DOF.14.05.2009
DOO.29.02.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Dated this, the 29th day of February 2012
CC.No.118/2009
1.C.C.Chandran,
Chittikuneon Chathoth House,
P.O.Nediyanga,
Sreekandapuram
(Rep. by PAH Smt.Padmaja Chandran,
W/O.C.C.Chandran)
2. Padmaja Chandran
W/o/C.C.Chandran, Complainant
Chittikuneon Chathoth House,
P.O.Nediyanga,
Sreekandapuram
(Rep. by Adv.K.K.Balaram)
K.Pramod Kumar,
Chartered Engineer and Valuer,
The Proprietor of M/s. Design Builders,
Architectural Builders and
Structural Consultants,
Court Road,
P.O.Taliparamba Opposite party
(Rep. by Adv.M.C.Ramachandran)
O R D E R
Smt.K.P.Preethakumari, Member
This is a complaint fled under section 12 of consumer protection act for an order directing the opposite party to return back `3,04,109 along with `1,20,000 as compensation and traveling fair from Sultanate of Oman to Sreekandapuram.
The case of the complainant in brief is that he is the owner in possession of a house in 16 cents of lands RS.44/16 of Nediyanga Amsom and Desom having house No.SP.No.XVII 249. For constructing the upstair portion of the house, the complainant entrusted to the opposite party as per the specifications of opposite party after inspecting the site. There was no written agreement between the parties. The work, terms of work and specifications are orally agreed between he parties and the rate fixed was `700 per sq.ft for a total area of 973 sq. feet and hence the total amount fixed is `6,50,000 including al materials, labour charges and other miscellaneous expenses and the estimated amount was fixed as per the sketch plan prepared by opposite party. Accordingly the complainant handed over a cheque dt.1.9.07 for `1, 00,000 as advance. The opposite party was undertake to complete the work within three months and the 1st complainant left to his work place in Sultanate of Oman after authorizing his wife to do all the necessary works in connection with the construction.
During 2007 November the opposite party started work and demolished the stair case and stair case room in the upstairs portion of the existing house of the complainant. `1,50,000 was again given on 24.12.07. Again on 28.1.08 the complainant has given another `1,00,000. The RCC work of the first floor was completed on 11.2.08 and ` 50,000 was given on the same day. The opposite party again received `1,00,000 on 18.3.08, `50,000 on 29.3.08.But the opposite party discontinued the work without any reasonable cause after receiving `5,50,000 as total amount. During May 2008 when the first complainant has return to his home it is seen that 50% of the agreed work was not completed. But on 18.5.08 the opposite party restarted the work and the complainant was constrained to spent `47585 towards labour charge and cost of the material against the agreement on 27.6.08 the opposite party received `50,000 from the complaint for roofing tiles and given another `2000 to opposite party’s men. So the complainant had given `6,49,585. The opposite party has done nothing even after receipt of final installment and not given the labour charge and created problems and the workers stopped the work which caused mental agony to the complainant. During 13.12.08 the complainant return to his house and realized that the opposite party has not completed the work and the completed work was done in shabby and awkward manner. 40% of the work remains undone. So the complainant approached the opposite party and he denied further liability of doing work and demanded `1,00,000 more for completing the work. The complainant is not liable to pay any amount to opposite party. A mediation talk was taken place and was agreed to assess the total cost of construction so far carried out by the opposite party and agreed to refund any amount in excess received by opposite party and agreed to allow to carryout the remaining work by the complainant. The measurement was taken in the absence of opposite party and all those persons who participated in the mediation talks were present and estimated the cost of work done by opposite party as `3,45,476 and the estimate was handed over to opposite party in a meeting conducted by participating the persons who were participated in mediation and opposite party promised to give back the amount within one week and permitted to complete the work by the complainant. The complainant has competed the work by incurring `2,50,000. But the opposite party has not returned the greed amount of `3,04,109. So the complainant suffered heavy loss. The opposite party misappropriated the above said amount. The complainant had suffered so much of physical, mental and financial difficulties due to the deficient service of opposite party. The complainant has several times come to India for which he incurred heavy loss. So the opposite party is liable to refund the excess amount and to pay compensation. Hence this complaint.
