DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 8^th day of July,  2022

Present      :   Sri.Vinay Menon V.,  President

                  :   Smt.Vidya A., Member                        

                  :  Sri.Krishnankutty N.K., Member                                  Date of Filing:   22/07/2016   

     CC/103/2016

Pradeep,

S/o.Prabhakaran,

Koonanikal  House,

Kallamala Amsam Desam,

Mannarkkad Taluk, Palakkad

  Rep.by POA Prasad,

  S/o.Prabhakarn,

  Koonanikatil House,

 Kallamala Amsam Desam,

Mannarkkad Taluk, Palakkad                                                -                      Complainant

 (By Adv.B.Kamalchand)

                                                                                    Vs

Johnson

S/o. Joseph,

Vallanat House,

Kalkandi, Kallamala amsam desam,

Mannarkkad Taluk, Palakkad                                     -                       Opposite Parties

 (By Adv.K.K.Ramadasan)

O R D E R 

By Sri. Vinay Menon V., President

1. The complainant,  represented by his Power of Attorney Holder in this proceedings, is aggrieved by the alleged deficiency in service on the part of the opposite party builder  while constructing a residential building.  Per pleadings, the complainant,  through his father, engaged the opposite party for construction of his residential building having an area of 2040 Sq.ft. The rate of construction was fixed as Rs.1400/- per sq.ft.  The period for completion of work was one year from the date of agreement. Inspite of having  received Rs.3,80,000/-, the construction had been lagging and substandard from the very beginning.  Only the skeleton  was built.  Foundation is not correct,  pillar work is not proper,  levels of pillars and beams varies are some of the grievances suffered by the complainant.  Basically a residential building that would be constructed would be uninhabitable. There is gross deficiency in service on the part of opposite party. The complainant sought for return of Rs.3,80,000/- alongwith Rs.7 lakhs on other premises.
2. Opposite party entered appearance and filed version contesting the complaint allegations. He claimed that over and above what was stated in the agreement he had also constructed an underground floor and  work  was completed upto lintel level.  Complainant’s father and brother had been supervising the work of the opposite party. The allegation that work was completed only upto an expenditure of Rs.3,80,000/- is false. Total work completed was for Rs.11 lakhs. The balance of Rs.7,20,000/- is due to the opposite party. Had the representatives of the opposite party been dissatisfied with the work of the opposite party, they could have stopped  the work of the opposite party at a very earlier stage.  Intention of the complainant is to terminate the agreement with the opposite party and complete the construction using some other builder.   The building does not suffer from any  damages or the construction from any deficiencies.

The opposite party had filed a suit as OS 148/2016 seeking to restrain  the father and  brother of the complainant from causing hindrances to the construction of the building. This complaint is a counter blast against the opposite party for filing OS 148/2016.

Father of the complainant has given completion certificate to the financier bank stating that a construction costing Rs.16,00,000/- is completed. This complaint is without any bonafides and is only liable to be dismissed with cost.

3. The following issues arise for consideration

1. Whether there is any deficiency in the construction of the residential building ?
2. What is the actual expenditure incurred for construction ?
3. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party ?
4. Whether the complainant is entitled to any reliefs sought for  ?
5. Any other reliefs ?

4.   Evidence  on the part of the complainant comprised of proof affidavit  of the Power of Attorney  of  defacto complainant. Exts.A1 to A3 were marked. Evidence  on the side  of opposite party comprised of proof affidavit, Exts.B1 to B11 and the deposition of  the  Manager of the Bank that financed the construction of the residential building.

      Issue Nos.1 & 2

5.   The  unambiguous case of the complainant is that the residential building constructed by the opposite party suffers from  numerous  defects and is basically uninhabitable. As this allegation was disputed by the opposite party, an Expert Commissioner was appointed. He filed two reports over a period of three years which were marked as Exts.C1 & C2. 

      A discussion of Exts.C1 & C2

 6.  Ext.C1  was filed pursuant to inspection of the property by the Expert Commissioner made on 29/12/2016. Apart from  giving a short note on the drawings, supervision and contract, the Expert Commissioner refers to the complaints raised by the complainant  and states his opinion with regard to the complaints.

