N THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 22nd day of December, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.220/2021 (Filed on 25/09/2021)
Complainant : Lukas N. Joseph S/o Late Jseph,
Nakkuzhikattu House,
Nazareth Hill P.O,
Kuravilangadu, Kottayam - 686 633.
(By Adv: Ajin Thomas)
Vs.
Opposite parties : (1) Matha Velankanni Charitable Trust,
Nidhirical House,
Kozha P.O, Kuravilangadu,
Kottayam - 686 633
Rep. by its Managing Trustee & Chairman,
Georgekutty Cyriac.
(By Adv: Tissy Rose K. Cherian)
(2) Georgekutty Cyriac S/o Cyriac,
Nidhirical House,
Kozha P.O, Marangattupally,
Kottayam
Managing Trustee & Chairman,
Matha Velankanni Charitable Trust.
(By Adv: Tissy Rose K. Cherian)
(3) Sajan Jose Mattom S/o Joseph,
Vizhamala House,
Kuriyanad P.O,
Marangattupally, Kottayam,
Treasurer,
Matha Velankanni Charitable Trust.
(By Adv: Tissy Rose K. Cherian)
(4) Johnny Sebastian S/o Sebastian,
Mappilaparambil House,,
Kuravilangad P.O, Kottayam
Joint Secretary,
Matha Velankanni Charitable Trust.
(5) Jose Kuncheria,
Thaiveettil House,
Pattithanam, Ettumanoor P.O,
Kottayam,
CEO & Director,
Matha Velankanni Charitable Trust.
(By Adv: Tissy Rose K. Cherian)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
Crux of the complaint is as follows:
The complainant entered into a contract on 16-09-2018 with the second opposite party, representing the first opposite party (a trust), for the construction of a Poly House. This decision was influenced by subsidies offered by the Kerala State Horticulture Department for Poly House farming. Necessary permissions were obtained from relevant departments for the construction.
The fifth opposite party assured the complainant that the first opposite party, equipped with extensive experience, would manage the construction efficiently, with supervision promised by the fifth opposite party. A contract was signed based on a quotation provided on 23-04-2018, specifying Rs.30,68,000/- for the purpose of the construction of the Poly House and a quotation for Rs.3,36,000/- for the purpose of construction of water irrigation facility for the Poly House.
Funds were raised through a loan from the State Bank of India, Vazhithala Branch. An advance of Rs 2,00,000/- was transferred on 17-10-2018, followed by Rs.22,87,000/- on 24-10-2018 to the first opposite party’s account. Construction began in November 2018 but was delayed despite an initial agreement to complete within three months. In May 2019, construction ceased, and further funds were demanded. An additional Rs.2,00,000/- was given in cash in June 2019, but the fifth opposite party asked for more money, eventually receiving Rs 4,45,000/- by June 28, 2019.
Construction resumed in July 2019, and completion certificates were issued in November 2019. However, the Poly House collapsed on 24-06-2020 due to substandard materials and structural flaws, notably the improper roof slope causing water accumulation and structural weaknesses leading to collapse. The complainant requested reconstruction within the guaranteed period, but the opposite parties made no efforts.
Upon informing the opposite parties, the complainant demanded reconstruction within the guarantee period. Although assured of repair, no steps were taken. Other shortcomings included an inadequate irrigation system, lacking a rain guard. the complainant spent Rs.1,50,000/- on workers accommodations and food.
The complainant alleges a misappropriation of Rs 31,32,000/- by the opposite parties and contends that their actions constitute a deficiency in service. Seeking reimbursement of the amount along with compensation, the complainant filed this complaint, requesting an order to direct the opposite parties to refund Rs.31,32,000/- with interest, pay Rs.5,00,000/- as compensation, and Rs.25,000/- as litigation cost.
