Sri. P. Satheesh Chandran Nair (President):

                   The complainants filed this complaint before this Forum u/s.12 of the C.P. Act for getting relief against the opposite parties.

                   2. The case of the petitioners are stated as follows:  According to the petitioners, they are having a landed property of 3.65 ares which is consisting in Survey No.646/3-1 of Ezhamkulam Village.  The petitioners and the 1^st opposite party entered an agreement on 01.09.2010 for the construction of a two storied building in the above site with an extent of 1845 sq.ft. for a cost of Rs.1,100/- per sq.ft.  It is stated that the 1^st opposite party received Rs.22,15,000/- and the 2^nd opposite party received an amount of Rs.1,50,000/- from 2010 to 2012 further complainants.  The complainants further contended that even though the opposite parties completed the construction of the building subsequently certain damages are seen inside and outside of the said building.  The complainants laid aluminium roofing to certain portion of his building in order to avoid the water leaking from the concrete portion.  It is also contended that the construction of kitchen area is also defective and the area provided for keeping the cooking gas cylinder is also seen not sufficient.  According to the complainants, the 1^st opposite party provided so many sub contractors for the completion of the building work so that so many defects in the construction of the building was also caused.  It is further contended that the front door frame (Kattila) of the sit out area was also damaged due to the defect of the wood used for this construction.  All the act of the opposite parties are clear violation of the agreement between the parties and comes under deficiency of service under C.P. Act.  Hence the complainant filed this petition to realise an amount of Rs.15 lakhs as compensation from the 1^st opposite party and Rs.75,000/- as compensation from the 2^nd opposite party etc. etc.

                   3. This Forum entertained this petition and issue notice to the opposite parties for their appearance.  Both the opposite parties are appeared before the Forum and filed their version as follows:  According to the opposite parties, this complaint is not maintainable.  It is contended that as per the agreement dated 01.09.2010 the opposite parties executed the construction of the building to the satisfaction of the complainants under excellent workmanship with quality materials.  It is again contended that the work of the building was completed in the year 2011 and after the completion of the work he executed so many additional works in the year 2013 and a huge amount is due to the 1^st opposite party from the complainant.  According to them, the complainant made any complaints ever since 2011 hence this case is barred by limitation.  It is further contended that all the works of the building were conducted under the strict vigilance, supervision and quality checking of the complainants.  The height of the roof, kitchen slabs, the length and width of the shade all are decided as per the building plan description and all the works are done under the supervision of the complainants.  It is contended that all the woods required for the building were selected by the complainant if at all any damages caused to the door frame, wall or foundation it is due to the failure of the maintenance done by the complainant to the building.  It is suggested that the complainant filed this case against the 1^st opposite party in order to avoid payment of additional work done by 1^st opposite party in the year 2013.  According to the 1^st opposite party, there is a due of Rs.10,40,000/- from the complainant in connection with the extra work done outside the above said agreement.  According to the opposite parties, there is no deficiency of service on the part of this opposite parties as alleged by the complainant and this complaint is a counter blast to the demand of money due to the 1^st opposite party from the complainants.  Therefore, the opposite parties prayed to dismiss the complaint with cost to the opposite parties.

                   4. This Forum peruse the complaint, version and other records and frame the following issues:

1. Whether the case is maintainable before the Forum?
2. Whether the opposite parties committed any deficiency in service against the complainants?
3. Whether the complainants are liable to pay any amount to the opposite parties as additional work done out of the agreement?
4. Regarding reliefs and costs?

