IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August, 2023
Present: Sri. Manulal. V.S, President
Smt. Bindhu.R, Member
Sri. K.M. Anto, Member
CC No. 206/2022 (Filed on 07/10/2022)
Complainant : Jyothilakshmi P.S.
W/o. Swinto K.A.
Pulichuvattil House,
Areeparambu P.O
Kottayam.
(Adv. Anju P. Thampy)
Vs.
Opposite parties : (1) Kairali Contracting Pvt. ltd.
Room No.3,
Global Business Centre, 2nd Floor,
Swapnil Enclave Marine Drive
Ernakulam – 682031.
(2) Mohammad Safwan,
Managing Director,
Kairali Contracting Pvt. ltd.
Room No.3, Global Business
Centre, 2nd Floor, Swapnil Enclave Marine Drive, Ernakulam – 682031.
O R D E R
Sri. Manulal. V.S, President
Crux of the complaint is as follows:
The complainant is a private institution employee by profession. the first opposite party is a building construction contracting company, running a construction company under name and style Kairali Contracting Private Limited. The opposite parties entered into an agreement with the complainant on 5/12/2020 for the construction of residential building for the complainant in her property situated in Manarcadu village with a time limit to complete the work within 8 months. As per agreed plan the total area of the building was 866 square feet and the agreed construction cost per square feet was Rs.1,400/-. The opposite party started the construction in June 2021 and stopped the work in March 2022. As per the agreement the amount to complete the construction was fixed as Rs.12,11,900/-. As per the agreement 20% of the total amount was decided as work advance and 10% in the beginning of basement, 10% in the beginning of lintel level works or block works, 20% before slab concreting, 10% for doors and windows, 10% for plastering, 5% for paving tiles and 5% for painting works shall be given by the complainant to the opposite party. The opposite party offered to clear all permits and sanction by themselves but they dragged the proceeding, hence the complainant herself managed to clear the paperwork. Thereafter the opposite party delayed the work blaming their internal work arrangement. Finally, after 6 months from the date of agreement the construction work was initiated in June 2021. As per the work schedule so far, the opposite party availed an amount of Rs.10, 97,710/-. As per agreement when the 90% of the total payment is made the opposite party should have completed the entire work except tile paving and painting. So far, the complainant has paid more than 90% of the total amount as per the agreement. However, the opposite party completed only 50% of the works. Hence Opposite party obtained an excess amount of Rs.4,91,510/- from the complainant. It is submitted in the complaint that the door frame and window frame were not fixed. Plumbing, wiring and electrical work are pending and floor work, septic tank, waste tank and painting work where pending. The opposite party stopped the construction work in March 2022 and thereafter the opposite party abstained from the site. Whenever the complainant contacted them, they were making lame excuse for restarting the work. It is alleged in the complaint that the amount obtained by the opposite party is more than that of the work completed by them. The opposite party has violated the terms of the agreements and done unfair trade practice by misleading the complainant by obtaining an amount for the works which are not done by the opposite party. When the complainant noticed the huge differences on 25/7/2022 the complainant demanded to complete the work and asked for the terms of the agreement or to return the excess amount obtained by them. But the opposite party again raising lame excuses and evaded from their liability to complete the work or to settle the payment. It is alleged in the complaint that the act of the opposite partly amounts to deficiency in service and unfair trade practice. So, this complaint is filed by the complainant praying to direct the opposite party to pay Rs.4,91,510/- to the complainant along with a compensation of Rs.2,00,000/-.
After admission of the complaint the notice was sent to the opposite parties. Though the notice was served to the opposite parties through alternate service, the opposite party did not care to appear before the Commission or to file a version. Hence the opposite parties were set ex-parte.
The complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 and A2. The report of the expert Commissioner is marked as exhibit C1.
On evaluation of complaint and evidence on record we would like to consider the following points.
- Whether the complainant succeeded to prove any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs?
