DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 9th day of May 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 01/06/2011
(C.C.No.76/2011)
Rosamma Shaji @Omana,
W/o.Shaji Cherian,
Plamthottathil House,
9/759, Vidhya Nagar,
Pallikulam, Pirayiri Post,
Palakkad
(By Adv.Dhananjayan) - Complainant
V/s
M.Santhakumar,
S/o.P.Appu Nair,
House No.32,
‘Anurag’, Haritha Nagar,
Noorani Post, Palakkad
(By Adv.N.Anoopkumar) - Opposite party
O R D E R
By Smt.BHANUMATHI.A.K. MEMBER
The facts of the case in brief:
The complainant is a house wife and her husband is working in gulf country. The complainant and her family had been residing in a rental house for 17 years. The complainant has 6 cents of immovable property consisting of Survey No.406/405 in Pirayiri Village of Palakkad Taluk in Palakkad District.
The complainant decided to construct a house and the same was entrusted to the opposite party on 22/4/10. Opposite party had started the construction work on 25/4/10. For this purpose the complainant had taken a bank loan for Rs.6,00,000/- from SBI, Palakkad.
The opposite party had unanimously prepared a work schedule and expenditure details and compelled the complainant to put her signatures on it. At the time of construction it was never been revealed by the opposite party about the cost of construction per sq/ft. As per the work specification and cost of construction of the building it is Rs.11,30,000/- Now the complainant understood that the amount fixed by him was much higher than that of the rate of construction existing on that period. Though she was compelled to sign the work specification and advance details prepared by the opposite party, the complainant deny the said document. The cost of construction in that document is not at all binding to the complainant.
The complainant was paying him the construction charges regularly. The entire amount of the construction for the work done by him had been paid and no amount is due to him.
Being so, there arouse a difference of opinion between the complainant and opposite party at the stage of main slab construction of the house. Even before that the complainant was not at all happy about the methods in which the opposite party was constructing the house. There was a lot of imperfection and short comings in the construction. The opposite party has constructed the compound wall not on the exact boundary as leaving two feet land through out the eastern side. Opposite party had not fixed main door frame and windows. He has left the house construction on that stage. He was just finished the concreting of the roof of the house on the ground floor. He has not completed the construction on 22/10/10 that is the stipulated time of completing the construction. The opposite party has sent a letter to the complainant stating that the complainant had ordered to stop the house construction on 26/7/10. But the complainant has never asked the opposite party to stop the construction. The opposite party himself has abandoned the house construction in the middle way. It was quite difficult to get a new construction contractor to do a half done work. At last she entrusted the remaining work to another mason named Suresh.
There was a lot of imperfection and defects in the work done by the opposite party. After abandoning the work on that stage, the complainant has cured it with the advice of a senior advocate. By a bonafide belief that whatever may be the outstanding issues could be resolved without preferring a litigation the complainant had cured these defects. Now the complainant had been dragged to an unnecessary litigation by the opposite party alleging that he is entitled to get Rs.1,75,000/- from the complainant. The civil suite is numbered as O.S.115/2011 of Sub Court, Palakkad. Due to the imperfection of the work done, by the opposite party the complainant had to spent Rs.5,25,000/- totalling which is the cost of the future construction and stayed some more months in the rented house.
So the complainant seeking an order directing the opposite party to pay an amount of Rs.2,00,000/- as compensation for mental agony and cost of the proceedings.
Opposite party entered appearance and filed version denying all the contentions put forward by the complainant. Opposite party says that the complainant approached the opposite party to construct the house on the existing foundation as per the earlier prepared plan and elevation. Opposite party has done the work only as per the instructions given by the supervisors appointed by the complainant. There is no agreement between the complainant and opposite party about the cost of construction per square feet. But both parties discussed and agreed that the total cost for house construction is Rs.11,30,000/- Complainant also put the signature in that document. It is not correct to say that the complainant has paid the entire amount for the work done by the opposite party. For the completed work, opposite party is entitled to get Rs.1,83,000/- from the complainant. For getting the amount opposite party has filed a suit in the civil court of Palakkad as O.S.115/11. It is not correct to say that the opposite party himself stopped the work in the midway. On 26/7/10 the complainant wanted to stop the work. On 26/7/10 itself the main slab concrete was over. The complainant didn’t allow to complete the remaining work. Without getting the amount of Rs.1,83,000/- the opposite party was not ready to do the work. There is nothing mentioned about the imperfection made by the opposite party in the construction work. It can’t be believe that the defects in the construction work is cured as per the advice given by a senior advocate. Opposite party never represented himself as an expert. Opposite party has only done the work as per the instructions given by the Engineer and supervisors appointed by the complainant. If there is any defects opposite party is not liable. If opposite party was paid promptly the construction work would have been completed in the stipulation period itself. Till the work for main slab work the complainant has to pay Rs.5,25,000/- for which the complainant paid only Rs.3,50,000/- to the opposite party. Rs.1,75,000/- was in due. Besides Rs.1,75,000/- an amount of Rs.8,000/- was due for the compound wall construction. Now the complainant is liable to pay an amount of Rs.1,83,000/- to the opposite party.
So the opposite party prays for the dismissal of the complaint with compensation and cost of opposite party.
Both parties filed their respective affidavits. The evidence adduced consist of Ext.A1 to A6 and B1 to B6 and oral testimony of PW1, PW2 and DW1.
