D.O.F. 22.08.2009

                                        D.O.O. 13.01.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :    President

             Smt. K.P.Preethakumari  :     Member

             Smt. M.D.Jessy                :     Member

Dated this the 13^th   day of January  2012

C.C.No.217/2009

Choyiyan Roja,

Kakoth Kunhiprayil House,

Edacherry, PallikkunnuP.O.                                  Complainant

(Rep. by  Adv.K.Gopakumar) 

Kottayi Dhananjayan,

Contractor,

S/o.Rajanathnam,

Edacherry,

P.O.Pallikkunnu,

Kannur 4.

 (Rep.by Adv.T.P.Harindran)                                     Opposite party

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay `1,00,000 collected excess and to pay `2,00,000 required for the rectification work together with `2,00,000 as compensation.

          The case of the complainant in nutshell is as follows: Complainant entrusted the opposite party the construction work of her residential house at Edacherry upon a contract executed on 19.11.2008. The cost of construction was fixed as `900 per sq. foot. The particulars of the payment also shown in the agreement. But it has no resemblance with the prevailing rate. The complainant who was ignorant of construction field had been exploited by opposite party and extracted excess money. Complainant had paid total amount `4,90,000 including the cost of constructing the  well. Opposite party also received another `1,00,000 from complainant. The construction work was so much defective materially affecting the building. Massive rectification is required which cost an amount of `2,00,000. Opposite party employed unskilled workers to do the work and it was also not supervised properly. Being a lady complainant could not understand the defects time to time. But she understood the defects only when her husband came back from abroad. The defect is so serious which affected the very existence of the structure. Hence this complaint.

Pursuant to the notice opposite party made appearance and filed version contending as follows:  Complainant’s husband entrusted the construction of a dwelling house on executing an agreement cost of construction fixed at the rate of `900 per sq.ft. Agreement contained particulars of payment. The averment that the payments have no resemblance with prevailing rate is baseless. Complainant paid `4,90,000 in total including the expense of construction of well. It is false to say that there are several defects in the construction. The allegation that unevenly laid the laterite stone and concreting in central hall, door frame fixed defectively, construction of well not proper, front lintel defective etc. is not true and correct. It is false to say that `1,00,000 received more than  entitled. It is incorrect to say that  rectification work needs minimum `3,00,000. It is absolutely wrong that opposite party did not supervise the work entrusting skilled workers and rejecting the suggestion of complainant. The intention of the complainant is to deny the balance amount of `52,027 to opposite party. This is a false complaint. Complainant is not entitled for any remedy. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Party?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PW1,PW2,CW1, DW1, Exts.A1 to A4 and B1.

Issue Nos.1 to 3

Admittedly complainant entrusted the construction of her residential house to opposite party Agreement was  executed on 19.11.2008 and the cost fixed at the rate of 900 per sq.feet. Complainant paid an amount of `4,90,000  in total  including the expense of construction of well. The case of the complainant is that the construction has been done with several defects which requires a minimum amount of `3,00,000 for the rectification. Opposite party has also received an excess amount of `1,00,000. Opposite party on the other hand denied the entire allegation raised by the complainant and taken the contention that this is a false complaint so as to escape from the liability to pay the balance amount of `52,027.                

Complainant has taken out expert commission.Ext.A2 report of the expert in his conclusion stated that the construction of the complainant’s house shows poor workmanship and poor quality of building materials.

          The complainant filed petition to remit the commission report and to appoint an experienced Advocate Commissioner and an independent expert to value the works already done and to find out if there are any defects. The Advocate Commission appointed by the Forum submitted report after the inspection in the presence of opposite party. He got enough opportunity to bring to the notice of the commissioner whatever, the things which he wanted to examine and report by the commissioner. Since there was no reasonable ground to remit back the report his petition was dismissed. Opposite party filed objection to the report stating the findings are highly partisan, one sided and absolutely baseless. He has also contended that the expert  Sri.Rajeevan is a close friend of the husband of the complainant and he prepared the report to support the case of the complainant.

