Kerala

Idukki

CC/14/89

T A Jacob - Complainant(s)

Versus

Jayson Mathew - Opp.Party(s)

-

17 Jan 2020

ORDER

DATE OF FILING : 4.3.2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 17^th day of January, 2020

Present :

SMT. ASAMOL. P PRESIDENT-IN-CHARGE

SRI. AMPADY K.S. MEMBER

CC NO.89/2014

Between

Complainant : T.A. Jacob,

Thayyilkunnumpurathu House,

Thekkumbhagam P.O.,

Thodupuzha.

(By Adv: K.M. Sanu)

And

Opposite Parties : Jayson Mathew,

Kudippara House,

Elamdesam P.O.,

Thodupuzha.

(By Advs: K.J. Thomas

& Johnson Joseph)

 

(cont....2)

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O R D E R

SRI. AMPADY K.S., MEMBER

Complainant's allegations are as follows :

For completing the balance works like flooring, cupboard, woodworks, re-painting, interior works, additional electrical and plumbing works, ceiling works and for beautifying the house having 2800 sq.ft area of the complainant, he entered into agreement with opposite party who is a contractor for Rs.23 lakhs (twentythree lakhs). Opposite party agreed to complete the work within 4 months with the materials to be brought by him. Evenafter one year, he has not completed the work and the work so far done is having defects and materials used were of inferior quality and no finishing for the work done.

Ceiling tiles paved were not suited to the grills fitted in sitout and pebble court. Hence many tiles were fallen. Pebbles agreed to be laid were bigger in size but used item is smaller one. Besides, roofing tiles were agreed to be painted on both sides but painted on upper side only and several tiles were broken while painting work was done.

Tiles and granites laid outside the house is having gap and it is not finishing. Granites used in sit out is having colour change. Likewise, side of granites laid on staircase were not rounded which leads to accident and having no beauty. In several places, cement was pasted on tiles and by cutting plywood on the tiles resulted in dots on it. Tiles were not pasted on certain portion of side walls.

Different types of plywood was used as against agreed item of marine plywood. By employing unskilled workers, cupboard work is having no finish and may gaps were on it. Painting work was not done as agreed. Different brands were used instead of agreed Asian and Jotum brands. Similarly V Board materials were agreed to be used in upstair room but item

(cont....3)

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used is banned asbestos sheets. It is also broken at certain parts. 3 coats of painting were agreed to be done on windows and grills but only one coat is done. Sunshade is also not painted.

Additional wiring and plumbing work was not completed and not fitted electrical apparatus and taps. Due to deficiency in wiring work, interior valued Rs.18000/- was damaged. Due to improper fitting of bathroom items in upstair rooms, leak occurred in concrete and walls of ground floor. Opposite parties workers have poured cement and waste in 4 closets fitted which resulted in not using the same.

Eventhough a period of four months for completion of work is agreed, evenafter 9 months, it was not done. Complainant and wife resided in rented house during the above period and since the work was not completed even after 9 months, they had to vacate the rented house and started to reside in one room of his house. Furniture is stored in terrace of 1^st floor. Since the work was not completed within the agreed period, complainant has suffered a loss of Rs.75000/- towards rent.

The work can be done with good materials for lesser amount than agreed. Opposite party has charged excess amount. (Estimate may be prepared at PWD rate and the complainant is entitled to obtain balance amount.) (amended as per order dated 18.7.2014.). Since the work was not done within the agreed period and by using low quality materials and having no finishing in the work done is deficiency in service. So complainant is entitled to remove the above defects and rebuild the portion worked with low quality materials or return the amount for these works. Besides, he is entitled to recover the loss on rent given and also entitled to recover compensation for deficiency in service. Hence the complainant prayed for the following reliefs.

a) Recover and give the excess amount obtained by opposite party. (amended as per order dated 18.7.2014) and to rebuilt the defective portion happened due to improper use of low quality materials and without finish and also for completing the balance work an amount of Rs.12 lakhs may be recovered from the 2^nd opposite party and give to the complainant. (cont....4)

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b) Loss of Rs.75000/- towards rent may be recovered and give to the complainant.

c) Compensation of Rs.1 lakh may be allowed towards deficiency in service of the opposite party.

d) An amount of Rs.5000/- may be allowed towards costs of the case.

