District Consumer Disputes Redressal Forum
Civil Station, Palakkad – 678 001, Kerala
Dated this the 13th day of December, 2010
Present: Smt.Seena.H, President
Smt.Preetha.G.Nair, Member
Smt.Bhanumathi.A.K, Member Date of filing: 05/11/2008
CC. No.115/2008
P.Muralidharan
S/o.Late M.Chandrasekharan Nair
Manager
V.L.N.M.School
Vilayanchathanur
Althur Taluk, Palakkad. - Complainant
(By Adv.E.Ramachandran)
Vs
Jayakumar
S/o.Subramani
Proprietor
S.J.Construction,
Near Co-operative Bank
SJV Complex
Kanjikode, Palakkad. - Opposite party
(By Adv.K.A.Kailas)
O R D E R
By Smt.PREETHA.G.NAIR, MEMBER
The complainant is the Manager of an Aided School by name V.L.N.M.School run by Sabari Trust. The opposite party had made the complainant believe that he is the proprietor of a construction company and he is well experienced in constructing buildings. Then the complainant and the opposite party had executed a written agreement on 11/04/2008. As per the agreement the opposite party had agreed to build 5 class rooms measuring a total of 3000 sq. ft and the opposite party had agreed to finish the work by 01/06/2008. The complainant wanted to finish the work by the beginning of the academic year 01/06/2008. The complainant has to give payments as stipulated in the contract. Before the execution of the agreement some changes were made in mutual consultation. Both parties agreed to construct the building approximately 3200 sq. ft. for Rs.10,00,000/- and additional work of RC roofing for Rs.5,00,000/- and the time was extended to 15/06/2008. The complainant has paid more than the contractual amount as per the terms of the contact. But the opposite party had stopped the work after receiving the entire amount. The complainant has paid to the opposite party more than Rs.16,00,000/- on various dates. But the opposite party has not finished the work. That on various requests orally and telephonically, the opposite party has not cared to complete the work as specified in the agreement. The acts of the opposite party amounts to deficiency in service. The school management has not been able to make use of the partly constructed class rooms. Due to the acts of the opposite party the management and the students are facing huge hardship. Hence the complainant prays for an order to
1. Direct the opposite party to complete the work as per the contract or to permit the complainant to complete the work and direct the opposite party to pay the amount required to complete the work.
2. Direct the opposite party to pay an amount of Rs.3,00,000/- as compensation
3. To pay the costs of this complaint.
Opposite party filed version stating the following contentions. Opposite party stated that the complainant had approached him and requested to level the ground first by using JCB work and also some repairing work for the old building in addition to the construction of the class rooms. Immediately after the leveling work of the ground is completed the complainant and the opposite party had entered into the written agreement dtd.11/04/2008 for the construction of the building. The opposite party stated that the expenses incurred for the JCB work for leveling the ground and also the necessary repairing work for the old building are not included in the agreement dtd.11/04/2008. It is incorrect to state that the opposite party had agreed to build 5 class rooms measuring a total of 3000 sq. ft. and finish the work by 01/06/2008. As per the agreement if the complainant fails to make payments immediately the opposite party can stop the construction work. Opposite party admitted that both parties further agreed to construct the building approximately 3200 sq ft. for Rs.10,00,000/- and to do additional work of RC roofing for Rs.5,00,000/-. Opposite party stated that he had received an amount of Rs.15,99,231/- only in total inclusive of the amount paid for the JCB work and also for the necessary repairing work in the old building. Opposite party stated that he had not received any amount from the complainant on 08/09/2008 and 19/09/2008 of Rs.14,320/- and Rs.6,000/- respectively. The parties had further agreed to construct stair case also on the western side of the new building and another stair case on the eastern side to enter into the old building, and steps on each portion on the verandah and to construct pillars in more depths as on the stage construction. It is found that the soil is not hard on some portion and hence the depth of the pillars were increased and then that of the approved plan which is not agreed as per the agreement. The complainant is agreed to pay additional amount on each stage. The opposite party had completed all the construction work as per the terms of the agreement and something more than that. It is incorrect to state that the complainant had made various requests orally and telephonically to complete the work as per the agreement. Hence the opposite party prays that dismiss the complaint with cost.
Complainant and opposite party filed affidavit and documents Exts.A1 to A3 marked on the side of complainant. Ext.B1 and B2 marked subject to proof on the side of the opposite party. Complainant was cross examined. Commissioner filed two reports marked as C1 and C2. Matter was heard.
Issues to be considered are;
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of opposite party?
3. If so, what is the relief and cost entitled to the complainant?
Issue 1:
We perused relevant documents on record. Opposite party stated that as per the complaint the school is run by Sabari Trust. But the complaint is filed by P.Muralidharan in his individual capacity and not as Manager of V.L.N.M.School. So the opposite party stated that the complaint is not maintainable as P.Muralidharan in his individual capacity had no privity of contract with the opposite party. At the time of cross examination complainant stated that he is the Manager of school and the school run by Sabari Trust. Also in Ext.A1 in the agreement shows that the agreement was executed between the Sabari V.L.N.M.School (Sabari Group Manager) P.Muralidharan and the opposite party named Jayakumar. The opposite party has raised no objection to marking of Ext.A1 document so we answered the 1st point in favour of the complainant.
