CONSUMER DISPUTES REDRESSAL FORUM
PALAKKAD, KERALA
Dated this the 28th day of January, 2012.
Present: Smt. Seena. H, President
: Smt. Preetha. G. Nair, Member
: Smt. Bhanumathi. A.K, Member Date of filing: 22/01/2011
CC / 12 / 2011
G. Subramaniapillay,
21 A, 2nd Street, Sentoshpuram,
Balajinagar, Chennai- 600 073. - Complainant
(PARTY IN PERSON)
Vs
1. M. Unnikrishnan, Partner,
Bagawathy Constructions,
Near BSNL Telecom Centre,
Post Office Junction,
Chittur – 678 101,
Palakkad Dt.
(BY ADV. T.V. PRAVEENKUMAR)
2. M. Ananthakrishnan, Partner,
Bagawathy Constructions,
Near BSNL Telecom Centre,
Post Office Junction,
Chittur – 678 101,
Palakkad Dt. - Opposite parties
(BY ADV. T.V. PRAVEENKUMAR)
O R D E R
BY SMT. PREETHA. G. NAIR, MEMBER
The complainant entered into an agreement with opposite parties on 23/06/2008 for constructing a house. They agreed to construct the house with 600 Sq.ft at the rate of Rs.750/- per Sq.ft and complete the work within a period of six months. Also agreed to construct a well at the cost of Rs.20,000/- and three sides of compound wall at Rs.120/Ft. Because of the delay in the initiation of the work by the opposite parties, the agreement was extended on 03/02/2009 for another six months. The work was very slow and the house warming function was celebrated on 14/09/2009 in the incomplete house after their promise of completing the work soon after the function. They were doing some work after the function, but after July 2010 no work was done.
There after the complainant sent a registered notice to opposite parties (Partners of Bagawathy constructions) for the settlement of Rs.3,10,000/- towards the cost of remaining work, loss of rental value, compensation for the mental agony. Notices were received on 01/01/2011 and no reply received from them. But they started doing some work like constructing the parapet wall and plastering. The works yet to be completed are tile laying inside the room and outside of the upstairs, tile fixing at the toilet room, erecting the sanitary fittings and septic tank, fixing the overhead tank and pipelines, roof tiles fixing and the same over the sitout and sunshade, compound wall construction including the gate fixing at the southern side, plastering on all the three sides of the compound wall, concrete laying at the sides of the well and building white washing and painting for the hole building. All of these work will cost at least one lakh rupees. Since the doors and windows were left without primer and painting, and wall without white washing for all these years they started warming out.
The complainant and his family members were put to a lot of difficulties mentally and economically due to the delay in completing the work. The complainant had to come more than 50 times from Chennai to complete the work. The complainant had paid Rs. 6.2 lakhs besides met the cost of materials and wages in laying the road etc. The work done on the building is worth Rs. 4.55 lakhs only. The complainant undergone at the age of 73 and his family members were put to a lot of difficulties. Hence the complainant prays for an order directing the opposite parties to,
1. Pay Rs.1,65,000/- as the payment received over and above the work done.
2. Pay Rs.20,000/- as depreciation on the building.
3. Pay Rs. 45,000/- as rental value for 15 months.
4. Pay Rs.60,000/- as compensation for the damages with 12% interest.
Opposite parties filed version stating the following contentions. The agreement was between the opposite parties and Rajalakshmi. The opposite parties admitted that the agreement was to construct the house within 6 months at about 600 Sq.ft at the rate of Rs.750/Sq.ft. The new agreement dated 23/06/2008 denied by opposite parties. The opposite parties constructed extra works as compound wall, construction of well, fittings of electric switches, roof tiles in sitout, fitting of European closet instead of closet and ground trench work for an amount of Rs. 1,14,500/- not stated in the agreement. The opposite parties demanded the additional amount of Rs.1,14,500/- to the complainant. Then the complainant filed the complaint before the Forum. The complainant agreed to pay Rs.1000 / Sq.ft for the increasing cost of building materials stated by the opposite parties. The opposite parties completed the construction of the house and handed over before May 2009 and the complainant celebrated house warming function on 14/09/2009. The complainant has not taken commission application along with the complaint to prove not completed the house. Painting work was not stated in the agreement and the plastering of parapet wall was completed. The opposite parties denied that the total amount of construction was only Rs.4.55 lakhs and the overpayment of Rs.1,67,000/- return to the complainant. The opposite parties stated that the complainant is not a consumer under Section 2 d of the Consumer Protection Act. There was no deficiency in service on the part of opposite parties. So the opposite parties prayed that the complaint may be dismiss with compensatory cost.
