DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 21st day of January 2013
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 30/12/2010
(C.C.No.178/2010)
Ragini,
D/o.Ayyappan,
12/381, “Sreepadam”,
Karala Street, Koppam,
Palakkad - Complainant
(By Adv.K.Dhananjayan)
V/s
Kuppaswamy,
S/o.Chinnaswamy,
18/751, “Lakshmi Nivas”,
Karala Street, Koppam,
Palakkad - Opposite party
(By Adv.P.R.Hariharan)
O R D E R
By Smt.PREETHA G NAIR, MEMBER
The complainant and the opposite party had entered into a building construction agreement on13/12/2009 to construct an RC building with three floors with the plinth area of 4,000 Square feet at the rate of Rs.800/- per square feet for the complainant. As per the agreement the entire building will be completed and will be ready for occupation for the complainant within one year from 13/12/2009 and the building will be constructed according to the terms and conditions specifically stipulated in detail of the agreement. The building has to be constructed in the complainant’s land and there was a residential house situated at this land. The complainant was staying in the building and it was demolished for the purpose of constructing the new building. Now the complainant is staying in a rented house and the rent paying is Rs.3,000/- per month. The complainant has paid Rs.50,000/- on 13/12/2009, Rs.2,00,000/- on 2/02/2010 and Rs.1,00,000/- on 01/3/2010 to the opposite party. Since construction work was not progressing as agreed and the complainant asked the opposite party for explanation, he gave assurance regularly and stated that he had other construction sites and all his workers are engaged there and when times comes he will bring all his workers one time and finish it at one shot. Opposite party has not done enough work to complete the construction within the stipulated time. He had done only basement work and seventeen concrete pillars to the height of approximately one meter and that too was made of inferior quality of building materials and poor workmanship. The cost of the work he had completed would be of not more than Rs.1 lakh only.
As per the agreement it was mutually agreed to pay the next installment only after completion of work for the amount already paid to him. But the opposite party has collected huge amount even prior to that. The opposite party has not completed any work for the amount given to him. Inspite of repeated contacts and personal requests, the opposite party was not willing to make further constructions. The complainant had sent a lawyer notice on 8/10/10 demanding the amounts already paid to him with 12% interest. The opposite party had sent a reply notice stating false contentions. Now the stipulated time of the agreement is over. Complainant is residing in a rented house and paying a rent of Rs.3,000/- per month. Complainant states that the opposite party has been grossly negligent and deficient in providing service of construction of the building within the stipulated time and he has used only inferior quality building materials. The complainant has suffered lot of avoidable mental agonies, harassments and financial loss, irreparable loss and injury due to the act of opposite party. Hence the complainant prays an order directing the opposite party to pay
1. Rs.50,000/- with 12% interest from 13/12/2009 till realization.
2. Rs.2,00,000/- with 12% interest from 2/2/10 till realization
3. Rs.1,00,000/- from 1/3/10 with 12% interest till realization
4. Rs.36,000/- as compensation for future rent paid for rented house from December 2010.
5. Rs.1,00,000/- as compensation for mental agony
6. Cost of the proceedings
Opposite party filed version stating the following contentions. He admitted the agreement to construct the house. The opposite party had commenced construction as per specifications contained in the agreement, no substandard materials were used for construction. He was conducting the work with utmost sincerity and completed the basement work as specified. The complainant refused to make payment to the opposite party as per the terms of the agreement. The opposite party had performed much more work than the amount paid by the complainant. Even now the opposite party is willing to perform his part of the contract provided the complainant makes payment. There is no deficiency in service on the part of opposite party. Hence the opposite party prayed that dismiss the complaint with cost.
Complainant and opposite party filed affidavit. Ext.A1 to A3 marked on the side of complainant. Commission Report was marked as Ext.C1. Heard both parties.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite party ?