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 No1 & 2
The complainant is regarding deficiency in service as well as imperfection in construction work done by opposite party. The complainant entrusted the opposite party to construct a house on the existed foundation on 22/4/10 and the opposite party had begun the work on 25/4/10. The opposite party unanimously prepared a work schedule and advance details and compelled the complainant to put signatures on it. But the cost of construction per square feet is never revealed by the opposite party. As per the said work schedule and advance details the total cost of construction of the building till its completion would be of Rs.11,30,000/- The main slab concrete of the house was completed on 26/7/10. The opposite party sent a letter to the complainant stating that he is going to stop the house construction as demanded by the complainant on 26/7/10. Said letter is marked as Ext.A1. In the Ext.A1 it is also stated that as per the quotation, agreed and signed by the complainant, till the work of main slab concrete the complainant is liable to pay an amount of Rs.5,25,000/- But the complainant admits that she had given only Rs.3,50,000/-. The opposite party has not produced the work specification and advance details, which is said to have signed by the complainant on 22/4/10. Even though opposite party admits the A2 document, which is the work specification and advance details dated 22/4/10 does not bear the signature of the complainant. The contentions put forward by the complainant in the complaint is quite different from the oral testimony of the complainant. In the complaint it is stated by the complainant that she was compelled to put her signature on a work schedule and advance details unanimously prepared by the opposite party. But at the time of cross examination the complainant deposed that she had never given the singed copy of the A2 document to the opposite party. The complainant also deposed that she had given signed blank papers to opposite party for the purpose of sand pass. But on going through the entire document we seem that the complainant is well aware of the contents of Ext.A2 document. It is the responsibility of the complainant to go through the contents of the document before putting the signature. Complainant admits that “Ext.A2{]Imcw hmÀ¸v Ignbpt¼mÄ 5,25,000/-cq] sImSp¡Ww. Oral Bbn 3,50,000/- cq] hmÀ¸v hsc BIpw F¶mWv ]dªXv” It is the undisputed fact that the complainant has given Rs.3,50,000/- to the opposite party. Complainant alleges that there were many defects in the construction done by the opposite party. But before filing the complaint itself the defects have been cured. So that there is no evidence to show that what are the defects occurred in the house construction. The only evidence regarding that aspect is the testimony of PW2. As per the deposition of PW2 “`n¯n¡v hfhpmbncp¶p Plan {]Imcw cv ]mfn shbvt¡ Øe¯v 3 ]mfnbpsS gap Dmbncp¶p. 3 ]mfnbpsS Øe¯v 2 ]mfnbpsS gap am{Xta Dmbncp¶pÅp” In order to cure the curve of the wall and related work an amount of Rs.50,000/- is needed. The allegations regarding the construction of compound wall there is no document to show that the complainant has lost ½ cent of land. At the time of cross examination the complainant deposed that “the eastern boundary of her property is owned by Mr.Roy Cheriyan. The properties of the complainant and Roy Cheriyan are not separated by compound wall. At the time of hearing the counsel for opposite party argued that how can it possible to occur a defect in the non existing compound wall. The complainant herself stated in the chief affidavit that “there arose a difference of opinion between me and the opposite party at the stage of main slab concrete of the house”. Ext.A1 reveals that the main slab concrete work was over on 26-7-2010 and he is going to stop the further construction work as demanded by the complainant. So it is clear that there occurred some unpleasant situation between the complainant and opposite party at the time of main slab concrete. That is the reason by the opposite party stopped the work of house construction. So that the full responsibility of the stay of the complainant in the rented house cannot be attributed on the opposite party.
At the time of cross examination the opposite party admits a document which is the plaint filed in the sub court by opposite party against the complainant. Actually this document has to be marked from the side of complainant as Ext.A7 but mistakenly it has marked as B6.
Ext.A3 the complainant states many defects in the house construction done by the opposite party. The complainant alleges that the opposite party has constructed her house in a shapeless manner. A curve was occurred with wall construction. The house construction work of the complainant was done by the opposite party. It is the admitted fact. So that if there is any defects the opposite party is liable for the same. At the time of cross examination opposite party stated that he has never seen the plan of the house in question. That may be the reason for these defects and also the difference occurred in providing the gap for windows.
From the above discussions we are of the view that there is deficiency of service on the part opposite party.
In the result complaint partly allowed. Opposite party is directed to pay an amount of Rs.10,000/- (Rupees Ten thousand only) to the complainant as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.
Pronounced in the open court on this the 9th day of May 2012.
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 – Letter dated 16/9/10 sent by the opposite party to the complainant
Ext.A2 - Work specification and advance details given by the opposite party
dtd.22/4/10
Ext.A3 – Copy of reply letter sent by the complainant to the opposite party
dated 18/10/10
Ext.A4 – Copy of detailed & abstract of estimate showing the proposed
construction
Ext.A5 – Rent Receipt.
Ext.A6 series – Photographs of the house.
Witness examined on the side of the complainant
PW1 – Rosamma Shaji
PW2 – Suresh.K.
Exhibits marked on the side of the opposite party
Ext.B1 – Photocopy of House No.Label issued by PirayiriGrama Panchayath
Ext.B2 - Photocopy of Residential certificate issued by PirayiriGrama
Panchayath
Ext.B3 – Photocopy of approved plan signed by PirayiriGrama Panchayath
Ext.B4 – Photocopy of Completion Certificate
Ext.B5 – Copy of Building Tax Receipt No.79 issued by PirayiriGrama Panchayath
Ext.B6 – True Xerox copy of the plaint in O.S.No.115/2011
Witness examined on the side of the opposite party
DW1 – Santhakumar.M
Cost Allowed
Rs.1,000/- allowed as cost of the proceedings.
