BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC.51 / 2001 TUESDAY THE 25th DAY OF JANUARY 2011. Subramani, S/o. Jayaraman, Building Contractor, 43, Pillaiar Koil Street, Thottappalayam, Vellore 632 004. … Complainant. - Vs – Manikkavelu, S/o. Krishnaswamy, At 13-14 Circarmundy Street, Vellore – 632 004. … Opposite party. . . . . This petition coming on for final hearing before us on 12.1.2011, in the presence of Thiru. T. Lakshmi Narayan, Advocate for the complainant and Thiru. R. Lakshmi Narayanan, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is a building contractor of repute, and depends on the same as his sole livelihood. The opposite party entered into a written agreement with the complainant on 19.8.99 for building his house. The said agreement termed as “labour agreement” was completed to the satisfaction of the opposite party, as per the terms of the said agreement. But the opposite party did not act as per the agreement. Out of a total amount of Rs.2,61,075/- a sum of Rs.2,15,891/- only was paid by the opposite party to the complainant and a balance of Rs.45,184/- remains due and payable. He lastly paid a sum of Rs.2500/- only on 10.11.00 but failed to evaded and neglected to pay the balance amount. Therefore there is a clear breach of the Written agreement amounting to gross deficiency of service and unfair trade practice. The complainant had to pay the labourers out of pocket and has been put to loss, mental agony, hardship, stress, physical discomfiture and distress and to the opposite party is therefore liable to pay the complainant a compensation of Rs.50,000/- for the said mental agony etc, caused to the complainant due to his deficiency of service and unfair trade practice, arising out of beach of written contract. Therefore, directing the opposite party to pay the complainant a sum of Rs.45,184/- with interest at 24% p.a. from 10.11.00 till date of full and final payment and to pay a sum of Rs.50,000/- as compensation for the mental agony, loss hardship, physical distress caused by his gross deficiency of service and unfair trade practice and Rs.5000/- with costs. 2. The averments in the counter filed by the opposite party is as follows: The opposite party does not admit any of the allegations in the complaint save those that are specifically admitted here in and puts the complainant to strict proof of rest of them all. The opposite party and his son purchased two vacant plots bearing Nos.13 & 14 in Circar Mundy Street, Vellore on 12..2.99 for constructing a residential building. The complainant herein who is a mason offered to construct the said building on labour contract basis and he wanted the opposite party and his son to provide materials for the construction and also agreed that he will complete the construction within 6 or 7 months from the date of commencing the construction. The complainant offered to construct 100 sq ft. in respect of the ground floor at the rat of Rs.4500/- per 100 sq ft. (one Sathuram) and in regard to the 1st floor he offered to construct the 1st floor at the rate of Rs.5000/- per 100 sq ft and he also offered to complete it within 6 or 7 months from the date of commencement of the work. In regard to the construction only the brick work and the plastering alone has to be done by him, including doors, windows, lofts in every room and an almyrah and the opposite party and his son agreed to pay the aforesaid amount for the construction of the ground an first floor at the rates offered by the complainant and the opposite party and his son wanted the complainant to commence the construction from August 1999 and complete it within 6 or 7 months from the date of commencement and in fact the complainant received a sum of Rs.1001/-as advance to commence the work by the end of August 1999. 