Upon notice opposite parties 1 to 3 and 5 appeared before the Commission and filed joint version contending as follows:
The complainant entered into a contract on 16-09-2018 with the second opposite party for and on behalf of the first opposite party for construction of a Poly House. As per the agreement the opposite parties constructed the Poly House and issued completion certificate on 26-10-2019. On 30-11-2019 opposite parties issued completion certificate addressed to the Agricultural Officer, Idukki District. Poly House construction project is under the guidance and guidelines of the Agricultural Officer with Government subsidy and it is done under the supervision and direction of the Agricultural Officer, Idukki. In order to claim the subsidy amount before submitting the completion certificate on 26-10-2019 the complainant received all original bills and statements with a written undertaking to the opposite parties to pay the balance amount as per the agreement as early as possible without delay. But after one year of the issuance of the completion certificate and as per the undertaking of the payment, the complainant did not make any payment to the opposite parties as per the receipt. Meanwhile the opposite parties came to know that entire subsidy amount is received by the complainant and he utilised the entire amount for his benefits without paying the balance amount to the opposite parties. Then the 5th opposite party filed a petition before the Kuravilangadu police station on 14-02-2020 for and on behalf of the first opposite party. When the police called upon the complainant for enquiry, he filed another petition against the opposite parties before the Thodupuzha police station. Then the 5th opposite party replied to the petition and submitted another petition against the complainant before the Thodupuda police station on 19-02-2020. But the complainant did not make the payment even after this. Then the 5th opposite party again complained and informed the matter to the Agricultural Officer, Idukki for holding and recovering the subsidy amount. In these circumstances in order to escape from the liability of payment to the opposite party, the complainant filed this petition with frivolous and vexatious intentions. The intention of the complainant behind the Poly House construction is only to collect subsidy amount from the Government for the construction of Poly House and escape from the accountability of utilisation of subsidy amount.
The allegation that on 24-06-2020 the Poly House collapsed as the materials used for construction was substandard and low quality is not correct. It is averred in the version that in order to escape from the payment, the complainant himself damaged the poly House. The allegation in the complaint that the matter was informed to the opposite parties and the complainant demanded the opposite parties to reconstruct the same in a proper and strong manner is not correct. On the alleged date of collapse the complainant was not in good terms with the opposite parties on account of balance payment of the Poly House construction. As per the construction agreement, the opposite parties did not assure any service warranty or guarantee mentioned between the parties as per the agreed terms of the contract. Without receiving the payment for the construction work, no warranty or guarantee can be claimed by the complainant as humanitarian concepts.. The opposite parties constructed the Poly House with good quality materials as per the terms of the agreement. The quality of the material and the work were inspected time to time by the Agricultural Officer. There is no deficiency in service or unfair trade practice on the part of the opposite parties.
Evidence of this case consists of deposition of PWs 1 to 5 and Exhibits A1 to A4 and Exhibits X1 to X5 and C1 Commission Report from the side of the complainant. The 5th opposite party filed proof affidavit in lieu of chief examination for himself and for and on behalf of the first opposite party and marked Exhibits B1 to B3 from the side of the opposite parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points :
(1) Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
(2)If so, what are the reliefs and cost?
For the sake of convenience we would like to consider Point Nos.1 and 2 together.
POINTS 1 & 2 :-
There is no dispute on the fact that the opposite parties constructed a Poly House for the complainant in his property. Exhibit A2 is the contract entered into by the second opposite party on behalf of the first opposite party with the complainant on 16-09-2018 for the construction of a poly house. In Exhibit A2 the second opposite party has agreed to construct a Poly House on the plaintiff’s property with an area of 4000 square meter at a rate of Rs.800/- per square meter at a total cost of Rs.32 lakhs. As per Exhibit A2 this rate includes the rates for using GI tubular pipes, UV covering film, insect net and shade net. It has been contractually agreed by the second opposite party that the irrigation system can be constructed and supplied at Poly House at a cost of Rs.3,36,000/- inclusive of 12% GST. The payment schedule is as follows: 50% of the total amount is required as an advance payment. Subsequently, 25% of the total amount is due at the time of marking the pole or time of foundation. Another 15% is expected upon the delivery of materials. Finally, the remaining 10% is to be paid upon the successful completion of the work. In Exhibit A2 it is stated that the work will be completed by the first opposite party within 50 to 90 days from the handing over of the land which was developed by the complainant as per the terms and conditions of the agreement. As evidenced by Exhibit X3, it is established that the complainant transferred Rs.2,00,000/- on 17-10-2018 to the first opposite party’s account. Subsequently, an additional amount of Rs.22,87,000/- was transferred on 25-10-2018 to the same account.