7.   The defects of the construction as can be summarized by a reading of the observations made by the Expert Commissioner are as follows:

1. The opposite party constructed 9 pillars and some connection beams without proper structural design.
2. The joints of the columns and beams are not proper at many places. One of the columns is placed out of  line with the  beam. Retaining wall is built  as single brick  masonry. Considering the fill, this construction is unsafe.
3. Some of the beams are supported in this laterite masonry  as opposed  to the normal reinforced cement concrete retaining wall or a  gravity retaining wall in rubble masonry.    Construction of beams in laterite masonry   may create problems.
4. The quality of concrete in the columns and beams are bad.
5. The amount agreed for construction of  cellar floor seems to be low, which in turn may adversely  affect the quality of work of the cellar.
6. A column in the sit-out seems missing.
7. Porch column line is faulty. There is a difference of about 10 cm in alignment.
8. Frames of doors and windows are placed without proper supervision and expertise. Allowance for plastering is not provided at some frames.
9. Levels of some doors and windows are not proper. 
10. Laterite masonry is also not upto the required quality level.
11. The cellar floor was one without proper planning and supervision.
12. Laterite masonry  in ground floor is not fully satisfactory.
13. Door and window frames are not fixed properly.
14. There are some mistakes in alignment also.
15. The second party (opposite party) has spent more money than paid.

8.   Thereafter in the conclusion and suggestion, the Expert Commissioner states the follows:

1. The cellar (basement) part is to be strengthened  by means of providing RCC retaining wall, additional pillars etc.,
2. Some of the doors and windows are to be removed and refixed.
3. If the second party (opposite party) is not continuing the work or the first  party (father of the complainant) doesn’t want him to, the bill may be settled based on the items rate worth mutually agreed after deducting the amount to be set apart for rectification work.

9. Ext.C1 is accompanied by 15 photographs which shows the defects stated by the Expert Commissioner in his report.
10. To Ext.C1, the opposite  party filed major objections like

1. The report was filed without  understanding the crux of the dispute.
2. The Commissioner, even after a request by the opposite party, has failed to take photographs of the building as a whole.
3. Production of some photographs which shows only some minor defects would mislead and misguide.
4. Even after request by the opposite party the Expert Commissioner failed to quantify the amount expended, the amount required to complete the work, the amounts payable to the opposite party provided  service of the opposite party is terminated at that stage.
5. The opposite party is also aggrieved by the non-reporting by  the Expert Commissioner that the present skeleton is defect less, that work could not be completed  due to the conduct of the complainant and the Commissioner has failed to provide reasons for his observations.

11. Thereafter the Expert Commissioner conducted another inspection and filed Ext.C2 report detailing the cost of construction of the property as on 2016. The Expert Commissioner has reported that the construction would cost Rs.5,80,933.46.

To Ext.C2, the complainant has filed objection stating that the Expert Commissioner has filed the Ext.C2 report without properly appreciating the entire aspects of construction and dispute. The calculation does not reflect the actual amounts to be expended for reworks. The Expert Commissioner has failed to ascertain  the expenses for making the building inhabitable. 

      The opposite party was also not satisfied with the contents of Ext.C2. His grievances were that the expert has  failed to show what was the rate of  charges  he had adopted for calculating the amounts to be expended. The expert has failed to state the increased rate that the opposite party  ought to receive in accordance with PWD rates. The expert has failed to segregate the expenses incurred as costs, labour charges and incidental expenses. It is also not clear how much would have to be incurred for completion of the building. The amount of Rs.5,80,933 is paltry and insufficient. The construction carried out thus far would cost Rs.11 lakhs.  The commissioner also ought to have submitted a clear plan alongwith his report. The Commissioner has reduced extent, rates and percentages at various levels. The Commissioner’s report should not be relied on at any stage for ascertainment of the dispute involved in this complaint and sought for remitting the Commissioner’s report.

12.       Traversing normal course, in the absence of any cogent evidence to derail the findings and conclusions in Exts.C1 & C2, we would allow the complaint based on Exts.C1 & C2. But the contents in Ext.C1 and C2 and the photographs, method of calculation adopted by the Commissioner, all these matters not withstanding, there are some  vivid aspects that shed light on a different perspective of the dispute between the parties.   In order to consider that aspect, it is necessary to discuss issue No.2 at this juncture.

13.       A major contentious issue of dispute between the parties  is with regard to the cost of work already carried out and completed by the opposite party.  The complainant claims that the opposite party has completed works only upto a cost of Rs.3,80,000/. Conversely, the opposite party claims that he has completed works amounting to Rs.11 lakhs and that an amount of Rs.7,20,000/-, after payment of Rs.3,80,000/-, is due to the opposite party. The opposite party has also filed a suit for money raising claim for the amounts due from the complainant to the opposite party as OS 148/2016 on the file of Munsiff’s Court, Mannarkkad.

