IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of March, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 52/2011 (Filed on 23.02.2011)
Between:
Manu. M. Thomas,
Chakkalil Puliyelil,
Maramon P.O.,
Thottappuzhassery,
Pathanamthitta.
(By Adv. Mathew Chacko) … Complainant
And:
Sri. Mathew Thomas,
Vellaringattu House,
Pullad P.O., Koippuram Village,
Thiruvalla. … Opposite party.
(By Adv. T.S. Radhakrishnan Nair)
ORDER
Sri. N. Premkumar (Member):
Complainant filed this complaint for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant entered into an agreement with the opposite party for the construction of his residential house on 23.03.2009. As per the agreement, the construction work is as per the plan and completes within one year. A payment schedule was also given to the complainant as part of the contract. As per the agreement, the work has to be done ` 1,000 per square feet. The payment schedule was also correct till 03.05.2010. Opposite party received ` 14,00,000 from the complainant.
3. The complainant who was working abroad came and see that the work being done was in a very negligent manner without complying the plan. Complainant stopped the work and told the opposite party to continue the work only after rectifying the defects. After accepting excess amount, opposite party started to evade the complainant stating lame excuse. Hence this complaint for getting the loss of delay in work of `1,00,000, defective work for ` 60,000 and the excess amount of ` 1,00,000 with compensation and cost.
4. Opposite party entered appearance and filed version stating that the complaint is not maintainable either in law or on facts. This complaint is filed after receipt of an Advocate Notice dated 11.01.2011 in a Civil Proceedings against the complainant by which the opposite party demanded ` 3,63,000. The said amount is the balance amount to be received from the complainant on the completed work together with ` 15,000 towards compensation for damages.
5. As per the agreement dated 20.03.2009, the opposite party is liable to complete the work within one year for which sufficient payment in time is required. The complainant failed to provide the agreed payment in time. Within agreement schedule period, the complainant paid only ` 13,00,000 . For further construction, he has to pay more than ` 20,00,000. The opposite party is not liable for the delay in effecting payment by the complainant. The opposite party never deviated from the plan approved. Certain permitted variations are made as per oral instructions of the wife of the complainant who was supervising the work for 24 hours at site and also confirmed by the complainant over phone. The complainant and his wife already expressed their full satisfaction on the work done by the opposite party. But they were very much stringent in making timely payment. The complainant visited the site three times within one year during the period of construction. There was no defect in construction.
6. The opposite party never collected excess payment from the complainant. The complainant never told the opposite party that he would approach the court of law for which he has no cause of action also. Advocate notice dated 11.01.2011 is served on the complainant for collecting the due balance amount without a litigation. Thereafter he has filed this complaint stating false allegations which lacks bonafides.
7. Opposite party sustained heavy loss in the construction of the building but completed the work to the satisfaction of the complainant and his wife. A little delay is caused due to delay in payment on the part of the complainant. During 2008 to 2011, the skilled workers and petty workers are not available, the costs of the building materials were very high and materials were not available. But the opposite party completed the work suffering loss for which payment is to be effected an agreed rate on the completed work. The balance work done by the complainant himself is also calculated and detailed in the notice dated 11.01.2011. The complainant cannot escape from the clutches of law by filing this false complaint. Therefore, opposite party canvassed for the dismissal of the complaint.
8. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before this
Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs and Costs?
9. The evidence of the complaint consists of the oral deposition of PW1, DW1 and marked Exts. A1 to A3 and B1 to B3. After closure of evidence, both parties were heard.
10. Points 1 to 3: In order to prove the complainant’s case, complainant’s authorized representative filed proof affidavit and documents. She was examined as PW1 and the documents produced were marked as Exts. A1 to A3. Ext. A1 is the authorization letter dated 20.01.2011 issued by the complainant. Ext. A2 is the copy of the building construction agreement for the construction of building dated 23.03.2009. Ext. A3 is the plan of the said building. Ext. C1 is the mahazar, report and plan prepared by the Commissioner Advocate.
