BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.35/2010

Dated this the 15^th day of March 2016.

Tajudeen, son of Pakir Mohamed 

No.25, Yanam Venkadachalam Pillai Street          

Pondicherry – 1.           

                                      ….     Complainant

Vs.

Kumaran, son of Sampathkumar

No.5, Narayani Illam, III Cross Street

Brindavanam, Pondicherry – 13

….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR DHANALAKSHMI, B.A., B.L.,

Member

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru. M. Vaikunth, Advocate

FOR THE OPPOSITE PARTY        : Thiru. R. Thiroumavalavan, Advocate

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite party to pay to the complainant a sum of Rs.72,816.25 being the difference of Rs.2,75,000/-;
2. Direct the opposite party to pay to the complainant a compensation of Rs.5,00,000/-;
3. Direct the opposite party to pay to the complainant a sum of Rs.7,00,000/- towards deficiency of service and negligence in duty;
4. Direct the opposite party to pay to the complainant a sum of Rs.27,183.75  towards the cost of the complaint.

            2.  The case of the complainant is as follows:

          The complainant engaged the Opposite Party for construction of his house in the plot to an extent of 15 x 30 sq. fts. Situated at Plot No.44, 14^th Cross, Krishna Nagar, Pondicherry and had entered into an agreement on 21.05.2008.  The tentative cost of the building as on the date of agreement was arrived at Rs.3,75,000/-.  The complainant has given a sum of Rs.2,75,000/- by way of two instalments on 27.05.2008 and 28.06.2008 and the opposite party should complete the said work within four months from the date of agreement.  On 27.07.2008 the opposite party started the work and when the building came to the window level in a semi-finished manner that too with poor quality of materials, stopped construction of the building.   Since the building is in semi-finished manner, the iron pipes in the beams are being exposed to air and rust has formed.   When the complainant asked the opposite party about the stopping of the construction of his house work and his sister house work, he had replied evasively and would say that he would complete the works very sooner, but failed to do so.   The opposite party had done only the first item of the work in the agreement i.e. basement only, other items of works had not done by him.  The complainant stated that the opposite party has done the work only to the tune of  Rs.2,02,183.75.  That on 17.07.2008 the complainant and his sister met the opposite party and asked him to complete the work, at that time also, the opposite party assured to complete both the works very soon.  Again on 25.07.2008 when the complainant and his sister met the opposite party, he had opted for settlement and refund of money for the incomplete work.  While so, on 30.07.2008 a complaint has been lodged by the Opposite Party against the complainant's sister for threatening him.  The complainant stated that in order to overcome from the act of defaults, fraud, cheating and false assurance to settle the amounts, the opposite party had lodged the complainant.  In the police station, the opposite party undertook in writing that he would complete the complainant's sister's house work within 45 days else, he would refund the amount and as a mark of the same, the key of his sister's house was given to the complainant's sister.  Since the opposite party has not acted upon as per his assurances, the complainant and his sister informed the fact to the said police on 15.09.2008 where in order to get rid of the situation temporarily, the opposite party asked the complainant's sister to provide tiles for her said work so as to create an image as if the opposite party is not a defaulter.  Accordingly, the complainant's sister purchased tiles for a sum of Rs.70,660/-, however, the opposite party did not commence the work.  Again the complainant and his sister complained before the said police who warned the opposite party and directed him to settle the matter or finish the work in entirety which the opposite party accepted for the same.  On 08.11.2008 at 2.00 p.m. the opposite party took inventory of his work and photographed the same and handed over the keys to his sister and asked one month's time for refund of money.  On 04.01.2009 when the complainant and his sister asked the opposite party the refund of money, he has stated that he had invested huge money in construction of other building and would refund the same within June 2009.  Even then, the opposite party had not fulfil his assurances and hence, the complainant issued a legal notice dated 08.07.2009 to the opposite party which was returned as "left".  The complainant later came to know that the opposite party absconded from the agreement mentioned address and living in the complaint mentioned address.  The complainant issued legal notice on 18.07.2009 to the Opposite party which was acknowledged by the opposite party on 21.07.2009 and had issued a reply notice on 11.08.2009 with imaginary, false and frivolous defences.  On 15.11.2009 the opposite party approached the complainant and stated that he had replied only as per law not otherwise and asked the complainant and his sister a further time of three months till January 2010 for settling the same.  The complainant stated that prior to issue of legal notice, with the help of a Registered Contractor namely K.P. Mourougane, son of K. Pandian, Pondicherry came to know that the opposite party have performed the same work only for a sum of Rs.2,02,183.75/- that too in an incomplete manner.  The above said acts of the opposite party clearly establishes the deficiency in service and negligence in his duty.  The complainant was made to suffer both monetarily, mentally and physically.   Hence, this complaint.