3. The opposite party immediately stored all the materials for the construction work and the complainant constructed the said building in a lethargic manner and though he was behind his schedule he was receiving the amounts now and then without looking into the stage and progress of the work he was already done. In that manner the complainant received a sum of Rs.2,20,000/- from the opposite party and his son upto November 2000. Even after lapse of 14months the complainant has not completed the construct on though he was constructed the building only upto the 1st floor and not completed plastering work, nor completed the stair case and he has not constructed the septic tan and over head tank for storage of water as agreed to by him. Further as and when the complainant demanded the materials it was immediately supplied to him for the construction but the delay is only on the part of the complainant for more than 14 months for the construction and that too he has not completed it and he has left the building incomplete. He has not plastered it or given plastering nor given any fact lift for the ground floor and all the walls except in the 3 bed rooms were not plastered and he has also not constructed the portion properly and elevation of ground floor and first floor and other amenities in respect of the building. During the construction the entire centering materials and labour was also provided by the opposite party and his son only which the complainant herein ought to have done for himself which includes the labour contract. Since the complainant left the work all of a sudden without completing it and the complainant stated that he could not complete it for want of labourers and other difficulties for him he could not proceed further with the construction and complete it. Therefore the opposite party his son approached another manson for the completion of the work. At that time the mason stated that the work done by the complainant was only incomplete and the value of the same will be about Rs.1,78,000/- in respect of the construction of ground and first floor and the incomplete stair case and the mason represented to the opposite party and his son that he will have to spend nearly about Rs.1,00,000/- for the completion of the construction including the completion of the stair case, septic tank and over head tank, portico and also elevation. Hence the opposite party and his son are obliged to engage another mason for completion of the work as they were in urgent need of a residential house. As per the quotation given by the complainant for ground floor he had to construct 18 squares @ Rs.4500/- per square which comes to Rs.81,000/- and in regard to the 1st floor @ Rs.5000/- per square 18 squares which comes to Rs.90,000/- and in all Rs.1,71,000/-. But he has done work only to Rs.1,78,000/- as per his quotation from August 1999 to November 2000. But he received a sum of Rs.2,20,000/- upto the date. Hence he has received an excess amount of Rs.42,000/- from the opposite party and his son. But he has not completed the building and left it in the middle by November 2000. Hence the excess amount received by the complainant has to be returned to the opposite party herein for the work done by him. The opposite party has already sustained heavy loss because of the incomplete work done by the complainant and they will have to suffer heavy loss and spent more than what is payable by them in regard to the completion of the said building. Accordingly, they spent a lot of amount and then completed the said building by the end of January 2001. Inspite of several demands made by them the complainant evaded to pay the excess amount of Rs.42,000/- received by the complainant as per his own quotation for incomplete work done by him and excess payment received by him from this opposite party and his son;. The contract was entered into between the opposite party and his son who are the owners of the property and therefore this O.P. against the opposite party alone is not maintainable and has to dismissed in limine. The opposite party and his son have filed O.S.No.395/2000 against the complainant herein for the recovery of the excess amount paid to him and it is pending disposal in Sub-court, Vellore in regard to the same claim received for the construction of and completion of the building in respect of the contract entered into between the opposite party and his son on the one part and the complainant herein on the other part. There is no deficiency of service on the part of the opposite party, but the complainant was committed deficiency in service. Therefore this Forum may be to dismiss the complaint with cost. 4. Now the points for consideration are: a) Whether there is any