KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 168/2006 JUDGMENT DATED: 17-11-2009 PRESENT:- JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT SMT. VALSALA SARANGADHARAN : MEMBER Mr. Binil. S.R., S.R. Loyal Constructions, Varkala, Thiruvananthapuram. : APPELLANT Rep. by the Power of Attorney Holder Smt. S. Rethy, S.R.B. Bhavan, Karunilacode, Varkala, Thiruvananthapuram. (Rep. by Adv. Sri. Yesudasan Varghese & Anayara G. Rajendran) Vs Mr. K. Babu, : RESPONDENT K.K. Bhavan, Chavarcode, Parippally P.O., Kollam District. JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellant is the first opposite party in OP 309/2003 in the file of CDRF, Kollam. The appellant is under orders to pay to the complainant a sum of Rs. 3,21,570/- with interest at 9% and compensation of Rs. 5,000/- and costs of Rs. 1,000/-. 2. It is the case of the complainant that on 24-01-2002 he entered into a written agreement with the first opposite party who is running a construction outfit by name, S.R. Loyal Constructions, for the construction of a double storied residential building. The same was meant for his son who was working in London. The second opposite party is the authorized agent of the first opposite party who had approached the complainant for getting the work entrusted with the first opposite party. As per the agreement the first opposite party is to complete the work within a period of 8 months for a total cost of Rs. 9.75 lakhs. By 14-09-2002 itself the complainant paid the entire amount and also an additional amount of Rs. 2.49 lakhs for the alterations suggested by the first opposite party during the course of construction. The opposite party received a sum of Rs. 1,00,000/- on 24-01-2002; Rs. 1,00,000/- on 01-02-2002; Rs. 1,00,000/- on 05-12-2002; Rs. 1,00,000/- on 17-12-2002; Rs. 5,69,000/- on 03-09-2002; Rs. 1,15,000/- on 14-09-2002; Rs. 1,00,000/- on 21-01-2003 and Rs. 40,000/- on 27-02-2003. Altogether a sum of Rs. 12.24 lakhs was paid which was acknowledged. The work ought to have been completed on or before 24-09-2002. It was agreed that the work agreed earlier and the alteration work would be completed simultaneously and possession will be delivered within the stipulated period. When the son of the complainant came from London on 23-02-2003, the work was not completed at all. The major portion of the work including wiring, fittings, flooring, plastering, painting etc. are yet to be completed for which a sum of Rs. 5 lakhs would be additionally needed. There is serious deficiency on the part of the opposite party. The lawyer notice was sent and was replied to raising false contentions. He has sought for a sum of Rs. 5 lakhs as compensation; interest at 18% on Rs. 9.75,000/- from 24-09-2002; Rs. 2,00,000/- as damages and Rs. 15,000/- as litigation expenses. 3. The first opposite party has filed version that there was only an oral understanding. The construction need not be bigger than 1746 sq.ft. and the approximate costs was Rs. 9,75,000/-. During the course of construction alterations were suggested by the complainant and wanted an extended area of altogether 2572.28 sq.ft and a new plan was drawn up when the work had completed 90% which entirely changed and turned upside down the scheme and the cost of construction increased. The first opposite party received only a sum of Rs. 1,00,000/-. He had denied the receipt of the other amounts as alleged. The documents produced with respect to the alleged payments are fabricated. The signature should be verified by finger print expert. The second opposite party is a conscious keeper of the complainant in his business dealings. It is contended that 90% of the work which covers an area of 2572.28 sq.ft. has been completed. The complainant is liable to pay sum of Rs. 9.35 lakhs to the first opposite party. He would require a sum of Rs. 4.43 lakhs to complete the remaining work. 4. The second opposite party has denied any responsibility in the matter. His role is only that it was through him that the complainant contacted the first opposite party. 5. The evidence adduced consisted of the testimony of PWs1 and 2, Exts. P1 to P7 and Ext.C1. No evidence was adduced by the opposite parties. 6. PW1 is the complainant and PW2 another son of the complainant. The Commissioner who is a Chartered Engineer has filed Ext.C1 report. He inspected the premises on 24-07-2004. He has mentioned that the building is in an abandoned stage. The structure was completed including plastering of walls and under roofs. The dispute arose when the floor finishing works with marble slab was in progress. Marble flooring work of two bedrooms and kitchen on ground floor is half way completed. The marble slab required for the balance work is stacked in the premises. Frames of all joineries are fixed, but shutters are not provided. The ground floor consists of drawing room, dining hall, kitchen, work area, L- shaped sitout, open porch and two attached bed rooms. The plinth area is mentioned as 150 M2. The first floor consists of one hall, two bed rooms with common toilet altogether 76.66 M2. An additional work of 56.60 M2 has been carried out. As per the original plan, the first floor was to have only a stair cabin with a plinth area of 16.68 M2. The shutters have to be provided with using jack wood. Teakwood hand rails for staircase is not done. The front door and front French window of the drawing room are framed with teak wood as against jack wood mentioned in the agreement. Electrical wiring works with Finolex cable and CPL switches in concealed method etc. has not been done. No electrification work has been done. No plumbing works have been done. All rooms and open sitout except toilet floorings are to be finished with marble slabs of costs ranging Rs. 50/sq.ft. Marble slabs are seen laid in two bedrooms and kitchen. 