told us that work can be completed for 24 lakh rupees. It is not true that a detailed contract was executed in May 2018, taken by the opposite party to obtain a municipal license, and subsequently lost.

The construction agreement was signed on 04.06.2018. "For 12 years, the opposite party has independently undertaken construction work. The complainant entrusted the construction of their house to the opposite party after personally inspecting homes previously completed by him. The opposite party has also gained national recognition for designing flood-resistant houses.

The opposite party did not design the plan for the complainant's house. The construction work was supervised by the complainant and a person designated by the complainant. The agreement specified the stages at which payments were to be made. It also stated that if the complainant fails to make payments or delays construction, the complainant would be liable for additional costs incurred after seven months. The complainant has not made the payments as stipulated in the contract. Therefore, the opposite party is not liable for any delay or additional expenses arising from this.

The difference in area was due to changes requested by the complainant. The claim that the complainant directly paid Rs. 3,90,000/- for purchasing materials is false, as is the claim that the opposite party received an additional  Rs. 29,15,500/-. The opposite party's work was never delayed; any delays were caused by the complainant's failure to make timely payments. Before the housewarming function, all the work specified in the contract was completed, and the complainant obtained the completion certificate from the municipality. It is incorrect to say that only 80% of the work was completed. After the housewarming function, none of the contractual work remained unfinished. Additionally, extra work was carried out by the opposite party.

Before the housewarming function, when all the work specified in the agreement was completed, the agreed amount was paid to the opposite party with the mutual understanding of both parties and the complainant's construction supervisor. The opposite party received additional payments only for the extra work done after the housewarming. The difference in area may be due to changes requested by the complainant.

According to the agreement, the ground floor was to be concreted, the first floor was to be roofed with GIO, and the interiors were to be fitted with ceilings. However, when the walls of the first floor were completed, the complainant requested that the roof be concreted to accommodate solar panels. Upon completion of the first-floor concrete, the opposite party demanded an additional Rs. 50 per square foot due to the deviation from the agreement, which the complainant agreed to. The delay in payment, increased material costs, rising wages, and the inability of the opposite party to relocate work materials or take on other projects have had a detrimental impact on him.

The opposite party became aware of the complainant's allegations upon receiving a copy of this complaint. The construction plan specified a 60 cm flat sunshade and a 60 cm inclined sunshade. A supervisor appointed by the complainant ensured adherence to the plan. Second-quality tiles and granite were not used in the construction; the complainant personally selected the tiles and later changed the selection. The PVC door matches the agreement specifications in price, colour, design, and quality. The agreement stated a pitched roof with natural tiles, but ceramic tiles were used instead as per completion requirements. Steel doors from Cuirass were installed, featuring multi-locking mechanisms in specific areas. The front of the first-floor balcony has a 3 to 4-foot plain terrace due to the complainant's rejection of a proposed balcony addition. All contractual works were completed before the housewarming function. The complainant did Additional electrical work later, possibly leading to paint imperfections in the area. The company doors come with a one-year warranty, supported by documentation in the complainant's possession. Wooden doors are susceptible to weather-related issues. There was no plan or agreement for an external staircase to the terrace, and its construction costs remain unpaid by the complainant. The complainant undertook additional work, such as rainwater harvesting and pipe work, using the opposite party's workers under her supervision. Electrical installations were done as per the complainant's instructions, with proper verification by KSEB for safety against lightning-induced power fluctuations.

The statement that the respondent's construction costs were less than               Rs. 20,00,000/- is false. The complainant did not raise any complaints about construction defects to the opposite party before filing this complaint. The complainant's claim of Rs. 10 lakh for defect rectification lacks any factual basis. The complainant's assertion of spending more than the estimated cost is false. The opposite party is not obligated to provide the amount claimed by the complainant.

There have been no service deficiencies from the opposite party; the complainant paid after being satisfied with the work's adherence to the contract. The opposite party is not liable to compensate the complainant for alleged mental stress.

No cause of action has arisen as of 15/07/2021 or any other date. The complaint is barred by limitation, and the complainant is not entitled to the reliefs sought. The contract copy submitted with the complaint is alleged to be forged; the original contract has yet to be presented, and there was no plan or contract for an external staircase to the terrace. The complainant reported no construction defects within two years of house completion.

