1. Smt. Beena Kumari. A 2. Smt. S.K.Sreela 3. Sri G. Sivaprasad
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P.No. 144/2005 Filed on 05.05.2005 Dated : 31.05.2008 Complainant: N.R. Sooraj, Neelagagan, Charuvilalane, Medical College P.O, Thiruvananthapuram. (By adv. D.R. Rajesh) Opposite party: K. Anu, Contractor, Vayalil Puthen Veedu, T.C 2/1452, Murinjapalam, Pattom P.O, Thiruvananthapuram. This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 28.03.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 24.04.2008, the Forum on 31.05.2008 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT This complaint is filed for getting refund of an amount of Rs. 2,00,000/- with interest at 18% per annum from 24.02.2005. Further relief sought for is for awarding Rs. 100000/- as compensation for monitory loss, Rs. 18305/- as expenses incurred by the complainant in purchasing the electrical goods, Rs. 15,000/- as compensation for mental agony due to stoppage of work and Rs. 10,000/- as cost of the complaint. The case of the complainant is that he decided to have construction of the first floor of his residential building raising funds by way of loan from SBT and from the Employees Co-operative Society. The opposite party is a building contractor by profession who offered to execute construction of the said building for a plinth area of 1000 sq.ft. for a total cost of Rs. 530000/- including all material and labour, maintaining a good quality standard of materials and also quality of excellency of labour. On 23.04.2004 an agreement was executed between the complainant and opposite party wherein the opposite party had agreed to complete the construction work within 6 months from the date of first payment to him by the complainant. The various payments to be given to the opposite party while the construction of the building is in progress was also incorporated in the agreement which states as follows: (I)Advance : Rs. 50,000/- (II)Commencement of Brick work : Rs. 80,000/- (III)Commencement of Lindel Concrete : Rs. 30,000/- (IV)Commencement of Plastering work : Rs. 70,000/- (V)Before Roof Concreting : Rs. 100,000/- (VI)Commencement of Electric Work : Rs. 40,000/- (VII)Commencement of flooring work : Rs. 70,000/- (VIII)Commencement of plumbing work : Rs. 50,000/- (IX)Commencement of painting work : Rs. 35,000/- (X)At the time of handing over the key : Rs. 5,000/- ------------------- Total : Rs. 5,30,000/- ============ The complainant has paid an amount of Rs. 5,00,000/- to the opposite party, the receipt of which has been acknowledged by him. The details of payment effected by the complainant is as under: 21.10.2004 : Rs. 50,000/- 30.10.2004 : Rs. 50,000/- 06.11.2004 : Rs. 60,000/- 14.11.2004 : Rs. 40,000/- 20.11.2004 : Rs. 60,000/- 25.11.2004 : Rs. 50,000/- 25.01.2005 : Rs. 50,000/- 22.02.2005 : Rs. 75,000/- 24.02.2005 : Rs. 65,000/- In addition to Rs. 500000/- which the complainant has paid he was also forced to purchase electrical goods worth Rs. 18304/- since the opposite party refused to purchase quality goods from authorized dealers. As per the stipulation in the agreement, opposite party is bound to complete the work on or before 21.04.2005. But to the surprise of the complainant from 24.02.2005 onwards the opposite party stopped the execution of the work. Even though the complainant had paid almost the entire amount as per the agreement till the date of the complaint, the structural part and some limited works were completed by the opposite party and 50% of the work still remains to be completed. The said action of not completing the work as agreed upon amounts to deficiency in service and unfair trade practice. In order to ascertain the quantity of the work done by the opposite party the complainant with the help of a qualified engineer assessed the work done so far. The said engineer valued the works executed which was Rs. 300000/-. The total amount paid by the complainant was Rs. 500000/-. So opposite party has retained with him an amount of Rs. 200000/-. It was further ascertained that the work executed by the opposite party suffers from serious defects. There are basic structural defects and other defects. Apart from all these a substantial part of the work remains incomplete. The complainant after the stoppage of work by the opposite party, on several occasions approached the opposite party and requested him to start the work as early as possible. But the opposite party was reluctant to do the work. Thereafter the complainant was constrained to send a lawyer's notice dated 12.04.2005 asking him to rectify the defects and start and complete the work