BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 16^TH DAY OF JULY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP to pay a sum of Rs.34,35,400/- along with interest at 7% p.a., as damage to the complainant and pass such other order.
2. The case set up by the complainant in brief is as under:-

The complainant is the absolute owner of site No.34, situated at Bluejay Atmosphere, in Sy.No.124/3, Yeshwanthapur Hobli, Ward No.40, Bangalore, the complainant’s son Dr.S.Shashidhar and the OP are friends since several years. The complainant son approached the OP to construct a residential building the above said property. According to the plan total construction area 3,100 sq.feet consisting of 3 floors and in third floor a room attached with toilet and bathroom and construction cost of Rs.62,20,500/-.

3. The complainant and OP have entered into contract agreement on 14.10.2021 and OP promised to complete the construction within a year from the date of commencement. Accordingly the complainant has made payments to the OP as per the agreement through her son. The complainant has made entire payment. Even after receipt of the amount the OP did not keep up his words as per the construction agreement and he has not at all completed full construction within the agreed time.
4. The main grievance of the complainant is that the OP has not laid the granite and wall tiles properly and he has not laid the granite for the floor professionally.  The granite has been laid without proper cement mortar bed as a result in many places if the complainant strike the grounds, she can hear the ground of hollowness.  The tiles laid in the bathroom and parking area have not been provided with proper gradient as a result water is getting clogged and not getting drained out properly. The tiles are used for external elevation are falling due to unprofessional work.  The quality of painting was pathetic, poor and incomplete. The electrical connections are done haphazardly and OP did not even bother to complete the electric work. The wood material for windows and door frames are not the same wood which was assured in the agreement.  The window grill rods have been driven haphazardly and none are parallel to each other. Irrespective of paying all the amount within the stipulated time and even after paying advance amount before completion of the work the quality of work has not come out as assured by the OP. The act of the OP in construction of the building which amounts to deficiency of service. The OP has failed to complete the construction work even before the house warming ceremony which was scheduled on 27.01.2023.
5. The complainant has got issued legal notice on 16.05.2023. Inspite of service of the notice, the OP has neither replied nor comply the notice amount to the complainant. The OP has not completed the work and he has not properly painted before house worming function.  The complainant has spent Rs.5,00,000/ for the completion of the entire building work which was left by the OP as part of the construction work.  Hence the complainant has filed this complaint.
6. In response to the notice, OP appeared and files version. The OP has denied all the allegations made in the complaint except the fact that the complainant is the absolute owner of the property and they have entered into construction agreement and the complainant son is the close friend of the OP.
7. It is the case of the OP that the actual scheme plan was for the area of 985 sq.feet per floor and for head room it is 145 sq.feet in all, it is 3,100 sq.feet after revised quote. It is Rs.64,54,500/- but the complainant ahs intentionally given the chart going the wrong calculation in the complaint only with an intention to create confusion. 
8. This OP has conducted every work in accordance with the agreement with the due approval of the complainant and her son and every single stage of construction.  As per the agreement the construction was supposed to be handed over by 31.10.2022 but due to innumerable changes in plan and specification the speed of the construction got affected because at every new change it needed specific discussion with the complainant and her son and approvals and changes in contract amount as well. As such it is practically not possible to hand over the construction within the stipulated time.  In fact it is the complainant who has to pay 0.05% compensation as per the agreement clause itself in addition to all other charges which the OP is going to demand in the foregoing paragraphs.  
9. It is the specific case of the OP that the changes suggested by the complainant and her son resulted in extension of timeline in construction activity by three months. The suggestions and request were with regard to major changes like elevation work, terrace floor extension and construction, terrace floor canopy, work safety cover grill work etc.  These works needed much time to shift the materials to third floor to carry out the construction activity. There are several minute details which needed complainant’s attention at regular interval but she and her son were available in weekends for discussion which posed greater impediment in completion of work.
10. It is further case of the OP that it is the common practice in any construction work one quote of painting and minor work will be retained till the interior works get over. As such when the complainant requested to hand over the house before pooja the OP has retained the final quote of painting and other minor works. Hence this OP has handed over the property by 30.11.2022 and the complainant has fixed the house warming ceremony on 27.01.2023. The OP has requested the complainant to hand over the house 15 days prior to house warming ceremony but she has not handed over the house on stipulated time instead she has handed over the house only three days before the ceremony.  OP putting aside all his other works did efforts to complete the work and prepared the house for ceremony.  He has further requested that he will complete whatever work remains after completion of pooja till that time he requested her to make the part payment keeping the amount of snag work. After that the complainant has started avoiding phone calls and the request of the OP and they have not responded properly to the emails sent by the OP.  the complainant and her son have intentionally raking up the issues which are completely new and created only for defrauding the OP. this OP has to pledge his personal jewellary to get the money to complete the work as he is responsible to make payment to his workers and to purchase of materials and it is his reputation which is at stake.
11. It is further case of the OP that the complainant son is not a lay man and he is also a civil engineer and he is working in Systra company handling metro tunnel works in Bangalore. He is working as a chief designer in the said area and has got complete idea about construction works. The complainant has planned meticulous to take advantage of the situation at hand and to cheat the OP.
12. The complainant even her son in law has also hired this OP for construction of his house which is almost similar to the house in this case and during the same time. Even he under the influence of complainant son has filed the complaint against this OP. the son in law of the complainant has not made final settlement amount including the final installment.  All the allegations made against this OP in the complaint are baseless.  Now the complainant has started residing in the said house and it is difficult to make out what are the discrepancies which they are complaining. The complainant and her son have made up their mind to fraud and cheat the OP.  This complainant has to make the payment of final two installments and a difference amount as per revised plan as well as the compensation of Rs.20 lakhs for the mental agony. Hence OP prayed for dismissal of the complaint.
13. The complainant has filed his affidavit evidence and relies on 09 documents.  OP has filed his affidavit evidence and relies on 6 documents.
14. Heard the arguments of advocate for both the parties.  Perused the written arguments of the OP and documents.
15. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

16. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

17. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence, written arguments of the OP and documents.
18. It is undisputed fact that the complainant’s son and the OP are friends and both are engineers. The complainant son has approached the OP for construction of residential building in the schedule property of the complainant measuring 3100 sq. feet consisting of three floors adding a room attached with toilet in the third floor. The total construction cost is Rs.62,20,500/-.  The complainant has entered into construction agreement as per Ex.P1 with the OP. as per the said agreement the OP has to complete the construction work within one year from the date of commencement of the work.

19. The main grievance of the complainant is that even after receiving the entire amount the OP has not completed the full construction of the building within the given time. In addition the entire construction quality including granite, cement, brick, wood quality, window quality, construction quality, tiles and painting, grill work, everything is below the quality and work was not done as per their specification.  The complainant has spent Rs.5,00,000/- to complete the incomplete work left by the OP.
20. In support of her contention the complainant has relied on Ex.P1 to P9. Ex.P1 is the copy of the construction agreement, Ex.P2 is the photographs, Ex.P3 is the copy of the legal notice, Ex.P4 is the postal receipt and acknowledgement, Ex.P5 is the copy of the bill of supply issued by OP, Ex.P6 is the online payment made by the complainant son, Ex.P7 is the copy of the bank statement of complainant son, Ex.P8 is the medical certificate and bills.
21. On the other hand the contention taken by the OP is that the actual plan for the area was 985 sq.feet per floor and for head room it is 145 sq.feet and in all it is 3100 sq.feet. After revised quote it is Rs.64,54,500/- but the complainant has intentionally given the chart showing wrong calculations. The main grievance of the OP is that he has conducted every work in accordance with the agreement as per the agreement the construction was supposed to be handed over by 31.10.2022 but due to innumerable changes in plan and specifications the speed of the construction got affected. The delay was happened due to the complainant and her son as the OP has to take approval for each and everything and he has to wait for the complainant and her son for weekend as they were available only in weekend for discussion.  The complainant and her son have also made suggestions and request for major changes like elevation work terrace floor extension and construction, terrace floor canopy, work safety cover grill.  These works needed much time to shift the material to third floor.
22. It is the common practice in any construction work one quote of painting and minor works will be retained till the interior works gets over. As per the request of the complainant he has handed over the house to the complainant on 30.11.2022 as she has fixed the house warming ceremony on 27.01.2023.  The OP has also requested the complainant to hand over the house for 15 days prior to house warming ceremony so that he can complete all the minor work including final quote of painting, but the complainant has not handed over the property on stipulated time and she has handed over the same just three days before house warming ceremony.  The OP by setting aside all his work did efforts to complete the work and prepared the house ready for house warming ceremony.  Again he has requested the complainant to hand over the house to complete the work remaining after completion of the pooja. Instead of request the complainant and her son have not handed over the house for attending minor repairs by the OP.  After that they have started avoiding the OP.  The OP has also sent his labours to complete the incomplete work after ceremony but the complainant did not give the keys of the house.  After that the complainant has got issued legal notice even though the complainant has not made the final two installments amounting to Rs.4,77,182/-.   The complainant and her son have avoided the OP to complete the work and also further neglected in and not responding to his emails or phone calls only with an intention to avoid the OP from receiving the final payment.

