By Sri. K. Gheevarghese, President:
The complaint filed against the defect in the construction of house and shop buildings by the Opposite Party.
2. The complaint in brief is as follows:- The Opposite Party was entrusted to construct a building for residence purpose and an agreement was executed. The remuneration of agreed for the construction was Rs. 4,25,000/- when the work was completed the Opposite Party received Rs.4,15,000/-. Apart from that the complainant also sold to the Opposite Party 25 cents of land property having a market value of Rs.75,000/- per cent towards the construction cost of the Complainant. An another agreement was executed with the Complainant and Opposite Party for the construction of shop rooms with building No. KP II 667-A, 667-B. There after 2 other rooms were entrusted to be constructed by the Opposite Party and those buildings were in the numbers as KP II 671 A, 671 B. Towards the construction cost of these buildings the Opposite Party received from the Complainant Rs.1,35,500/- and land property of 25 cents having a value of Rs.1,00,000/- per cent was also registered and given to the Complainant. The terms and conditions of the construction of building was such that the supervision of construction and the work was to be completed in full responsibility and that to be handed over to the Complainant on completion. In the subsequent rainy season the roof of the buildings were leaking and the Opposite Party were informed. The Opposite Party assured the Complainant that leaking of roof would be stopped by additional work. Steps were taken by the Opposite Party to stop leakage of the roof but it cold not reach no where else and the Opposite Party told the Complainant that the materials supplied for construction were substandard and which were the reasons for the leakage of roof on 22.11.2005. Detail inspection was done and to know whether the materials supplied were substandard or not. The Complainant could understand that the leakage of roof was only because of the poor workmanship of the Opposite Party. The Complainant were informed from time to time to rectify the leakage. The present condition of the building is such that water false from the roof to the floor, the windows and doors and in a condition that it would be destroyed in dampness. The Complainant get an information from experts that in order to patch up the leakage and strengthen the building around Rs.3,00,000/- to be spent. The Complainant is also compensated with Rs.1,00,000/- for the pain and sufferings caused by the defective construction.
3. The Opposite Party filed version, in short it is as follows:- The complaint itself is time barred and relief sought are not maintainable. The Complainant entrusted the Opposite Party for the construction of the shop rooms 5 years after the house building work. It was only because of the appreciation in the construction work of the Opposite Party, the building work was entrusted. The construction work was left abandoned for a period of one year since the Complainant was out of station in connection with a criminal case, the Opposite Party demanded the Complainant expenses for conveyance of the materials and in that respect there arouse dispute between Opposite Party and Complainant. The Opposite Party was also demanded to do the plumbing work and it was beyond the conditions of agreement and the Opposite Party was not ready to respond to this request and therefore the Opposite Party was threatened by the Complainant. This complaint itself is a fruit of displeasure of the Complainant. The Opposite Party was not given registered the land property having market value of Rs.75,000/- per cent. Opposite Party had already registered the immovable property in the name of the Complainant and the land properties were given back to the Complainant. No immovable property was handed over to this Opposite Party. This Opposite Party is well experienced and continued in the construction field for 25 years without any black spot in his carrier. The allegation of the Complaint that when roofing compound was poured in the sealing of the building to make the sealing water proof etc are incorrect. The construction of the building was done by this Opposite Party under the direction and supervision of the engineer appointed by the Complainant. The construction of roof and other works were free from any defects. The allegation of the Complainant that the building is not having sufficient strength are nothing but false. This Opposite Party did the construction work in utmost care and expertise. The complaint born out of the ill feeling caused to the Complainant when demanded the amount due to the Opposite party and in respect of the dispute in plumbing work. The contention of the Complainant that in order to patch up the building Rs.3,00,000/-informed to be spent are only false allegation. Additional version was also filed by the Opposite party. The allegation of the Complainant that the representative from the Cement Company had inspected the building to know of the actual cause of leakage and it resulted in the delay in filing the complaint are purposely done to cure the delay in filing the complaint. The Opposite Party had not done any additional works to patch up the leakage of building if any leakage evented from the roof of buildings it was not due to the defective construction. The complaint is to be dismissed with cost.
4. Points in consideration are:-
Whether the complaint filed is time barred?
Is there any deficiency in service on the part of the Opposite Party in the construction of the building.
Relief and cost.
5. Point No.1:- The construction of the house building started in the year 1999 and the building work was completed within two years. After that agreement was executed in between Complainant and Opposite party for the construction of shop building and started in 2002. The allegation of the Complainant is that immediately after the construction the defects in the workmanship of the building could be experienced. The Opposite Party was informed to patch up the defects in construction and steps were taken by Opposite Party. The defects of the constructed building is a continuing process. The Complainant had taken steps one after the other to redress the grievances. The defect in construction lead to the leakage of the building are in continuity and the complaint filed cannot be considered time barred.