deficiency in service on or unfair trade practice on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 5. Ex.A1 & ExA2 were marked on the side of the complainant and Ex.B1 was marked on the side of the opposite party. Proof affidavit of the complainant and opposite party have been filed. No oral evidence let in by either side. 6. POINT NO. (a): The complainant contended that the opposite party entered into a written labour agreement Ex.A1 with the complainant on 19.8.1999 for the construction of his building. As per terms of agreement the complainant completed the construction of building to the satisfaction of the opposite party. Out of a total amount of Rs.2,61,075/- a sum of Rs.2,15,891/- only was paid by the opposite party to the complainant and a balance of Rs.45,184/- remains due and the opposite party neglected to pay the balance amount. Therefore there is a clear breach of the written agreement amounting to gross deficiency of service and unfair trade practice. 7. The opposite party contended that as per the quotation given by the complainant for ground floor he had to construct 18 squares @ Rs.4500/- per square which comes to Rs.81,000/- and in regard to the 1st floor @ Rs.5000/- per square 18 squares which comes to Rs.90,000/- and in all Rs.1,71,000/-. The complainant had received Rs.2,20,000/- from the opposite party and his son. But he has done work only to Rs.1,78,000/- as per his Quotation from August 1999 to November 2000. The complainant had received an excess amount of Rs.42,000/- from the opposite party and his son, but he has not completed the building and left it in the middle by November 2000. The opposite party spent a lot amount and then completed the said building by the end of January 2001. Inspite of several demands made by them, the complainant evaded to pay the excess amount of Rs.42,000/-, therefore the opposite party and his son have filed O.S.No.395/2000 against the complainant for the recovery of the said excess amount paid to him and it is pending disposal in Sub-court, Vellore 8. It is admitted case of the parties that the complainant had entered into an agreement Ex.A1 with the opposite party on 19.8.1999 for the construction of the house in the vacant site of the opposite party. The complainant stated in his proof affidavit that, as per the terms of the agreement Ex.A1 the complainant completed the construction of building to the satisfaction of opposite party and a sum of Rs.261075/- is due and payable but the complainant was received a sum of Rs.2,15,891 and a balance of Rs.45184/- remained which the opposite party evaded to pay inspite of repeated requests. The complainant has not denied the contention of the opposite party that the opposite party and his son have filed O.S.No.395/2000 before the Sub-court, Vellore against the complainant for recovery of the excess amount of Rs.42,000/-. The opposite party stated in his proof affidavit that as per the agreement Ex.A1 for ground floor the complainant had to construct 18 squares @ Rs.4500/- per square which comes to Rs.81,000/- and in regard to the 1st floor @ Rs.5000/- per square 18 squares which comes to Rs.90,000/- and in all Rs.1,71,000/-. The complainant had received a sum of Rs.2,20,000/- upto the date. But he has done work only to Rs.1,78,000/- as per his quotation from August 1999 to November 2000. The terms mentioned in the agreement Ex.A1, dt. 19.8.99 read as follows: “ ek;kpy; 1yf;fkpl;lthpd; nlj;jpy; ek;kpy; 2 yf;fkpl;lth; fl;olk; fl;l Btz;oaJ. fpbusz;l; gpBshh; flf;fhy; 10 mo MHk;, fk;gp fl;Ljy;, brd;lhpf; Typ Kjy; kzy; 1 mo Bghl;L gpwF Mh;.Mh;.b$y;yp 1 mo gpwF 4-f;F 3 bgl;L fl;o ¾ Bgh!; 16 vk;.vk;. fhyk;Bgh!;l; 2yf;fkpl;lth; bra;a Btz;oaJ. U}g; kl;lk; Bg!; kl;lj;jpypUe;J 10 mo 1 mA;Fyk; 2yf;fkpl;lth; bra;a Btz;oaJ, brd;l;hpA; rhkhd;fs; xU rj;jk; 1yf;fkpl;ltiua[k;, xU rj;jk; 2yf;fkpl;ltiua[k; Brh;e;jJ, fk;gp fl;Lk; Typ, flfhy; fl;Lk; Typ brd;l;hpA; rhkhd;, kz;brd;l;hpA; Typ Mfpaitfis 2yf;fkpl;lthplk; 1yf;fkpl;lth; bfhLf;f Btz;oaJ, 10 mof;F 10 mo fput[z;l; gpBshh; 1 rJujj;pw;F Typ kl;Lk; U}.4.500.00 kw;Wk; Kjy; kho fl;Ltjw;F Typ kl;Lk; U}.5000-00 kw;Wk; 2-tJ kho fl;Ltjw;F U}.5900-00 tPjk; 2 egh; BfhUk;BghJ 1 egh; thuk; thuk; bfhLj;J tu Btz;oaJ, rhjh gof;fl;L nUe;jhy; U}gha; 3,500-00 xU gpBshUf;F, nwf;if