IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.121/2019 (Filed on 23/07/2019)
Complainants : 1. M.A Joseph S/o Kuruvilla Jacob,
Moonnumoolayil House,
Pulikkuttissery,
Kottayam.
2. Tarun.M. Joseph S/o M.A Joseph,
Moonnumoolayil House,
Pulikkuttissery,
Kottayam.
Represented by his P.A Holder
M.A Joseph S/o Kuruvilla Jacob,
Moonnumoolayil House,
Pulikkuttissery,
Kottayam.
(By Advs: Muhammed Nizar N.P
& Sheeba Tharakan)
Vs.
Opposite party : Joemon Varghese,
Proprietor,
Jerlin Constructions,
Madappattu House,
Aymanam, Kottayam.
(By Adv: G.R. Panicker)
O R D E R
Sri.Manulal.V.S, President
Case of the complainants is as follows:
First complainant is the father and Power of Attorney Holder of the second complainant. Believing the advertisement published by the opposite party the first complainant entered in to an agreement with the opposite party on 22/10/2018 for the construction of a residential building for the second complainant who is working abroad. As per the agreement the opposite party agreed to construct the residential building with an area of 1600 square feet and to complete the construction work as per the mutually agreed terms and specifications within 5 months from the date of agreement. It is further agreed by the opposite party that he will hand over the keys of the completed structure to the first complainant on 21/03/2019.
Later as per an addendum the opposite party agreed to install a gate at an additional cost of Rs.20,000/-. Thus, the total cost of agreed construction stood at Rs.29 lakhs.
The opposite party undertook, among other things, in the agreement that ground work would be done with two or three layers of ‘makku’ and that roller would be engaged to level the same. It was agreed that PCC work would be done at 2 feet width and 10 cm thickness for the foundation. As per the agreement, the opposite party was to fill the foundation with enough quality loose soil. It was also agreed by the opposite party that the front door and front windows would be made of teak and they would be polished and other doors and windows would be painted with enamel paint and the compound wall would be painted.
As per the agreement the first complainant was bound to pay the opposite party specified sums at various stages of the construction. However, the opposite party, making the first complainant believe that he would complete the whole construction work in February 2019 itself and induced the first complainant to pay a total amount of Rs.16 lakhs from the date of agreement to 16/01/2019. When the house loan was sanctioned an amount of Rs.10 lakhs was also paid. As such the first complainant had paid a total amount of Rs.26 lakhs out of the agreed amount of Rs.29 lakhs. Out of this amount the opposite party refunded an amount of Rs.2,50,000/- to the first complainant for the purchase of materials like tiles, granite, closets and kitchen sink according to his choice and the same were purchased by the first complainant for the opposite party. Apart from the Rs.26 lakhs paid to the opposite party, the first complainant had spent an amount of Rs.1,60,000/- for cost of materials and labour charges for making door and window panes. The first complainant also spent Rs.10,000/- for purchasing and installing a motor pump. Thus, a total amount of Rs.27,70,000/- out of the total contracted sum of Rs.29 lakhs has been paid to the opposite party and an amount of Rs.1,30,000/- remains to be paid if he had completed the works as agreed.
It is alleged in the complaint that a lot of works remains to be completed. The opposite party abandoned the work on 28/04/2019 and Engineer Sanish.S engaged by the first complainant assessed that electrical fittings, plumbing fittings, painting and civil works on compound wall and gate were to be completed and he further assessed the cost for the same to the tune of Rs.4,41,657/-. According to the complainants they have incurred loss of Rs.3,11,657/- as the opposite party abandoned the work. It is alleged in the complaint that the opposite party received Rs.3,11,657/- from the complainants without completing the agreed works and he is liable to refund the same.
It is further alleged in the complaint that the opposite party did not construct the building as per the agreed terms of the agreement. Enough quantity of makku and loose soil were not used for ground work and filling the foundation. PCC was not done as per the agreed width but only at a width of 1.5 feet.
The doors and window pans were not fitted on the frames. The septic tank was not constructed using reinforced concrete and the well was not deepened enough so that there was no water. The pillars in front of the building were not completed and lock was not fitted in the front door. The compound walls were only partially completed and the gate was not installed, only one coat is applied on the inner walls. Electrical works were not properly done and not finished hence the completion certificate has not been obtained. The plumbing works are also faulty.
