Tamil Nadu

Nagapattinam

CC/10/2010

Nagarajan - Complainant(s)

Versus

K. Murugan - Opp.Party(s)

G. Monoharan

08 Dec 2014

ORDER

   Date of Filing      : 15.02.2010

                                                                                         Date of Disposal : 08.12.2014

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMER II

 

CC. No.10/2010

 

DECIDED ON THIS 8^th DAY OF DECEMBER  2014.

 

G. Nagarajan

S/o Govinda Chettiyar

North Salia Street,

Mayiladuthurai Town,

Nagapattinam District.                                                         …      Complainant

                                                                                                  

                                                                /versus/

                                  

K.Murugan,

S/o Krishnan,

Big Thaikkal Street,

Mayiladuthurai,

Nagapattinam District.                                                                     … Opposite party

 

     

            This complaint having come up for final hearing before us on 20.11.2014 on perusal of the material records and on hearing the arguments of Thiru.G.Manokaran, Counsel for the complainant, Thiru.S.Veerapandian Counsel for the opposite party, and having stood for consideration, till this day the Forum passed the following

ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 

 

                        2.The gist of the complaint filed by the complainant is that he entered  into an agreement with the opposite party for the construction of his residential  building on 07.04.2008 and as per the agreement the ground floor had to be constructed at 743S.ft.  and the staircase and balcony at 54S.ft., totalling 797S.ft.  for the sum of Rs.5,60,000/- and the construction was agreed to be constructed within 3 months from the date of agreement, subsequently it was further agreed to construct the 1^st floor of the building at the cost of Rs.3,25,000/-, the opposite party has received of Rs.93,000/- in excess of the said amount mentioned in the agreement.  At the same time he has not completed the building works and has made construction with the defects mentioned in the complaint. The opposite party also received the sum of Rs.2,900/- from the complainant towards payment of wages to the labourers at the time of ceiling work.  The opposite party received Rs.300/- towards cost of the cement and some other materials. The opposite party also recived Rs.2,000/-  from the complainant for laying tiles at the kitchen in the 1^st floor instead of kadappa stone as already agreed and it is also to be repaid. In connection with the defective and incomplete work of the construction, the complainant sent a lawyer’s notice to the opposite party calling up on him to complete  the work within 2 weeks and to pay the sum of Rs.1,00,000/- towards compensation for the lapses committed by the opposite party.  The opposite party sent a reply through his lawyer making false averments.  Hence the complainant has filed this complaint and prays for an order to direct the opposite party to complete and set right the defective works in the construction and to pay the said sum of Rs.98,200/- due to the complainant and to pay Rs.1,00,000/- towards compensation fo the mental agony and hardship caused to the complainant owing to the deficiency of service of the opposite party along with the cost of this litigation and to grant such and other reliefs as this Forum would deem fit.

                       

                        3. The gist of the written version filed by the opposite party is that the construction has been done by the opposite party properly and in the complete manner and eventhough the prevailing rate of the cost of construction was Rs.850/- per sq.foot at the time of the agreement, the opposite party agreed to construct  the building at the rate of Rs.700/- per sq..foot as the complainant was introduced by one A.Lakshmana Chettiyar, the family friend of the opposite party.  It is the complainant who in person chose the wood and tiles at the respective shops wherein they were purchased.  In fact the opposite party has constructed the staircase from ground floor to the 1^st floor and from the 1^st floor to the 2^nd floor at the cost of the Rs.54,000/- approximately to the extent of  180 sq.feet.  Further the elevation work, the platform of the back yard, the platform of the western lane, the front platform of the southern entrance are all constructed at the rate of Rs. 20,000/- by the opposite party, on the complainant’s  promising  to repay the amount. Further the balcony at the extent of 60sq.ft above the northern lane was also constructed by the opposite party at his own expenses, the wages of mason alone being Rs.8,000/-.  The complainant gave Rs.13,000/- to construct compound wall on the northern side adjoining  the main road and the  cost of construction was more than Rs.2,000/- than the said amount given by the complainant.  The complainant had not given Rs.93,000/- in excess as alleged by him; on the other hand the complainant alone is liable to pay the sum of Rs.69,000/- to the opposite party in view of the said construction made by him.  The weathering course on the 1^st floor was not laid, since the complainant himself requested him to construct the frontage and cupboards at the kitchen as he was to construct A.C. sheet on the terrace.  Therefore the complainant is not entitled to the relief prayed for and the complaint is therefore liable to be dismissed.

