O R D E R

                   Complainant filed this complaint for getting a relief from the Forum.

                   2. Fact of the case in brief is as follows:  The opposite party is a contractor engaged in the execution of civil construction work in the aim and style of Nirmal Architects and Engineers, Cochi.  In the year 2008, the complainant decided to construct a residential building at his land located at Thumpamon.  On 12.6.08 an agreement was executed between the complainant and opposite party for construction of a single storied residential building as per the plan and schedule approved and attached with the agreement.  The opposite party agreed to execute the work as per the terms and conditions described in the agreement and schedule there to in seven months at a rate of ` 900 per each sq.ft. per plinth area.  The complainant had a little knowledge about the building plan and the execution of civil construction work.  Believing the words of the opposite party, the complainant handed over the site of construction to opposite party and made timely payment and extended all other help and facilities for the completion of the building.

                   3. Opposite party completed the construction of the building leaving some minor important and unavoidable works and handed over the key of the building to the complainant.  He felt serious breach of conditions of agreement in the execution of work and told the same to the opposite party.  The opposite party gave only lame excuse for the discrepancies in work noticed by the complainant, with regard to the shape of the building, manner of construction and quality of materials used.  Complainant consulted other civil experts and came to know that he has been deceived by the opposite party and he took undue advantage from the construction of the building by reducing the quality of work, quality and quantity of materials and service against accepted plan.  The entire super structure has been constructed against the plan and became awkward in shape, which cannot be cured except reconstructing its major portions.  The complainant approached the opposite party directly and expressed his dissatisfaction and requested him either to compensate him or to restructure the building as per the terms of the agreement.  But opposite party issued a notice on 28.10.09 through his advocate, illegally demanding ` 2,66,345 as balance amount due to the opposite party from the complainant.  In fact, there is no amount due to the opposite party.

                   4. On 5.1.2010, complainant issued a reply cum demand notice to the opposite party about the discrepancies in the execution of work and the wrong committed by him and claimed ` 5,94,965 as excess payment and compensation for the deficiency in service and use poor quality materials.  The discrepancies happened in the work executed against the terms of agreement and the deficiency in service and use of poor quality materials which reduced the agreed cost of deficiency in service and use of poor quality materials which reduced the agreed cost of construction of the building as stated as follows:-

(1)   The shape of the roof and shade of the building are not done as per the plan.

(2)   Two separate attached toilets are there in the plan but it was constructed as single one.

(3)   The height of the super structure proposed is 3.30 meters but it was constructed only at a height of 2.90 meter.

(4)   The height of doors proposed is 210 cm. but provided only for as height of 200 cm.

(5)   Partition walls shown in the Drawing Hall is not constructed.

(6)   French window proposed for the drawing hall is executed with an ordinary window.

(7)   W4 proposed in the dining hall is provided with W3 only.

(8)   Working platform constructed in the kitchen is not as per the agreed plan.

(9)   As per the agreement schedule, it won agreed to construct a septic tank but it was not done.

(10)        There is provision for built-in cupboards in bed rooms   

          but not constructed.

(11)        As per schedule item, 8 it was agreed to make boxes   

          under kitchen slab with wood as well as laminated sheets.    

         This work was not executed.

(12)        As per Clause 9 it was agreed to furnish the floors with

          vertified tiles.  But doors of kitchen, smoke kitchen and

          work area were furnished with ordinary floor tiles.

(13)        The floor of the car porch is not finished properly.

(14)        The ventilator proposed to provide in the smokes kitchen    

          is not provided.

Regarding the quality of the work executed the following remarks are observed

(i)               All wood works are sub-standard and cannot be used building construction.

(ii)            As per standard specifications, the minimum grade of RCC is M 20 i.e. 1:1.5:3.  But it was proposed with 1:2:4.

(iii)         As per the plan, the foundation is proposed with R.R in cm.1:8 but in the schedule it is shown as 1:10.  This is sub-standard and introduced purposefully.

(iv)          So many cracks are seen in the walls, beams and slabs in the kitchen.

(v)             The actual plinth area of the building is 1169 sq.ft. but it shown as 1247.30 sq.ft. in the plan.  Also in the plan the plinth area shown as 115.06 m2 this is equivalent to 1238.50  sq.ft.