Though opposite party has raised serious allegation against expert he has not made any complaint against the Advocate Commissioner who has submitted Ext.A1 report. He has reported that there are cracks in the wall of living room and kitchen which are seen scaled with cement. He stated further that stones of the walls are not laid properly. It is also pointed out that he has seen a gap between the wall and door frame in the kitchen. He has also supporting the  facts finding of the expert that the foundation depth is varying from 4 stone thick to 3 stone thick below the kitchen front wall which referred in Figure 4 attached to Ext.A2. What is stated by the Commissioner is the facts which do not need special expertness to see and observe. An ordinary spectator can report those things. What is seen that is reported. Whether it is supported with other evidence or not is another question. A mere sight inspection without special skill is large and sufficient to report those things. His report however supports the report of the expert Ext.A2. So the contention that the opinion of the expert is partial or one sided, cannot be swallowed without reasons.

Husband of the complainant adduced evidence by way of chief affidavit in tune with the pleadings. He has stated in affidavit evidence that complainant had given `4, 90,000 but there were several defects in the construction. Foundation agreed to 1.20 cm depth but opposite party has taken only up to 80 cm, there are cracks on the kitchen wall and back wall of the house etc, Concrete work in the central hall is defective, laying of laterite stone is defective and Doors and window frames are not finished in a correct way. The construction of well is also defective. Certain portions of the well have not been strengthened with laterite stone. So the existing wall may fall at any time. The lintel work on the front side also defective. Opposite party has received an excessive amount `1,00,000. An amount of `2,00,000 is necessary to rectify the existing construction defects. It is further stated that the contention of the opposite party that complainant has to give an amount of `50,000 towards the expense of construction is absolutely wrong.

PW1 has been cross examined elaborately for opposite party. In cross examination he has deposed as follows: The cost of construction fixed was `900 per sq.ft. Construction cost of the well found was `2500 per kole. `50,000 has been given towards well. It is `4, 40,000 that has been paid towards the cost of construction of house. According to him opposite party has done the work for an amount of `3,00,000. Foundation had been done by utilizing the mud taken from the well. Complainant has given `4,90,000 within six months. He has asked for money again after that. It was agreed to give `900 per sqr.ft. Commissioner inspected the house and taken notice of  all the work that had been done by the opposite party. The defect has already been rectified. He has met an expense of about `2, 00,000 in order to rectify the defects. It is not correct to say that complainant is liable to give `52,027 as per the agreement. Opposite party did not ask how much is to be paid. There is excess amount with the opposite party. He has also deposed that it is not correct to say that the expert commissioner is his friend. Cross examination of PW1 did not bring out anything favourable to opposite party whereas it has helped complainant to strengthen his case.

CW1, Expert in his oral evidence has stated that he has inspected the building as expert and submitted Ext.A2 report. He has also stated that his repot consisted of details of construction work done by the opposite party and its defects. He has given the cost in rough estimate on the basis of sq.ft. It has also estimated on the basis of PWD rate. He further stated that the defects had been pointed out separately in the report. In the cross examination he has deposed that he has given his conclusion depending on visible observation. It is not possible to give exact reason without quality assessment, for which detailed lab report. Leakage of concrete had not been visible. He did not conduct test by storing water to ascertain the leakage. He has deposed that what he had stated was those things which were visible to him. Answer to another question CW1 deposed that within the rocky spots there would not be coverage of laterite stone. He was not sure the place omitted to cover by the laterite stone on the well wall was rocky area or not. That was not examined by him pouring water. The building was not plastered at the time of his inspection. It is incorrect to say that the  rate of construction  during 2008-09 was `900 to `1200 per sq. ft. `750 to `1000 per sq.ft. was the rate for finished work.  CW1 also stated that opposite arty was present at the time of his inspection.

The evidence adduced by PW2 Abhilash was the workman who has done the plastering work of the complainant’s house. He has given evidence that it was he who had done the plastering work. He has given evidence that the concrete beam was projected beyond the wall. So the plastering was done after leveling the beam. So also the bent of the concrete slab in the central room leveled and then completed the plastering for which he had obtained coolie of an amount of `12,000. In the cross examination PW2 deposed as follows: Ext.B4 had been prepared by his friend K.V Subash since it was asked by the husband of the complainant. He cannot write but he can sign. Subash was the worker of laterite stone. PW2 was doing plastering work. The plastering work of the entire house of the complainant was done by him. He has obtained `85,000 for the same. The beam was projected beyond the wall whereby plastering had to be done only after leveling the beam. The bent of the beam was seen on back side of the house but in the central hall it was projected. For plastering beam after leveling he has obtained `12,000 as coolly. It took 1 ½ week for leveling the beam. It was a separate contract work for `12,000. Plastering work of the all was done by clearing defects in many places.