                        4. The complainant has filed his proof affidavit reiterating all the averments made in the complaint and has filed 6 documents which are marked as Exhibits A1 to A6.  The opposite party has filed his proof affidavit in support of his defence and has filed 2 documents which are marked as Ex B1 and Ex.B2.  The 1^st report of the learned advocate commissioner, the estimate of the cost of construction and plan of the building plan submitted by the Engineer to the Advocate Commissioner are marked as Exhibit C1 to C3 respectively and  the additional report of the Advocate commissioner and  the estimate submitted by the Engineer are marked as Exhibits C4 and C5.

                        5.Points for consideration:-

1. Whether there is deficiency of service on the part of the opposite party?

                              2. Whether the complainant is entitled to any relief? If so to what?

                        6.Point 1: The main allegation of the complainant is that the opposite party agreed to construct the ground floor, staircase and balcony totalling 797sq.ft for the sum of Rs.5,60,000/- and the 1^st floor for Rs.3,25,000/-, but he received Rs.93,000/- more than the said agreed amount.  The building construction works are also not completed having some defects in the construction, namely cement plastering is not done on the upper surface of the laft in the rooms, the doors  could not be closed properly during the rainy season as the doors are made up of the wood of poor quality, double quote paint is not done, gaps are there at the  fixing place of the door frames  and the window frames, switches for the electric lights are not of good quality causing electric shock during the rainy season, the compound wall on the western side is not raised, tank for the collection of rainy water  is not provided,  locking provisions are not fixed in the gate,  weathering course is not laid in the 1^st floor, only one quote sem is alone done at the 1^st floor, flooring works are not completed and  tin sheet door is not fixed at the terrace  and there are many cracks found in the wall at many places.  For the notice sent by the complainant on 04.11.2009, the opposite party sent a reply on 17.11.2009 through his counsel containing false averments.  The complainant prays for an order to direct the opposite party to complete the  work  rectifying the said defects, to repay the sum of Rs.98,200/- received by him from the complainant in excess of the agreed amount, to pay the sum of Rs.1,00,000/- towards compensation for the mental agony and suffering, to pay the expenses of this litigation and grant such and other reliefs as this Forum would deem fit.

                        7. Exhibit A1, the agreement between the complainant and the opposite party with respect to the construction of the building, Exhibit A2, the office copy of the notice sent by the complainant’s lawyer to the opposite party, Exhibit A3, the postal acknowledgment card received by the opposite party, Exhibit A4, the reply notice given by the opposite party through his counsel to the complainant’s counsel, Exhibit A5, the series of copies of 17 photographs showing the various portion of the building and Exhibit A6 the Compact Disc  containing the said photographs are filed as exhibits on the side of the complainant.

                        8. The contention of the opposite party is that he has constructed the building at the rate of Rs.700/- per S.ft., even though the prevailing rate of construction was Rs.850/- per sq.ft. during that time, since the complainant was introduced by Thiru.A. Laxmana Chettiyar, the family friend of the opposite party.  As per the agreement ground floor was duly complected by the opposite party and the wood for the door, the electrical materials and the tiles were all selected by the complainant himself personally and the opposite party had spent Rs.93,000/- more than the agreed amount since the staircase from the 1^st floor to 2^nd floor, the backyard platform of the ground floor, the floor on the western lane and the frontage of the southern portion are all constructed by the opposite party at his own expenses in addition to the agreed works as the complainant undertook pay the extra amount.  The complainant requested  the opposite party to construct the elevation work on the balcony and the backyard, instead of the weathering  course since the complainant decided to have a shed using the A/C sheet on the terrace.