90 M2 slab is seen supplied at the site. Flooring with ceramic tiles proposed for toilet is not done. So also dadoing of toilet walls and kitchen walls (1.5 ft. above work top) is not seen executed. The work top is to be finished with granite slabs. This has not been done. Wall furnishing works are not done which would be with weather proof paints and emulsion paint for internal walls. Hand rails with teak wood have not been fixed. Compound wall for 1.8 m height is seen constructed with 4.25 m wide iron gate on the front side. This is an extra work. It is noted that both parties have claimed the authority of execution of these works. The roof tiling of the entire slope roof is not yet done. The approximate unit rate worked out would be Rs. 520/sq.ft, ie, the total plinth area of 1693.4 sq.ft for ground floor and 179.48 sq.ft for first floor. The plinth area of the construction done amounted to 2439 sq.ft ie, 150.0 M2 for ground floor and 76.7 M2 for first floor. As per the agreement the costs of the anticipated construction would work out to Rs. 12,68,280/- as in 2002. The above rates will hold good even at the time of the inspection by the Commission. He has valued cost of the structure at Rs. 9,02,430/- which will include the profit of the builder. For completion a sum of Rs. 3,65,850/- will be required. Out of these 1,77,560/- is for electrification and plumbing works. The cost of unused marble work out to Rs. 45,000/-, if properly completed the cost of additional area executed in the building would workout to Rs. 2,94,308/-. The Commissioner has also noted that it was proposed that the compound wall and the gate are to be constructed during the period of execution of the building itself. The approximate length of the compound wall is 77 m. The gate is of super quality. The compound wall and gate is valued at Rs. 1.3 lakhs. 7. The Forum after considering the evidence has taken the cost of the work of the building already done at Rs. 9,02,430/- as reported by the Commissioner. The total amount paid by the complainant was found to be Rs. 12.24 lakhs as pleaded by the complainant. The Forum found that the excess amount pocketed by first opposite party would work out to Rs. 3,21,570/-. The amount was ordered to be returned along with compensation and costs. 8. The Forum has found that in view of Ext.P2 receipts and the specific mention in the agreement of the payment of Rs. 1,00,000/- the case of the complainant that he paid Rs. 12.24 lakhs stands proved. It is pertinent to note that there was no contra evidence. Nothing has been specifically alleged in the cross examination of PWs 1 and 2 in this regard also. 9. The main contention of the appellant stressed is that the Commissioner has mentioned that marble worth Rs. 45,000/- was found stocked in the premises and also the value of the compound wall has been mentioned as Rs. 1,30,000/-. Hence the above amounts of Rs. 1,30,000 + 45,000 should be reduced from the amount ordered to be paid. It was contended by the Counsel for the complainant that there was no cross examination on the point of construction of the compound wall while examining PWs 1 and 2. We find that there is a suggestion in the cross examination of PW2. But the version of PW2 that it is specifically mentioned in the complaint and the proof affidavits that it was the complainant who constructed the compound wall is incorrect. There is no pleadings as to the above effect. There is also no evidence as to the case that it was the complainant who constructed the compound wall. It is the case of the complainant that the building and additional works are to be completed within 8 months of the agreement. The Commissioner has also noted that it appeared to be is that the understanding is that the building as well as the additional works including the compound wall is to be constructed and handed over at the same time. In the circumstances, although the opposite party/appellant has not adduced any evidence, the case set up by the appellant in this regard appears to be true. Hence we find that a sum of Rs. 1,75,000/- (ie Rs. 45000 + Rs. 130000) towards the construction of the compound wall and the marble supplied has to be deducted from the sum of Rs. 3,21,570/- ordered to be paid by the first opposite party. Hence the complainant would be entitled only for a sum of Rs. 1,46,570/-. The order of the Forum with respect to the rate of interest, compensation and costs is sustained. The order of the Forum is modified accordingly. In the result, the appellant would be liable to pay to the complainant a sum of Rs. 1,46,570/- with interest at 9% from 29-07-2005 and compensation of Rs. 5,000/- and costs of Rs. 1,000/-. The appeal is allowed in part as above. JUSTICE K.R. UDAYABHANU: PRESIDENT VALSALA SARANGADHARAN: MEMBER Sr. |
