IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 23RD DAY OF NOVEMBER 2020
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.294/2015
Reny George : Complainant
W/o Late M.C.Thomas
Joy Villa
C.K.P Junction
Thrikkadavoor
Perinad P.O, Kollam.
[By Adv.Renjith Thomas]
V/s
Jayasree.L : Opposite party
Proprietor cum Project Engineer
Heritage Eco Friendly Constructions
Ayathil P.O, Kollam.
[By Adv.Sanal Vamadevan]
FINAL ORDER
Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,PRESIDENT
1.This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.
2.The averments in the complaint in short are as follows.
The complainant and her husband Sri.M.C.Thomas Is in joint possession and enjoyment of landed property in Thazhuthala Village, Kollam and they executed an agreement for construction of a residential building having plinth area of 1817 sq.ft in the said property. The consideration fixed for the construction is Rs.23 lakhs. The complainant’s husband who is now no more has obtained a building permit from Local Self Authorities and executed an agreement with the opposite party. As per the agreement the opposite party started construction of the work but failed to complete the work within the agreed period. Hence she requested the complainant’s late husband to extend the stipulated time stated in the agreement up to 13.06.14. Accordingly time was extended but even then she failed to complete the construction work. Hence time was extended again up to 31.01.15. In the meantime the complainant’s husband paid excess amount contrary to the agreement at the request of the opposite party. She had already received Rs.19,17,500/- from the complainant’s husband. Though the complainant approached the opposite party several times and requested her to complete the work directly and through mediators she has not cared to complete the work at least for the amount already received from the complainant and her husband nor returned the excess amount. But the opposite party claimed that she had already carried out the work for the amount received. As requested by the complainant the construction work already carried out by the opposite party was assessed through a registered Engineer who issued a detailed statement indicating the construction work already done by the opposite party is for Rs.13,99,444.84/- only. The semi furnished construction began to degenerate and only due to the indifferent attitude towards completing the construction the complainant was constrained to finish construction work by deputing another contractor by paying additional amount. The complainant’s husband passed away during this period. Thereafter the complainant personally approached the opposite party and requested to complete the construction work. She has also filed a complaint before Eravipuram Police. The opposite party appeared before the police authorities and expressed her willingness to settle the matter. But thereafter she evade from the oral agreement. The complainant sustained extra cost of Rs.4,00,000/- paid to the 2nd contractor who completed the construction work and thereby the complainant sustained a total loss of Rs.5,18,036.84/-. The complainant and her late husband was subjected to mental agony and severe financial loss due to deficiency in service on the part of the opposite party. The mental agony though cannot be counted in terms of money for the purpose of the complainant the same is valued at Rs.9,18,036/-. As the complainant has sustained mental agony apart from financial loss she is entitled to get compensation to the tune of Rs.50,000/- for the said mental agony. Hence the suit.