(vi)          Usually 12 m.m. & m.s bar are provided four windows. But here only 10 m.m. & bars are bed for windows.

Deductable cost for sub-standard work and work not executed.

          (i) Savings for not constructing the septic tank                   -        25,000.  00

          (ii) Not constructing Boxes with wood under

                    kitchen slab                                                                 -        30,000.  00

(iii)         Difference in cost of vertical tiles and

ordinary tiles 225 sq.ft. @ Rs.20/sq.ft.             -          4,500.  00

(iv)          Savings in brick work walls including

plastering due to reduction in height

of the building, non-construction of partition

wall and in the toilet.                                        -        30,000.  00

(v)             Savings in wood work by reducing its quality,

width and height for doors and windows      -        20,000.  00

(vi)          Reduction in cost for providing roof tiles i.e.

for reduction in area by violation of drawings.

(i.e. by flat shade & roofs)                                 -        15,000.  00

(vii)       Reduction in cost by reducing the quantity

of RCC slab for roof and shade including steel        -          8,000.  00

(viii)    Addition amount paid as labour charge for the

plumber by cheque and by cash                       -        10,565.  00

          (ix)  Cost for finishing of floors of car porch              -          4,000.  00

                                                                                                                                                                                                                               ------ ---------------

                                      Total Reduction                               -      1,47,065.  00

                                                                                                   ===========

Actual plinth area of the building and the total payment

1169 sq.ft. @ 900/sq.ft.                                                                   -    10,52,100.  00

Net amount payable             -     10,52,100 – 1,47,065                  =     9,05,035.  00

Amount already paid to the contractor                               -     10,00,000.  00

Excess paid                            -        10,00,000 – 9,05,035     =         94,965.  00

                   5. The work executed in violation of the plan and the execution of the substandard work charged even the super structure of the building and the present constructed building is a difference structure.  There is willful breach of contract on the part of the opposite party for taking undue monitory advantage from the execution of the work.  There is serious deficiency in service also on the part of the opposite party, which caused serious irreparable injury to the complainant, which cannot be compensated in terms of money.  The opposite party is duty bound to execute the work in accordance with the terms of contract and hence he is obliged to return the above said excess payment of ` 94,965 to the complainant with compensation for execution of work against the contract, non-execution of work and poor service and use of poor materials.  The complainant estimate the compensation for the deficiency in service at `5,00,000.  Therefore, the opposite party is obliged to pay a total sum of `5,94,965 to the complainant.  Hence this complaint for getting the said amount with interest and cost.

                   6. Opposite party has not entered appearance.  Hence they were declared as exparte.

                   7. From the above contention, the following points are raised for consideration.

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs & Costs?

          8. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents.  Documents produced were marked as Exts.A1 to A12(a).  Ext.A1 is the duplicate of building agreement executed by the complainant and opposite party.  Ext.A2 is the copy of estimate of the building.  Ext.A3 is the plan of the building.  Ext.A4 is the receipt of ` 2,50,000 dated 12.6.08 issued by opposite party.  Ext.A5 is the receipt of ` 2,00,000 dated 21.7.08 issued by the opposite party.  Ext.A6 is the receipt of ` 3,50,000 dated 10.8.08 issued by the opposite party.  Ext.A7 is the recipt of ` 1,00,000 dated 27.10.08 issued by the opposite party.  Ext.A8 is the receipt of ` 50,000 dated 2.12.08 issued by the opposite party.  Ext.A9 is the receipt of ` 50,000 dated 15.12.08 issued by the opposite party.  Ext.A10 is the advocate notice issued by the opposite party demanding ` 2,66,345 from complainant.  Ext.A11 is the copy of reply notice to Ext.A10.  Exts.A12 & A12(a) are the postal receipts of Exts.A11.  Exts.C1 & C2 are the reports of commissioner and Engineer appointed by this Forum.

          9. Opposite party has not been appeared, hence they were declared as exparte.  After the closure of evidence, complainant was heard.

          10. On the basis of the averments and documents produced by the complainant, we have perused the entire materials on record.  Ext.A1 shows that complainant and opposite party were entered into an agreement to construct a residential building.  Ext.A2 shows the estimate of the building.  Exts.A3 to A9 reveals that complainant paid ` 10,00,000 as per Ext.A1.  Ext.A11 shows that opposite party executed the work in violation of Ext.A1, which caused inconvenience, loss and injury to complainant.  According to complainant, the cost of actual work executed by the opposite party is only ` 9,05,035.  But complainant paid ` 10,000.  Therefore, he is entitled to get the excess amount of ` 94,965.  Exts.C1 and C2 shows that complainant has to get an excess amount of Rs.1,16,980 and also calculated excess cost required for the completion of incompleted work as per Ext.A1 as ` 1,12,800. 

          11. Opposite party has neither appeared nor adduced evidence to disprove the complainant’s case.  Hence complainant’s case stands proved unchallenged.

          12. It is pertinent to note that there is no reason to disbelieve Exts.C1 and C2 reports, which clearly indicated the violation of Ext.A1 plan.  It also revealed that the sub-standard work which caused disfigurement and reduced the quality of work.  It is the boundan duty of opposite party to comply Ext.A1 without any fault or imperfection.  Non-compliance of Ext.A1 is not only a breach of contract but also a clear deficiency of service.  Therefore, this complaint is maintainable and allowable with compensation and cost.

          13. As per Ext.C2 report, complainant has to get an excess amount of ` 1,16,980.  But complainant’s claim is ` 94,980 only.  He failed to make necessary amendment in the complaint with regard to the said discrepancies.  Therefore, we are inclined to consider Ext.C2 amount and allowed the claim of ` 94,980 only.  It is seen that as per Ext.C2 report an amount of ` 1,12,800 is required for the completion of incompleted work.  The said amount is allowable as compensation.  In the absence of cogent evidence, no other amount is allowable as compensation.

          14. In the result, the complaint is allowed, thereby the opposite party is directed to return ` 94,980 (Rupees Ninety Four Thousand Nine hundred and Eighty only) with a compensation of ` 1,12,800 (Rupees One Lakh Twelve Thousand and Eight hundred only) and a cost of ` 3,000 (Rupees Three Thousand only), within one month from the date of receipt of this order, failing which the whole amount will follow 9% interest per annum from this date, till the realisation of the whole amount.

          Declared in the Open Forum on this the 20^th day of March, 2011.

                                                                                                 (Sd/-)

                                                                                      N. Premkumar,

                                                                                           (Member)

Sri. Jacob Stephen (President)                  :         (Sd/-)

Smt. C. Lathika Bhai (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:  Nil.

Exhibits marked on the side of the complainant. 

A1     :         Copy of building agreement executed by the complainant and 

                    opposite party.

A2     :         Copy of the details of estimate of the proposed building. 

A3     :         Proposed building plan.

A4     :         Receipt of Rs.2,50,000 dated 12.6.08 issued by opposite party.

A5     :         Receipt of Rs.2,00,000 dated 21.7.08 issued by the opposite 

                      party.

A6     :         Receipt of Rs.3,50,000 dated 10.08.08 issued by the opposite 

                      party.

A7     :         Recipt of Rs.1,00,000 dated 27.10.08 issued by the opposite 

                      party. 

A8     :         Receipt of Rs.50,000 dated 2.12.08 issued by the opposite party.

A9     :         Receipt of Rs.50,000 dated 15.12.08 issued by the opposite 

                     party.

A10   :         Advocate notice issued by the opposite party to the 

                      complainant.

A11   :         Copy of reply notice dated 15.01.2010 to Ext.A10 Advocate 

                      Notice.

A12 & A12(a) :  Postal receipts of Exts.A11 reply notice.

Court Exhibits:

C1 & C2     :         Reports of commissioner and Engineer appointed by this 

                                Forum.

Witness examined on the side of the opposite party  :  Nil.

Exhibits marked on the side of the opposite party  :  Nil.      

                                                                                                (By Order)

                                                                                             Senior Superintendent

Copy to:  (1) Stanly. J. Mevadale, Grace Cottage,  Thumpamon.P.O.,

                      Adoor Taluk, Pathanamthitta.

                 (2) Mr. K.G. Kamalan, Chief Executive of Nirmal Architects &

                       Engineers, Cochin – 682 018.

                 (3)  The stock file.