as per agreement. Even though opposite party accepted the notice he did not send a reply nor cared to heed the request made therein. Hence this complaint claiming a refund of an amount of Rs. 200000/- with interest at 18% and payment of an amount of Rs. 100000/- as compensation for monitory loss, an amount of Rs. 18305/- as expenses incurred by the complainant in purchasing electrical goods, Rs. 15000/- as compensation for mental agony and loss due to stoppage of work and Rs. 10000/- as cost of the complaint. Opposite party did not appear before this Forum inspite of notice. No version filed and opposite party remains ex-parte. The points that would arise for consideration are:- (i)Whether there has been deficiency in service in the construction work on the part of opposite party? (ii)Reliefs and costs. To support the contention in the complaint, complainant as PW1 has filed proof affidavit and Exts. P1 to P4 were marked. Commission report was marked as Ext. C1. Points (i) & (ii):- The first point requiring consideration is whether there has been deficiency in service in the construction work on the part of opposite party. The case of the complainant is that he decided to have construction of the first floor of his residential building with borrowed fund. The opposite party is a building contractor who offered to execute the said construction for plinth area of 1000 sq. ft. for a cost of Rs. 5,30,000/- including good quality materials and labour. Complainant accepted opposite party's offer. On 23.04.2004 an agreement was executed between the complainant and opposite party. Ext. P1 is a copy of the said agreement. As per Ext. P1 opposite party had agreed to complete the above construction work within 6 months from the date of first payment to him by the complainant. Payment conditions and work details are stipulated on 2nd and 3rd pages of Ext. P1. The submission of the complainant is that the first payment was made on 21.10.2004, which is seen duly acknowledged by the opposite party on overleaf of the first page of Ext. P1. Thereafter on various occasions opposite party received Rs. 50,000/- on 30.10.2004, Rs. 60,000/- on 06.11.2004, Rs. 40,000/- on 14.11.2004, Rs. 60,000/- on 20.11.2004, Rs. 50,000/- on 25.11.2004, Rs. 50,000/- on 25.01.2005, Rs. 75,000/- on 22.02.2005 and Rs. 65,000/- on 24.02.2005. Hence submission of the complainant is that altogether opposite party had received Rs. 5,00,000/- out of the agreed amount of Rs. 5,30,000/-. On going through Ext. P1 especially on the overleaf of the first page of Ext. P1 various amounts received by the opposite party are duly acknowledged by him by putting his signature. On 22.02.2005, it is submitted by the complainant that opposite party had received Rs. 75,000/- but on the overleaf of the first page of Ext. P1, it is seen that receipt of Rs. 25000/- is duly acknowledged by the opposite party by putting his signature, while receipts of Rs. 50,000/- on 22.02.2005 and Rs. 50000/- on 25.01.2005 are not duly acknowledged by the opposite party since no signature is seen put by the opposite party under the endorsement. A perusal of Ext. P1 shows that the receipt of Rs. 4,00,000/- is duly acknowledged by the opposite party, while the receipt of Rs. 1,00,000/- is seen not acknowledged by the opposite party. The onus of proving payment to opposite party lay on the complainant. The submission of the complainant is that even after the receipt of almost the entire amount as per Ext. P1 agreement some limited work was done by the opposite party and even the work done was suffered from serious defects. Moreover a substantial part of the work still remains to be completed. Even after repeated requests by the complainant opposite party did not attempt to complete the said construction as per Ext. P1. So complainant sent advocate notice dated 12.04.2005 to the opposite party which is marked as Ext. P3. Ext. P4 is the acknowledgement card. This Forum deputed an expert commission to assess the present condition of the construction work done by the opposite party and its quality of work. Commission report is marked as Ext. C1. Commission assessed the present stage of the construction done by the opposite party. According to C1 report, the following components of construction have been completed. (1)Superstructure including roofing. (2) Plastering of walls (3)Plastering of sunshades. (4)Frames of doors, windows and ventilators. (5)Paneled shutters to 2 doors have been fitted and two numbers of shutter are seen kept in kitchen which are said to be fitted and removed and ready to refit. (6)Glazed shutters to all windows except front 