3.The opposite party resisted the allegations in the complaint by filing a detailed version. However the opposite party would admit that on 18.10.13 herself and the complainant entered into an agreement for constructing a house building @Rs.1800/- per sw.ft. According to the opposite party the total plinth area agreed to be constructed was 1300 sq.ft. Accordingly the opposite party has obtained Rs.17,75,000/- from the complainant. But when the plan was set out the plinth area of the building was increased to 1810 sq.ft. The complainant caused the opposite party to construct a well which was not mentioned in the agreement for which the opposite party expended Rs.55,000/-. She has also spend an amount of Rs.15,000/- for cleaning the plot. It is further contented that while the construction work was in progress the complainant used to raise several demands which was not in the agreement. The opposite party reminded the construction of excess area while receiving payment and also given a plan showing increase in the plinth area and the complainant has accepted the same. On 06.09.14 the concrete work of the ground floor was over but the complainant failed to pay the cost of excess construction and also the cost of digging well and cleaning the plot. As the period of agreement was extended at the request of the complainant and therefore she has to accept the revised rate for the construction of 1810 sq.ft. The said amount is due from 2013 onwards. As per the agreement after period of construction is over the complainant has to pay 20% in excess of the amount due to the contractor and that fact was agreed by the opposite party and her husband. The complainant and her late husband used to lend amount to the opposite party for interest. The allegation that the construction of the house building was incomplete is incorrect as per the terms of the agreement the opposite party neatly constructed the house building. While receiving the amount in cash the opposite party used to sign on the agreement except while receiving cheque. The opposite party spend Rs.4,00,000/- more than the amount received from the complainant for the construction work and she is entitled to get back the amount from the complainant. At the time of construction work of the 1st floor the opposite party was convinced that the complainant would not pay the amount spent by her in excess of the agreed amount and also the cost of constructing more plinth area than agreed in the agreement and therefore the opposite party left the work. According to the opposite party she sustained heavy loss on account of this work and the other allegations in the complaint are false and frivolous. The opposite party further prays to depute Commissioner Advocate and Expert to conduct inspection and value the construction work already done by her. The opposite party further prays to dismiss the complaint.
4. In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party in the construction work of the house building of the complainant?
- Whether the complainant has paid any excess amount to the opposite party than the work done by the opposite party. If so what would be the excess amount entitled to receive back from the opposite party?
- Whether the complainant has paid Rs.4,00,000/- in excess to the new contractor for completing the construction work of the house building as alleged?
- Whether the complainant is entitled to get compensation if so what would be the quantum of compensation to be awarded?
- Relief and costs.
5.The opposite party filed I.A 95/16 and 96/15 seeking to appoint an expert and an Advocate Commissioner to assess the value of construction made by her. The prayer was allowed. Civil Engineer Nandini.S and Adv.Riyas have been appointed on expert and Advocate Commissioner. They filed expert report and commission report respectively.
6.Evidence on the side of the complainant consists of the oral evidence of PW1& Ext.P1 to P5 series document. The report and mahasar of the commissioner has been marked as Ext.C1 series and expert report and plan filed by the expert has been marked as Ext.C2 series. The Opposite party has not adduced any evidence either oral or documentary.
7.The learned Advocate appearing for both sides have filed notes of argument. Heard both sides.
Point No.1 & 2
8.For avoiding repetition of discussion materials these 2 points are considered together. The specific allegation of the complainant is that the complainant and opposite party executed an agreement for construction of 1817 sq.ft in the property belongs to her for a total consideration of Rs.23,00,000/-. As per the terms of the agreement the opposite party started the construction work. However the opposite party has left the construction after obtaining Rs.19,17,500/- without completing the work and inspite of the repeated requests and her complaint before police the opposite party has not completed the work. As per the request of the complainant the construction work already carried out by the opposite party was assessed by a registered engineer who assessed the construction work already done by the opposite party and filed a detailed statement assessing the work done. Accordingly the value of work done was Rs.13,99,444.84/- . Hence it is clear that the opposite party has obtained more than Rs.5,00,000/- from husband of the complainant and left to the construction work without completing the same or repay the excess amount received.
9.The opposite party would admit the execution of the agreement which is marked as Ext.P1 and accordingly she started construction work. However the contention of the opposite party is that as per the agreement the total plinth area agreed to be constructed is only 1300 sq.ft @ Rs.1800/- per sq.ft and that she has obtained only Rs.17,75,000/- from the complainant. But when the plan was set out the plinth area of the building was increased to 1810 sq.ft.