Opposite party filed written version stating the following.

1) Complaint is not maintainable either in law or on facts. There is no consumer relationship between the complainant and opposite party and there is conditions as per agreement only. So complaint is not tenable before this Forum.

2) Opposite party admitted the averments in paragraphs 1 and 2 of complaint.

3) Opposite party denied allegations in paragraph 3 of the complaint. Work was doing as per agreement within time. During final stage of work, cupboard was built in kitchen at a height of 80 cm as per plan and finished. But based on directions given by complainant's son Jyothis residing abroad and his wife, granite and tiles were demolished and rebuilt at a height of 90 cm at the expense of opposite party which resulted in delay. Work was done as per agreement using good quality materials available in market. Opposite party has stated in written version that he is producing photo and CD of finished cupboard work at a height of 80 cm and copy of plan of kitchen.

4) Allegations in paragraph 4 are denied by him. The complainant has already done the grill work for laying tiles and it has different measurement at different parts. Hence after convincing the above facts, tiles were cut as per need and fixed by using gum and painted and produced the photo thereof. There is no mention about the pebbles to be used in pebble court and due to the objection raised by complainant, pebbles brought were not fitted in the pebble court. There was no agreement to paint on both sides on roof tiles already laid.

(cont....5)

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5) He denied the allegations in paragraph 5 of complaint. Granite and tiles were selected by complainant and his younger son and purchased from Rajastan Marbles, Kadamattam and opposite party has made payment thereof as per their direction. Above items were loaded in the presence of complainant and his son and there was minor colour fade on 2 granite sheets and those were laid at sitout adjacently without affecting beauty. There was no gap in laying this and was done as per directions and in the presence of complainant. There was no objection during that period. Polishing and laying work was done as done in the above shop and as per direction of complainant. After completing the above work, when above Jyothis arrived and as per his directions, granites except steps were rounded. Besides, granites fitted on side of walls were changed and separate granite was used for this work. Since handrail was already fixed on steps, it cannot be demolished. These works were not mentioned in agreement and were done as per direction of complainant's son and with the consent of complainant. Grout ought to be used if necessary for doing point work. It would not affect the beauty. If any damage occurred due to the use of heavy boxes or cot by complainant, he is not responsible for this.

6) He denied allegations in paragraph 6 of complaint. Quality marine plywood were used for cupboard as per agreement and it was done by experienced workers.

7) Allegations in paragraph 7 of complaint is also denied by opposite party. Painting work was done as per agreement and quotation. By spending more amount, Berger paint was used as per e-mail given by above Jyothis at the front portion of house. As per directions of complainant, V-Board brand cement fiber board was used for ceiling in upstair. No such asbestos sheets were available in market. Work was done using channel in iron rod and it is strong and beautiful.

8) Allegations in para 8 were also denied by opposite party. After cleaning the doors, window, grills etc., painting was done as per agreement.

(cont....6)

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9) Paragraph 9 of the complaint is also denied. Kitchen work was done as per terms of agreement. Switches and taps were fitted beautifully. After raising the height, removed switches and taps were fitted. Those were removed by complainant for the purpose of case. Opposite party has fitted switches and taps in the kitchen only. If there was any leak due to the concrete in upstair, opposite party is not responsible for the same. Tiles and fittings used in the bathroom were as per agreement. No damage was caused to inverter or bulbs, due to the fault of opposite party.

10) Allegations in paragraph 10 is also denied by opposite party.

11) Opposite party is not responsible for allegations raised in paragraph 11. Complainant was residing in rented house from earlier period. Work was completed within time. Due to changes suggested as above, delay was occurred to rebuild the changed portion.