        5. In order to prove the case of the complainants, the complainant he who examined as PW1 and marked Ext.A1 to A5 and Ext.C1.  Ext.A1 is the copy of agreement dated 01.09.2010 between the complainant and opposite parties.  Ext.A2 is the copy of Ownership Certificate dated 18.12.2012.  Ext.A3 series are the copy of legal notice dated 01.06.2015 sent to the opposite parties and postal receipts (3 Nos.).  Ext.A4 is the copy of receipt for cheque and amount.  Ext.A5 is the copy of the final payment receipt.  On the other side, the opposite party 1 and 2 are examined as DW1 and DW2 and marked Exts.B1 to B3.  Ext.B1 series are the photographs (7 in Nos.).   Ext.B2 series are the reply notice dated 15.06.2015, postal acknowledgment card and postal receipt.  Ext.B3 is the copy of approved building plan.   When we examine the proof affidavit filed by the complainant in lieu of chief examination as PW1 it can be seen that PW1 deposed more or less as per the tune of this complaint.  PW1 deposed that due to the deficiency in service on the part of the opposite parties, his building caused certain defects in the floor portion, wall, kitchen area etc. etc.  All these defects are caused due to the negligent and irresponsibility of the opposite parties.  It is also deposed that the opposite parties used low cost and low profile materials for the construction of the building.  On the other side, the opposite party 1 and 2 are examined as DW1 and DW2.  When we peruse the proof affidavit of DW1 and DW2 in place of chief examination, it also reveals that the contents of the proof affidavits are more or less as per the tune of their version.  DW1 deposed that he executed an agreement with the complainants for the execution of the building construction and he performed this work with good workmanship, quality and used high quality materials.  All these materials and works were done under the supervision and guidance of the complainants.  As per the testimony of DW1 in chief affidavit, the complainant filed this case only for avoiding the extra work payment done by him in excess of the agreement work.  PW2 is the commissioner who filed Ext.C1 commission report before the Forum.  At the time of adducing evidence by both sides, all these witnesses were cross-examined by the counsels concerned.  After the closure of evidence, we heard both sides.

          6. Point No.1:-  The main issue to be considered is whether this case is maintainable before the Forum.  The opposite parties raised a serious contention to the effect that the case is bad by limitation.  According to the opposite parties, the house construction was completed on 2011.  At that time, the complainant had no complaint with regard to the construction of this building.  It is contended that the complainant filed this case before this Forum only on 15.07.2015.  That date is about 5 years after the date of completion.  Hence this case is bad by limitation.  On the other side, it is contended that on 10.09.2013 he noticed the defect of the floor of the building and on 20.10.2013 he noticed the damage caused to the door frame so that the complaint is filed within the period of limitation, i.e. 2 years.  The complainant pleaded this fact in the 8^th Para of his complaint.  Though the opposite party contended otherwise nothing brought before us to disbelieve the facts stated in Para 8 of his complaint as stated above.  Therefore, we can easily arrived a conclusion to the effect that the complainant filed this case within the limitation period.  Hence Point No.1 found in favour of complainants. 

          7. Point No.2 to 4:-  For the sake of convenience, we are considering Point No.2 and 3 together.  It is to see that the complainants and the opposite parties admitted the agreement dated 01.09.2010 and the said agreement is marked as Ext.A1 in this case.  Though the 1^st opposite party denied the receipt of amount from the complainant through their version at the time of evidence the opposite parties did not adduce any evidence to disbelieve the receipt of the amount claimed by the complainants. It is true that as per Point No.3, we have to look into the contention to the effect that the complainant is still due to the opposite parties for an amount of Rs.10,40,000/-.  As per the version Para 10 of the opposite parties, it is specifically stated that there is an amount of Rs.10,40,000/- is still due to the 1^st opposite party.  When we look into the evidence before us, it can be seen that the opposite parties did not adduce any substantial evidence to believe their contention with regard to the claim amount of Rs.10,40,000/- as per their version.  If the opposite parties have any bonafide in their contention what prevented them to adduce any probable evidence to substantiate their claim.  As per Ext.A2, the complainants proved that the ownership of the building is vested to the complainants.  Ext.A3 series are the legal notice and postal receipt issued by the complainants counsel against the opposite parties of this case.  Ext.A4 and A5 series are the details of the payment given by the complainants to 1^st opposite party.  As per Ext.A5, it is proved clearly that as on 19.10.2012 1^st opposite party has received an amount of Rs.21,50,000/- from the complainants for this construction work.