10.However in the notes of argument filed on behalf of the opposite party it is stated that there was no specification in the agreement regarding the area of the building nor stated the rate of construction per sq.ft of the building. However there was an understanding that the area of the building should be 1300 sq.ft and that much should be constructed @ 1600 per sq.ft. If that be so a total construction cost would come only Rs.20,80,000/-. In the light of the materials available on record the contention raised in the version as well as in the notes of argument are devoid of any merit. It is clear from the oral evidence of PW1 that Ext.A1 agreement was prepared by the opposite party and after reading it the complainant signed on it. According to PW1 at the time of entering into A1 agreement the complainant told the opposite party to construct the house building on the basis of the approved plan and sketch. The approved plan and sketch has been marked as Ext.A5 series. As per the sketch the plinth area of the ground floor is 1430 sq.ft and first floor is 387 sq.ft. Therefore the total plinth area is 1817 sq.ft. There is also no mention regarding the area or regarding the sq.ft rate of the proposed building in Ext.A1 agreement. What is stated in Ext.A1 agreement is that the owner proposes to construct the building in the site as per the detailed plan and estimate for a lump sum rate and the builder agreed to undertake the construction for Rs.23,00,000/- only. In Ext.A3 police complaint filed by the complainant also it is stated that the opposite party has agreed to construct a house building having a plinth area of 1817 sq.ft within time stipulated in the agreement.
11.The above averments in Ext.A3 regarding the total plinth area of the house building correspond to the plinth area shown in Ext.A5 series sketch. In the light of the oral evidence of PW1 coupled with Ext.P3 and P5 documents it is clear that the area of construction of the building consisting of ground floor and 1st floor is 1817 sq.ft and the consideration or total cost of that much construction agreed was 23 lakhs is as stipulated in Ext.A1 agreement. It is also brought out in evidence that Ext.A5 series plan/sketch was prepared at the instance of the opposite party and it was produced before the Panchayath Office and paid necessary fee and obtained permit for constructing the building having the area shown in Ext.A5 series document. In view of the materials discussed above it is cristal cleat that the agreement was for constructing a double stored building having a plinth area of 1817 sq.ft for Rs.23,00,000/- and there is no merit in the defence contention regarding the rate and plinth area of the building. As the agreed rate for 1817 sq.ft is Rs.23,00,000/- the rate per sq.ft will be 23,00,000 ÷ 1817=Rs.1265.82/-.
12.It is brought out in evidence that as per the two I.As (I.A.95/16&96/16) one expert engineer and advocate commissioner has been deputed and the expert report and plan/sketch filed by the expert are marked as Ext.C1 series (a) and (b). The mahazar and report filed by the advocate commissioner is marked as Ext.C2 series (a)&(b) respectively. It is clear from the oral evidence of PW1 and Ext.C1 (a)&(b) that total plinth area of the building constructed by the opposite party is 1827 sq.ft. It is clear from Ext.C1 (a)&(b) that out of the total construction of 1885 sq.ft 58 sq.ft construction has been made by the complainant and the opposite party has constructed only 1827 sq.ft. In other words the opposite party has constructed only 10 sq.ft (1827-1817) of building in excess of the plinth area shown in Ext.A5 series plan and estimate.
13.According to PW1, the contractor has left the site after completing 50-75% of the work. It is also brought out in evidence that when the contractor left the construction work and inspite of her repeated request the opposite party failed to restart the work she deputed on registered Engineer Sri.Jishnu who verified the construction done by the opposite party and filed Ext.A2 report stating amount spent for the construction of the building including the construction of well in the property. Accordingly the work done is only for Rs.13,99,445/-. Ext.A3 is a petition filed by the complainant before police. In the said petition the fact that she had deputed a qualified engineer and ascertained the value of construction made by the opposite party is clearly stated. It is also brought out in evidence through PW1 that the period of construction shown in the agreement was extended twice till 2015 at the request of the opposite party. It is brought out in evidence that before exhausting the original period agreed for construction the opposite party has abandoned the work after receiving excess amount. Therefore the payment of 20% of the construction cost for the delayed construction is not at all attracted in this case.