12) Opposite party contended that complainant has not raised any objection till paying Rs.20 lakhs. As per agreement, complainant has to pay balance Rs.3 lakhs. Besides, opposite party claimed an additional amount of Rs.1.7 lakhs towards various works done like laying granite, raising of height of cupboard and changing cupboard colour, for construction of one side wall of pebble court as per vastusasatra, for raising height of cupboard in 2 bed rooms, for laying tiles beneath the lower concrete portion, for laying the changed tiles and granite in kitchen, labour charge for raising the height of cupboard in kitchen and for rounding the side of granite steps at the front portion etc.

13) While the opposite party raised the claim of above amount, the complainant filed the present complaint with the aim of creating wrongful loss to the opposite party and thereby to make wrongful gain to the complainant. So the opposite party prayed for allowing a total amount of Rs.4,70,440/- mentioned above with bank interest upto date and for allowing cost of the case to him and also for dismissing the complaint.

(cont....7)

 

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In the written version, he has shown the following documents. 3 photos, 1 CD, 1 kitchen plan and mail regarding the paint of Berger company. But no such documents were seen filed.

At the instance of complainant, Sri. A. Ajithkumar, Commissioner Advocate and Expert Commissioner (Asst. Engineer, PWD Buildings Section, Thodupuzha) were appointed. Advocate commissioner filed interim report dated 4.4.2014. Thereafter by giving notice to both parties and Expert Commissioner visited the building on 26.4.2014 and produced commission report along with expert commissioner’s report on 14.7.2014. Not satisfied with the report of expert commissioner, complainant filed application for appointing new expert commissioner or to return the report and call for fresh report of expert commissioner ascertaining all the points raised by him in the commission application. Opposite party also filed objection to the report of expert commissioner stating that the expert commissioner has not visited the house or gave notice to opposite party’s advocate etc. So he prayed for returning the expert report and direct to visit the building along with advocate commissioner and to file fresh report. Opposite party also filed objection stating that new expert commissioner need not be appointed.

 

This Forum has set aside above report of expert commissioner and appointed Sri.Biju S., Assistant Project Engineer, District Nirmithi Kendra, Idukki as the new expert commissioner. He filed his report dated 28/07/2017 on 18/09/2017.

 

Complainant filed proof affidavit and examined as PW1 and marked the following documents as Ext.P1 and Ext.P2 with objection.

 

1 ) Agreement and work schedule between the complainant and opposite party dated nil month February and year 2013 on stamp paper. In second page date of agreement is shown as 01/02/2013, which is marked as Ext.P1.

 

2 ) Ext.P2 is the interim commission report.

(cont....8)

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3 ) Commissioner Adviocate Sri.A.Ajithkumar is examined as PW2 and newly appointed expert commissioner Sri. Biju S. is examined as PW3 and marked final commission report as Ext.C1 and expert report as C2. Evidence closed and posted for orders. Opposite party filed petition for reopening the evidence and posted for objection and hearing on 10/12/14. Petition to reopen evidence is dismissed and complainant's part is taken as heard and posted to 17/12/19. Then the case stands posted to 09/01/2020. On that day complainant represented and opposite party was absent. No Representation also. Hence opposite party is set exparte and posted for orders on 17/01/2020.

 

We have examined the contentions of both parties and perused the evidences produced by complainant and report of commissioner and expert commissioner.

 

It is seen that the complainant has raised various allegations against the opposite party regarding the work done. In Ext.P1 agreement, various works were entrusted to the opposite party for total consideration of Rs.23 lakhs (twentythree lakhs) and schedule of payment also stated. It is a major contention of the complainant that work was not completed within the agreed time and the work so far done is having several drawbacks and the materials used and also the manner of work is not as stated in the agreement. At the same time, opposite party contended that works were done according to the agreement and as per directions given by the complainant. Complainant has paid Rs.20 lakhs from the contract amount shown above. First Expert commissioner reported the expense of Rs.135385/- (One lakh thirtyfive thousand three hundred and eightyfive) for the various works to be completed. The 2^nd expert commissioner filed report stating that an amount of Rs.334500/- (Three Lakhs Thirtyfour Thousand and Five Hundred only) is necessary for the works to be completed as per complainant’s application for commission report. Advocate commissioner as per his report dated 5.7.2014 has stated that the amount reported by the 1^st expert commissioner is necessary for doing the work required to be ascertained as stated by the complainant. The 1^st and 2^nd expert report is having material differences. First expert’s report was already set aside. Opposite party has not rebutted the allegations as well as evidence adduced by the complainant and also report of the 2^nd expert commissioner. (cont....9)