                        9. Further as the opposite party himself spent the amount, the complainant is liable to pay the sum of Rs.69,000/- to the opposite party as the latter  spent in excess of the agreed amount.  The construction had been completed in all aspects and then only the complainant took possession of the building had Grahapiravesam as well as the retirement function on the eve of his retirement from his service. Exhibit B1, the invitation for the Grahapiravesam of the new building and Exhibit B2, the invitation for the tea party given by the complainant on the eve of his retirement on 15.02.2009 are filed as Exhibits on the side of the opposite party. Exhibit A1, the agreement dated 07.04.2008, between the complainant and the opposite party relates to the construction of the ground floor on 743S.ft, the staircase and balcony measuring 54 S.ft, totalling 797 S.ft and the further construction of the 1^st floor for the sum of Rs.3,25,000/- is admitted.  At the last page of the agreement the particulars of the amount fixed for the various stages of construction and the various payments made in that regard are given and it is also admitted.  The perusal of that document would go to show that subsequent to the fixation of Rs.5,60,000/- and Rs.3,25,000/- for the construction of ground floor and the 1^st floor respectively, the sum of Rs.30,000/- had been fixed towards extra work, Rs.50,000/- towards the increase of the amount for the construction of the 1^st floor, Rs.13,000/- towards compund wall work all totalling Rs.9,78,000/-.  Up to the date 31.12.2008 the sum of Rs.8,63,000/- had been paid, the balance amount payable  is  Rs.1,15,000/- and the said amount is also paid by the complainant at 4 installments  of Rs.20,000/- on 03.01.2009,Rs.20,000/- on 13.1.2009, Rs.50,000/- on 07.02.2009 and Rs.25,000/- on 23.02.2009.   Exhibit B1, the invitation for Grahapiravesham maks it clear that the complainant had taken possession of the building and celebrated  his retirement function at his house by giving a tea party on 15.02.2009 and under the said document Exhibit A1,  the sum of Rs.25,000/- had been paid by him to the opposite party on 23.02.2009.

                        10. In this case the learned Advocate Commissioner has filed 2 reports, after inspecting the building with the assistance of the Junior Engineer of the P.W.D. Department (Building maintanance) and the said Engineer has also submitted the estimates regarding cost of the construction of the building.  Exhibit C1, is the 1^st report dt.8.3.2011 filed by the learned Commissioner,  the estimates showing the valuation of the residential building given  by the said Junior Engineer, countersigned by the Assistant Executive Engineer of the P.W.D. Department (Building Maintanance) is marked as Exhibit C2 and another plan showing the residitial building  is Exhibit C3.  Subsequently the learned Commissioner has again inspected the building with the assistance of the said Junior Engineer and has filed the additional report with the estimate of valuation of the construction of the building and the said report and the estimate are marked as Exhibits C4 and C5.

                        11. The opposite party had handed over the possession of the wholly completed building to the complainant who has been in possession and enjoyment of it from 20.10.2008 onwards.  No doubt the opposite party had carried out the construction work well in advance and had chosen to receive the payment susequently as would be evidenced by Exhibit A1 which would go to show that the last and final payment of Rs.25,000/- was paid by the complainant  to the opposite party only on 23.02.2009, even though the Grahapravesam was done on 20.10.2008 itself and subsequent retirement  function was also held in the house on 15.02.2009.  The complaint made by the complainant regarding the various non fullfillment of the works are all not major ones.   In Exhibit C1, the 1^st report of the learned Advocate Commissioner, it is observed that there were cracks like pencil lines  at the wall on the northern  side of the hall and  the adjoining room and those cracks are quite common to be found in the  building.  As per the agreement the doors of the main entrance are made of teak wood and the remaining doors of other entrances are made of country wood.  The complaint made by the complainant such as the doors could not be closed properly during the rainy season and there is no provision for  locking the gate, the  surface of the laft in the rooms are not plastered by cement are all of complaints of  trivial  and small ones and that could be rectified easily without much expenses.  They are not so serious lapses so as to cause the deficiency of service on the part of the opposite party.