Exhibit A4 is the completion certificate dated 26-10-2019 issued by the fifth opposite party to the complainant. In Exhibit A4 it is stated that the opposite parties have constructed the Poly House with an area of 3660 square metre. It is further stated in Exhibit A4 that the opposite parties have received Rs.32,92,000/- from the complainant through the account transfer and an amount of Rs.6,00,000/- was transferred by the opposite parties to the account of the complainant with regard to the preliminary cost. In Exhibit A4 the opposite parties informed the complainant that there is an outstanding amount of Rs.5,43,440/- and out of the said amount Rs.1,80,000/- is to be payable to one George Cumbumet and Rs.3,63,000/- is payable to Jose Kuncheria who is the Director of the Trust and Project in-charge. In Exhibit B1 which is the letter issued by the complainant to the opposite party on 26-10-2019 he admitted that though he had transferred Rs.32,92,000/- to the account of the first opposite party he had received Rs.6,00,000/- transferred to him by the first opposite party for the primary cost and he had paid a total amount of Rs.26,92,000/-. He further admitted in Exhibit B1 that a balance amount of Rs.5,43,440/- is payable to the first opposite party. Though the complainant contended that he had paid Rs.2 lakhs to the 5th opposite party in the month of June 2019 and he had transferred Rs.4,45,000/- to the account of the first opposite party on 28-06-2019 he did not adduce any evidence to prove that transactions. Therefore we are of the opinion that the complainant had paid Rs.26,92,000/- to the first opposite party being the cost of the construction of the Poly House.
The specific case of the complainant is that the Poly House collapsed on 24-06-2020 due to substandard materials and structural flaws, notably the improper roof slope causing water accumulation and structural weaknesses leading to collapse.
In order to prove this aspect the complainant applied for appointment of an Expert Commissioner to ascertain the matters, accordingly this Commission appointed a Structural Engineer as Expert Commissioner in this case. The Expert Commissioner in C1 report categorically reported that the construction does not appear to be in accordance with the NHB guidelines. She further reported that the standards are not accomplished by the current available structure on the site. There are missing parameters on the site that are mentioned in the poly house construction guidelines. In C1, the Expert Commissioner reported that it is evident that unscientific approach taken in the preparation of the Poly House ultimately led to the failure of the Poly House’s intended purpose. She further reported that intended structure collapsed as a consequence of not constructing in accordance with code specifications, including improper purlin spacing that could lead to structural failure during the accumulation of rainwater. The purlins that make up the top most portion of the Poly House’s GI pipe span were not designed in accordance with the requirements and this could result in roofing failure. It is further reported in C1 since it fails to meet IS standards the truss structure is not serviceable and safe and lacks adequate lateral rigidity. Therefore we are of the opinion that the opposite parties constructed the Poly House in a defective manner and there is imperfection and inadequacy in constructing the Poly House and that amounts to deficiency in service on the part of the opposite parties.
The main contention of the opposite parties is that in order to escape from the liability of the balance payment the complainant filed this complaint. Exhibit B2 is the acknowledgement receipt of a petition issued by the Kuravilangad police station in receipt of a petition lodged by the opposite parties against the complainant herein. Exhibit B3 is the receipt issued by the Thodupuzha police station authorities in receipt of a complaint lodged by the fifth opposite party herein against the complainant herein. Though the said complaints are in respect of the non-payment of balance amount which was due from the complainant to the opposite parties, the opposite parties did not adduce any evidence regarding the further proceedings initiated by the police authorities against the complainant herein.