 

 

 

 

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In the written version, the opposite party has raised the counter claim for Rs.470440/- ( balance contract amount Rs.3 lakhs + expenses for additional works done). Eventhough such a claim is raised by the opposite party and also stated that certain documents and CD were filed, those were not seen filed as stated above. He has not produced any evidence to prove that he has done additional works as claimed by him. Opposite party is also not examined. From this, it is clear that opposite party has failed to establish his contentions as raised in the written version. Evenafter closing the evidence, opposite party filed petition for reopening the evidence which is dismissed. When the case was called, there was no representation on the part of the opposite party and hence opposite party is set exparte. In the above circumstances, we have no other alternative, but to dispose the case with the material available on record.

On a perusal of the contentions, entire facts and circumstances of the case and also evidences adduced from the part of complainant, the points that arise for consideration are the following :

1. Is there a consumer relationship between the complainant and opposite party ?

2. Whether the claim of the complainant for Rs.12 lakhs towards replacing the unfinished works and also for changing the materials used which were inferior in quality and also for refund of excess amount collected by the opposite party is allowable ?

3. Whether the complainant is entitled to recover an amount of Rs.75000/- towards loss in house rent spent by the him due to the delay in works is allowable ?

4. Whether there is any deficiency in service on the part of the opposite party.

5. Costs of the case.

   Point No.: 1

The contention of the opposite party in this regard is not sustainable. Terms of agreement would clearly prove that service availed through works entrusted to (cont....10)

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opposite party is for consideration and payments were received by him. So consumer-service provider relationship exists between the complainant and opposite party. So the contention of opposite party is overruled. Hence the point is answered in the affirmative.

Point No.: 2

Even though complainant has claimed Rs.12 Lakhs for the relief claimed as No.2., there is no evidence to allow such an amount. The second expert commissioner has reported Rs.3,34,500/-(Three Lakhs Thirtyfour Thousand and Five Hundred only) for the various works to be done pointed out by the complainant. From the contentions, evidences adduced for complainant also the depositions of the complainant, considering report of Commissioner Advocate and Expert commissioner and also considering the materials on record, we direct the opposite party to give Rs.3, 34,500/- ( Three Lakhs Thirtyfour Thousand and Five Hundred only) towards point No.2. Hence this point is answered accordingly.

Point No.: 3

Complainant has not produced any evidence regarding the house rent paid by him due to the fault of opposite party. At the same time opposite party has stated that complainant was residing in rented house even before commencement of the work. In these circumstances we are unable to accept the contentions of the complainant with regard to this. Hence we are declined to allow the claim. Hence this point is answered in the negative.

Point No.4

 

From the evidence on record, we are satisfied that there is deficiency in service on the part of the opposite party. Hence we direct the opposite party to pay Rs.25, 000/- (Twenty-five Thousand only) to the complainant for the deficiency in service.

(cont....11)

- 11 -

 

Point No.5

 

Considering the nature of the case, we allow Rs.8,000/- (Eight Thousand only) towards the cost of the case to the complainant. All the above amounts should be paid by the opposite party to the complainant within 30 days from the date of receipt of this order, failing which this will carry simple interest @ 8% per annum from the date of complaint till full realization.

In the result, complaint is allowed as indicated above.

Pronounced in the Open Forum on this the 17^th day of January, 2020

 

Sd/-

SRI. AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL. P, PRESIDENT-IN-CHARGE

 

 

 

 

 

 

 

 

(cont....12)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - T. A. Jacob.

PW2 - Ajithkumar A.

PW3 - Biju S.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 – copy of agreement.

Ext.P2 - interim commission report.

Exts.C1 and C2 - commission reports.

On the side of the Opposite Party :

Nil.

 

 

Forwarded by Order,

 

SENIOR SUPERINTENDENT