          The evidence of PW2 reveals that he has done the plastering work of the complainant’s house for `85,000. Further plaster of the beam after leveling the projection had been done on the basis of separate contract for `12,000. It also reveals that the beam in central hall was projected and there was bent on the beam on the back side of the wall. These defects and plastering work caused an expense of `97,000 for complainant.

Opposite party adduced evidence by way of affidavit in tune with the pleadings as follows: Complainant entrusted construction work of residential house at the rate of  `900 per sq.ft. He has obtained

`4, 90,000 towards construction work including the construction of the wall. The allegation that the work was done negligently has been denied. Complainant is liable to pay balance amount of `52,027 towards the construction work. This complaint is lodged to escape from this liability. He has also stated that the expert was a friend of the husband of the complainant and the report was prepared to help the complainant.

          On going through the report Ext.A2 and evidence of cW1 and of PW2, the worker of the plastering reveals that the construction of the building was not proper. Opposite party contended that expert CW1was a friend of the husband of the complainant. But his evidence shows that there is no proper reason for such a conclusion. He as deposed in cross examination that “ Expert ]cm-Xn-¡m-cn-bpsS `À¯m-hn-sâ-kp-lr-¯mWv F¶p ]d-ªXp ]cm-Xn-¡m-cn-bpsS `À¯m-hnâ IqsS I­-Xp-sIm­mWv..]-cm-Xn-¡mcn I½o-j-W-dpsS ho«n t]mbXp I­hÀ ]d-ª-Xm-Wv. A§s\ ]d-ª-bm-sf-hnkvXcn-¡p-¶nÔ. If such witness was examined and established the allegation of the complainant it could have been believed what he said was more or less true. But on the mere words stated above is not sufficient to disbelieve the expert and to reject his evidence. Opposite party has not raised any allegation against the commissioner. His report Ext C1/A1 contains what he has seen by the visible observation. He has stated in his report that cracks in wall of living room and kitchen seen sealed with cement. No expertness is necessary to report this. Even a layman who can directly see the wall can say this. So also he has reported stone is not laid properly and second quality undressed stone was used for construction. He has also reported that he saw gap between wall and the door frame of the kitchen. There is no reason to be disbelieved the commissioner. The reported few things which he could see at the time of inspection cannot be believed untrue. These are all things which anybody can pointed out by visible observation. The evidence of PW2 confirms those defects are true. PW2 Abhilash was the worker who has done the entire plastering work. He has deposed in cross examination that the beam in the central hall was projected beyond the wall and seen bent of the beam on the back side of the house. He has also deposed that he took 1 ½ week for leveling the beam and that work was done on the basis of a separate contract for an amount of `12,000. It is a quite addition work. He has further deposed that the plastering work was carried out by level ling the wall many places. It shows that it was undressed laterite stone that had been used for laying the wall. It means extra expense may cause for the same. He has obtained `97,000 for the plastering work of the wall apart from that of the special contract beam work.

          Ext.A2 specifically pointed out the defects in construction and its causes. Though opposite party has denied in the version he has not taken any interest to exam any one of the workers so as to rebut what the expert of the commissioner has reported. So the analysis of the available evidence shows that there are defects in construction work.

          Ext.C1/A2 in its conclusion has been pointed out that the  concrete has honey combed structure at various locations such as below stair and sunshades, the beam in verandah portion is out of plumb, the beam in the living room is having excessive  ragging, cracks in the wall of living room were seen sealed with cement mortar, the foundation depth is varying from 4 stone thick ( 80 centimeter) to 3 stone thick (60 centimeter) below the kitchen front wall, the walls in some of the portions of the walls were  constructed with second quality undressed stones. The well is having some portions without any stone lining. CW1 expert in his examination  has deposed that “Building \v sq.ft. ASn-Øm-\-¯n th­p¶ sNehv rough estimate Bbn sImSp-¯p. AXn Xs¶  detailed  BbpT ]d-ªn-«p­v. Rough estimate ImWn-¨Xp present Market value – as per sq.ft ASn-Øm-\-¯n-epT  PWD rate {]Im-cT Detailed estimateDT X¿m-dm-¡n-bn-«p­v. \-yq-\X separate Bbn ImWn-¨n-«p­v.Fsâ  estimate {]Im-cT  rough estimate\v  `450/sq.ft. Bbn-«mWv ImWn-¨Xp”.