6. Point No. 2 and 3:- The evidence in this case consists of proof affidavit of the Complainant and Opposite Party. Ext.A1 to A6, C1, C2 and B1 are the documents considered. The oral testimony of Complainant, Opposite Party and the witness of Opposite Party are also considered.
7. The case of the Complainant is that the house building and shop rooms constructed by the Opposite Party as per the terms and conditions of construction but buildings are not having the adequate strength and more over leakage. The construction was defective and is to be compensated. As far as the Opposite Party is concerned the allegation was in connection with the demand of the Opposite Party for the money due from the Complainant. The house building was constructed as per the terms agreed in between the Complainant and Opposite Party. The nature of work and terms and conditions that are to be complied are exemplified in Ext.A1. After the house building construction Opposite party was entrusted to construct the shop rooms it was to be done according to the terms agreed between the Complainant and Opposite Party. According to the Complainant towards the construction cost apart from the amount given in cash the land property of the Complainant was also registered in the name of Opposite Party and the possession was handed over. The Opposite Party contented that the land property which was registered in his name was given back and the possession was returned to the Complainant. But no documents is produced to establish the contention of the Opposite Party that the land property sold to the Opposite Party was given back to the Complainant.
8. The Expert Commissioner inspected the house building and shop rooms that are in No.KP3/142 (house), shops KP3/137, 138,143, and 144. Ext.C1 and C2 are the Commission Report. C1 details the leakage of the building and other dampness of roof of both in the house building and shop building it is reported that cracks and damages are seen in the front side sunshade and side portion of house building. There is leakage in the bottom of chimmini side dampness are seen in kitchen wall, store wall. Due to leakage of water through the slab of the store room dampness is seen in the ground floor. In bed room slab in the 1st floor at corner dampness is reported in the shop building also roof are in damped condition.
9. Ext.C2 is the detail of requirements and the approximate cost for the rectification work. In the oral testimony of Opposite Party it is also admitted that the leakage of roof is not possible if quality materials are used in sufficient quantity. The constructed building expected to be having sufficient strength and free from defect. The building construction that of house and shop were with materials purchased by the Opposite Party. The Opposite Party also admitted that the representative of the Cement Company inspected the building to make out whether the cement used for roof work was substandard one. The Opposite Party also admitted that to make the roof free from leakage additional work of plastering the roof floor using doctor fix, Cement grout etc were done by him. The witness of Opposite Party is examined as OPW2 according to him he is a draftsman at the time of concreting roof this witness was present there for a short while. He could not see anything in detail of the nature of work and more over this witness is not an expert and qualified person admittedly. The materials from the documents produced show that the house and shop rooms building constructed by the Opposite Party is defective it is a deficiency in service on the part of the Opposite Party.
10. Ext.C2 gives detail of the approximate cost required for rectification work of the house building and shop rooms. The house building leakage can be patched up for which Rs.30,453/- is the cost estimated. For the shop rooms in No. 143,144, 137 and 138. The estimate cost required for patch up the leakage is Rs.55,170/-. The estimated cost in total is Rs. 85,623/-, 20% extra for local market rate is also added to the required amount in total Rs.1,02,748/- is the required amount for rectification of house and shop rooms. The Opposite Party has to compensate the Complainant the estimated expense for rectification work along with cost and compensation.
In the result, the complaint is partly allowed. The Opposite Party is directed to give the Complainant Rs. 1,02,748/- (Rupees One Lakh Two thousand Seven hundred and Forty Eight only) the amount required for rectification work along with Rs.3,000/- towards cost. This is to be complied by the Opposite Party within one month from the date of receipt of this order. The Complainant is also entitled for an interest at the rate of 12% for the amount ordered after one months from the receipt of this order.
Pronounced in open Forum on this the day of 30th October 2010.
Date of filing:06.11.2008.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
A P P E N D I X
Witnesses for the Complainant:
PW1. Sebastian. Complainant.
CW1. Sabu Abraham. Civil Engineer,
Witnesses for the Opposite Party:
OPW1. Paulose Overseer,
OPW2. Bijoy.V.A Welding, Plan Estimate.
OPW3. M.J. Devadas. Contract Work.
Exhibits for the Complainant:
A1. Agreement dt:22.09.1997.
A2. Agreement. dt:07.05.2002.
A3. Certificate. dt:24.01.2009.
A4. Certificate. dt:24.01.2009.
A5. Copy of Deed. dt:28.02.2000.
A6. Copy of Deed. dt:13.09.2002.
C1. Inspection Report. dt:18.11.2009.
C2. Inspection Report. dt:23.06.2010.
Exhibits for the Opposite Party:
B1. Notice.