The opposite party did not complete the work in time nor did he hand over the keys as agreed, he simply abandoned the work. The first complainant had been living in a rented house along with his family members. Since the opposite party did not complete the works or hand over the keys on 21/03/2019, the first complainant had to move all the utensils, furniture and all household equipment to the unfinished building. House warming ceremony was fixed to be held on 29/04/2019 after intimating the opposite party. Since the opposite party did not complete the work before the said date the complainants were compelled to cancel the same. Finally in the absence of any other option the complainants had to move to the unfinished building.
Due to non-completion of the building as agreed by the opposite party the complainants had to undergo huge mental agony, stress and physical discomforts and financial loss. According to the complainants the act of the opposite party amounts to deficiency in service and unfair trade practice on the part of the opposite party. So, this complaint is filed by the complainants praying for an order to direct the opposite party to refund Rs.3,11,657/- being the amount collected by the opposite party from the complainants without completing the agreed works and to direct the opposite party to pay Rs.5 lakhs as compensation along with Rs.50,000/- as cost of this litigation.
Opposite party appeared before the Commission and filed version contending as follows:
An agreement for construction of the residential building was executed by the complainants and the opposite party on 22/10/ 2018. But the terms of which were stipulated by the first complainant were unilateral. Though the completion date was shown as 2/03/2019, the first complainant himself did not allow the opposite party to complete the construction in time as he did not pay the amount stipulated in the payment schedule of the agreement and insisted upon making additional constructions without giving payment to the opposite party. The opposite party has constructed the building in accordance with the terms of agreement. There was not even an attempt on the part of the opposite party to delay the construction work.
The gate and 50 meter extra length of the compound wall was constructed for which the complainants did not pay the amount. The opposite party has done all works in accordance with the terms of agreement, except for the additional work, by deviating the terms of the agreement as per the request of the complainants. The payment was not given to the opposite party as scheduled. The first complainant made delay in payments. The first complainant did not give Rs.27,70,000/- to the opposite party as alleged. The first complainant has given only Rs.22 lakhs to the opposite party upto plastering and painting white cement. The opposite party had claimed 2,200/- rupees per square feet for construction. But the first complainant wanted only a low cost of rupees 1800/- per square feet for the construction. The first complainant wanted only low-rate contemporary normal style work with low cost. The first complainant agreed that he would pay all the cost of additional work. The opposite party made additional work to an actual cost of Rs. 4 lakhs for which the first complainant did not pay. Out of the contract amount of Rs.29 lakhs the complainants paid only Rs.22 lakhs. The first complainant himself purchased tiles, electrical fittings etc. having a very high rate, more than agreed rate and did not give any bills to the opposite party but recashed Rs.2.5 lakhs from the opposite party for that purpose. When the opposite party demanded the bills of the above said materials, the first complainant called bad words and picked up a quarrel with the opposite party and his workers. The first complainant did not allow the work supervisor and the workers to enter the properties of the first complainant for the construction of the building. According to the opposite party the first complainant is liable to pay the opposite party a total amount of Rs.7.5 lakhs for the additional works and for the contracted work. When the opposite party demanded the amount the first complainant refused to give it and threatened that if the opposite party or his workers entered upon his property for completing the work, they would have to face dire consequences. Without informing the opposite party and paying the balance amount, the complainants conducted a house warming ceremony and started residing in the building. Despite repeated demands and reminders, the complainants did not give the balance amount of Rs.7.5 lakhs to the opposite party.
When the opposite party told the complainant that he would file a complaint to the police, as an advance attack the first complainant filed a false complaint to the Manarcadu police. The second complainant came on leave and requested the opposite party to complete the additional work undertaking payment for the same. But the compliment did not pay the same. Instead of payment the first complainant started to call filthy languages. The Manarcadu police authorities settled the matter in the mediation. The first complainant agreed to pay Rs.7.5 lakhs to the opposite party for the early completion of works. To complete the additional work, the opposite party demanded Rs.5 lakhs out the balance amount of Rs.7.5 lakhs. But the first complainant did not heed to the demand of the opposite party hence opposite party was forced to stop the work at that juncture.
Almost all the works and additional works were also completed. The assessment of the engineer who is appointed by the complainants is not correct and not binding on the opposite party. The land in which the building is constructed is reclaimed land as such the Panchayath authorities were reluctant to grant license for the construction of the proposed building.
It was submitted in the version that as per the agreement electricity and water to be supplied by the complainants. But the opposite party had to spend Rs.60,000/- for water and Rs.10,000/- for erection and shifting electric posts. Instead of 6” solid cement block 8” cement block used for the construction work. Instead of contemporary style slanting RCC roof was constructed. Parapet was made with design work instead of plain work. As per agreement and instructions from the first complainant, the wall was to be constructed only up to the front side of the building. But it was extended upto the road by spending an extra amount of Rs.1.5 lakhs. On the whole front side of the building cladding tiles were used instead of a limited space. As per the agreement windows and doors were to be constructed with Anjili wood, but it was constructed with Teak wood.
According to the opposite party the construction work was carried on as per the schedule, but the first complainant interrupted the work every often by suggesting extra, additional new work. To complete such work, a lot of time and money was spent. For each and everything the first complainant put a gag/ impediment to continue the work. For each and everything he found fault with the workers. If the completion is delayed it is only due to the first complainant’s interference with the work. Within a period of 5 months the plastering and painting of white cement was completed. If the first complainant had taken the building for rent, the opposite party is not liable for the same. Had the first complainant refrained from interfering with the work and paid for the work already executed, the construction would have been completed as per the agreement. None of the reliefs prayed for by the complainants is allowable. The opposite party is not liable to payRs.3,11,657/- to the complainants, whereas the complainants are liable to pay Rs.7.5 lakhs to the opposite party.
Evidence part of this case consists of deposition of PW1, PW2, PW3 and Exhibits A1 to A10 and X1 from the side of the complainant. DW1 and DW2 were examined from the side of the opposite party.
On evaluation of complaint, version and evidence on record we would like to consider the following points:
(1) Whether the complainants had succeeded to prove any deficiency in service on the part of the opposite party?
(2) if so, what are the reliefs?
For the sake of convenience, we would like to consider point number one and two together.
POINTS 1 & 2 :
It is an admitted fact that the complainants had entered into an agreement with the opposite party on 22/10/2018 for the construction of a residential building for the second complainant. Exhibit A2 is the copy of the agreement executed between the first complainant and the opposite party. On perusal of Exhibit A2 we can see that the opposite party has agreed to construct a residential building with the floor area of 1600 square feet at a rate of rupees 1800/- per square feet. But it is agreed by the opposite party in Exhibit A2 that he would complete the construction work as per the terms and specification within 5 months from the date of agreement and hand over the key of the completed structure to the first complainant on 21/03/2019. The payment schedule at various stage of the construction is also described in Exhibit A2 agreement. Later an addendum was executed between the parties on 27/02/2019 vide Exhibit A3. The parties to the agreement agreed to enhance the cost of construction to the tune of Rs.29 lakhs and the opposite party has agreed to construct a compound wall for an amount of Rs.20,000/- in Exhibit A3.
The specific case of the complainants is that making them to believe that he would complete the whole construction work in February 2019, the opposite party received a total amount of Rs.26 lakhs out of the agreed amount of Rs.29 lakhs by 27/02/2019. According to the first complainant out of Rs.26 lakhs later the opposite party refunded an amount of Rs.2,50,000/- to him for the purchase of pipes, granite, closets and kitchen sink and he purchased the same with the assistance of the staff of the opposite party. It is submitted by the first complainant that apart from these he had spent Rs.1,60,000/- as cost of materials and labour charges for making doors and window pans and Rs.10,000/- for purchasing and installing motor pump. The PW1 who is the first complainant deposed before the Commission that he had spent a total amount of Rs.27,70,000/- out of the total contracted sum of Rs.29 lakhs and an amount of Rs.1,30,000/- remains to be paid to the opposite party at the time of the completion of the construction work. According to PW1 the opposite party abandoned the work on 28/04/2019 without completing the agreed works and thereby caused a loss of Rs.3,11,657/- to him.
The complaint was resisted by the opposite party contending that the construction work was carried on as per the schedule. The first complainant interrupted the work very often by suggesting extra additional work and to complete such work lot of time and amount was spent. Further more, considerable time was taken for obtaining the licence from the Panchayath and due to the quarrelsome and recalcitrant attitude of the first complainant delayed the work. The complainants did not pay the balance amount of Rs.7.5 lakhs which is spent by the first opposite party for the construction of the building.
To prove their case the complainants applied for appointment of an Expert Commissioner to inspect the subject matter building. The said application was allowed by this Commission and an Advocate Commissioner was appointed to inspect the subject matter building with the assistance of an expert. Exhibit X1 is the report filed by the Expert Commissioner. In Exhibit X1(c) the Expert Commissioner has reported that to complete the construction of the building as per the agreement an amount of Rs.4, 61,550/- would have to be spent by the complainants. PW2 who is the Expert Commissioner reported in X1 that enough quantity of makku and loose soil were not used for the ground work. He further reported in his report that the vibrator is not used for the quantity of the plinth beam of the foundation and it will cause to the rust in steel reinforcement in future. It is further reported by the Expert Commissioner that the height of the floor inside the building was not in same level and the sit out of the building was lying lower than the ground floor as the level of the floor is not at the specified level. PW2 deposed that the use of the staircase is difficult due to uneven height of the steps and the height of some of the steps are more than permissible. Staircase handrails are not installed and plastering of wall, and ceiling is not level and it looks unsightly. Terrace plastering is laxly done with poor quality and not enough to rainwater drainage. The parapet walls are incomplete and the plastering is incomplete. Because the slope given above the kitchen is not plastered and the plaster is not done, the rainwater seeps through the wall, causing moisture to enter the interior of the rooms. KSEB is obstructing the reinstallation of the electricity connection as the electrical works are not completed. Plumbing works were not properly done. Septic tanks are also not properly constructed. The windows and doors are of poor quality, the perimeter wall is not of sufficient height and the perimeter wall where the gate is installed is not completed. The construction work has been done without timely expert inspection or supervision in terms of quality. The Commissioner deposed before the Commission that all the defects mentioned in Clause d of X1 can be seen with naked eyes. The Commissioner has deposed that the inferior quality of timber and iron rod used is visually convincing. The Commissioner testified that he was convinced that 60 percent of the painting work was left. The Commissioner has also deposed that the estimate given along with the report is for the work to be completed as per the prevailing market. Though the opposite party cross-examined the Commissioner in detail but could not bring out anything to disbelieve the report of the Commission.
During the cross examination DW1 who is none other than the opposite party admitted that the details of the payment received by him is recorded in Exhibit A2(a). DW1 admitted that he had received Rs.26 lakhs from the complainants till 27/02/2019. It is further admitted by DW1 that out of the Rs.26 lakhs, Rs.2.5 lakhs was returned to the first complainant and the same is recorded in Exhibit A3. Opposite party during the cross examination admitted that in Exhibit A3 there was no entry regarding any other money returned to the first complainant. It is further admitted by the DW1 that he had not raised any complaints stating that the first complainant did not hand over the materials to him, which were agreed by the opposite party to purchase as per the terms of the Exhibit A3. Though the opposite contended that the first complainant had received Rs.5 lakhs from him on the date of the execution of A3, he did not send a notice or lodge a complaint with any authority. It is proved by Exhibit A4 series that the complainant had spent Rs.1,60,000/- for the purchase of materials like pipes, granite, closets and kitchen sinks. Exhibit A5 is the quotation submitted by Sree Enterprises to the first complainant for the materials like doors for an amount of Rs.2,25,900/-. It is further proved by A7 and A7(a) that the complainants had paid Rs.95,000/- for the materials which is stated in the Exhibit A5 quotation. The complainant claimed that he had paid Rs.65,000/- to the owner of the Sree Enterprises, they did not produce any documents to prove the same. Thus, it is proved by the evidence on record that the complainants have spent Rs. 26.05 lakhs to the construction of the building.