11. In order to prove the opposite party’s contention, opposite party filed proof affidavit along with certain documents. He was examined as DW1 and the documents produced were marked as Exts. B1 to B3. Ext. B1 is the attested copy of plaint in O.S. No.99 of 2011 filed by the opposite party against the complainant before the Sub Court, Thiruvalla. Ext. B2 is the copy of Advodcate Notice dated 11.01.2011 issued by the opposite party to the complainant. Ext. B3 is the reply notice of Ext. B2.
12. On the basis of the contentions and averments of the parties, we have perused the entire materials on record. The complainant’s case is that the opposite party had done work as per contract negligently. When the complainant informed to continue the work only after rectifying the defect, opposite party withdrawed from work. Hence this complaint for loss of delay in performing the contract, defective work and the return of excess amount.
13. Opposite party’s contention is that this complaint is filed after receiving notice demanding the balance amount of ` 3,63,000 from the complainant. The complainant has not made timely payment as per contracts which cause delay in completing the work. There is no deviation from plan or degradation of work as alleged.
14. On a perusal of Ext. A2, it is learnt that the complainant and the opposite party entered into a contract for constructing the residential building within one year. The date shown in Ext. A2 is on 23.03.2009. As per Ext. A2, opposite party is bound to perform the contract within one year. The evidence on record reveals that opposite party would not complete the work within the stipulated period and thereafter. Opposite party’s contention is that the complainant was not prompt in payment as per Ext. A2. Therefore, opposite party could not complete the work as per contract.
15. It is seen that the total estimated cost of work as per Ext. A2 is `20,00,000. The complainant’s specific contention is that opposite party completed 65% of work and entitled to get only ` 13,00,000. But he accepted excess amount of ` 14,00,000. Therefore, complainant is entitled to get balance excess amount i.e. ` 14,00,000 minus ` 13,00,000 = ` 1,00,000.
16. Opposite party’s case is that he received only ` 13,00,000 within the tenure of Ext. A2. But he has not made a slight whisper with regard to the acceptance of an excess amount of ` 1,00,000 on 03.05.2010. Why he hides the said amount in his version? As a building contractor, opposite party is expected to come with clean hand by disclosing real fact before the Forum.
17. For ascertaining the work described in Ext. A2 agreement and the cost of each work, it is quoted as follows:
1. ]Wn XpS-§p-t¼mÄ advance 10% ` 2,00,000
2. Xd Xocp-t¼mÄ 20% ` 4,00,000
3. `n¯n-sI«v Xocp-t¼mÄ 15% ` 3,00,000
4. X«v hmÀ¡p-t¼mÄ 5% `. 1,00,000
5. tX¸v XpS-§p-t¼mÄ 15% ` 3,00,000
6. Wiring & Plumbing 10% `. 2,00,000
7. Roof Tile, Floor Tile 20% ` 4,00,000
8. Finishing Work 5% ` 1,00,000
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Total `20,00,000
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18. According to the complainant, opposite party has done only 65% of work. It means that opposite party completed the work as stated in the above payment schedule 1 to 5 i.e. he completed upto plastering work. Therefore, the opposite party is entitled to get only ` 13,00,000. But in Ext. B1 and B2 shows that the opposite party received ` 14,00,000.
19. According to opposite party, cost for remaining work is only Rs. 2,67,000, which means that he completed 86.5% of the total work. In that calculation, he demand ` 3,63,000 from the complainant. But he has not adduced any evidence to substantiate the contention. On a perusal of Ext. C1 report, Commissioner ascertained the work done by the opposite party and it reveals that the opposite party completed upto the plastering work. It reveals that he had done only 65% of work. The relevant portion of Ext. A1 is as follows: “`n¯n-bpsS tX¸v t\m¡n-b-Xn finishing Ipd-ªn-cn-¡p-¶-Xmbn ImWp-¶p”. Opposite party filed objection to Ext. C1. But he has not denied that, plastering work was not done by him.
20. Moreover, opposite party admits that he has not done the work of wiring and plumbing, roof tile, floor tile etc. This fact is revealed by opposite party in his proof affidavit which is as follows: “FXr-I£n 11.01.2011-þÂ t\m«okv \ÂIn-b-Xn-\p-tijw hb-dnwKpw ¹w_nwMpw \S-¯p-¶-Xn\v `n¯n sh«n s]mfn-¡p-Ibpw, tjbvUn\v ssSÂkv ]mIp-¶-Xn\v sSdkv s]mfn-¡p-Ibpw sNbvXn-«pv..”