In pursuance to the notice issued by the Forum opposite party appeared and filed his version admitting that the opposite party carried out the construction of the upstairs of complainant’s house. The specifications for the work are laterite masonry walls in C.M 1:6 and plastered with cement, RCC lintel and RCC Roof slabs 1:2:4 with slab minimum 16 cm thick and roof top covered with decorative ties at required area, floor finishing with ceramic tiles of good quality. Toilet walls up to 6 feet height and floor furnished with glazed tiles, white cement two coat out side and inside and finish, electrification PVC concealed wiring with Finolex ire and Anchor switches. No fans, tube sets or bulbs will be provided, plumbing concealed with Parry ware /Cera wash basin and closet of white colour, No wood work or polishing work, total area 90.38 sq m2 = 973 sqft. at the rate of 700 per sq.ft and the total amount was `6,81,100. It is also admitted that there is only an oral understanding and the opposite party has carried out the work at the tune of `6,81,000 and is incorrect to say that the cost of work under taken by opposite party is `6,50,000. There is no understanding to complete the work within three months and thee was no understanding to start or finish the work in a particular day. The commencement of work as well as the finishing of the work was agreed to be at the earliest within one year based on the availability of materials at site and in accordance with the convenience of the parties. The specification of work and rate is shown in the estimate produced by the complainant. The estimated amount is twisted by the complainant with an intention to evade from discharging the liability to the opposite party. Immediately after getting advance amount opposite party started unloading construction materials and started construction on the slab of existing car porch. But the complainant purposefully suppressed those material facts with a hidden agenda of misguiding the Forum that there is delay in starting construction work. The opposite party admits that `1,50,000 was given to him on 24.12.07 and up to that day he carried out concreting the entire first floor portion lintel level. The opposite party admits that `1,00,000 on 28.1.08 was received by him by way of cheque. At that time also the work was considerably in progress. This amount was received to unload constructing materials. On 11.2.08 the roof slabs were concreted and the complainant paid `50,000 by way of cheque. It is not correct to say that `1,00,000 was paid as cash on 18.3.2008. There was no such payment and all payment was effected by way of cheque. So such a history of payment was narrated only to degrade opposite party and for unlawful gains. The complaint has paid only `5,00,000 to opposite party i.e. `1,00,000 each on 1.9.07 and 28.1.08, `50,000 each on 11.2.08, 29.3.08 and 27.6.08 and `1,50,000 on 24.12.07. The entire construction work was over on August 2008. The delay was caused since the complainant’s wife went to abroad and locked the house and not permitted to continue the work in their absence. The opposite party was eligible to get the contract amount. The complainant was returned only during 2008 May and soon after getting information the opposite party completed the work. It is not correct to say that complaint had given `47,585 to the labourers from the pocket. It is also not correct to say that the complainant has given `2000 to one Mr.Ravendran on behalf of opposite party. The opposite party had carried out the entire work agreed by him. It is not correct to say that the opposite party has received `6,49,585 but only received `5,00,000. The opposite party is entitled to get `6,81,100. So the complainant is liable to pay `1, 81,100 to the opposite party. Even though the opposite party had made several requests, the complainant has not paid the same by saying lame excuses. It is incorrect to say that the opposite party has not completed the construction work as per the terms and conditions agreed by parties. It is also not correct to say that the completed work is in a most shabby and awkward manner by using substandard and unskilled labourers. There is no irresponsibility or unfair trade practice on the part of opposite party. It is also incorrect to say that opposite party demanded further `1,00,000 for completing the work. The opposite party further denies the allegation that there was a mediation talk on 9.1.09 in the presence of vice President of Sreekandapuram Grama Panchayth, P.Madhavan, V.Sreejith Nambiar etc. All these persons are native of the complainant and closely associated with them. Instead of paying the amount requested time and dragged with ill motive for the illegal gains. There was no work remaining and hence there was no need to grant permission to the complainant to carry out the work. It is further denied the allegation that the opposite party agreed to assess the total cost of construction carried out by the opposite party by an independent engineer on 12.1.09 and opposite party agreed to refund excess amount etc. The opposite party falsely created a document of valuation of additional work. The entire work carried out by the opposite party is not assessed by the Engineer to prepare valuation statement. Certain works carried out by the opposite party seems to tally the work with regard to area and measurement. The rate seen quoted is not prevailing market rate and the agreed rate at the time of understanding between the complainant and opposite party. The valuation statement is prepared by measuring in the absence of opposite party by the interested party of the complainant for their illegal claim. It is incorrect to say that the estimates cost of construction of the opposite party was only `3,45,476. The Municipal chairman of Taliparmaba Municipality had an occasion to interfere with the non payment of balance amount of opposite party and was fully convinced that the opposite party is entitled to get balance amount from complainant but opposite party failed to discharge their liability.