3.       The following are the averments narrated in the reply version filed by the opposite party:

          The opposite party denies all the allegations made out in the complaint, however, he admitted  the entering into an agreement for construction on 21.05.2008 for a sum of Rs.3,75,000/- with the complainant and has received a sum of Rs.2,00,000/- on 25.05.2008 and Rs.75,000/- on 28.06.208.  It is stated by the opposite party that the construction site being a low lying area and is of clay and soft soil and water logged due to rain and the excavation work could not be done easily.  Everyday when the earth is mined for five feet for laying the foundation bed, in the next morning the earth would have dissolved and the foundation trenches would be covered upto three feet and the opposite party had to again make excavation work.  As the foundation trenches proved futile and the work was of pile foundation being carried out the foundation work itself took nearly one month to get completed.  While this was so with regard to the construction work of complainant's sister, she refused to pay the last payment of Rs.1,10,000/- plus the wood and trouble started between the complainant's sister and the opposite party.  The complainant and his sister brought some rowdy elements in the first week of July 2008 and threatened the opposite to complete the work in full and then to receive the payment for which the opposite party refused.  On 30.07.2008 the complainant, his sister and some rowdy elements came to the house of the opposite party in Lawspet Government Quarters and unable to bear the threatening and intimidation, the father of the Opposite Party gave complaint to the Out Post Police station at Lawspet. 

               4. The opposite party submitted that after the renewed agreement at the police station, the complainant never permitted the opposite party to do any work in his place and he was very stern that first the work of his sister's house should be completed and then only the opposite party should carry out the construction work in his site. The complainant's sister was at default, the complainant never approached the opposite party and it was only on 18.11.2008 the complainant and his sister approached the opposite party and requested the key of the house of the complainant's sister as they had some rituals to be done  and that was the last interaction between the opposite party and the complainant and then it only through the advocate notice the complainant is contacting the opposite party.  Hence, prayed for dismissal of the complaint with exemplary costs.

5.       On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C9 were marked.  One Thiru.S. Chandrakumar, Junior Engineer, PWD, Puducherry has been examined as CW.2 and marked Exs.X1 and X2.  On the side of the opposite party, the opposite party himself was examined as RW1, however, no documents have been marked.

6.       Points for determination are:

1. Whether the complainant is the Consumer?
2. Whether the complainant is entitled for a sum of Rs.72,816.25/- being the difference amount to be paid from the received amount of Rs.2,75,000/-?
3. Whether the opposite party attributed any deficiency in service?
4. To what relief the complainant is entitled for?

7. Point No.1:

The complainant has entered into an agreement with the Opposite Party for Construction of a house at plot No. 44, 14^th Cross, Krishna Nagar, Pondicherry on  21.05.2008 for valid consideration of Rs.3,75,000/- vide Ex.C1. Hence the complainant is consumer for the opposite party.