          8. PW2 is a commissioner he who filed the commission report before this Forum.  PW2 is a retired Asst. Executive Engineer of PWD he deposed that in order to change the defective portion of the door frame an amount of Rs.15,000/- for curing, plastering an amount of Rs.5,000/-, chipping water proofing and re-plastering of car porch area an amount of Rs.2,000/- and for changing the defect pointed out by the complainant in kitchen area there is an amount of Rs.30,000/- is also needed.  In Ext.C1 the commissioner PW2 stated as, “XZ-h-k-c-¯n hmZn »Ê³ kmw sI«n-S-¯n-\n-t¸m-gpÅ sNdnb sNdnb t]mcm-bva-IÄ Nq­n-¡m-Wn¡p-I-bp-­m-bn.   Ah-sbms¡ Aä-Ip-ä-¸-Wn-I-fn-eqsS amäm-hp-¶-Xm-sW¶pw Kuc-h-ta-dn-b-X-sÃ-¶p-apÅ hni-Zo-I-cWw AwKo-I-cn-¡p-Ibpw IqSp-X Bbn Ah-sb-¡p-dn¨v Xn«-s¸-Sp-¯p-¶nà F¶pw Adn-bn-¡p-I-bp-­mbn”.  When we peruse Ext.C1, it is clear that the defect noted are so simple and it can be cured by a simple maintenance in cross-examination PW2 answered, “Rm³ hoSnsâ ¹m³ ]cn-tim-[n-¨n-cp-¶p.  Bb-Xn³{]-Im-c-amWv shade-þsâ hoXnbpw \ofhpw F¶v a\-Ên-em-bn.  2þmw \ne-bpsS roofþDw plan {]Imcw BWv \nÀ½n-¨n-«p-Å-Xv.  hoSnsâ full finishing hcp-¶-Xn\v putty C«v finish sNt¿­ Bhiyw CtÃ? (Q) proper plastering BsW-¦n Ah-iy-an-Ã. (A).  Rm³ inspect sNbvX hoSn\v putty C«n-«n-Ã, white wash sNbvXn-cp-¶p.  Complete roof C«-Xn-\m tNmÀ¨ a\-Ên-em-¡m³ Ign-ªnÃ(Q & A)”.  When we consider the opinion of PW2, it is clear that the opposite parties constructed this building as per the plan which was approved by the panchayat concerned.  The complainant die not raise any contention to disbelieve the opinion of PW2 with regard to the approved plan referred by PW2 in this case.  If it be so, we are not giving any relevance with regard to the contention of complainants related to the width of the shade, height of the kitchen slab etc.  PW2 is specifically deposed that the height of the kitchen slab and other fittings of the kitchen are normally deciding by the persons who used the kitchen, no doubt, if any difference of opinion arised with the height of the slab or other convenience of the kitchen what prevented the complainant to agitate these facts at the time of construction.  Hence we can arrive a conclusion to the effect that all the constructions in the kitchen area were constructed by the opposite parties as per the plan of the building and as per the direction of the complainants.  PW2 again answered in cross, “sI«n-S-¯n  Ønc-Xm-akw DÅ-Xmbn tXm¶n-bn-Ã.  Compoundþ Icn-bne hoWpIn-S¶n-cp¶p.  icn-bmb kwc-£Ww Sn sI«n-S-¯n\v Cà F¶v tXm¶ntbm?”(Q).  “Periodical maintenance \S-¯m-\pÅ kabw Sn hoSn\v Bbn-cp-¶nÃ. (A)”.  It is true that nobody residing in this building and the compounds are covered with dry leaves.  But with regard to the daily protection of the house, the PW2 has not given a proper answer and it is seen that he evaded from that question.  In this fact, it reveals that the building is now not under proper protection.  If a building is not maintained after its construction no doubt so many damages may occur due to the lack of maintenance and due to the effect of weather condition.  This fact can be easily inferred by the photograph produced by the opposite party in this case.  The said photographs are marked as Ext.B1.  

          9. The 1^st opposite party in this case is examined as PW1, he produced and marked Ext.B1 series to B3 as discussed above.  When we peruse Ext.B1 photograph, as discussed above it is clear that the premises of the house was covered with the leaf of the plant and also covered with mud.  It can be seen that the house is in a modern nature, as such no proper maintenance is getting to this house.  This may also resulted for certain damages of the house as stated above.  Ext.B2 series are the reply notice of the 1^st opposite party, which was issued in favour of the complainant’s counsel.  When we peruse this Ext.B2 reply notice, the said notice is also more or less as per the tune of his version.  Ext.B3 is the building plan of the complainant’s house.  This building plan covers the elevation, ground floor plan details and 1^st floor plan details.  Though this Ext.B3 was marked through DW1, the complainants’ side has not raised any objection with regard to the details of Ext.B3 plan.  If the complainants have any specific case with regard to the specification of the above said plan at the time of cross-examination he could have challenge this aspect to DW1.  On the basis of Ext.B3, we can clearly come to a conclusion that at the time of construction of the building the opposite party 1 had not deviated from the specification of Ext.B3 plan.

