CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 16h day of August, 2016
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing:21/10/2015
: SMT.SUMA K.P, MEMBER
: SRI.V.P.ANANTHA NARAYANAN, MEMBER
CC/150/2015
Anila Rajesh,
W/o.Rajesh, : Complainant
Sreepadam,
Payattinkadu,
Kannadi Amsom, Palakkad
(Adv.T.V.Sudarsh) Vs
K.Ponnu (Contractor),
Thimbilamkatt, : Respondents
Kinassery Amsom,
Palakkad.
(Adv.M.Raveendran)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Brief facts of this Case.
In the above case, Anila Rajesh is the Complainant residing in Sreepadam, Payattinkadu, Kannadi Amsom, Palakkad. The Complainant and her husband Rajesh are residing in the above address. Near to this address, there is a land in the name of Anilas husband. On this land for constructing a residential RC House, Complainant’s husband and the Opposite Party entered in to a contract on Rs.100 stamp paper on 10.5.2013. The conditions of the contract were: all materials were to be supplied by her husband and on the condition of labour contract only for the ground floor at the rate of Rs.575 per square feet and for the first floor , adding 20% for Rs.690 per square feet, that work would be completed by the Opposite Party. The Opposite Party is a person doing construction work either on full contract basis or on the basis of labour contract and for constructing a residential house for them complainant and her husband contacted the Opposite Party. The original agreement was to be kept by the Opposite Party and a photocopy thereof to be kept by the complainants husband. At the time of writing the above contract the foundation work and belt work were completed. As per the approved plan for ground floor the plinth area was 1402.3 and for first floor 671.64. Since her husband was in Kuwait, everything was done as per the above contract by the complainant, among paid and supervision was done by the complainant. As per the contract, at every stage payment was given in advance to Opposite Party, when demanded by Opposite Party. The Complainant knew all the conditions of the agreement. At the time of writing this agreement the Complainant was present. During construction, two-three times complainant’s husband
came present. Even after payment for the last stage, no tiles were laid, no clearing was done,
no filling using gap paste was done, septic tank and chamber were not closed, electricity connection was not changed to residential connection-before doing these things, when the Opposite Party demanded amount from the Complainant, she asked the Opposite Party to show accounts. At this time the Opposite Party got angry and give her a bill on 23.05.2015 showing about Rs.500000/- (Rupees Five lakh only)being balance due from her for more than 2500 square feet calculated by Opposite Party. Although, she was not fully convinced that the Opposite Partys accounts were not correct, the Complainant paid Rs.2,30,000/-(Rupees Two lakh and thirty thousand only) in two installments. Adding the above mentioned amount, for the work as per the agreement Rs.1619045/-(Rupees Sixteen lakh nineteen thousand and forty five only) was paid, according to the Complainant. Besides this, for additional labour charge, parapet work, carpentry work, Rs.71075/-(Rupees Seventy one thousand and seventy five only) was also paid to Opposite Party. After considering the above payments Opposite Party received Rs.1690120/- (Rupees Sixteen lakhs ninety thousand and one hundred twenty only). For the work included in the contract . For the work not included in the contract namely carpentry work, parapet work Opposite Party received Rs.71075/-(Rupees Seventy one thousand and seventy five only). Considering the above two payments Opposite Party received Rs.1690120/-(Rupees Sixteen lakh ninety thousand and one hundred twenty only). In addition for the works not included in the contract namely stair case, hand railing, bed room and bath room doors, kitchen steel doors,Rs.150000/-(Rupees One lakh and fifty thousand only) was paid directly to the workers who did these works. After making the last payment of Rs.2,30000/-(Rupees Two lakh and thirty thousand only) to Opposite Party, the complainant examine the amount paid to Opposite Party and amount payable to him as per the contract and found that the Opposite Party received Rs.1619045/-(Rupees Sixteen lakh nineteen thousand and forty five only) instead of Rs.1270405/-(Rupees twelve lakh seventy thousand and four hundred five only). According to her, Opposite Party received unduly from her Rs.348640/-(Rupees Three lakh forty eight thousand and six hundred forty only) by misrepresenting her. The complainant appeals that materials required for house construction were purchased by her. This undue amount received by the Opposite Party, the complainant is entitled to get back. Since Opposite Party did not do above mentioned work, labour cost Rs.15,000/-(Rupees Fifteen thousand only)for doing those works and for deficiency of service committed by Opposite Party and compensation for her mental agony due to non performance of the above works by the Opposite Party, Rs.15,000(Rupees Fifteen thousand only.) totaling Rs.378640/-(Rupees Three lakh seventy eight thousand and six hundred forty only) should be paid to her for which necessary orders