Evidence of this case consists of deposition of PW1, PW2, DW 1, and DW2. Exhibits A1 and C1 were marked from the side of the complainant.

We would like to consider the following points when evaluating the complaint version and the evidence on record.

1. Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties? 
2. If so, what are the reliefs and costs?

POINTS 1 & 2

There is no dispute that the complainant entered into an agreement with the opposite party for the constitution of her residential house. Exhibit A1 is the agreement executed between the complainant and the opposite party on                    4-6-2018. On going through exhibit A1, we can see that the opposite party had agreed to complete the construction of the residential house within seven months from the date of starting of the construction at a rate of 1800 per square foot.

The specific case of the complainant is that Though the opposite party received Rs. 9,15,600/- than the agreed amount for construction, there are several defects in the  construction work carried out by the opposite party. The complaint was resisted by the opposite party, contending that the complainant paid the agreed amount after being satisfied with the work and adherence to the contract. The opposite party received additional payments only for the extra work done after the housewarming, and the difference in area may be due to changes requested by the complainant.

In order to prove her case, PW1, who is the complainant, filed a petition to appoint an expert commissioner to inspect the subject matter building. Accordingly, this commission appointed an engineer to examine the subject matter building and to file a report. The report of the Expert Commissioner is marked as exhibit C1.

In exhibit C1, The expert commissioner reported that though the sun shades of the ground floor were constructed 60 centimetres in width and the first floor was constructed 75-centimetre in width, the same does not prevent falling water in the Verandah and balcony because during heavy rainfall and wind waterfall in these areas. He further reported that only primer and white cement is applied over the walls and due to the dampness, the white cement scrapes off and is exposed to rain and sunlight. During the examination, the PW1, who is the expert commissioner, deposed that poor quality white cement is used in the building. He further reported in the C1 report that severe water leakage through the walls of the toilet is wetting the walls of the floor and through the bathroom floor on the first floor, causing cracks between the joints of the first and ground floor. According to the expert commissioner, waterproofing was not done properly; dampness would not have been formed if it had been done properly. According to PW1, the water penetrates some portion of the house due to the poor construction and dampness on the ground and first floors. PW1 deposed during the examination that the dampness on the first floor was due to water leakage at the corner areas where the dummy slope joints are not properly sealed. He further deposed that the dampness in one of the bedrooms on the ground floor is due to improper ceiling of the gaps between the pipes and concrete which runs outside the bedroom. The expert commissioner further states that a portion of the sun shade was drilled to let the pipes through the sun shade, which was later not appropriately sealed, and the water gets absorbed through these gaps, and the bricks absorb them, causing dampness.

In exhibit C1 report, PW1 reported that the walls absorb water from the grounds, which may be due to the incorrect filling levels of the floor and damaged or leaked concealed pipes in the walls, and the reason cannot be specified. It is further reported by the Pw1 in the C1 report that the outer wall is not insulated properly, and no provision was provided to climb to the top terrace portion. In C1, it is reported that the balcony tile levels were only a few inches lower than the floor levels. According to the PW1, the balcony level should be at least two inches below the other floor. He further reported that there is no provision for water drainage. In the C1 report, it is further reported that there is a slight bent in the first-floor bedroom due to improper application of plaster. In the C1 report, it is reported that water is oozing into the house through almost all openings, including windows and ventilation, during heavy rainfall. According to him, an additional rain guard is required to avoid such a situation; usually, the contractor provides the rain guards. According to the expert commissioner, due to improper waterproofing, water penetrates through the joints of the first-floor tiles of the bathroom. He further reported that some continuous cracks near the staircase wall between the first and ground floors need quick rectification. PW1, during the examination, deposed that according to the plan, the width of the wall should be 18 centimetres, but one wall on the ground floor and first floor only has 12-centimetre width. In C1, it is reported that there are gaps between the floor and the door frames, which are not filled, thereby increasing the chances of insects crawling through the gaps. According to the PW1, the constructed room size area and elevation are as per the plan and the design. PW 1 deposed in cross-examination that the building was reported to have many defects not because of non-waterproofing or painting.