Though the opposite parties contented that the entire subsidy amount is received by the complainant and he utilised the amount for his benefits. PW4 who is the Agricultural Officer of Manakadu Krishibhvan deposed that when the DDH of the State Horticultural Mission of Idukki inspected the Poly House it was found that the Poly House was partially collapsed. She further deposed that if the Poly House is not collapsed the amount Rs.23,16,780/- which was the subsidy amount recommended would be given to the complainant. From the evidence of the PW4 we are of the opinion that the contention of the opposite parties that the complainant has received the entire subsidy amount would not sustain.
The 2nd opposite party is the Chairman and Managing Trustee of the first opposite party Trust. The 3rd opposite party is the Treasurer of the first opposite party. 4th opposite party is the Joint Secretary of the first opposite party and the 5th opposite party is the Director and CEO of the first opposite party.
We already found that the opposite parties have constructed the Poly House in a defective manner and thereby the Poly House was collapsed within one year of the completion of the construction. We further found that the complainant had paid Rs.26,92,000/- to the opposite parties for the construction of the Poly House in the standard prescribed for the Poly House. The complainant who intended to develop a horti culture farm was put into much hardship and mental agony due to the defective construction of the Poly House by the opposite parties for which the opposite parties are liable to compensate.
On the evaluation of above evidence we are of the opinion that the complaint is to be allowed and the complaint is allowed in part.
We hereby direct the opposite parties to pay Rs.26,92,000/- to the opposite parties with 9% interest from 25-09-2021 that is the date on which this complaint is filed till the date of realisation.
We hereby direct the opposite parties to pay Rs.1,00,000/-(Rupees One Lakh only) as compensation to the complainant for the deficiency in service on the part of the opposite parties.
We hereby direct the opposite parties to pay Rs.10,000/- (Rupees Ten Thousand only) as the cost of this litigation.
The opposite parties are jointly and severally liable to comply the order within 30 days of receipt of copy of this order failing which the compensation amount shall carry 9% interest per annum from the date of this order till realisation.
Pronounced in the Open Commission on this the 22nd day of December, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainant :
PW1 - Lukas.N. Joseph
PW2 - Uma.R
PW3 - Raveendran P.O
PW4 - Suvals.S
PW5 - Cimoany Jose
Witness from the side of the Opposite Parties :
Nil
Exhibits from the side of the Complainant :
A1 - Copy of Quotation for Poly House dated 23/04/2018
A2 - Copy of Agreement dated 16/09/2018 executed between
the complainant and the 2nd opposite party on behalf of
the first opposite party
A3 - Copy of Statement of Account of the complainant’s bank a/c
for the period 13/09/2018 to 12/03/2020 maintained with
the SBI, Vazhithala branch
A4 - Copy of Completion Certificate dated 26-10-2019 issued
by the 5th opposite party to the complainant
X1 & X1(a) - Copy of bank a/c statement of complainant’s bank
a/c for the period 13/09/2018 to 25/10/2020 with
certificate under Bankers’ Book Evidence Act
X2 & X2(a) - Copy of loan account statement of complainant
for the period 13/09/2018 to 21/10/2020 with
certificate under Bankers’ Book Evidence Act
X3 & X3(a) - Copy of account statement of complainant’s bank
account for the period 25/08/2017 to 20/02/2019
maintained with the Federal Bank, Kuravilangadu branch
with certificate under Bankers’ Book Evidence Act
X4 - Copy of Statement showing the details of Poly Houses
under Hi-tech farming scheme 2018-2019
X5 - Copy of Proceedings No.SHM(1)/1568/17 dated
20/01/2018 of State Horticulture Mission, Idukki, Kerala
C1 - Commission Report
Exhibits from the side of Opposite parties :
B1 - Copy of Complainant’s letter dated 26/10/2019 addressed
to the 5th opposite party
B2 - Acknowledgement Receipt of petition dated 14/02/2020
filed by the 5th opposite party before the Kuravilangadu Police Station
B3 - Acknowledgement Receipt of petition dated 19/02/2020
filed by the 5th opposite party before the Thodupuzha Police Station By Order,
Sd/-
Assistant Registrar
