BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Thursday the 30th day of October, 2008
C.C.No. 160/07
Between:
K. Sarojini Devi, W/o. M.Anand,
H.No.45-399 D, Resident of Sreekrishna Colony,
Kurnool. … Complainant
Versus
M. Gopal, Building Contractor,
H.No.45/287, Labour Colony,
Adjacent to Sree Krishna Colony,
Ashok Nagar,Kurnool. … Opposite party
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao, Advocate, for the complainant, and Sri.T.Eswar Basha, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.160/07
1. This case of the complainant is filed U/S 11 and 12 of C.P.Act seeking direction on the opposite party to pay to the complainant Rs.1,63,898/- towards the loss suffered, Rs.1 lakh towards the humiliation met from the opposite party , Rs.1 lakh as compensation for mental agony and cost of the case alleging the deficiency of service of the opposite party in construction of the building to the complainant as per
the agreements of work dated 27-11-2005 , 7-3-2006 and 24-4-2007 receiving there under Rs.10 lakhs and causing deviation from the agreement in the use of cheaper wood – Rudraganapa in the place of agreed Nallamaddi and Teak for window fittings and shutter frames , in use of defective marble slobs with yellow , white , red and block colour cracks having collected Rs.1,19,398/- for said work instead of Rajasthan Markana pure white marble slobs for flooring inspite of the objection of the complainant and not finishing the construction within stipulated time of 10 months ending by 27-11-2005 and causing there by to the complainant an expenditure of Rs.2,000/- per month for nine months to a rented accommodation and not constructing round pillars as schedule in agreement dated 7-3-2006 to ground floor and constructing pillars only in first floor and not returning Rs.21,000/- out of Rs.43,000/- in proportion to the non construction of round pillars at ground floor and collecting an extra amount of Rs.25,000/- under agreement dated 24-4-2007 for construction of toilets covered under first two agreements and so working out the said deficiencies to Rs.1,88,898/- as per details in para NO.3 of the complainant and the liability of the opposite parties for mental agony and cost of this case etc., this case is filed.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite party has caused its appearance through his counsel and contested the case filing objection statement ( written version) denying liability to the complainants claim.
3. The written version of the opposite party even though admits as to the agreements , alleges any deficiency on its part in completing the entrusted construction work of complainant’s building and on the other hand alleges the construction was made as per the wishes of the complainant under her supervision and directions charging extra whenever arisen and the round pillars in ground floor was not constructed as it inconveniences the car parking and the use of Rudraganapa wood in place of Nallamaddi for want of the later’s availability in the market and at the advise and consultation of the complainant herself and the selection of marble for flooring was also made at the choice of the complainant alone. It denies of any stipulation of time in the agreements for completion of work and the alleged pendency of any construction work and any un fair trade practice on its part and any deficiency of service and there by any of its liability to complainants claim and there by seeks dismissal of complaint in the interest of justice.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A10 and the sworn affidavit of the complainant , the opposite party side has relied on the mere sworn affidavit of it in reiteration of its defence.
5. Hence, the point for consideration is whether the complainant has made out alleged deficiencies on the part of the opposite party and there by the latters liability to the complainants claim.
6. The Ex.A1 is the agreement dated 27-11-2005 entered in between the complainant and the opposite party as to the construction work of the complainants building bearing house NO.45/24 . It envisages size of area of the plot as 40 feet x 38. 5 feet and agreement of opposite party to furnish of said area to complainant two bed rooms , one kitchen , one dinning hall , one hall, and two shops and for car parking in front side , Teak main door and remaining doors with Nallamaddi Wood , windows frames with Nallamaddi and its shutters with teak and ply wood , electric work with finolex wiring and anchor switches and flooring with Rajasthan Marble at a range of rate of Rs.30 to 40 per square feet , sanitary and tiles work , compound with Bethamcherla slabs/ parking tiles , stair case railing iron work , kitchen flat form glazed polish tiles , plumber work , sump and over head tank , polishing doors and windows and white wash to total building at a package rate of Rs.7,5 lakhs .
7. There is any denial from the opposite party side as to the alleged use of Rudhragana Wood in the place of Nallamaddi . The complainant in her answers to the interrogatories of the opposite party denies the suggestion of her accompanying the opposite party in the purchase of building material . The opposite party except alleging that the complainant’s building material was purchased at the option and choice of the complainant who accompanied him at the time of said purchase , did not substantiate the same by any cogent material or with any supporting affidavits of the persons who are acquainted and in know of the said fact . Hence the opposite party is remaining failed in establishing the alleged fact and there by non successful in shifting the burden of its rebuttal to the complainant side . Therefore the opposite party is remaining liable for use of different variety of material then agreed in Ex.A1 as the complainant affirms that they were used by the opposite party inspite of her objection.
