PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of December 2011
Filed on :23/10/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. Nos. 573/2009 and 574/2009
CC 573/09
Between
K.B. Vinod Kumar @ Vinod, : Complainant
S/o. Balakrishnan Nair, (By Adv. T.K. Devarajan,
Kalapurakkal house, Ernakulam)
Maradu village,
Ernakulam.
And
K.J. Rexy Antony, : Opposite party
Evergreen Properties, (By Adv. Peeyus A Kottam
Maradu, Maradu P.O., No.3 Anchorage, Palliyil lane
682 304 (Kunnalakkadu house, off foreshore road, Kochi-16)
Maradu P.O.)
CC 574/2009
K.B. Babu, : Complainant
S/o. Balakrishnan Nair, (By Adv. T.K. Devarajan)
Kalapurakkal house Maradu Ernakulam
Village, Ernakulam.
And
K.J. Rexy Antony, : Opposite party
Evergreen Properties, (By Adv. Peeyus A Kottam
Maradu, Maradu P.O., No.3 Anchorage, Palliyil lane
682 304 (Kunnalakkadu house, off foreshore road, Kochi-16)
Maradu P.O.)
COMMON O R D E R
A Rajesh, President.
The matter involved in the above complaints are the same and the opposite parties are the same we are disposing off these complaints by this common order.
2. The case of the complainant in CC 573/2009 is as follows: The complainant entrusted the construction work of his residential building with the opposite party on 03-12-2007. The complainant and the opposite party had entered into an agreement for the above purpose. The construction of the building was completed and accordingly on 05-11-2008, the complainant and his family shifted to the residential building. Within a period of one month, the complainant noted various defects in the building. The complainant managed to prepare an estimate to cure the defects which amounts to Rs. 1,40,000/-. The complainant caused a letter on 16-06-2009 to the opposite party to rectify the defects. There was no response. Subsequently on 29-08-2009 the complainant caused to issue a lawyer notice to the opposite party raising the very same demand. But the same was returned “no such addressee”. Thus the complainant is before us seeking direction against the opposite parties to pay Rs. 1,40,000/- together with compensation and costs of the proceedings.
3. The complainant in CC574/09 as well leveled the very same allegations and claimed compensation and costs of the proceedings.
4. The version of the opposite party in CC573/09.
The complainant shifted to the new house on 29-06-2008. But the complainants sent a letter showing the defects to the opposite party only after a year that is on 16-06-2009. The defects noted in the complaint are imaginary ones. The opposite party carried out his work in terms of the contract entered into between them. The complainant has no cause of action against the opposite party.
5. In addition to the above averments the opposite party in CC574/2008 contented that apart from the agreement he had constructed around 67 sq.ft candy liver extension as additional work for which the complainant has not paid any amount.
6. The complainant in CC573/2009 was examined as PW1 and Exts. A1 to A3 were marked on his side. The complainant in CC574/2009 was examined as PW1 and Exts. A1 to A4 were marked on his side. At that juncture the complainant filed I.A. No. 06/2011 to allow joint trial of the cases. Which was allowed on 05-01-2011. Thereafter the expert commissioner was examined as PW2 and his reports were marked as Ext. C1 and C2. The opposite party was examined as DW1. Both sides filed argument notes. Heard the learned counsel for the parties.
7. The points that arose for consideration are as follows:
i. Whether the complainants are entitled to get the amounts
mentioned in the complaints for rectification of their respective
houses.?
ii. Whether the complainants are entitled to get compensation
and costs of the proceedings?
8. Point No. i. The parties are in consensus on the following issues.
i. In CC 573/09 the complainant and the opposite party entered
into Ext. A1 agreement dated 03-12-2007.
ii. On 16-06-2009 the complainant caused Ext. A2 notice to the
opposite party requesting to rectify the defects of the building
iii. In CC574/2009 the complainant and the opposite party
entered into Ext. A1 agreement dated 04-10-2007
iv. Ext. A2 is the invitation card of the house warming
ceremony of the complainant which was held on 29-06-2008.
v. Exbt. A3 is the notice issued by the complainant to the
opposite party requesting the opposite party to rectify the
defects of the building found.
9. During evidence at the instance of the complainant an expert commissioner was appointed by this Forum. The expert commissioner was examined as PW2 and his reports were marked as Exts. C1 and C2. Exbt. C1 pertains to the report of the building in CC 573/2009. In Exbt. C1 the expert commissioner categorically stated that an amount of Rs. 67,950/- would have to be expended for the rectification of the defects of the building. The detailed assessment of the commissioner as per Ext. C1 reads as follows:
“Estimate for repairing works of house of Sri. K.B. Vinod Kumar, ‘Kalapurackal house, Maradu Village.