In order to discredit the deposition of PW1 and C1 report, the opposite party examined DW2, a retired executive engineer from the local self-government department. DW2 deposed that he was present during inspection conducted by the pw1. He deposed before this commission that he was the advisor of the opposite party for the construction of the residential building, including the subject matter building for the structural details. He further deposed during the cross-examination that if he had constructed the building, the dampness, which was reported as item number two in the C1 report, would not have occurred.

Though the opposite party contended that as per the agreement, the ground floor was to be concreted, the first floor was to be roofed with GIO, and the interiors were to be fitted with ceilings. On going through Exhibit A1 agreement, we can see that there is a specific condition in clause number 9 with regarding the roof slab. We cannot see any clauses stating that the first floor will be roofed with GIO. Therefore, we are not inclined to accept the contention of the opposite party that the complainant agreed to pay an additional amount of 50 rupees per square foot due to the deviation from the agreement. In cross-examination, DW1 deposed that on the reverse side of pages 1 and 2 of exhibit A1, he had acknowledged the receipt of the amount paid by the complainant. On close scrutiny of exhibit A1, we can see that the opposite party had endorsed the receipt of a sum of Rs.29,15,600/- rupees. DW1 further deposed before this commission that he had received Rs.1,72,000/- from the complainant for the extra work he carried out. Neither the complainant nor the opposite party produced the plan before this commission, so we cannot arrive at a conclusion regarding the total plinth area of the house to be constructed as per the plan. In exhibit C1, the expert commissioner also did not report the total constructed area of the house. There is no mention in A1 agreement regarding the total area of the house. Therefore, we are inclined to accept the contention of the opposite party that he had constructed a house with a total plinth area of 1576 square feet. We already found that the opposite party is only eligible for 1800 per square feet for the construction of house of the complainant as per the A1 agreement. So, the opposite party is only entitled to Rs. 28 36,800 (1800x 1576) for the construction work that he carried out. So, the opposite party received Rs.78,800/- more than the agreed amount for the work that he carried out.

We have already found many defects in the construction which the opposite party carried out.

Section 2 (11) of the Consumer Protection Act 2019 defines Deficiency of Service as "any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes (a) any act of negligence or omission or commission by such person to the consumer and (b) deliberate withholding of relevant information by such person to the consumer.

So, the opposite party is duty-bound to complete the construction in adherence with the exhibit A1 agreement, in which he has agreed to perform his contractual duty without any fault, imperfection, or inadequacy in the quality nature of performance. On the basis of the above discussions, the opposite party has committed deficiency in service by constructing a residential house with several defects.

Owning a home is a universal aspiration. The petitioner entrusted the opposite party with the task of building her dream house, expecting it to be free of defects. However, the house constructed by the opposite party was riddled with numerous flaws, leading to significant mental anguish and financial burden for the petitioner. She now faces additional expenses to rectify the construction defects. Neither the Expert Commissioner nor the petitioner has provided this commission with an estimated repair costs. Considering the circumstances of the case and keeping in mind the salutary principles of the Consumer Protection Act, this commission is of the opinion that allowing compensation of Rs. 5 lakhs to the complainant will meet the ends of justice including the amount of Rs.78,800/- which was given to the opposite party in excess.

As the result, we allow this complaint in part and pass the following order:

We hereby direct the opposite party to pay Rs. 5 lakhs to the complainant as compensation for the deficiency in service on the part of the opposite party within thirty days from the date of the receipt of the copy of this order. Failing in which the award amount shall carry interest@9% percent per annum from the date of this order till the date of realization.

        Pronounced in the Open Commission on this the 28th day of June, 2024

                 Sri. Manulal V.S,  President    Sd/-

                Sri. K.M. Anto, Member          Sd/- 

APPENDIX :

Witness from the Side of the Complainant

PW1 -   Anjaly S

PW2 -   Maya

Exhibits from the side of the Complainant :

A1   - Agreement dated 04/06/2018

Witness from the Side of Opposite parties

DW1   -  Gopalakrishnan

DW2   -  Vijayan T.G

Exhibits from the side of Opposite parties :

Nil

 Exhibit from the side of Commission :

 C1 : Copy Dated   issued by Anjaly Suresh Expert Commissioner

           By Order,

ASSISTANT REGISTRAR