8. There is any stipulation of time in Ex.A1 within which the construction work of the complainant’s building was to be completed by the opposite party and any such presumptions remains infavour of the complainant as the Ex.A2 stretches over the payment in several installments from 23-12-2005 to 24-4-2007 .
9. The Ex.A3 is another agreement dated 7-3-2006 entered into between the complainant and opposite party in which the latter agrees to take up first floor construction work of the said building in the same way and manner as take into ground floor which additions of laying lentals , slab , elevation on north and west of building with plastering and windows and doors on two sides and grills to windows and balcony of five feet on west side , 6 ½ feet on north side and three feet on eastern side and round pillars from ground floor to first floor and reduction of Rs.43,000/- in case round pillars were not laid and for payment of Rs.2.5 lakhs by complainant to the opposite party for carrying out the above said under taken construction work. This agreement in Ex.A3 also does not lay any stipulation of time for completion of work . Hence under the Ex.A3 the complaint averment that the work was agreed to be completed in a period of ten months remains without any substance and there by makes him entitled to claim any additional amount as alleged to have incurred for having rented accommodation.
10 The Ex.A6 agreement dated 24-4-2007 entered into between the complainant and the opposite party covering the earlier agreements entered till than and the amounts agreed there under for completion of work assigned alleges the payment to opposite party on 23-4-2007 itself the balance of Rs.50,000/- of earlier agreements along with Rs.25,000/- agreed for providing tap pipes and sanitary pipes if two toilets were constructed in ground floor and stipulates the completion of pending work mentioned therein within 15 days and delivery of the building to the complainant. As this agreement in Ex.A6 dated 24-4-2007 and by said stipulation the pending work of said building is to be completed within 15 days to the date of Ex.A6 i.e., by 9-5-2007 . By the above recitals of Ex.A6 what remains clear is that the works mentioned at the conclusion of said agreement is pending on that day and they must be completed in 15 days from there . As the opposite party lends his signature to said Ex.A6 in acceptance of them he is bound to complete the said work as per the said stipulation within the stipulated time and if not would be liable for inconvenience suffered by the complainant. But there is any complaint from the complainant as to non completion of said pending works envisaged in Ex.A6 as the Ex.A8 office copy of legal notice takes mention of the complainants grievances as to use of Rudhraganapa and inferior quality of marble and not constructing the round pillars for ground floor and not other things.
11. The Ex.A8 legal notice of the complainant , which was not responded by the opposite party , alleges the value of loss on account of use of different type of wood than agreed was Rs.5,000/- . As the said claim was not denied by the opposite party with any reasonable excuses at the earliest point of time and opportunity provided alleging any indulgence of the complainant in choosing said kind of wood and the said contention of the opposite party taken in contest of this case being not substantiated by the opposite party, the liability of the opposite party to make good of said loss of Rs.5,000/- remains on the opposite party .
12. The para NO. 5 of the Ex.A8 legal notice alleges that the opposite party charged Rs.1,19,398/- for flooring marble rating the marble at Rs.130 per square feet for total area of flooring of 918 square feet and the rate of marble used by the opposite party for flooring is Rs. 20 to 30 per square feet only. But any substantiating material is placed by the complainant in support of said contention. Hence for want of substantiating material of the said plea there appears any liability of the opposite party of said Rs.1,19,398 or any difference of actual amount expended and collected.
13. The complainant claims an amount of Rs.21,500/ - from the opposite party for not constructing the round pillars in the ground floor . With reference to the photos in Ex.A9 of said building it is submitted by the opposite party that the said round pillars in ground floor was not constructed at the instance of the complainant herself as they will be hindering the car parking . There being any admission on the part of the complainant on that aspect and the opposite party did not made out said contention , by any cogent material envisaging the alleged indulgence of complainant in the said omission, to exonerate his liability for said round pillars in the ground floor , irrespect of the facts whether said round pillars will hindered the car parking their lies the proportionate liability of the opposite party from the cost of Rs.43,000/- charged for providing round pillars both to ground floor and first floor. As the photos in Ex.A9 also exhibits round pillars to first floor only and not to the ground floor the opposite party remains to have completed half of the said assigned work and there by remains liable to refund half of the amount of Rs.43,000/- i.e, Rs.21,500/- to the complainant for not providing round pillars to the ground floor.
14. The complaint and Ex.A8 avers that the complainant incurred a rent of Rs.2,000/- per month for a period of ten months on account of the opposite parties conduct at the construction work . But as the complainant did not substantiate the said claim by placing any rental receipts or affidavit of the owner of the house to whom he paid the rents there appear any liability of the opposite party for said unsubstantiated claim of the complainant .