Both parties filed affidavit. Ext. A1 to A11 marked on the side of complainant. Ext. C1 marked as commission report. Complainant and 1st opposite party was examined as PW1 and DW1. Matter was heard.
Issues to be considered are:
1. Whether there is any deficiency in service on the part of opposite parties?
2. If so, what is the relief and cost?
Issues I & II
The opposite parties stated that there was no agreement between the complainant and them. So the complainant is not a consumer under the Consumer Protection Act. At the time of cross examination, complainant deposed that Rajalakshmi is his handicapped wife and 1st agreement was between Rajalakshmi and Unnikrishnan. In Ext. A2, the second agreement is between the complainant and 1st opposite party. Also the second agreement is the continuation of Ext. A1. Further more the complainant stated that because of the delay in the initiation of the work by the opposite parties the agreement was extended on 03/02/2009 for another six months. No contradictory evidence produced by opposite parties. In Ext. A3, the house warming letter also mentioned the name of complainant and his wife Rajalakshmi. In Ext. A9, the notice of property tax also shows in the name of complainant. The opposite parties have no objection to marking of Ext. A3 and Ext. A9. Hence the complainant is a consumer under the Consumer Protection Act.
Heard both parties and going through the records, it is admitted that the 1st opposite party have entered in to an agreement with the complainant and his wife to construct the house at the rate of Rs.750/- per Sq.ft. In Ext. A1 mentioned that the construction of the house was completed on January 2009. In Ext. A2, 1st opposite party agreed to construct the house before 15th May 2009. Further more in Ext. A2, the 1st opposite party promised to pay Rs. 25,000/- as compensation in case the construction could not be completed and handed over to the complainant before 15th May 2009.
According to opposite parties, the construction of the house was completed before May 2009 and the complainant celebrated house warming ceremony on 14/09/2009.
The complainant stated that the key of the building was handed over to the complainant on 07/05/2011 after filing the complaint before the Forum. The complaint was filed on 22/01/2011. The complainant stated that notice dated 28/12/2010 sent to the opposite parties for settlement of Rs.3,10,000/- towards the cost of remaining work, loss of rental value and compensation for mental agony. Ext. A4 and A5 shows the acknowledgment cards signed by opposite parties. The notice was not produced by the complainant. At the time of cross examination, the 1st opposite party deposed that the notice sent on December due to not completing the work and no reply sent. Further 1st opposite party deposed that he received Rs. 4.55 lakhs including 50,000/- as advance payment from the complainant. In Ext. A10, the complainant produced the cheque book shows that in the name of 2nd opposite party the complainant has given cheque
on 19/07/2008 ------- Rs.2,500/-
04/08/2008 ------- Rs.50,000/-
13/02/2009 ------- Rs.50,000/-
19/07/2010 ------- Rs.2,000/-
Cash ------ Rs.2,000/-
10/03/2011 ------- Rs.2,000/-
-----------------
Total ------- Rs.1,08,500/-
The complainant has given cheques in the name of 1st opposite party
on 26/03/2009 ----- Rs.1,00,000/-
----- Rs.50,000/-
07/04/2009 ----- Rs.50,000/-
04/05/2009 ----- Rs.50,000/-
26/06/2009 ----- Rs.1,00,000/-
29/06/2009 ----- Rs.75,000/-
10/02/2010 ----- Rs.10,000/-
07/04/2010 ----- Rs.10,000/-
-----------------
Rs. 4,45,000/-
=========
The opposite parties raised no objection to marking of Ext. A10.
On 23/06/2008, the 2nd opposite party received Rs.50,000/- as an advance amount mentioned in Ext. A1 document. In the available evidence, the opposite parties received Rs.6,03,500/- (1,08,500 + 4,45,000 + 50,000) from the complainant. At the time of cross examination of 1st opposite party deposed that he had received Rs. 4,55,000/- only. At the time of hearing the complainant argued that some amount paid to opposite parties by cash and there was no evidence.