          10. When we appreciate the whole evidence of this case we would have to examine the present condition of the complainants’ house.  In the light of the Ext.C1 report, it reveals that some damages are caused to the door frame of the front door and inside the building little damages are caused to the wall etc.  The 1^st opposite party is responsible for the damages caused to the house on the basis of Ext.C1 report.  But at the same time, we have to consider the deficiency of the day to day maintenance of the complainants’ house.  Anyway, the day to day protection and maintenance of the house is the responsibility of the complainants alone.  As per the commission report, Ext.C1 the expense for the necessarily maintenance for curing the defect of the building has been clearly mentioned.  The damages caused to the door frame, floor, wall etc. are happened due to the deficiency of the 1^st opposite party at the time of construction.  This defects are became visible after 2 or 3 years of the construction.  As a responsible building contractor 1^st opposite party is responsible for the above said defects so that 1^st opposite party is liable to the complainant and Point No.2 found in favour of the complainant.  At the same time, it is seen that the kitchen fittings of the house was done even at the supervision or presence of the complainants.  PW2 also stated that the specifications of the kitchen or lay out are often decided by the complainants.  In the light of this evidence, we could not blame 1^st opposite party with regard to the kitchen specifications.  As stated earlier, 1^st opposite party alleged a dues of Rs.10,40,000/- from the complainant.  In order to substantiate this issue the 1^st opposite party failed to adduce any convincing evidence.  Hence Point No.3 is also found in favour of the complainant.  Considering the whole evidence of this case, we decided to allow this complaint partly.  We find that the complainant has to provide the necessary materials for the maintenance and the 1^st opposite party is liable to cure all the defects noted in the Ext.C1 commission report to the satisfaction of PW2 the commissioner.  The 1^st opposite party has to suffer all the labour charges for the maintenance and complainants have to suffer the cost of material for the maintenance work.  As per the evidence of this case, there is no need to proceed against 2^nd opposite party hence he is exonerated from this case.  Hence Point No.2 to 4 are found accordingly.     

          11. In the result, we pass the following orders:

1. The 1^st opposite party is directed to repair the defective portion of the complainants’ house as per Ext.C1 plan within 30 days from the receipt of this order, if the complainant provide necessary building materials for the same with sufficient acknowledgment.  If any of the party failed to perform this order as directed above, the 1^st opposite party is directed to pay a compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainant with 10% interest from the date of order onwards.  If the complainant and 1^st opposite party comply the 1^st part of this order 1^st opposite party is also directed to pay Rs.3,000/- to PW2 the commissioner as supervision charge.
2. A cost of Rs.3,000/- (Rupees Three Thousand only) is also allowed to the complainant with 10% interest from the date of order onwards.

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of August, 2016.   

                                                                                   (Sd/-)

                                                     P. Satheesh Chandran Nair,

                                                                    (President)

Smt. K.P. Padmasree (Member – I)             :     (Sd/-)

Smt. Sheela Jacob (Member- II)                 :     (Sd/-)

Appendix:

Witness examined on the side of the complainants:

PW1  :  Blesson Sam

PW2  :  T.V. Purushothaman

Exhibits marked on the side of the complainants:

A1 :  Copy of agreement dated 01.09.2010 between the complainant and  

        opposite parties. 

A2 :  Copy of Ownership Certificate dated 18.12.2012. 

A3 series :  Copy of legal notice dated 01.06.2015 sent to the opposite parties  

                  and postal receipts (3 Nos.). 

A4 :  Copy of receipt for cheque and amount. 

A5 :  Copy of the final payment receipt. 

Witness examined on the side of the opposite parties:

DW1  :  Madhu. B

DW2  :  Jayaraj

Exhibits marked on the side of the opposite parties:

B1 series :  Photographs (7 in Nos.).  

B2 series :  Reply notice dated 15.06.2015, postal acknowledgment card

                  and postal receipt. 

B3 :  Copy of approved building plan.

                                                                                        (By Order)

Copy to:- (1) Blesson Sam, Vilayil Vadakkethil, Nedumon Muri,

          Chayalod. P.O., Ezhamkulam Village, Adoor Taluk.

              (2) Madhu. B, Pattarukala Puthen Veettil, Koodal.P.O.

                   Pathanamthitta – 689 693.

     (3) Jayaraj, Karimkudukka Palamoottil, Palackal Veedu,

          Vakayar.P.O., Pathanamthitta Dist. – 689 698.

     (4) The Stock File.