3 windows in hall, one big and two small in sides. (7)Rack work in kitchen except finishing. (8)Flooring ceramic tile is laid in rooms except the hall, kitchen floor and walls of the extra bathroom. (9)Sanitary lines and water supply lines except fittings. (10)Electricity including the boxes are fitted. Commission in his report stated that on verification of approved plan and the construction at site some alterations to the approved plan are seen. They are: (1)In the wall robe portion of rear bed on left side, an extra bath room of size 1.50 m x 1.50 m has been constructed as an extra construction. (2)Construction of the balcony shown in the plan has deleted. (3)Two partition walls with brick masonry in the proposed plan have been altered as RCC walls hanging from a beam at roof level. (4)The bedroom of size 4.50 m x 3.75 m by reducing the size of bathroom with a width of 1.30 m only as in case of ground floor. In the reduced bath, a dress room of size 1.30m x 1.50 m has been introduced. Regarding the valuation of work completed and remained to be completed it is reported by the commission that the contract is to construct the first floor of the building with approximately 1000 sq. ft. plinth area for a total amount of Rs. 5,30,000/- which means that the contractor should complete all the works with a cost ratio of Rs. 530/- per sq. ft. of construction. The contractor left the work without completing the construction as per Ext. P1. There is no work schedule in the agreement except a vague statement of certain stipulation. In order to assess the value commission estimated the quantities of work involved based on plan and actual construction, standard construction processes and taking into account the details available in the approved plan, agreement entered into between parties. The rates of work items have been worked out on the basis of PWD schedule of rates data, local conditions and personal experience. Then apportioned the total contract amount to each and every work items, including the profit of the contractor. The quantities of work involved, rate of work item and amount and total cost is worked out and shown in Appendix-1 in Ext. C1. As per Appendix-1 in Ext. C1 the total value comes to Rs. 5,30,000/- including Rs. 47516/- as contractor's profit. From the details collected and verification of measurements the total cost of construction has been divided between the work completed and work remained to be completed. This calculation has been shown as Appendix- II in Ext. C1. The contractor's profit is apportioned for the work completed and remained to be completed. It is found that the value of work completed comes to Rs. 3,84,459/- and value of work remains to be completed is Rs.1,45,541/-. This values are inclusive contractor profit of Rs. 33468/- and Rs. 13048/- respectively. As per Ext. P1 opposite party received Rs. 4 lakhs. As per Ext. C1, the value of work completed by opposite party comes to Rs. 3,84,459/-. By comparing the amount received by opposite party and the value of work completed as per Ext. C1 it is found that opposite party had received an excess amount of Rs. 15441/- which the complainant is entitled to get from the opposite party. Regarding the defects in construction work, commission noted cracks in the wall, defects in wood work, defects in flooring , leaks etc. Regarding cracks, commission noticed that cracks were developed in the wall made out of reinforced cement concrete. Diagonal as well as horizontal cracks were developed. According to commission report, these cracks are due to the expansion of slabs which is fixed on all sides. This defect is attributable to be carelessness of the opposite party in understanding the behaviour of RCC slabs firmly attached o all four sides. Commission never found any wilful negligence on the opposite party for this defect. However cracks are seen in bathroom. This is a one brick wall. Cracks have been developed due to excessive blows by the work of electrician. For the demolition of the said wall and reconstructing the same commission estimated a cost of Rs. 1200/-. Regarding the defects in wood work, commission found that the quality of teak wood used not upto the standard. It suffers from decay and found broken. One frame of door and one vertical frame of windows are seen defective. This has to be replaced by new standard wood frame. In case of Anjili wood frame also defects are noticed. Frames of windows and window shutters are wrapped. In some cases the frame is seen broken. In other some cases shutters are not possible to close. Four vertical frames and three shutters require