may be given by this forum. Excluding labour charges for the balance work and compensation Rs.348640/-(Rupees Three lakhs forty eight thousand six hundred and forty only) was demanded by the Complainant from Opposite Party within 15 days as per the lawyer notice dated 07.09.2015, sent by her to Opposite Party. To this lawyer notice Opposite Party
sent the Complainant a reply notice stating false information. The complainant denied as false the facts mentioned by the Opposite Party in his version and reply notice and according to the Complainant, they were made only for the purpose of the case. According to the Complainant Opposite Party represented that the period of the contract was up to 29.4.2014, due to absence of the fund in her hands the work was stopped, for the delay 10% extra labour charge was agreed to be paid, Rs.430000/-(Rupees Four lakh and thirty thousand only) was talked to her through intermediaries, that outside works were again done by Opposite Party, that when Opposite Party contacted her for getting balance amount of Rs.200000/-(Rupees Two lakhs only), Opposite Party was disgraced by calling him by castning, that father threatened the Opposite Party through police -all these mentioned in the Opposite Partys reply notice and version were baseless and devoid of facts, that the complainant had to pay the Opposite Party Rs.42335 /-(Rupees Forty two thousand three hundred and thirty five only) is untrue and incorrect. The Opposite Party has to receive nothing for the additional work mentioned in reply notice, Rs.309120/-(Rupees Three lakh nine thousand and one hundred twenty only) (Rs.232570+Rs.41400)was not spent. For the additional work payments were made at that time. For this the amount was only Rs.71075/-(Rupees Seventy one thousand and seventy five only). According to her, the agreement presented along with the complaint may be marked as Ext.A1, notice to Opposite Party may be marked as Ext.A2, Opposite Party s reply notice to her marked as Ext.A3 and letter of rectification and authorization signed by her husband before the notary public rectifying and authorizing the above case and hence forward as per the above agreement, her husband will not take any action against the Opposite Party may be marked as Ext.A4 from the side of the complainant.
The Complainant prays to the forum to order the Opposite Party to pay Rs.378640/-(Rupees Three lakh seventy eight thousand and six hundred forty only) by way of compensation.
The Complaint was admitted and notice was issue to Opposite Party.
In their version Opposite Party contends that except those facts specifically admitted, other statement in the complaint were denied as false by the Opposite Party. The above case is within the jurisdiction of the forum.
In their version and affidavit Opposite Party contends that he and the complainant belong to the same place. No agreement was entered into between him and the complainants husband. The agreement that was entered into between him and the complainant’s husband was for raising fund for her husband for extending the contract. Due to extension of the period
of the contract, due to reason not of the Opposite Party, labour charges increased, for bearing the increased labour charges, complainants husband was liable.
Because of extension of the period of the agreement, the amount mentioned in the contract conditions was to be increased by 100% and when Opposite Party demanded the same to her husband who agreed to the same. Since both of them belonged to the same place, the
Complainants husband to the Opposite Party that it cannot necessary to enter the same in the agreement which the Opposite Party took in good faith. After commencing the thepupani of the house both complainant and her husband, demanded so many ornamental works to be done by the Opposite Party . Believing the complainant the Opposite party did the work . Lastly at the time of settlement of accounts on 23/5/2015, in the presence of the complainant and her husbands brother in law and the intermediary who arranged this work, who is also a relative of the complainant, was decided the external work to be done extra and the labour charges for the same. While deciding about the extra labour charges and the balance amount payable to Opposite Party, a verbal duel happened between the Opposite Party and the Complainant. Then at the time of settlement of final bill, in the presence of those present, the Opposite Party determined the amount and Rs.430000 /-(Rupees Four lakh and thirty thousand only) was agreed to be paid by the complainant to the Opposite Party. In this amount , after completing the work demanded to be done by her husband, Rs.2,30000/-(Rupees Two lakh and thirty thousand only) was paid to Opposite Party by him in two installments. Then Opposite Party demanded from the complainant the balance amount, she told the Opposite Party that the latter had made profit in his work and no more amount, the Opposite Party was entitle to receive from her and sent back him. According to Opposite Party all the external works demanded by the Complainant were completed. The Opposite Party who demanded balance amount was disgraced, threatened and using the police man who is a friend of Rajeshs father was threatened.