Issues 2 & 3:
According to Ext.C1 commission report stated that in all the five class rooms, only frames for the front doors are seen fitted and the doors are not fitted. In all five room there are three window frames coated with primer and iron bars are seen fitted. Further commissioner stated that the stair case is constructed and not plastered, but the side walls and stair case landing is seen plastered. On the northern side and eastern side of the building the east-west and north-south length having a width of 1 ½ feet just above the ground level is not seen plastered. The projections of the main slab over the ground floor is not plastered. According to Ext.A1 agreement clearly stated that the construction to be completed by 01.06.2008 and the back side of 1st page mentioned that agreed to construct the building approximately 3200 sq. ft for Rs.10,00,000/- and to do additional work of RC roofing for 5,00,000/- and the time was extended to 15/06/2008. But the complainant stated that he had paid more than Rs.16,00,000/- and the opposite party has not completed the construction work within the period mentioned in the agreement. As per Ext.C2 commission report, commissioner stated that cracks developed in the walls of the class rooms and that no provision is made in the class rooms for placing black boards. According to Ext.A3 the complainant has paid Rs.16,19,551/- to the complainant. Also before 01/06/2008 more than Rs.10,00,000/- paid to the opposite party. According to Ext.A1 agreement Rs.3,50,000/- as the first installment and Rs.3,50,000/- after the completion of belt work and third installment of Rs.3,50,000/- on construction of 12 feet height and after putting of windows and lintel work, flooring work and sun shade work. The complainant has paid the said amount before 01/06/2008. But the opposite party has not completed the construction work. The complainant filed IA No.55/2009 for seeking permission to complete the work. IA was allowed. At the time of cross examination complainant stated that the construction work of the school is not permitted at the time of running the school under Kerala Education Rules. Also the commissioner in Ext.C1 report stated that students in the school is found to be larger number and the class rooms seemed to be too congested and hence the new class rooms under construction are essential to make the old block and class rooms less congested.
Opposite party filed IA No.70/2009 for appointing the very same Advocate Commissioner to note and report certain facts. IA was allowed. Interim report marked as Ext.C2. According to Ext.C2 commissioner has stated that the assistance of an expert is necessary for valuing the construction already completed and for calculating the expenditure required for completion of work. Two expert commissioner was appointed by the Forum. But the expert commissioner 2nd sent letter stating he is not well. Then the case posted for further steps. But no steps taken by opposite party. In the present case, the opposite party has understood that larger number of students studied in the school and new class rooms are essential. As per Ext.A1 agreement the construction work was started on 15/04/2008. The opposite party admitted that he had received only an amount of Rs.15,99,231/-. The complainant filed this complaint on 5/11/2008. As per Ext.A1 agreement they are agreed to construct the work for Rs.15,00,000/- including the additional work and time was extended to 15/06/2008. But the opposite party has not complied the terms of the agreement. The opposite party has denied the payments on 08/09/2008 and 19/09/2008. No documentary evidence was produced by the opposite party to show he had received only Rs.15,99,231/-. It is a fit case for awarding compensation for deficiency in service on the part of opposite party. In the period of students are studying in the school and non-completion of the class rooms are very difficulty situation. Also the complainant has seeking permission to complete the construction of the school building. At the time also the opposite party has not ready to complete the construction work in the school. The opposite party stated that he had completed the construction work. No evidence was produced by the opposite party to show completed the construction of the school building. In the recent years schools and houses are constructed depending upon the contractors. But the contractors have not completed the construction work. Then the owners depending upon another contractors for larger amount. Also the cost of building materials are increasing daily. In the above discussions we hold the view that there is deficiency in service on the part of opposite party for non completion of school building. In the result complaint allowed.
The complainant has seeking permission to complete the construction of the school building. No evidence was produced by the complainant to show the amount required to complete the construction work of building. So we direct the opposite party to pay an amount of Rs.1,00,000/- (Rupees One lakh only) as compensation for the mental agony and pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings. Order to be complied within one month from the date of receipt of this order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.
Pronounced in the open court on this the 13th day of December, 2010
Sd/-
Smt.Seena.H,
President
Sd/- Smt.Preetha.G.Nair,
Member
Sd/-
Smt.Bhanumathi.A.K
Member
Appendix
Witnesses examined on the side of complainant
PW1 – P.Muralidharan
Witnesses examined on the side of opposite parties
Nil
Exhibits marked on the side of complainant
Ext.A1 – Agreement dtd.11/04/2008
Ext.A2 – Copy of payment schedule
Ext.A3 (Series) – Cash vouchers
Exhibits marked on the side of opposite parties
Ext.B1 – Photograph
Ext.B2 – Photograph
Ext.C1 – Commissioner’s report
Ext.C2 – Commissioner’s report
Cost (allowed)
Rs.5,000/- (Rupees Five thousand only) allowed as cost of the proceedings.