replacement, for which commission assessed a compensation of Rs. 4640/-. Regarding defects in flooring commission noticed that opposite party supplied ceramic tile for the whole work and partly laid. Levels and lines of laying is satisfactory. This satisfactory work is marred by the irresponsible and careless way of painting is done. The cement material used for painting is seen completely spread over the tiles making them useless. Since the cemented tiles has set over the tiles it is not possible to get the glory of the tiles laid. These tiles are to be removed and relaid for which commission estimated a cost of Rs. 7151/-. Commission further noticed leaks in some places. In the main hall there is a beam which is constructed over the slab. In this region moderate wetting of slab is seen. Laying of beam suffers from adequate compaction of concrete during laying. Similarly kitchen walls above lintel level is wet. In case of bed(big) rear side wall is completely wet. In main bed there are 5 spots where slab is wet. On verification it was found that the parapet constructed over the roof is without any drainage facility. Water is collected over the slab. The contractor failed to do plastering over the slab as well as for providing down water pipes. This omission is detrimental to the life of the construction. To this, commission estimated Rs. 8000/- to recover from the opposite party. Submission by the complainant that complainant sent advocate notice dated 12.04.2005 regarding the defects in construction to opposite party and opposite party accepted the said notice. The copy of the said notice is marked as Ext. P3. Even after the receipt of Ext. P3, opposite party did not send a reply nor cared to heed the request made therein. Ext P4 is the acknowledgement card. Counsel for the complainant further submitted that complainant was forced to purchase electrical goods worth Rs. 16,768/- in connection with the construction works of the said building since the same was not purchased by the opposite party as per Ext. P1. Ext. P2 is the copy of cash bill dated 05.03.2005 for Rs. 15040/- issued by Lakshmi Electricals to the complainant. Ext. P2(a) is the copy of the bill dated 18.03.2005 for Rs. 1728/- by Lakshmi Electricals to the complainant. Altogether complainant had spent Rs. 16768/- towards the purchase of electrical goods which complainant is entitled to get from the opposite party. On going through the Ext. C1 commission report and Exts. P1, P2 and P2(a) it is evident that opposite party left the work half way after receiving major portion of money. Complainant has established deficiency in service in construction work on the part of opposite party. Complainant is entitled for refund of Rs. 15441/- from the opposite party towards the works remain to be completed. For defects in construction on various counts, complainant is entitled to get Rs. 1200/- towards replacing the defective work, Rs. 1200/- towards rectification charges for cracks, Rs. 5990/- towards defects in work, Rs. 7151/- towards defects in flooring and Rs. 8000/- towards defects due to leak and Rs. 16768/- towards the purchase price of electrical goods purchased by the complainant. In the result, complaint is allowed. Opposite party shall refund an amount of Rs. 15441/- to the complainant. Opposite party shall also pay an amount of Rs. 23451/- for defects in construction, Rs. 16768/- towards the purchase price of electrical goods purchased by the complainant. Rs. 10000/- towards compensation and Rs. 2500/- as cost of the complaint. The above said amount shall carry interest at the rate of 12% p.a if not paid within two months from this order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31st May 2008. G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER S.K. SREELA : MEMBER jb O.P.No. 144/2005 APPENDIX I COMPLAINANT'S WITNESS : PW1 - N.R. Sooraj II COMPLAINANT'S DOCUMENTS : P1 - Copy of agreement dated 23.04.2004 executed between the complainant and opposite party. P2 - Copy of cash bill dated 05.03.2005 for Rs. 15040/- issued by Lakshmi Electricals to the complainant. P2(a) - Copy of cash bill dated 18.03.2005 for Rs. 1728/- issued by Lakshmi Electricals to the complainant. P3 - Copy of advocate notice dated 12.04.2005 issued to the opposite party. P4 - Acknowledgement card signed by the opposite party. III OPPOSITE PARTIES' WITNESS : NIL IV OPPOSITE PARTIES' DOCUMENTS : NIL V COURT EXHIBIT: C1 - Commission Report PRESIDENT
......................Smt. Beena Kumari. A ......................Smt. S.K.Sreela ......................Sri G. Sivaprasad
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