          8. Point Nos.2 and 3:

We have carefully perused the Complaint, reply version, documents filed by the complainant, depositions of both parties and the opinion  given by the CW2/Junior Engineer, PWD, Pondicherry.  The complainant submitted that he entered into agreement with the opposite party to construct a house on 21.05.2008 for Rs.3,75,000/- vide Ex.C1, and the construction work should be completed within 4 months from the date of agreement. The complainant further stated that the opposite party received a sum of Rs.2,75,000/- on 27.5.2008 and 28.06.2008 respectively prior to commencement of work under the pretext that the cost of construction materials would rise very soon.  However, the opposite party commenced the work on 27.07.2008 and constructed upto window level only from the outer side region and the inner side kept open.  It is also submitted by the complainant that the material of construction used by the opposite party is not upto the  standard  and the iron rods in the beams are exposed to air and rust have been formed.  In toto, the opposite party has completed only the item No.1 in the agreement and the other items had not been performed by him.  The opposite party had performed his work only to a tune of Rs.2,02,183.75. 

9. On the other hand, the Opposite Party filed the Reply Version and adduced evidence.  The opposite party admitted the entering into an agreement  with the complainant. Due to heavy rain, the work could not be commenced immediately.  Further, the construction site is a low lying area and is of clay and soft soil and water logged due to rain and the excavation work could not be done easily and hence, the opposite party done pile foundation and it took nearly one month.  The opposite party alleged that he also constructed the house of sister of the complainant and the complainant's sister refused to give last payment of Rs.1,10,000/- plus the wood and the trouble started between the complainant's sister and the opposite party.  During July 2008 the complainant and his sister brought some rowdy elements and threatened the Opposite Party to complete the work in full and then receive the payment for which the opposite refused.  Further, the father of Opposite Party has lodged a complainant before the SHO, Lawspet, who in turn advised the complainant not to threaten the Opposite Party and the Opposite Party has to complete the construction of the complainant's house.  While so, the complainant never permitted the opposite party to do any work in his place and he was very stern that first the work of his sister's house should be completed and then only the opposite party should carry out the construction work in his site.  The complainant's sister was at default, the complainant never approached the opposite party and it was only on 18.11.2008 the complainant and his sister approached the opposite party and requested the key of the house of the complainant's sister as they had some ritual to be done and that was the last interaction between the opposite party and the complainant. 

10.  Heard both sides and records and evidence were carefully perused.  It is very clear from the available records i.e. Complaint, reply version, documents and depositions of both parties that the complainant and the opposite party had entered into a building construction contract agreement Ex C1 as per the terms and conditions of the contract agreement, the amount has to be paid in three instalments.  The opposite party received a sum of Rs.2,75,000/- in two stages and commenced the work.  On perusal of Ex.C1, the time specified in the agreement is four months.  But, the opposite party commenced the work belatedly for the reason that at the time of execution of agreement, there was heavy rain i.e. in the month of May 2008.   The opposite party also constructed a house for the sister of complainant in another place.  The dispute arose only when the complainant's sister refused to pay the last payment for her house. 

11.  The learned counsel for the complainant argued that the concrete mix used for the column was not good quality and honey combs were noticed in many places, reinforcement is also exposed in some places.  Further argued that the PWD Engineer also stated in his report that column box were not used for column construction.  According to the complainant, the opposite party had done the construction work to a tune of Rs.2,02,183.75 and in this regard, they have received a report from a Registered Contract one K.P. Mourugane.  It is also argued by the learned counsel for the complainant that the PWD Engineer also estimated the cost of work done by the Opposite Party as Rs.1,98,630/-.    