2. If so, what is the relief and cost ?
Issue No.1 & 2
We perused relevant documents on record. Admittedly the complainant has paid Rs.3,50,000/- to the opposite party for the construction of the work. In C1 report the Commissioner stated that the materials used for concreting may be of standard quality as the concrete seems to be good in quality. Also Commissioner mentioned that the cost of construction upto present stage is Rs.2.96 lakhs. The Commissioner stated that Rs.2,51,347/- is the cost of building materials. Then the commissioner assessed 10% for extra works such as excavation for plinth beam, undulating depth of foundation, clearing of site, lap of steel etc. is Rs.25,135/- and 8% as contractors profit is Rs.20,000/- The total amount is Rs.2.96 lakhs assessed by the commissioner.
According to the opposite party the complainant refused to make payment to him as per the terms of the agreement. In Ext.A1 mentioned that agreed to pay the next installment only after completion of work for the amount already paid to him. The opposite party has not produced evidence to show that he had completed the work for an amount of Rs.3.50 lakhs. The commissioner stated that the cost of construction work is 2.96 lakhs. No contradictory evidence produced by the opposite party. The complainant stated that she is residing in a rented house and paying a rent of Rs.3,000/- per month. No documentary evidence produced by the complainant to show that she is paying rent of Rs.3,000/- per month. The complainant has paid Rs.3.50 lakhs to the opposite party and endorsed the same on the back side of the agreement.
At first the complainant has filed commission application for the appointment of an expert commissioner and he has filed a report. Thereafter the complainant filed a revision petition before the Hon’ble State Commission and in result the earlier commission report was set aside. After that another commissioner was appointed and filed the C1 report. Both parties had not filed objection to commissioner report.
In the present case the complainant has paid Rs.3,50,000/- to the opposite party. According to the complainant, the opposite party had not completed the construction work for the amount. In Ext.A1 agreement also stated that the construction work was completed within one year. But the opposite party had not completed the work within one year. In Ext.A1 mentioned that Rs.3,50,000/- paid to the opposite party. No contradictory evidence produced by the opposite party. The construction of the house was not completed, the complainant has continued to stay at the rented house. At the time of argument opposite party’s counsel argued that the remaining amount after deducting Rs.2.96 lakhs has spent for transporting materials. But the opposite party has not produced evidence to show that the remaining amount spent for transporting materials. The commissioner stated that Rs.2.96 lakhs spent for construction of house. According to the complainant Rs.3.5 lakhs paid to the opposite party.
In Ext.C1 the commissioner stated that mobilization of materials, equipments and labour force are not taken into consideration. The contractor might have spent additional amount for that. Moreover the commissioner assessed Rs.2.96 lakhs as the cost of construction upto present stage. Not included the labour charges of construction. We assumed that 60% of cost of construction considered for the labour charges. So in the present case 60% of Rs.2,51,347/- is Rs.1,50,808.20. then the total amount spent by the opposite party is Rs.2,96,482/- + Rs.1,50,808.20 = Rs.4,47,290.20. So the complainant is liable to pay an amount of Rs.97,290.20 (Rs.4,47,290.20 – Rs.3,50,000) to the opposite party. Also in the first commission report the commissioner stated the cost of labour and material which would have been spent on the work is Rs.3,75,000/-. The commission report was set asided by the Hon’ble State Commission. So the first Commission Report is not considered in the evidence.
In short the commissioner has not assessed the labour charges in C1 report. Moreover the complainant has paid only Rs.3,50,000/- to the opposite party. We cannot attributed any deficiency in service on the part of opposite party. In Ext.A1 agreement stated that the amount will be paid before the construction. The complainant has not produced evidence to show that the opposite party has not spent Rs.3.50 lakhs for construction work.
In the above discussions we are of the view that there is no deficiency in service on the part of opposite party. Complainant miserably failed to prove her case. In the result complaint dismissed.
Pronounced in the open court on this the 21st day of January 2013.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of Building construction agreement dtd.13/12/09
Ext.A2 series – Copyof lawyer notice dated 8/10/10 with postal receipt and
postal acknowledgement .
Ext.A3 – Reply notice dated 15/10/10
Exhibits marked on the side of the opposite party
Nil
Commission Report
C1 – Er.D.Ajith
Cost
No cost allowed.