21. As per Ext. A2, the remaining work of wiring and plumbing needed ` 2,00,000, for roof file and floor tile ` 4,00,000 and for finishing work `1,00,000. The total is ` 7,00,000. According to opposite party, he was not permitted to do the remaining work. His contention is that the cost of remaining work is only ` 2,67,000. This fact is also stated in opposite party’s objection to Commission Report which is as follows: “tjbvUnsâ dq^v ssSÂ, hb-dnw-Kv, ¹w_nwMv apX-em-bh AS-¡-apÅ cp e£¯n Adp-]¯n Ggm-bncw cq]-bpsS FÌn-taäv tPmen-IÄ ]qÀ¯o-I-cn-¡p-¶-Xn\p ap¼v FXr-I-£n¡v \nb-am-\p-k-cWw AUzm³kv e`n-t¡-n-bn-cp¶ aq¶p e£¯n Adp-]¯n aqhm-bncw cq]- XcmsX lÀÖn-I£n Xs¶ _m¡n ]Wn-IÄ ]qÀ¯o-I-cn-¨n-«p-ÅXpw……………”.
22. All the above fact and circumstances, it is crystal clear that the cost for remaining work is ` 7,00,000 and not ` 2,67,000. Opposite party had done the work of ` 13,00,000 and received ` 14,00,000, thereby he holds an excess amount of ` 1,00,000. Evidence on record shows that he has not used the said amount for any work. Therefore, the said amount has to be returnable to the complainant.
23. On a perusal of Ext. C1 report, it does not reveal that the defect occurred was not due to the work of opposite party. Considering the nature of defect shown in Ext. C1, it cannot ruled out that the defect is due to the subsequent work of plumbing, wiring etc. done by the complainant himself. Moreover, complainant has not taken due attention to appoint an expert commission to adduce better evidence. Therefore, in the absence of cogent evidence, the relief for defect in work is not allowable.
24. With regard to the delay in work, opposite party’s contention is that the complainant was not prompt in payment for carry out the work. But complainant’s stand is that it was due to the defective work. When he has asked to stop the work and continue the work only after curing the defect, opposite party was not amenable for the same. These rival contentions are not proved by both parties. Therefore, we are not inclined to allow the prayer for delay in work.
25. From the above discussion, on the basis of the observation and findings, we are of the view that, accepting excess amount from the complainant and not used the amount for work is a clear deficiency of service. Therefore, the complaint is maintainable and allowable in part. Considering the facts and circumstances of this case, no amount is allowable for compensation and cost.
26. In the result, this complaint is partly allowed, thereby the opposite party is directed to return the excess amount of ` 1,00,000 (Rupees One lakh only) with 7% interest to the complainant from the date of filing of this complaint till this date within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest from this date till the realization of the whole amount.
Pronounced in the Open Forum on this the 28th day of March, 2012.
(Sd/-)
N. Premkumar
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sheeba Manu.
Exhibits marked on the side of the complainant:
A1 : Authorization dated 20.01.2011 executed by the complainant in
favour of Smt. Sheeba Manu.
A2 : Photocopy of the building construction agreement dated
23.03.2009.
A3 : Photocopy of the building plan.
Witness examined on the side of the opposite party:
DW1 : Mathew Thomas.
Exhibits marked on the side of the opposite party:
B1 : Attested copy of plaint in O.S. No.99 of 2011 filed by the opposite
party against the complainant before the Sub Court, Thiruvalla.
B2 : Copy of Advodcate Notice dated 11.01.2011 issued by the
opposite party to the complainant.
B3 : Reply notice of Ext. B2.
Court Exhibit:
C1 : Commissioner’s Report and mahazar.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Manu. M. Thomas, Chakkalil Puliyelil, Maramon P.O.,
Thottappuzhassery, Pathanamthitta.
(2) Sri. Mathew Thomas, Vellaringattu House,
Pullad P.O., Koippuram Village, Thiruvalla.
(3) The Stock File.