In Ext. C1 commissioner stated that the plinth area of the building is 719 Sq.ft and the cost of the building already constructed is worked out as per the rate provided in the agreement. Then the cost of building is Rs.5,39,250/- (719 x 750). There after the Commissioner stated the total cost of construction of well is Rs.25,167/-, cost of construction of compound wall is Rs.39,639/- and the cost of construction of sump is Rs. 8,238/-. So the total cost of works done by the opposite parties outside the building is Rs.73,044/- (25,167 + 39,639 + 8,238). The complainant raised objection in the Commission report that Commissioner calculated the rates were based on 2011 rates. Further more the compound wall constructed during 2008 as agreed by 1st opposite party. It is noted that the cost of works done by the opposite parties outside the building was not mentioned in the agreement. More over the cost of plastering was not mentioned in the Ext. A1 agreement. Both parties entered into an agreement on 23/06/2008 and the opposite parties not completed the construction within the period. Ext. A9 shows the notice of property tax issued on 26/02/2011.
In Ext. A1, construction of septic tank and stair case was stated. But at the time of cross examination, the 1st opposite party deposed that the construction of septic tank was not stated in the agreement. The complainant stated that he had purchased a septic tank for an amount of Rs.14,000/- on 04/01/2011. Ext. A10 shows the complainant paid the last amount on 10/03/2011 to the 2nd opposite party.
Commissioner stated that well is constructed and the laying of cement concrete around the well is not provided. Spanish tiling over the slopped roof of sitout and sunshade is provided. Remaining portions are flat roof, compound wall at north and east side is constructed without plastering. Further Commissioner stated that main gate is not provided since there is no compound wall. There was no agreement for providing any of the work outside the building. The complainant has not produced evidence to prove the over payment of Rs. 1,65,000/- and rental value of Rs.45,000/-.
In Ext. A1, both parties entered into an agreement on 23/06/2008 to construct the house at the rate of Rs.750/-/Sq.ft. within the end of January 2009. In Ext. A2 the second agreement signed by the complainant and 1st opposite party to complete the construction work before 15th may 2009. But the opposite parties failed to complete the construction work. In Ext. A6 and A7 shows the acknowledgments signed by opposite parties. The cost of building materials increased daily. In the present case the opposite parties failed to complete the construction of house within the period mentioned in Ext. A1 and Ext. A2. The 1st opposite party agreed to pay Rs. 25,000/- as compensation for not completing the construction and handed over on 15th May 2009 in Ext. A2.
In view of the above discussions, we are of the view that there is deficiency in service on the part of opposite parties. In the result, the complaint allowed. We direct the opposite parties jointly and severally liable to pay the complainant an amount of Rs.50,000/- as compensation for mental agony and pay Rs.3,000/- 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 28th day of January, 2012
Sd/-
Smt. Seena. H
President
Sd/-
Smt. Preetha.G.Nair
Member
Sd/-
Smt. Bhanumathi.A.K
Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext. A1 – First agreement along with the first receipt for Rs. 50,000/- between the complainant (and his wife Rajalakshmi) and 1st opposite party dated 16/06/2008.
Ext. A2 - Second agreement dated 23/01/2009.
Ext. A3 - House warming ceremony invitation.
Ext. A4 - Acknowledgment card addressed to 1st opposite party.
Ext. A5 - Acknowledgment card addressed to 2nd opposite party.
Ext. A6 - Acknowledgment card addressed to 1st opposite party.
Ext. A7 - Acknowledgment card addressed to 2nd opposite party.
Ext.A8- Technical specification of United Septic Tank purchased by the complainant.
Ext. A9 -Special Property Tax by the Chittur Tattamangalam Municipality to the complainant dated 26/02/2011.
Ext. A10- Punjab National Bank Cheque Book of the complainant.
Ext. A11- Visiting card of opposite parties.
Exhibits marked on the side of opposite parties
Nil.
Witness examined on the side of complainant
PW1 - G. Subramaniapillay.
Witness examined on the side of opposite parties
DW1- Unnikrishnan. M.
Commissioner Report
C1 – C. Anandan.
Cost allowed
3,000/- (Rupees Three thousand only) allowed as cost of the proceedings.