12. This Forum carefully perused the evidence and the reports filed by the Expert CW2.   The CW2 Thiru S. Chandirakumar, Junior Engineer, engaged for Commission work by this Forum has stated in his Report Ex.X1 that

          "The above said residential building is a framed structure with built up area of 40.05 sq.m.  The building has been raised upto the roof level i.e. 3m above from the basement.  The building was constructed with 12 Nos. of RCC columns of size 0.23m x 0.23 and raised upto roof level.  Roof slab was not laid.  The foundation of the building is RCC pile foundations for columns using auger equipment.  The column piles were tiled in the ground level with grade beam of size 0.23 x 0.30m. Brick wall has been raised over the grade beam in cement mortar of 1.20m height, RCC plinth beam was laid over the wall by connecting all columns at floor level of size 0.23 x 0.15 m.  The basement of the building was filled up with red earth.  The Superstructure of the building is brick work in cement mortar with RCC columns.  Column box were not used for column construction.  The concrete mix used for the column was not good quality and honey combs were noticed in many places.  Reinforcement is also exposed in some places.  Pointing for the brick work was not done in many places during execution.  The approximate amount incurred for the above construction during the year 2008 will be Rs.1,98,630/-. "

          13. The learned counsel for the opposite party would argue that in Ex.X1, the pile foundation work was taken into account only upto 2 metres instead of 4.57 mtrs.  Similarly sump work was not estimate.  In Ex.X2 another report of CW2, the cost of pile foundation work was not at all taken into account, but sump work was estimated.  The opposite party had done pile foundation to fifteen feet and the basement filled with red earth instead of sand.   To establish that the pile foundation made to fifteen feet, the CW2 in his Report Ex.X2 as well as during his examination before this Forum has stated that he has not mentioned and estimated anything about the pile foundation.   During his second visit, the opposite party did not give any details about the pile foundation, he could not ensure the depth of the pile foundation.  He himself done the excavation work for pile foundation and put it as 24 running metres (2 mtres. X 12 nos.).  Further stated that as there was seepage of water at one metre level of pile foundation depth could not be ascertained. 

14. On perusal of Ex.X1 and Ex.X2,  the opposite party has fulfilled part of the agreed work and the remaining is yet to be completed.   The Expert is appointed only to help this Forum to ascertain the works actually carried out and the works yet to be carried out and the quality of construction and defects and deficiency in service.  As per Exs.X1 and X2, the opposite party has constructed the house upto the roof level.  Further, there is no dispute between the parties with regard to payment as far as this case is concerned.  The dispute in payment is with regard to the construction of complainant's sister's house at another place.  The opposite party himself admitted that out of agreed amount of Rs.3,75,000/- he has received a sum of Rs.2,75,000/- from the complainant prior to commencement of construction. 

          15. Hence, this Forum has come to the conclusion in the light of the Expert Reports that the Opposite Party was negligent in the works to be carried out by him in the building of complainant as per the agreement Ex.C1.  From the reports Exs.X1 and X2, it is very clear that the opposite party has completed the work approximately only to a tune of Rs.1,98,630/-. 

16.  In view of the discussions made supra, the  complainant established the negligent act, deficiency in service of the opposite party and thereby caused some loss and suffering to the complainant.  To meet the ends of justice we are inclined to allow this complaint and the opposite party is liable to return the balance amount to the complainant and to pay the loss and injuries suffered by the complainant.

17. Point No.4:

          In view of the decision taken in Point Nos.2 and 3, this complaint is hereby allowed with the following directions:

1. The Opposite party is hereby directed to pay  the complainant a sum of Rs.72,816.25 as calculated by the complainant for unfinished work.
2. To pay a sum of Rs.25,000/- as compensation to the complainant for the negligent act.
3. To pay a sum of Rs.5,000/- as cost of the proceedings to the complainant.

               The Opposite Party is directed to comply the directions within two months from the date of the receipt of this order.

Dated this the 15^th day of March 2016.

1. ASOKAN)

PRESIDENT

(PVR DHANALAKSHMI)

                                                                                 MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          13.02.2012           Tajudeen                   

CW.2          05.03.2014           S, Chandrakumar, Junior Engineer     

OPPOSITE PARTY'S WITNESS: 

RW.1          08.05.2012           Kumaran  

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: NIL

LIST OF COURT EXHIBITS:

1. ASOKAN)

  PRESIDENT

(PVR DHANALAKSHMI)

                                                                                 MEMBER

(V.V. STEEPHEN)

MEMBER