gof;fl;L nUe;jhy; U}.4500-00 kw;Wk; Xth; BlA;f; fl;l, brg;of; BlA;f; fl;l, gpuz;l; vyBt&d; bra;a ehk; jFe;jgo Typ Bgrp bra;Jf;bfhs;s Btz;oaJ. ne;j mf;hpbkz;l; xd;!; Bygh; mf;hpbkz;l; MFk;. fl;olj;jpw;F Bjitg;gLk; K}yg;bghUl;fs; nit midj;Jk;, 1 yf;fkpl;ltiu Brh;e;jjhFk;. (brA;fy;, $y;yp, fk;gp, rpbkd;l;, kzy;, rhuf;fapW, brz;l;hpA; kz;, $hjpfhbghl;o) nit midj;Jk; 1 yf;fkpl;lth; fhyjhkjkpd;wp rg;is bra;J jUtJ 1yf;fkpl;ltiu Brh;e;jjhFk;. ne;j mf;hpbkd;l; Kd;dpiyf;F Btiy Muk;gpf;Fk;BghJ 1yf;fkpl;lth; 2 yf;fkpl;lthplk; ml;th!;rhf U}gha; 3500-00 ju Btz;oaJ, Btiyapd; Bghpy; g[jd; fpHikahdhy; ml;thd;!;, rdp fpHikahdhhy; Ml;fs; Typfis 1yf;fkpl;lth; 2 yf;fkpl;lthplk; bfhLj;J tu Bt;zoaJ xU U}kpy; xU fBghh;l;, xU thrf;fhy;, gpl;oA;f;!;, xU rpyhg; nitjhd; bra;Jf; bfhLf;fg;gLk;. Bkw;bfhz;L Btz;Lkhdhy; jdpg;gl;l Kiwapy; 1yf;fkpl;lth; 2 yf;fkpl;lthplk; mth; BfhUk; bjhifia ju Btz;oaJ, Btiy bra;a[k; Typ Ml;fSf;F 2 Btiy O kw;Wk; $y;yp BghLk;BghJ rhg;ghL Vw;ghL 1 egh; bra;J juBtz;oaJ, U}g; $y;yp BghLk;BghJ Ml;fs; Typ, brd;l;hpA; Typ nit midj;Jk; Vw;wthW 2yf;fkpl;lthplk; 1yf;fkpl;lth; bfhLf;f Btz;oaJ. Bkw;go fl;olj;ij fl;oj;ju nd;W Kjy; mjhtJ Btiy Muk;gpj;j BjjpapypUe;J 5 (m) 7 khjj;jpw;Fs; fl;oju 2yf;fkpl;lth; rk;kjpf;fpwhh;. “ From careful perusal of the above agreement Ex.A1, it is seen that the complainant has to construct ground floor @ Rs.4500/- per 100 sq ft and in regard to the 1st floor he has to construct the 1st floor @ Rs.5000/- per 100 sq ft. But total plinth area was not mentioned in the agreement. There is no documents or expert estimation the construction in the ground floor and 1st floor done by the complainant. According to the complainant a sum of Rs.2,62,075/- is due and payable but the complainant was received a sum of Rs.2,15,891/- and a balance of Rs.45,184/- remained which the opposite party evaded to pay inspite of repeated requests. According to the opposite party, for ground floor he had to construct to 18 squares (10 x 10 = 100 sq) @ Rs.4500/- per 100 sq ft. and in regard to the 1st floor @ Rs.5000/- per square 18 squares ( 10x 10 = 100 sq) which comes to Rs.90,000/- and in all Rs.1,71,000/-. But the complainant had received an excess amount of Rs.42,000/- from the opposite party. The complainant has not denied the contention of the opposite party that the plinth area in the ground floor 18 squares and in the 1st floor 18 squares (1squre = 100 sq.ft) in the vacant site of the opposite party. 9. The contention of the opposite party that the complainant had received an excess amount of Rs.42,000/- from the opposite party and his son but he has not completed the building and left it in the middle by November’2000. The opposite party spent a lot amount for completion of his house by the end of January 2001. Therefore, the opposite party and his son have filed O.S.No.395/00 against the complainant for recovery of the excess amount and it is pending disposal in Sub-Court, Vellore. After completion of the construction work, the complainant has not issued completion of building or utility certificate to the opposite party. Further, after completion of the construction work till filing of O.S.No.395/2000 before Sub Court, Vellore, the complainant has not requested the alleged due. Therefore it is clear that as per agreement Ex.A1 the complainant has not completed the building and left if in middle by November 2000. Hence, the contention of the complainant that there is clear breach of written agreement amounting to gross deficiency of service and unfair trade practice of the opposite party is not acceptable. 10. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 & Ex.A2 and Ex.B1 we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service and unfair trade practice on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 11. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 12. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 25th day of January 2011. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 19.8.99 - X-copy of Written Agreement. Ex.A2- -- - X-copy of diary entries containing details of payment and Outstanding due and payable by opp party to complainant. Opposite party’s Exhibits: Ex.B1- -- - X-copy of order in O.S.No.395/2000. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | |
