D.O.F:09/08/2018
D.O.O:30/10/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.134/2018
Dated this, the 30th day of October 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Sureshan.C.V
S/o V. Kannan (Late)
Sunil Nivas, Ajanur (P.O) : Complainant
Kizhakumkara, Kanhangad, Kasaragod
And
Mohanan.K
S/o Kannan. (Late)
Kaddattil – House
Kizhakkumkara : Opposite Party
Ajannur (P.O) Kanhangad
Kasaragod
(Adv: Sudhir.M & T.C Narayanan)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The facts of the case in brief are as follows:
The Opposite Party is a building contractor. Complainant availed the service of the Opposite Party for completing the construction work of his house. An agreement dated 27/12/2017 is entered into between the parties. As per the agreement the Opposite Party agreed to finish the masonry work, plastering, tile work, partitioning the room by arranging materials and all for Rs. 7,70,000/-. The complainant has to pay the amount through bank agreed to between the parties.
The complainant deposited Rs. 1, 50,000/- being the first instalment on 28/12/2017 and thereafter he deposited the entire amount as agreed. It is stated that out of Rs. 7,70,000/- and amount of Rs. 2,70,000/- was to be paid only after the completion of the work. As per agreement between the parties the work was to be completed and the key of the building shall be handed over to the complainant by Opposite Party on or before 15/03/2018. The complainant has paid the entire amount as agreed to the work as agreed and thereby complainant suffered much hardships and monetary loss. It is stated that the complainant is running a cycle shop in the house building, there is provision of shop room and a go down for the cycle. The above cycle shop is now in a rented building and the complainant is paying Rs. 6500/- per month towards rent. Since the Opposite Party has not finished the construction work as agreed the complainant could not shift the shop from the rented building and thereby losing Rs. 6500/-every month. It is also stated that even though the Opposite Party has agreed to use good quality and standard materials for the construction. Opposite Party has used only very low standard materials. Because of that the tiles are damaged. There is leakage in the building everywhere. The wood used for the doors and windows are of low quality due to which there are cracks everywhere. The construction of the floor is not done in correct level because of that water is still remaining in the floor, when complainant demanded the Opposite Party to rectify the defects Opposite Party humiliated the complainant. Hence the complaint. There is gross negligence and deficiency in service. On the part of Opposite Party due to which complainant suffered mental agony and hardships apart from the monetary loss. It is stated that Opposite Party is liable to pay Rs. 7,40,000/-and also liable to pay Rs. 32,500/- being the rent paid by the complainant for five month to the shop.
The notice issued to Opposite Party was duly served not appeared set exparte. In the meanwhile Opposite Party filed a petition dated 14/11/2018 to set aside the exparte and it was allowed. Opposite Party filed written version on 12/02/2019 denying all the allegations, using of law quality materials or non-standard items. Opposite Party used good quality materials as required and no deficiency in service and prayed for dismiss the complaint.
Complainant filed chief affidavit and cross examined as Pw1 Ext A1 to A3(series) marked from his side. Ext A1 is the agreement dated 27/12/2017, Ext A2 is the bank statement A3 series are photographs. Opposite Party filed chief affidavit produced tax registers marked as Ext B1 to B6 (Series) Expert filed his report marked as Ext C1. An IA 268/19 is filed challenging the maintainability on the ground it is a commercial purpose. Since the evidence is started and parted it is rejected subject to the consideration while passing final orders.
Further it is not for commercial purpose, as service are rendered on residential purpose and consumer complaint held as maintainable at law.
Thus in this case following points arise for consideration
- Whether complaint is maintainable at law. Answered in the positive supra.
- Whether there is any deficiency in service on the part of Opposite Party
- If so what is the relief and costs?
For convenience both issues can be considered together.
The specific case of the complainant is that Opposite Party has agreed to finish the construction work of the house building of the complainant, as per the specification mentioned in the agreement dated 27/12/2017 for an amount of Rs. 7,70,000/-. But Opposite Party failed to finish the work in time due to which caused monetary loss and hardship to complainant. And the also the construction by Opposite Party is defective and the materials used are of law quality. As per the document the agreement entered into between the complainant and the Opposite Party it is seen that, initially no time is fixed for completion of the work. But in the overleaf it is hand written that the key to be handed on 15th March 2018 after completion of work.
As per the agreement the complainant has to pay Rs. 5,00,000/- in instalments of 1,50,000/- Rs. 1,00,000/-, Rs. 1,00,000/-, Rs. 20,000/- to the Opposite Party through his bank account and the remaining Rs.20,000/- to be paid after the completion of work. Ext A2 bank statement shows that the complainant has performed his part satisfactory. The building construction was completed the key was handed over by the Opposite Party to the complainant only after 5 months. During the construction there was scarcity of sand, the Opposite Party was constrained to use M. sand the total amount was re-fixed to Rs. 7,40,000/- instead of Rs. 7,70,000/- any way Ext A2 shows that the complainant has paid further amount of Rs. 2,55,000/- during the period in between 21/03/2018 and 23/07/2018.
In Ext C1 report it shows that ground floor is used as cycle shop. Some tiles of 300 X 300 mm are found broken. According to him it may be due to incorrect mixing of cement or its filing up work done by unskilled workers. He could not give correct details of damaged tiles because of storage of articles in the space. He did not find any defect to lateriate or plastering works.
Expert evidence shows that tiles were broken after 2 months after its fixing. It requires 28 days to fix it on ground. It also admit that there is possibility to break the tiles when articles of heavy weight is stored the above the tiles. Pw1 admits he has no objection to Ext C1report cycle and its accessories were shifted within one week of handing over the key.
Opposite Party admits execution of Ext A1 agreement in his evidence while examined as Dw1. He deposes that he stated in chief affidavit that he is not entrusted with any work. But it is not correct. He admits that plastering work is entrusted to him. But he admits in his affidavit it is stated otherwise but it is explained as by oversight. He also admits receipts of Rs. 2,00,000/- by credit in bank. He fairly admits key should have handed over is March 2018 but handed over only in July 2018 but delay is due to non availability of materials in time.
On the basis of documentary and oral evidence including expert opinion, it is found that the complainant has performed his part of agreement satisfactorily. Hence the Opposite Party was bound to finish the work as per the specification of the agreement and hand over the key within time. Here it is stated that the Opposite Party delayed the completion of work for 5 months. And because of that the complainant could not shift cycle shop from the rented building. He lost an amount of Rs. 32,500/- by way of rent at the rate of Rs. 6500/- per month. The quality of work is very low. The flooring is not in correct level. Low qualities tiles are used there are not correctly fixed. There is leakage and damaged. All these shows that Opposite Party has not done the work satisfactory. Therefore the commission holds that there is negligence and service deficiency on the part of the Opposite Party. Cost of damaged tiles and replacement and other claims are rejected.
Therefore complaint is allowed in part and the Opposite Party is directed to pay the complainant an amount of Rs. 50,000/- (Rupees Fifty thousand only) towards the compensation for deficiency in service and also directed to pay sum of Rs. 10,000/- (Rupees Ten thousand only) to complainant towards the cost of the proceeding. Time for compliance is 30 days from the date of receipt of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Agreement
A2- Bank statement
A3- Photographs
B1- to B6 – series –Tax registers
C1- Expert Commission report
Witness Examined
Pw1- Sureshan.C.V
Pw2- Madhu.P
Dw1- Mohanan.K
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