          The opposite party has filed objection to the Commission report. But he is not taken any step to disprove the conclusions of expert. The denial itself in some cases amounts to admission. He has stated, for example, the expert has not mentioned the number of cracks if any in the wall of the living room. Non-counting of cracks if taken as an insufficiency that amounts to an admission that there are cracks. The opposite party has denied finding of the expert that some portions of the walls were constructed with second quality undressed stones. This could have been easily disproved by examining the mason who has done the work of laterite stone. Dressing of laterite stone might have been done by separate workers. Any one of those workers could have been examined. Commissioner himself has reported on his visible observation that there were cracks on the wall of living room. He has also reported that he has seen the gap between the wall and the door frame in the kitchen. These are all defects the opposite party cannot hide, though denied. Thus he has the burden to prove that those defects pointed out are not true. It has to be noted that unskilled workers are employed for the work, is one of the main allegation of the  complainant  and the  conclusion of Expert in Ext.A2 specifically pointed out the  causes of defects which indicate that the   disputed  structures shows poor quality in terms of both material and construction. Hence the examination of mason or any one of the workers is an essential requirement without which the contentions of opposite party cannot be substantiated at all. He cannot overcome the findings of the expert and his report Ext.A2. It can be seen that except the interested testimony of DW1/OP there is no attempt on his part to prove his contention or to disprove the allegations of the complainant and findings of the commissioner and expert. Complainant alleged that well is not constructed properly and it is not strengthened with laterite stone in some portions. The report of the Commissioner Ext.A1 together with the report Ext.A2 by the expert filed on 19.9.2009 stated that the well is having some portions without any stone lining. Opposite party filed version about one month later on 15.10.09 wherein his explanation to that point is that “It is also incorrect to say that the well is not constructed properly and not strengthened with laterite stone. The objection to Commission report filed by opposite party after two months  stated only that “the finding regarding the stone lining in the well is also not correct”. What is ultimately stated in the proof affidavit is that: “InWÀ \nÀ½m-W-¯n A]m-I-X-IÄ-Ds­¶p-ff Bt£-]T icn-b-Ã. a®n\p Dd-¸n-Ãm-¯-Xn-\m \ne-hn-ep-ff sI«v hoWp A]-I-S-ap­mhm³ km[-y-X-bps­¶p-ff Bt£-]-hp-T -i-cn-bÔ. There is nothing otherthan mere denial. At least one of the workers could have been examined to ascertain the strength of the well. The interested testimony of opposite party alone cannot save him to escape from the allegations and findings. He has the liability to substantiate what he has contended. It has to be considered that the report of the commissioner and the evidence adduced by PW2 had been contributed much to substantiate the allegations raised by complainant. Detailed estimate based on the PWD rate for the year 2008 a total cost of `3, 22,992 for the cost of construction involved and preliminary estimate based on current market/local rate would come `3,98,992. The admitted amount received by the opposite party is `4, 90,000. Even if average of rough estimate at the then existing market rate and detailed estimate on the basis of PWD rate, the amount received by the opposite party is at any rate excess. The evidence available makes it clear that there are defects in the construction. The observation of the expert is that the disputed structure shows poor quality in terms of both material and construction. So it is certain that rectification work is essentially required to already done construction. So also it can be assumed from the estimate of expert commissioner that the amount received by the opposite party was in excess of the then prevailing rate.

          The facts and circumstances together with the report of the expert make it certain that there is deficiency in service on the part of opposite party. We are of opinion that complainant is succeeded in substantiating his case and entitled for compensation.    Considering the fact that the construction required rectification work and the amount received by the opposite party is more than the actual cost on any basis and also taking into account the mental agony we feel that an amount of `75,000 as compensation will meet the end of justice. He is also entitled for an amount of `3,000 as cost of this litigation. Thus the issues 1 to 3 are found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed partly directing the opposite party to pay a sum of   `75,000 (Rupees Seventy five Thousand only)   as compensation together with  `3000 (Rupees Three thousand only) as cost of this litigation within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                         Sd/-                   Sd/-                       Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.Report submitted by Saritha, commissioner in the OP

A2.Expert commissioner’s  Calculation

A3. Copy of the agreement executed by complainant and OP

 A4.Receipts issued by Abhilash.PV

Exhibits for the opposite party:

B1.Copy of the estimate

Witness examined for the complainant

PW1.Ratheesan

 PW2.Abhilash.P.V

Witness examined for the opposite parties

DW1.K.Dhananjayan

Witness examined for the court

CW1.  Dr.B.Rajeevan         

                                                  / forwarded by order/

                                                                                                                                           Senior Superintendent