For the sake of convenience, we would like to consider Point No.1 and 2 together.
Point Nos.1 and 2
The complainant entered into an agreement with the opposite party on 5/12/2020 for the construction of a residential building in the property of the complainant at Manarcad village. Exhibit A1 is the agreement executed between the complainant and the opposite party on 5/12 /2020. On a mere reading of the exhibit A1 we can see that the opposite party has agreed to construct a residential house according to the plan produced by the complainant. It is evident from the exhibit A1 that the opposite party agreed to construct the residential building at the cost of Rs.1,400/- per square feet and to complete the construction of the building within 6 to 8 months from the date of starting of the construction work. It is further agreed by the complainant and opposite party that the complainant shall pay 20% of the contract amount as advance to start the construction work. It is further agreed by the parties that the complainant shall pay 10% of the contractual amount in the beginning of the basement work, 10% at the beginning of the lintel level work, and to pay 10% of the contract amount for the block works. As per the agreement the complainant shall pay 20% of the contractual amount before the beginning of slab concreting, 10% for fixing of Doors and windows, 10% at the time of beginning of plastering work, 5% At the time of paving the tiles and shall pay remaining 5 percentage of the contract amount for the painting works. According to the complainant though the opposite party agreed to clear all permit and sanction by themselves, they dragged the proceedings hence the complainant herself obtained all the sanction and permits. It is submitted by the complainant that she had paid Rs.10,97,710/- to the opposite party. On perusal of exhibit A2 we can see that the complainant had paid a total amount of Rs.10,97,710/- till 10/3/22. To prove her case, the complainant filed an application to appoint an Advocate Commissioner to ascertain the work with the assistance of an expert. The report filed by the Advocate Commissioner is marked as exhibit C1. According to the expert the opposite party has completed the work up to the plastering and floor concreting was completed. Expert Commissioner reported That the work of flooring tiles, electrical and plumbing work, doors and window shutter, kitchen granite slab, painting works, toilet doors, inside doors, water tank, septic tank, waste pit, and ferro slab shelfs are to be completed by the opposite parties. He further reported in exhibit C1 that the opposite party had completed the works to the tune of Rs.8,22,700/-.According to the Expert Commissioner the complainant have to spent Rs.4,76,300/- to complete the remaining works . Thus, it is proved that the opposite party has received an amount of Rs.2,75,010/- in excess than the agreed amount for the work which had been done by him as per the exhibit A1 agreement. In the absence of any contradicting evidence we have no hesitation to accept the C1 report which is filed by a Chartered structural engineer.
On a close evaluation of the above discussed evidence, we are of the opinion that the complainant had succeeded to prove deficiency in service and unfair trade practice from the part of the opposite party. In these circumstances and evidence on record we are inclined to allow this complaint and pass the following order.
- We hereby direct the opposite parties to pay an amount of Rs.2,75,010/- (Rupees Two lakhs seventy five thousand and ten only)to the complainant with an interest of 9% per annum from 7/ 10/ 22 i.e. the date on which the complaint is filed till the date of realization.
- We hereby direct the opposite parties to pay an amount of Rs.1,00,000/- (Rupees One lakh only) as compensation for the loss sustained by the complainant due to the deficiency in service on the part of the opposite parties and to pay Rs.3,000/- (Rupees Three thousand only) as the cost of this litigation.
The opposite parties are jointly and severally liable to pay the awarded amount within 30 days from the receipt of this order, failing which the amount of compensation shall carry 9% interest per annum from the date of this order till realization.
Pronounced in the Open Commission on this the 24th day of August, 2023
Sri. Manulal. V.S, President Sd/-
Smt. Bindhu.R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Agreement dtd.05/12/2020 between complainant and 1st opposite party
A2 – Copy of statement of account (A/c. No.195201501637)
Commission Report
C1 - Report submitted by Er. Sunil K. Jose M.E. (Structure)
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