                        12.The learned Commissioner has also inspected the building for the 2^nd time along with the assistance of the said Engineer and has filed  his report Exhibit C4. The estimate of the cost of the construction, taking in to consideration the cost of the construction materials for the year 2008-2009, is filed as Exhibit C5.  As per the Exhibit A5 the cost of the construction is fixed at Rs.10,46,717.  The learned Commissioner has observed at the 3^rd paragraph of his additional report Exhibit C4 that the quality of the work of the foundation of the constructed building at the south east corner has been ascertained by digging out the earth and it was found to be laid in proper and good manner.

                        13.The complainant ought to have got the  small alleged defects found to have been rectified by the opposite party before taking delivery of the possession of the building or at least before making the last payment of the installment due to be paid to the opposite party.  Considering the nature  of the minor lapses in the oncstructions and the conduct of the complainant having taken delivery of the building and settled the cost of construction and in view of the fact that the cost of construction of the building could be Rs.10,46,717/- as per Exhibit C5, while it is done at Rs.9,78,000/- no deficiency of service could be attributed to the opposite party.  At the same time the contention of the opposite party that the complainant is yet to pay a sum of Rs.69,000/- to him by way of the additional expenditure incurred by him, towards the cost of construction is also not to be accepted in the absence any concrete evidence therefor.  While the Exhibit A1 gives the particulars of the amount to be paid for each stage and category  of the construction how  the opposite party would have spent the sum of Rs.69,000/-, without having been inserted in the said agreement and without any concrete proof therefor.Therefore the contention of the opposite party that the complainant is still liable to pay Rs.69,000/- to the complainant is without basis and proof. Appropriately the claim of the said Rs.69,000/- by the opposite party from the complainant might have prompted  the complainant to file this complaint, as a counter blast. Therefore there is no deficiency of service on the part of the opposite party, as far as the construction of the building is concerned.

                        14. Point 2: In the result, the complaint is dismissed.  There is no order as to cost. This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this  08^th day of  December 2014.

 

 

 

    MEMBER I                                    MEBMER II                                    PRESIDENT

 

 

 

 

List of documents filed by the complainant

 

Ex.A1/Dt.07.04.2008:The xerox copy of the agreement between the complainant and

    the opposite party with respect to the construction of the building.

Ex.A2/Dt.04.11.2009: The xerox copy of the office copy of the notice sent by the

   complainant’s lawyer to the opposite party.

Ex.A3/Dt.02.11.2009: The xerox copy of the Postal acknowledgment card received by

    the opposite party.    

Ex.A4/Dt.17.11.2009: The xerox copy of the reply notice given by the opposite part’s  

     counsel to the complainant’s counsel.

.Ex.A5/Dt.     Nil        : The series of copies of 17 photographs showing the various

   portion of the complainant’s new building.

Ex.A6/Dt.       Nil       : The compact Disc containing the said photographs of the

   complainant’s building.

  

 

 

List of documents filed by the oppoisite party

 

Ex.B1/Dt.20.10.2008: The  invitation for the Girahapiravesam of the new building.

  

Ex.B2/Dt.30.01.2009: The invitation for the tea party given by the complainant and eve

   of his retirement.

 

Exhibits of the Forum

 

Ex.C1/Dt.08.03.2011: The report filed by the learned Advocate Commissioner.

Ex.C2/Dt.24.02.2011: Statement of the Junior Engineer showing the valuation of

    Residential Building.

Ex.C3/Dt.24.02.2011: The plan of the building drawn by the Junior Engineer.

Ex.C4/Dt.04.02.2014: The Additional Report filed by the Advocate Commissioner

Ex.C5/Dt.17.01.2014:  Estimate of the cost of construction of the building, prepared by

    the Junior Engineer.

 

 

 

 

    MEMBER I                                    MEBMER II                                      PRESIDENT

 

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.10/ 2010

Order Dt.:08.12.2014.