It is not correct to say that opposite party finally agreed to consider giving back the excess amount received by him within one week and permitted the complainant to complete the work under their own arrangements and the complainant completed the work at a pre- estimated cost of `2,50,000. No such agreement and no such understanding between the opposite party and complainant and no such work was pending as undone by opposite party. The opposite party is not liable to pay `3,04,109 to the complainant since no such amount in excess obtained by opposite party.
The opposite party denied the further contentions that the complainant has suffered severe mental agony and pain. It is also not correct to say that due to the act of opposite party the complainant had to rush to his native place from his work place at Oman and hence he sustained fair charge `20,000. So the opposite party is not liable to pay any amount as compensation or to refund any amount. There is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed. Moreover the allegation of dispute between complainant and opposite party will not come under the provisions of Consumer Protection Act and hence the complaint is not maintainable before the Forum.
Upon the above contentions the following issues have been raised for consideration.
1. Whether the complaint is maintainable before the Forum?
2. Whether there is any deficiency of service on the side of
opposite party?
3. Whether the complainant is entitled to get any relief as
prayed in the complaint?
4. Relief and cost.
The evidence consists of the oral testimony of PW1 to PW4 and Exts.A1 to A16.
Issue No.1
This issue was elaborately discussed and found that the complaint is maintainable before the Forum as per the order in I.A.284/09 on 23.2.2010
Issue Nos. 2 to 4
The further case of the complaint is that the opposite party had carried out the construction work of the upstairs of the residential building of the complainant and the total area of construction is 973 sq.ft. and rate is `700 per sq.ft. and the total cost of the work is `6,50,000. But the opposite party has not completed the work within stipulated time and the opposite party received `6,49,585 and out of which the opposite party has completed only the work worth `3,45,476 and hence the opposite party is liable to return back balance amount `3,04,109. In order to prove the case PW1 to PW4 examined and documents like receipt, copy of jenm deed, cash receipt, attested notorized copy of passport, application form dt. 29.3.08, copy of estimate, approved plan, receipt, site plan, valuation statement, cash bills 60 in numbers, certified copy of
SMS message, certificate by Telecom authority, and letters by Telecom General Manger etc. The opposite party admits that he had done the construction work of the upstairs building of the house of the complainant.
The complainant contended that the opposite party has undertaken to complete the work within 3 months. But the opposite party denied this averment. But admittedly there is no written agreement between the parties. There is n evidence before us to prove that there is stipulation between the parties to compete the work within 3 months. So the complainant failed to establish that there is stipulation to compete the work within 3 months.
The complaint contended that he had already paid `5,50,000 to the opposite party as on 29.3.2008. But according to opposite party he has received only `5,00,000. But complainant has produced Ext.A12 to 14 documents. These are the documents issued from Telecom authorities. A12 is the copy of text message issued by the opposite party to the complainant on 27.10.08. As per this message, the opposite party admits that he received `5,50,000. So it is seen that the complainant has given `5,50,000 to the opposite party by way of cash.