1.Chipping and removing the damage plastering over the
terrace in G.F and F.F and removing the debris away from
the site.
G.F. Terrace 1x13.5x6.48 = 87.86
Deduct room 1x3.36x3.00 = 10.08
----------------------
Net Qty 77.48
Add 10% for joints etc. 7.75
----------------------
85.23
Say 85M2 @ Rs. 50/- per M2 ………………………….. 4250.00
2. Leak proofing works with brush bond, Sika 107 or high
guard two coat after thoroughly cleaning the surface and
removing all and loose materials and applying the
waterproofing material two etc coat complete.
Roof Top : 80.00
Parapet alaround : 28.06
35.08x0.80 --------------------
Total 108.06
Say 110M2 @ Rs. 220/- per M2 ………………………242000.00
3. Plastering with cement mortar 1:3 added with admixture 12mm
thick two coat floated hard and trowel led smooth including
thread lining
Say 80M2 @ Rs. 275/- perM2 ……………………….. 22000.00
4. Filling cracks in walls of toilet, near staircase etc using
polysulphide or other materials as per instruction of
manufacturers.
L.S 50M @ Rs. 350/- per M …………………. 17500.00
--------------------
Total 67950.00
===========”
10. Exbt. C2 is the report that pertains to the building in CC 574/09 in which the commissioner reported that an amount of Rs. 70,000/- is required to rectify the defects of the building. The details of assessment as per Ext. C2 reads as follows:
“Estimate for repairing works of house of Sri. K.B. Babu, ‘Kalapurackal house, Maradu Village.
1.Chipping and removing the damage plastering over the
terrace in G.F and F.F and removing the debris away from
the site.
G.F 1x9.80x3.72 =36.45
1x3.40x1.14 =3.87
FF 1x8.84x5.63 =49.76
------------
Total 90.08
Add 10% at joints etc. 9.00
-----------
99.08
Say 100M 2 @ Rs. 50 per M2……….. 5000.00
2. Leak proofing works with brush bond, Sika 107 or
high guard two coat after thoroughly cleaning the
surface and removing all and loose materials and
applying the waterproofing material two coat etc
complete.
Area as above = 100.00
Wall near stair in FF(1x6.10x3.00 )= 18.30
------------
118.30
Say 120M2@ Rs. 220/- per M2………26400.00
3. Plastering with cement mortar 1:3 added with
admixture 12mm thick two coat floated hard
and trowelled smooth including thread lining 100M2
Say 100M2 @ Rs. 275/- perM2 …………… 27500.00
4. stopping the leakage in R.C.C structure by pressure
grouting after cleaning the surface with wire bush,
drilling holes 12mm dia by electrically operated
drilling machine fixing nipple and tube materials and
pumping with grouting machine using cement with
adequate quick setting cement, self expanding material
admixture of cement including watering curing etc.
complete.
20 holes @ Rs. 95/- per hole………..1900.00
Filling cracks in walls of toilet, near staircase etc using
polysulphide or other materials as per instruction of
manufacturers.
L.S 20M @ Rs. 350/- per M ………. 7000.00
Painting the repaired area matching to the existing
colour of wall 2200.00 --------------------
Total 70,000
===========”
11. The learned counsel for the opposite party vehemently contented that the expert commissioner did not care to ascertain the points mentioned in the work memo submitted by the opposite party at the time of inspection in both the cases. However no further steps have been taken by the opposite party to substantiate his contentions in this Forum. He at least ought to have taken steps to assess the extra work done by him at the house of the complainant in CC 574/09 which again has been not controverted. In short nothing is before us to reject the findings of the expert commissioner in Exts. C1 and C2. It is made clear that the remedy of the service provider in these cases the opposite party lies elsewhere. He is at liberty to approach the appropriate authority to get his grievances redressed if so advised.
12. Point No. ii. The primary grievance of the complainants having been met adequately, we are not to order compensation ;or costs of the proceedings to the complainants.
13. In the result, we partly allow the complaint and direct as follows:
i. In CC. 573/2009 the opposite party shall pay Rs. 67,950/- to the complainant for the reasons stated.
ii. In CC 574/2009 the opposite party shall pay a sum of Rs. 70,000/- to the complainant for the reasons stated.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order. Failing
which the above amounts each shall carry interest at the rate of 12% p.a. till realization.
Pronounced in the open Forum on this the 30th day of December 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
