IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 20th day of December, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No.67/2013 (Filed on 01.06.2013)
Between:
John Thomas.
Thamaravelil Veedu,
Kuttappuzha.P.O.,
Varikkad, Thiruvalla. ….. Complainant
And:
Kennady. S,
Kurubeseram Building,
Chengaroor.P.O.,
Kunnamthanam,
Mallappally.
(By Adv. Prasad George) ….. Opposite party
O R D E R
Smt. K.P. Padmasree (Member):
Complainant filed this complaint against the opposite party for getting a relief from the Forum.
2. Brief facts of the case is as follows: Complainant’s case is that his wife is a kidney patient and for the last several years she is undergoing treatments. For fulfilling her desire to live in a good house, complainant’s son decided to construct a new house by availing bank loan. As he is abroad he had entrusted his father to construct the house. Accordingly, complainant obtained a plan and elevation of the proposed house from Green Homes, Thiruvalla.
3. Complainant had given the work to the opposite party and entered into an agreement on 22.08.2011 with the opposite party for that purpose. But the opposite party constructed the house without following the plan. Complainant had no experience in the field of construction, when almost all the works are completed the complainant realized the changes and defects in the construction and he asked the opposite party regarding the changes of plan and the defects. Then the opposite party admitted the same and he promised the complainant that it would be corrected by him at his cost or otherwise compensation will be given to the complainant.
4. Opposite party received the entire amount as per the agreement from the complainant. As per the desire of the complainant’s wife they started to live in the newly constructed house. Even though the opposite party promised to correct the defects of the construction as per the plan and elevation produced by the complainant or to compensate adequately, he neglected to do so. The above said act of the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant. Hence this complaint for getting an order directing the opposite party either to correct the defects in the construction or to give Rs.9 lakhs as compensation to the complainant.
5. In this case, opposite party is exparte.
6. On the basis of the pleadings of the complainant, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral testimony of PW1 and CW1 and Ext.A1 and A2 and C1 and C2. After closure of evidence, complainant was heard.
8. The Point:- Complainant’s allegation against the opposite party is that he had entrusted the construction of his house to the opposite party and given the plan and elevation of the proposed house. As per the agreement, opposite party started the work and collected the entire amount on completion of the work. But the complainant noted certain deviations from the plan and many defects in the construction. He asked opposite party about it. He admitted the same and promised either to rectify the defects or to give adequate compensation. But so far he had not done the same. The above said act of the opposite party caused financial loss and mental agony to the complainant and the opposite party is liable to the complainant for the same.
9. In order to prove the allegation of the complainant, complainant filed proof affidavit along with 2 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Ext.A1 and A2. An expert commissioner appointed by this Forum inspected the building and submitted his report and he was examined as CW1 and his report and mahazar are marked as Ext.C1 and C2. Ext.A1 is the photocopy of the agreement dated 22.08.2011 entered between the complainant and opposite party. Ext.A2 is the plan and elevation of the house. Ext.C1 and C2 are the mahazar and report of the commissioner.
10. On the basis of the complaint, oral testimony of complainant as PW1 and as per Ext.A1, it is seen that the complainant and opposite party had entered into an agreement on 22.08.2011 for the construction of a residential building and from Ext.A2, it is further seen that complainant had provided a plan and elevation to the opposite party for the construction. In this case, an expert commissioner appointed by this Forum visited the site and prepared a mahazar and a report and the commissioner deposed before this Forum as CW1. From Ext.C1 and C2, it is seen that there are some deviations in the construction from the plan. The commissioner also noted certain defects in the construction. He also submitted an estimate of Rs.53,471/- for rectifying the defects. Though the complainant raised certain objections to Ext.C1 and C2, he had not adduced to any evidence to substantiate his objections. So we are constrained to accept Ext.C1 and C2. As per Ext.C1 and C2, we find that the construction made by the opposite party is defective.
11. Since opposite party is exparte, the complainant’s case stands proved as unchallenged. The defects in the constructions committed by the opposite party is a clear deficiency in service and the opposite party is liable to the complainant for the same. Therefore, we find that this complaint is allowable.
12. In the result, this complaint is allowed partly thereby the opposite party is directed to pay an amount of Rs.53,471/- (Rupees Fifty Three Thousand four hundred and seventy one only) (as per Ext.C2) for rectifying the defects in the construction along with compensation of Rs.50,000/- (Rupees Fifty Thousand only) and cost of Rs.5,000/- (Rupees Five Thousand only) to the complainant within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 20th day of December, 2013.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : John Thomas
Exhibits marked on the side of the complainant:
A1 : Photocopy of the agreement dated 22.08.2011 entered between the
complainant and opposite party.
A2 : Plan and elevation of the house.
Witness examined on the side of the opposite party: Nil.
Exhibits marked on the side of the opposite party: Nil.
Court Witness:
CW1 : Gitsy Thomas
Court Exhibits:
C1 : Commission Report
C2 : Mahazar.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) John Thomas, Thamaravelil Veedu, Kuttappuzha.P.O.,
Varikkad, Thiruvalla.
(2) Kennady. S, Kurubeseram Building, Chengaroor.P.O.,
Kunnamthanam, Mallappally.
(3) The Stock File.