The complainant contended that he has given materials and laboaur charges worth `99585 and hence he has paid a total amount of `6,49,585 to opposite party. In order to substantiate he has produced Ext.A11 series documents. These documents include so many bills. In Ext.A12 the opposite party admits that the balance works to be carried out are roof tile, charuvadi, bathroom repair etc. But Ext.A11 bills include so many bills including the bills for this work also. So many bills are in the name of one Madhu. More over the complainant has not specified through which bills he has incurred this amount of `99,585. So we are not in a position to conclude that the complainant has paid these amounts on behalf of opposite party so we are of the opinion that the total amount given to opposite party by the complainant is `5,50,000.
Ext.A10 is the valuation of the work done by opposite party as per the contentions of the complainant. But opposite party challenged the qualification of the person who had prepared this Ext.A10 and the mode of preparation of 10. He was examined as PW4. He deposed before the Forum that “ Rm³ work tF-sä-Sp-¡p-¶-XpT Engineer work tF-sä-Sp-¡p-¶-Xnsâ-bpT work estimate hy-X-yØamWv. Engineer tF-sä-Sp-¡p-¶-Xnsâ rate IqSp-X-em-bn-cn-¡pT.Ext.A10 ImWn¨ rate Engineersâ supervision charge ImWn-¨nÃ. A10 X¿m-dm-¡p-t¼mÄ {]tamZv Dmbn-cp-¶nÔ. So it is seen that the contention of the opposite party that the valuation is incomplete is correct. So we are of the opinion that the valuation amount as per Ext.A10 i.e. `3,45,476 is inadequate for the work done by opposite party. While going through the deposition of PW4 it is clear that he has not valued same of the demolishing work done by the opposite party. So we are of the opinion that the work explained by PW4 which was not valued in Ext.A10 document will be at the tune of more than `50,000.So the opposite party is entitled to get `4,00,000 s the valuation of his work. Admittedly the opposite party has not completed the entrusted work even though he has received `5,50,000. So there is deficiency of service and unfair trade practice on the part of opposite party which is evident from the deposition of PW2 and PW3. So he is liable to refund `1,50,000 to the complainant, since he has received `5,50,000 instead of `4,00,000. It is true that on account of the deficient work of opposite party the complainant and his family has suffered s much of physical, mental and financial hardship for which the opposite party is liable to compensate the complaint by giving `10,000 as compensation and `1000 as cost of this proceedings and order passed accordingly.
In the result, the complaint is allowed directing the opposite party to refund `1,50,000 (Rupees One Lakh Fifty thousand only) along with `10,000 (Rupees Ten thousand only) as compensation and `1,000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant can execute the order as per the provisions of consumer protection act.
Sd/- sd/-
President Member
APPENDIX
Exhibits for the complainant
A1. Itinerary receipt issued by Air India
A2. Copy of the jenmam Assignment deed executed by Kunhambu
and complaint
A3. Copy of cash receipt
A4. Copy of the passport of the complainant
A5. DD/TT/MT application form
A6. Abstract of estimate for addl. construction of the work of house
A7. Plan and details of addl. 1st floor
A8. Receipt of `.1,00,000 issued by OP
A9. Site plan
A10. Valuation of addl. work of existing house issued by Royal
Associates
A11. Copies of Cash bills
A12. Certified copy of SMS message
A13. Certificate by Telecom authority
A14 & 15. Letters by Telecom General Manger
A16. Letter dt.1.12.09 sued by BSNL to K. Karunakaran
Exhibits for the opposite parties: Nil
Witness examined for the complainant
PW1.Padmaja Chandran
PW2. P.Madhavan
PW3.Shijith.V
PW4.E.K.Hemaraj
Witness examined for the opposite parties: Nil
/forwarded by order/
Senior Superintendent
Consumer disputes Redressal Forum, Kannur.