As mentioned in the reply notice sent by Opposite Party to the complainant, Rs.42335/- (Rupees Forty two thousand three hundred and thirty five only)was due to him from the complainant, whose details are shown below.
Ground floor : 1394.6x600=836760
First floor : 707.5x720 = 509400
Excess work = 232570
extra carpentry work =41400
After 23/5/2015, the work performed by the Opposite party believing the words of the Complainant that she would give labour charges to Opposite Party.
2nd chamber work,
Felling of tree, compound 35150
Escalation, gas grill vechu theppu done
1st floor roof tiles laying
R.Rwroc belt work, back filling
Total 1655280
Amount received by the Opposite Party 1612945
Balance amount to be received 42335
From the side of the complainant chief affidavit was filed, Ext.A2 to A4 were also marked from the part of the complainant Ext.A1 was marked with objection. Complainant was cross examined as PW1. Opposite Party filed version and proof affidavit Opposite Party filed IA 53/16 seeking permission to cross examine the complainant no objections submitted and hence IA allowed. The complainant filed IA 167/16 seeking permission to cross examined Opposite Party since no objection was submitted IA was allowed. Opposite Party was cross examined as DW1. Opposite Partys counsel filed notes of arguments. Both parties are also heard.
In this case the following issues arise.
- Whether there is any negligence/deficiency of service from the side of Opposite Party?
- If so, what is the relief?
Issues 1&2
The Complainants husband and Opposite Party entered into an agreement on 10.5.2013 for house construction. The agreement was signed by complainants husband and the complainant did not sign it even as a witness. The original agreement is missing and only the photocopy thereof was marked with objection as Ext.A1. In this agreement plan of the
building was not mentioned to be handed over. As per the agreement amount was to be received for each stage. Though the Opposite Party asked for an amount more than the amount mentioned in the agreement, he did not get that. The Opposite Party deposed that the original agreement was not handed over to him. But only the photocopy was given to him. At the time of sending notice by the complainant only one work was pending-putting joint paste in the tiles. Also over the septic tank the slab was not put. As per the agreement for doing additional work additional labour charge should be paid. According to the complainant the construction work was not completed within the specified period mentioned in the agreement only after 6 months of the expiry of the specified period in the agreement work was almost completed and not fully completed. As per the deposition made by the complainant as PW1, it is understood that so many extra works got done by the Opposite Party. The front door and windows were made specially. In the sit out and in balcony charupadi was set in timber. Show works were also made very beautifully and artistically. In this manner so many extra works were done by the Opposite Party on the instructions from the complainant.
From the above, we understand that the complainant has not maintained proper record of the payments made to Opposite Party on different dates and various additional works got done by the complainant through Opposite party. Again the Complainant has not produced the original agreement said to have been entered into by her husband with the Opposite Party. Only the Photocopy of the above agreement was marked with objection. It is presumed that the Opposite Party has completed the work as per the agreement mentioned above.
In his deposition as DW1, Opposite Party conceded that some minor works were not done by him. Therefore on his side there is deficiency of the service. At the same time due to non maintenance of proper accounts by the complainant we cannot clearly say that the complainant has paid in excess to the Opposite Party.
Because of the above deficiencies on the part of the complainant and the Opposite Party, the complaint is partly allowed.
Therefore we order the Opposite Party to pay the complainant Rs.5000/-(Rupees Five thousand only) by way of compensation for deficiency in service on the part of Opposite Party and for mental agony undergone by the complainant. In addition Rs.2000/-(Rupees Two thousand only) should also be paid to the complainant towards litigation expenses incurred by her.
The aforesaid amount should be paid within one month from the date of receipt of this order, failing which the complainant is entitled to get 9% interest for the whole amount from the date of this order till realization.
Pronounced in the open court on this the 16th day of August 2016.
Sd/-
Shiny. P.R
President
Sd/-
Suma. K.P Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 – Photocopy agreement paper(with objection)
Ext.A2 –Registered Notice dated 07.09.2015
Ext.A3-Reply notice of Adv.T.V.Sudarsh dtd. .09.2015
Ext.A4-Letter of Ratification and authorization dated 01.12.2015
Exhibits marked on the side of opposite party
Nil
Witness examined on the side of complainant
PW1-Anila Rajesh
Witness examined on the side of opposite party
DW1
Cost allowed
Rs.2000/-as cost