14.The case of the opposite party during cross examination of PW1 is that the builder has abandoned the work since the complainant failed to pay the amount as agreed. But the above contention appears to be incorrect. On perusal of the amount received by the opposite party stated in the overleaf of 1st page(stamp paper) of Ext.A1 it is clear that the opposite party has received amount on 12 occasions the total of which will be Rs.19,17,500/- which is in excess of the value of work carried out. In the circumstance the contention of the opposite party that the contractor abandoned the work as she was convinced that the complainant will not pay the excess amount spent by the opposite party for the construction purpose is devoid of any merit.
15.According to the opposite party the value of work carried out by her while constructing the house building is Rs.4,00,000/- in excess of the amount received. But she has not adduced any evidence either oral or documentary to substantiate that aspect. The materials available on record including Ext.A2, C1 series, C2 series also would not support the above claim of the opposite party.
16. ‘a’ relief sought for in the complaint is to direct the opposite party to return Rs.5,18,036.84 being the excess amount received by the opposite party. Ext.A2 is the detailed estimate showing the value of construction of building of the complainant. As per the estimate only Rs.13,99,444.84/- is the construction cost including the cost of construction of well.
17. In page No.4 of Ext.A1 agreement it is shown as per that schedule Rs.5,00,000/- shall be paid only after completing first floor roof concrete and Rs.4,00,000/- shall be paid on completing wood fitting and Rs.2,00,000/- shall be paid after competing flooring (tiles work). It is clear from the available materials including the oral evidence of PW1 and Ext.P3 copy of the complaint filed before the police that the opposite party has abandoned the construction work before starting first floor roof concrete work. Therefore it is clear that the opposite party is entitled to get Rs.12,00,000/- as the first three installment @ Rs.4,00,000/- each as per the payment schedule. But the reverse side of the first page of Ext.A1 agreement would indicate that the complainant has received Rs.19,17,500/- before abandoning the work. The last payment of Rs.2,75,000/- was received on 15.03.14 and as per the materials available on record. But the opposite party abandoned the work after receiving the last payment on 15.03.14 and also after renewing the agreement on 13.06.14. However the exact date of abandoning the work is not stated in the complaint or in the proof affidavit or when the complainant was in the witness box as PW1. Anyhow it is clear that the complainant after receiving Rs.19,17,500/- abandoned the work and at that time the concrete work of the first floor was not done. In the circumstances it is clear that there is gross deficiency in service on the part of the opposite party.
18.Towards the end of paragraph 4 page No.2&3 of the proof affidavit filed by the complainant it is stated that after abandoning the work the opposite party threatened and persuaded the complainant to measure out the construction work and calculate the cost of construction of the work done so far by the opposite party and as per a mutual agreement a registered engineer was deputed to ascertain the work and cost of construction. The said engineer (Sri.Jishnu) has prepared Ext.A2 report after verifying the construction work and as per the report the opposite party has spent only Rs.13,99,444.84/- for construction so far done at the spot including the cost of construction of well. The said report is marked as Ext.A2 without any serious objection. The opposite party has not disputed the above version of PW1 sworn in paragraph 4 of the proof affidavit. The opposite party also has not disputed Ext.A2 estimate prepared by the expert engineer.
19.In the circumstance it is clear that the complainant is bound to return the excess amount which is calculated as follows.
The amount obtained till the opposite party abandoned
the work is admittedly = Rs.19,17,500/-.
Less the cost of construction made by the opposite party in
the site as per Ext.A2 estimate Rs. 13,99,445(19,17,500-13,99,445) = Rs.5,75,555/-
Less value of 10 sq.ft construction made in excess
of the plan stipulated in Ext.A1 agreement.
The same will be calculated as follows.
If the total cost of construction for 1817 sq.ft = Rs.23,00,000/-
Cost of construction of 10 sq.ft will be 23,00,000x10 ÷1817 = 12658/-.
It is clear from the available materials that the opposite party has carried out approximately 75% of the construction work. Hence 75% of the value of 10 sq.ft will be 9494/- which is rounded to 9500/-. Therefore the amount due from the opposite party to the complainant on account of receiving excess amount will be
Rs.5,75,555- 9500 = 5,66,055/-.
