DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 19^th day of September 2018 

Present  : Smt.Shiny.P.R, President

                : Smt.Suma.K.P, Member

                : Sri. V.P.Anantha Narayanan, Member                 Date of Filing : 25/11/2017

 CC No.179/2017

Raveendran,

S/o Late Balasubrahmanyam,

Krishanas House,

Thathamangalam P.O,

Navukkode Line,

Palakkad

678 102.

(By Adv.S.Manoj Kumar)                                                                             -              Complainant

                                                                                               Vs 

K.Subhash Nair,                                                                                                                  -            Opposite party

Managing Partner,

Sree PB Contractors & Constructors,

TC 53/335/1, 1st Floor,

Reshmi Nivas, Ayyanthole PO,

Thrissur – 680 003.

O R D E R

Order by Smt.Shiny.P.R, President.

Brief facts of complaint:

Complainant had entered in to an agreement with opposite party on 12.09.2015 for the construction of a residential building at Edathara in Parali-2 village, Palakkad District in the property jointly owned by the complainant and his wife, Mrs.Uma.  The time of completion as per the agreement was twelve months. Opposite party stopped the work before completing the total construction work assigned to him.  The complainant had paid the entire amount as per the original agreement dated.12.09.2015.  As the construction was stopped as incomplete complainant was constrained to execute another agreement with the opposite party on 16.12.2016  and paid an additional amount of Rs.4,00,000/- (Rupees four lakhs only) as a loan to the opposite party for the completion of the work.  The opposite party has not repaid the said amount to the complainant till this date and also abandoned the construction works as incomplete.  The inordinate delay and non-fulfillment of contractual obligations by the opposite party made huge financial loss and mental agony to the complainant. The opposite party failed to fulfill the contractual obligations and the building left incomplete and the construction done by him are also defective in nature by use of low quality materials and variations from the agreed plan & contract terms.  Complainant further submitted that the main deviations & deficiency of service amounts to non-performance of contractual obligations of the “agreements and plan” which made much financial loss to the complainant are as follows:-     

1. Not done soil test before starting construction.
2. Not provided water tank.
3. No water proof done.
4. Not done fully done plastering or internal putty work.
5. RR masonry with good quality soil consolidates in 2 years not done.
6. Good quality bricks were not used as per the terms but used poor quality bricks. 
7. Ceiling plastering not done.
8. Double wash quality sand never used.
9. Roof Concrete work done without complying proper composition of cement, quality sand and water.
10. Roof concrete done in heavy raining season without adequate care and protection.
11. Not steel work done.
12. Flooring tiles not laid.
13. Door frames not fully provided.
14. No door frames and shutters fitted for interior or exterior windows,
15. Bathroom door not fitted.
16. Plumbing works and pipe fitting not done. 
17. Electrification work not done.
18. A/C and heater not installed.
19. Locks and sanitary fittings not fitted.
20. Painting and polishing works not done.
21. Staircase rails not fitted.
22. Kitchen granite counters not made.
23. Even depth of basement excavation also not as per soil nature or normal standard.
24. Septic tank not builds.
25. Other poor construction yet to be ascertained.

                Since the opposite party has not performed his part of obligations as above stated the complainant has forced to complete the above works at his own expenses. Complainant submitted that he had incurred expenses of Rs.1,22,000/- (Rupees one lakh twenty two thousand only) for Plumbing works and sanitary fittings, Rs.1,87,000/- (Rupees one lakh eighty seven thousand only) for electric works and electric fittings,  Rs.79,000/- (Rupees seventy nine  thousand only) for floor tiles costs and wages, Rs.1,70,000/- (Rupees one lakh seventy thousand only)for Painting works, Rs.1,28,000/- (Rupees one lakh twenty eight thousand only) for Frames and shutters (Doors and windows), Rs.,75,000/- (Rupees seventy five thousand only) for  other finishing works and expenses . Hence this complaint.  Complainant prays for an order directing opposite party to pay Rs.12,61, 000/- (Rupees twelve lakh sixty one thousand only) to the complainant along with Rs.3,00,000/- (Rupees three lakh only) as compensation for deficiency of service on the part of the opposite party.   

Complaint was admitted and issued notice to opposite party. Notice sent to the opposite party was returned stating left. Hence complainant filed IA 106 A /18 for substituted service which was allowed and paper publication was produced.  Hence name called absent set exparte.

Complainant filed chief affidavit and documents. Documents were marked as Exts. A1 to A6. Evidence was closed and matter was heard.

The following issues that arise for consideration are.

1. Whether there is any deficiency in service on the part of opposite party?
2. If so what is the relief and cost?

Issues 1 & 2

We have perused the affidavits and documents filed before the Forum. On the perusal of Ext A1 it is revealed that complainant had entered into an agreement with the opposite party to construct 1453 sq.ft building @ Rs. 1400/sq.ft.  Allegation of the complainant is that inordinate delay in completing the construction and non-fulfillment of contractual obligations by the opposite party had made huge financial loss and mental agony to the complainant and he had incurred an additional expenses for a total amount of Rs.7,61,000/- for completing the construction of the house. In the complaint   complainant submitted that he had paid the entire amount to the opposite party as per the original agreement dated.12.09.2015. Even though there is no evidence before the fForum to show that on which stage the opposite party stopped the work, as the opposite party remained ex-parte, the evidence tendered by the complainant stands unchallenged.  Under the above circumstances we are of the view that complainant is entitled to get additional expenses incurred for the construction of the house from the opposite party.

Another allegation of the complainant is that the constructions done by the opposite party are defective in nature by the use of low quality materials and variations from the agreed plan and contract terms. Complainant has not produced any expert’s opinion before the Forum to prove this allegation. Hence the prayer  for compensation for defective construction cannot be allowed.

Complainant further submitted that he had paid an amount of Rs. 4,00,000/- to the opposite party as a loan but he did not repay the amount to the complainant till the date of filing of complaint.   In order to get the relief for the above stated money transaction, complainant can file the civil suit before the appropriate court.   Hence this prayer also cannot be allowed.

On the verification of documents it is revealed that the construction was completed after two years from the date of the agreement.  Since the opposite party remained ex-parte, no contra evidence before the Forum to disbelieve the above facts, the evidence tendered by the complainant stands unchallenged. In the above circumstances we are of the view that the complainant is entitled to get compensation for delayed construction.

In the result complaint is partly allowed. We direct opposite party to pay to the complainant Rs.7,61,000/- (Rupees seven lakh sixty one thousand only) along with Rs. 10,000/- (Rupees ten thousand only) as compensation for mental agony suffered for the delay caused in the completion of construction and Rs.2,000/- (Rupees two thousand only)  as cost of proceedings.

Order shall be complied within one month from the date of receipt of order, failing which complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 19^th day of September 2018.

                                                                                                                                          Sd/-

                   Shiny.P.R

                   President 

                           Sd/-             

                   Suma.K.P

                    Member

                           Sd/-

    V.P.Anantha Narayanan

                   Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1     -  Original agreement  made by complainant and opposite party

Ext.A2     -  Original agreement  made by complainant and opposite party

Ext.A3 series         -  Bills (34 No’s)

Ext.A4     -  Original Registered letter sent by complainant counsel to the opposite party

Ext.A5     -  Photocopy of letter dated.16.10.2017 sent by complainant counsel to the opposite party

Ext.A6     -  Original Advertisement published by the news paper

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost       

                Rs.2,000/-