23. In support of his contention the OP has relied on Ex.R1 to Ex.R6.  Ex.R1 is the copy of the balance sheet, Ex.R2 is the revised area statement and payment schedule, Ex.R3 is the Bills of supply, Ex.R4 is the bank statement details and Ex.R5 & R6 are the final settlement bills.
24. During the pendency of this complaint the OP has filed interrogatories asking some questions to the complainant. In the said interrogatories the OP has questioned the complainant to give details for the amount of Rs.5,00,000/- spent by her for completion of the incomplete work done by the OP but the complainant has failed to give proper bill for the said Rs.5,00,000/- claimed by her towards the completion of the incomplete work done by the OP.
25. It is also clear from the evidence and the documents that the complainant son is a design engineering and working in Systra a company handling metro tunnel works in Bangalore and he is working Chief Designer in the said company. The complainant son and the OP are close friends and in view of this they have approached the OP for construction of their house. OP is also an engineer and both have placed sufficient evidence before this commission for the amount spent by the complainant and also amount received by the OP and the construction work done by the OP.  It is clear from the evidence of both the parties that the complainant and her son have inspected each stage of the construction and the OP has constructed the building only after final opinion given by the complainant and her son in the construction work. The complainant has produced the bill for Rs.5,00,000/- including the amount spent by her towards the house warming ceremony etc.,  the OP is only engaged for constructing the house and he is not responsible for paying any amount to the house warming ceremony done by the complainant for her house.
26. None of the parties have made any effort to value the work turned out by the OP from an independent expert. Both the complainant’s son and OP is engineer and they are placing evidence and documents in support of their cases.  When both the parties are experts it is very difficult for this commission to decide the issues on the construction work without the assistance of the independent expert opinion.
27. The burden is on the complainant to establish that the OP has constructed the building by using low quality materials.  Admittedly the complainant son is an expert and he is chief design engineer.  The OP cannot use the sub-standard material when the complainant’s son who is his friend and an expert in the engineering field.  The construction was done by the OP only as per the wish and will of the complainant and her son.  The complainant has also clearly admitted while answering the interrogatories question No.20 that she has not given the keys to the OP as he might do some unethical work in the house. When the complainant has not handed over the key to the OP he is unable to complete the work.  In addition to this the complainant has also failed to establish that she has spent Rs.5,00,000/- for completing the incomplete work left by the OP.  The OP has also failed to establish that the complainant is due an amount of Rs.4,77,182/- for the work done by him.  Admittedly the OP has not completed the work since the complainant has not handed over the keys to the OP for completing the incomplete work left by him after the house warming ceremony. Under these circumstances, the complainant has failed to establish the deficiency of service on the part of the OP. Hence the complainant is not entitled for any relief. Hence we answer point No.1 and point No.2 in the Negative.
28. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 16^TH day of JULY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;