20.However ‘a’ relief sought for is Rs.5,18,036.84 only which was paid to the opposite party in excess of the work done. But as per the calculation shown above based on Ext.A2 document the amount would be Rs.5,66,055/-. In the circumstances relief (a) sought for Rs.5,18,036/- which is less than the actual balance entitled can very well be allowed. Point No.1&2 answered accordingly.
Point No.3
21. ‘b’ relief sought for is Rs.4,00,000/- claimed to have been paid in excess to the new contractor for completing the construction work. In order to substantiate that claim there is absolutely no reliable evidence either oral or documentary apart from the ipsy-dixit of the complainant. Hence we are constrained to decline (b) relief sought for in the complaint. Point No.3 answered accordingly.
Point No.4
22. The specific allegation of the complainant in paragraph 7&8 of the complaint is that due to the deficiency in service on that part of the opposite party in not completing the construction work of her residential building herself and her late husband M.C.Thomas were subjected to mental agony apart from severe financial loss. According to the complainant due to the un professional and deficient service rendered by the opposite parties after receiving Rs.19,17,500/- which is a substantial portion of the agreed consideration, the opposite party abandoned the work which has created much mental agony on her husband who died subsequently. According to the complainant even today she could not overcome the grief caused by the opposite party in not completing the construction work in proper time and thereby she could not live with her husband in the newly constructed house building even for a single day. According to the complainant the damages caused due to mental agony cannot be equated in terms of money. However as ‘c’ relief the complainant claims Rs.50,000/- only as compensation for the mental agony caused her by the opposite party. The opposite party would not specifically dispute the above claim of the complainant in the written version. But would totally deny the claim by stating that it was due to the fault of the complainant the opposite party left the work site, that she has spent more than Rs.4,00,000/- for the construction work in excess of the amount received by her and at the time of the concrete work of the 1st roof she left to the work at the request of the complainant. The above contentions in the written version proved to be incorrect and in view of the reasons stated under point No.1 to 2 that there is gross deficiency in service on the part of the complainant. It is also an admitted fact that the husband of the complainant who was a party to A1 agreement along with his wife died before completing the construction work without fulfilling his wish to leave at the newly constructed house. It is also brought out in evidence that the complainant has also sustained mental agony apart from financial loss due to deficiency in service on the part of the opposite party builder. In view of the facts and circumstances of the case we are of the view that the claim of compensation to the tune of Rs.50,000/- is reasonable and sufficient to meet the ends of justice. The point answered accordingly.
Point No.5
23. In the result the complaint stands allowed in part in the following terms.
- Opposite party is directed to return Rs.5,18,037/- with interest @ 6% p.a from the date of complaint till realization.
- The opposite party is further directed to pay compensation to the tune of Rs.50,000/- with interest @ 6% p.a from the date of complaint till realization.
- The opposite party is also directed to pay Rs.10,000/- as costs of the proceedings.
- ‘b’ relief stands disallowed.
- Opposite party is directed to comply with the directions No.1 to 3 within 45 days from the date of receipt of copy of this order failing which the complainant is allowed to recover Rs.5,68,037/- with interest @ 9% except for the cost from the opposite party and her assets.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 23rd day of November 2020.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani: Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Reni George
Documents marked for the complainant
Ext.A1 : Agreement
Ext.A2 : Detailed cum abstract estimate for the proposed residence of Rini Thomas.
Ext.A3 : Copy of complaint submitted by Eravipuram Police Station
Ext.A4 : Copy of pass book
Ext.A5 series : Copy of plan
Witnesses Examined for the opposite party:-
DW1 : Nil
Documents marked for opposite party:- Nil
Ext.C1 series a&b: Expert report
Ext.C2 series : Commission Advocate’s report
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani: Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