During the cross examination DW1 deposed that he did not install the handrails of the staircase and not completed the construction of the compound wall. It is further admitted by the DW1 in cross examination that 10% of the painting work is remaining. DW1 admitted that he had stopped the work due to the non-payment by the first complainant. Though the opposite party contended that he had spent Rs.7.5 lakhs for the additional work he did not adduce any evidence to prove the same. He admitted that Exhibits X1(a) photographs were taken by the Commissioner in his presence. It is pertinent to note that the opposite party did not make any attempt to ascertain the alleged additional work by the Commissioner at the time of the inspection of the subject matter building. Another contention put forward by the opposite party is that the work delayed due to the modification and extra work which was requested by the first complainant. However the opposite party did not take any steps to prove the modification which were made by him as per the direction of the first opposite party. DW2 who is the supervisor of the opposite party deposed before the Commission that according to Exhibit A9 approved plan of the building the roof of building is slanting. This curtails the contention of the opposite party that the roof was constructed by slanting RCC work instead of contemporary style as stated in the agreement. DW2 further deposed before the Commission that he has not sent any daily report to the opposite party and not made any written complaint stating that the work was not going on due to the interference and hindrance from the side of the first complainant. According to DW2 he is not aware about the terms and conditions regarding the payment.
It is admitted by the DW1 that as per Exhibit A3 that the balance amount of Rs.3 lakhs would be paid by the first complainant at the instance of handing over the key. Exhibit A10 is the copy of undertaking entered between the first complainant and the opposite party before the Manarcadu Police authority. The opposite party vide Exhibit A10 agreed to complete the ground floor of the building on or before 28/04/2019 and to complete remaining works on or before 10/06/2019.
On evaluation of the above discussed evidence, we are of the opinion that the opposite party abandoned the work without completing the construction and this act amounts to inadequacy, imperfection and shortcoming in the service which is offered by the opposite party to the complainants.
The expert Commissioner has prepared estimates for completing the remaining works of the subject matter building. In Exhibit X1(c) he had calculated Rs.4,61,550/- is required to complete the building. No doubt that the complainants have suffered much mental agony and financial loss due to the deficiency in service committed by the opposite party in constructing the residential building of the complainants. Considering the nature and circumstance of the case we allow this complaint and passed the following order.
We hereby direct the opposite party to pay Rs.5 lakhs (Rupees Five Lakhs only) to the complainants as compensation for the deficiency in service on the part of the opposite party. The order shall be complied within 30 days from the date of receipt of this order, failing which the amount shall carry 9% interest per annum from the date of this order till realization.
Pronounced in the Open Commission on this the 24th day of August, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainants:
PW1 - M.A. Joseph
PW2 - Bijo Philip
PW3 - Shebin Cyriac
Witness from the side of Opposite Party :
DW1 - Joemon Varghese
DW2 - Vinesh V.S
Exhibits from the side of the Complainants :
A1 - Copy of Power of Attorney executed by the
2nd complainant in favour of the first complainant
A2 & A2(a ) - Copy of Agreement dated 22/10/2018 executed
between the 1st complainant and the opposite party
& payment schedule at various stage of the construction
A3 - Copy of Addendum to the original agreement dated 27/02/2019
A4(Series) - Copy of Bills for purchase of granite, closets, kitchen
sink and pipes(14 Nos)
A5 - Quotation dated 12/03/2019 issued from Sree Enterprises,
Panachikkadu, Kottayam
A6 - Copy of the 1st complainant’s bank A/c statement
A7 - Copy of cheque dated 02/04/2019 for Rs.75,000/- issued in
favour of Syam Kumar, owner of Sree Enterprises,
Panachikkadu, Kottayam
A8 - Copy of Project statement prepared by Sanish.S,
registered Engineer
A9 - Copy of approved building plan
A10 - Copy of Undertaking given by the opposite party
before the Manarcadu police
Commission Report :
X1 - Expert Commission Report
X1(a) - Photographs
X1(b) - CD
X1(c) - Estimate
Exhibits from the side of Opposite party :
Nil
By Order,
Sd/-
Assistant Registrar