14.       In order to substantiate their claim that works were carried out only to the extent of Rs.3,80,000/-  the complainant has not produced any documents. Even  Ext.C2 report, prepared in 2019 calculated the value of the construction that was carried out during the first half of 2016 at Rs.5,80,933/-. It is pertinent to note that both parties had filed objections to the calculation  method adopted and amount arrived at by the Expert Commissioner. 

But the opposite party, in order to substantiate his claim that he has carried out works amounting to Rs.11 lakhs,  had summoned  the Branch Manager of the Bank that granted financial assistance for  construction of the complainant’s residential building. He deposed as DW1.   The documents pertaining to the loan accounts availed by the complainant and his wife for construction of the residential building kept in the normal course of business of the bank produced by DW1 upon summons from this Commission were marked in evidence as Exts.B1 to B3.   The relevant portions of the deposition of DW1 are as follows:

            Page (2) lines 2 to 6 : AXp {]Imcw A\ymb¡mÀ¡v Ccp]Xv lakhs loan sanction sNbvXn«p­v. AXn 7 e£¯n 30,000/ (Ggp e£¯n\p¸Xn\mbncw cq]) disburse sNbvXp sImSp¯n«p­v.     

            Page (2) lines 6 to 14 : loan stage by stage  Bbn«mWv amount release    sNbvXp sImSp¡p¶p. hoSv ]WnbpsS stage A\pkcn¨v release   sN¿mdv.  Stage certificatesâ   ASnØm\¯nemWv amount release sNbvXpsImSp¡p¶Xv. Cu  case A\ymb¡mc³ lmPcm¡n X¶ stage certificate  Rm\nhnsS lmPcm¡p¶p­v.

            Page (2) lines 20 to 23 and line (1) in page (3). : A\ymb¡mc³ lmPcm¡n X¶ stage certificate   {]Imcw 16 e£w cq]bpsS ]Wn Ignªn«p­v. (maximum  4  stages BWv) amount release  sNbvXn«pÅXv   upto lintel level BWv.

15.       Ext.B1 is the statement of accounts pertaining to the loan account availed by the defacto complainant and his wife. Ext.B2 is the request submitted by father of the complainant alongwith the stage certificate issued by one Jijimon T.P., licensed building supervisor, Global Construction, Agali, Palakkad,  before the DW1, seeking release of funds.

Ext.B1 was marked without any objections. As per the said document Rs.2,30,000/- is seen debited to the loan account on 30/3/2016. On 23/5/2016 there is another debit of Rs.5 lakhs. Thus a total of Rs.7,30,000/- is seen debited to the home loan account.

Ext.B2 stage certificate shows that the work of the building   having been completed upto lintel and sunshade level. The valuation is shown as Rs.16 lakhs. Ext.B2 is accompanied by a request made by father of the complainant. The sole objection to marking Ext.B2 is with regard to the signatory that it was signed  by father of the complainant.   In the facts and circumstances of the case, where the complainant himself admits that the work was being carried on under the supervision of his father and brother,  we are unable to sustain the objection of the counsel for complainant. Hence, it can be seen that the complainant had himself submitted application seeking release of Rs.16 lakhs towards construction costs.  No contra evidence have been adduced by the complainant to disprove the evidence of DW1 and the contents of Exts.B1 & B2.

16.       What transpires from a discussion of the evidence of DW1 and Exts.B1 and B2  is that the complainant had already availed Rs.7,30,000/- from the loan account towards construction of the residential building. A stage certificate,  prepared at  the complainant’s behest (Ext.B2) is  also submitted with a valuation of Rs.16 lakhs.  The fact  that an amount of Rs.7,30,000/- is already sanctioned and released is uncontroverted.   While cross examining  DW1, counsel for the complainant has put various questions to DW1  with regard to the competency of the field officer of the bank in ascertaining the level of construction activities and other subjects.  But we feel that such matters put by the counsel for the complainant to  DW1 are inconsequential considering the fact that the Power of Attorney  Holder of the complainant,  namely his father himself,  had submitted Ext.B2 stage certificate.