15. The Ex.A6 takes mention of an amount of Rs.25,000/- to the opposite party for providing tap pipes and sanitary pipes if two toilets are got constructed for ground floor . Hence it is not covering the said Rs.25,000/- as cost for providing two toilets to the ground floor of the complaints building. While the complainant alleges two toilets were not constructed by the opposite party , the opposite party alleges that there is any provision in any agreement of the construction for construction of the two toilets by him in the ground floor as alleged by the complainant . Hence by the above what is remaining clear is that the two toilets for ground floor was not constructed and the said additional amount of Rs.25,000/- was paid by the complainant under Ex.A6 agreement to the opposite party to provide tap pipes and sanitary pipes in case two toilets were got constructed in the ground floor . So when the said two toilets are not constructed in the ground floor for any reason of what so ever , the availment of said Rs.25,000/- by the opposite party paid by the complainant for meeting the contingency of providing tap pipes and sanitary pipes does not arise . Therefore the opposite party is remaining liable to refund the said amount of Rs.25,000/- received from complainant as the contingency of construction of two toilets in ground floor of the complainants building did not occurred at all. Consequently, the opposite party holds liability to refund Rs.25,000/- to the complainant as the contingency for which it was made not achieved.
16. On the outset there being some deficiencies and the liability of the opposite party for the use of the wood other than the agreed and constructing the round pillars in the ground floor and not made use of Rs.25,000/- meant for providing tap pipes and sanitary pipes to, there appears some considerable mental agony to the complainant at the said conduct of the opposite party . An amount of Rs.5,000/- appears to meet as a just compensation for said mental agony ensured to the complainant at the deficient conduct of the opposite party .
17. As the opposite party by his deficient conduct in complying the agreement stipulations to certain extent and not complying them inspite of several demands and finally a legal notice in Ex.A8 constrained the complainant to resort to the forum for redressal of his grievances, an amount of Rs.2,000/- as cost of this case at the liability of the opposite party appear to meet the ends of justice.
18. The decision of A.P.High Court in Perikala Peturu Vs. Neelapati Rebbamma and others reported in 2002 (3) ALT 480 holding the opinion of expert cannot be relied on unless the said opinion is exhibited and expert is examined in proof of his opinion – appears to be having any relevant application to this case as the entitleness of the complainant at the liability of the opposite party is worked out on the stipulation made in agreement and unrebutted averments of notice and complaint and the relevant circumstances of the case in appreciation of the material on the record and not on the basis of opinion of any expert nonetheless on the basis of Ex.A10 the Commissioners report for want of substantiate said report by examination of the author of Ex.A10 as witness.
19. The decision of Hon’ble Tamilinadu State Consumer Disputes Redressal Commission at Chennai, in R.V.Devarajan and another Vs. K.Palani Swamy and another reported in III ( 2008) CPJ 123 holding additional compensation for inferior quality of tiles supplied resulting in change of colour – does not appear to be having any relevant application to this case of the complainant for want of proof of the inferior quality of the said marble laid to the complainant’s building.
20. The decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Robert – D.W. Frost and another Vs. Jac Jacob Shemesh reported in 2003 (3) ALT 15 (NC) CPA holds entitleness of the complainant to the amount at 18% with cost when the opposite party did not complete construction receiving the entire consideration.
21. Consequently, in sum up of the above discussion , the case of the complainant is allowed directing the opposite party to pay to the complainant Rs.51,500/- (i.e, Rs.5,000/- + Rs.21,500/- and Rs.25,000/- which were allowed as per reasons averred in earlier paras) with interest at 12% from the date of complaint towards the deficiency in completion of the work and Rs.5,000/- and Rs.2,000/- for mental agony and cost of the case respectively within a month of receipt of this order. In default the opposite party shall be liable to pay the supra stated award amount to the complainant with 12% interest from date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 30th day of October, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Building construction agreement dated 27-11-2007.
Ex.A2. The particulars of payment acknowledging by OP.
Ex.A3. Second agreement dated 07-03-2006.
Ex.A4. Acknowledgement dated 11-04-2007 by OP as to the
Receipt of Rs.30,000/-.
Ex.A5. Detailed and its abstract estimate in favour of complainant.
Ex.A6. Agreement dated 24-04-2007.
Ex.A7. Loan sanction letter dated 12-02-2007.
Ex.A8. Office copy of legal notice dated 26-07-2007 along with
Postal receipt and acknowledgement.
Ex.A9. 19 phtographs with corresponding negatives.
Ex.A10. Commissioner report along with covering letter.
List of exhibits marked for the opposite parties: Nil
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