            The amount thus far released from the Bank as well as the amount sought to be released relying on Ext.B2 is more in consonance with the pleadings  put forward by the opposite party, that the complainant had already paid him Rs.3,80,000/- and balance of Rs.7,20,000/- is due to him. It is beyond dispute that the Bank would not release the aforesaid amounts without issuance of stage certificate from the complainant’s side. It is also not the case of the complainant that the aforesaid amounts were released without his consent.

17.       On an overall consideration of the pleadings and appreciation of evidence of DW1 and Exts.B1 & B2, we are of the opinion that balance of convenience is tilted in favour of the opposite party.   The probability of the opposite party having completed the construction of the residential building to a tune of Rs.11 lakhs seems the better option to adopt than the case of Rs.3,80,000/-  for the purpose of deciding the dispute in this case.  Even the valuation arrived at by the Expert Commissioner in Ext.C2 eclipses in the face of Ext.B2 which is prepared at the instance and supervision of the father of the complainant himself.

18.       Counsel for opposite party has solicited our attention to the valuation of the works carried out  by the Expert Commissioner appointed in OS 148/2016, so as to arrive at a conclusion.    With due respect, we decline to rely on Exts.B10 & B11 to arrive at a valuation as an Expert Commissioner was already appointed in this complaint and he has already filed his reports as Exts.C1 & C2.  Even though we cannot accurately fix the cost of the work completely, we hold that the valuation submitted by complainant is too low and does not reasonably depict the correct figures and the same is only liable to be ignored.  Further,  quantum of balance amount allegedly  payable to opposite party being the subject  matter of a suit filed by the opposite party as OS 148/2016   in the Munsiff’s Court, we refrain from dwelling deep into the matter. 

            Issue Nos.3 to 5

19.       The only natural outcome that we can arrive at from a discussion as above is that the complainant has failed to prove his case. Hence, this complaint is dismissed.  This complainant is not entitled to any of the reliefs sought for.

            In the facts and circumstances of the case, the parties are directed to suffer their respective costs.

            Pronounced in open court on this the 8^th  day of July, 2022.

         Sd/-

                                                                                                             Vinay Menon V

                                                      President

                                                              Sd/-

    Vidya.A

                        Member     

                               Sd/-

                                                                                               Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Original of Power of Attorney executed by defacto complainant.

Ext.A2- Copy of construction agreement dated 26/12/2015

Ext.A3 – Copy of building permit bearing No.A11-16475/15 dated 24/12/2015

Exhibits marked on the side of the opposite party

Ext.B1 –  Certified copy of statement of accounts with regard to loan account .

                 No.3557441881

Ext.B2 –  Original of loan release request executed by Prabhakaran.K.K.

Ext.B3 -   Certified copy of plaint in OS 104/2018 on the file of the Munsiff Court,

                 Mannarkkad.

Ext.B4 -   Certified copy of written statement in  OS 104/2018 on the file of the Munsiff

                 Court,  Mannarkkad.

Ext.B5 -  Certified copy of attachment application, IA 550/2018  in OS 104/2018 on the file of

                the Munsiff Court,  Mannarkkad.

Ext.B6 - Certified copy of attachment  report and account in IA 550/2018  in  OS 104/2018  

                on the file of the Munsiff Court,  Mannarkkad.

Ext.B7 -  Certified copy of  plaint  in  OS 148/2016 on the file of the Munsiff Court, 

                Mannarkkad.

Ext.B8 - Certified copy of  written statement  of D1 & D2 in  OS 148/2016 on the file of the

               Munsiff  Court, Mannarkkad.

Ext.B9 –  Certified copy of  written statement  of D3 in  OS 148/2016 on the file of the

               Munsiff  Court, Mannarkkad.

Ext.B10 - Certified copy of the report of Advocate Commissioner in  OS 148/2016 on the file

                 of the Munsiff Court,  Mannarkkad.

Ext.B11 - Certified copy of  report of  Expert Commissioner  in  OS 148/2016 on the file

                 of the Munsiff Court,  Mannarkkad

Witness examined on the side of the complainant

  Nil

Witness examined on the side of the opposite party

DW1 – Rajkumar Ramayya, Branch Manager, SBI Agali.

Court exhibits

Ext.C1 – Report of visit on 29/12/2016 alongwith 15 photographs filed by Expert

                Commissioner

Ext.C2 – Report of inspection on 16/5/2019 filed by Expert Commissioner.

Cost :  No costs allowed

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.