BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 18^th January 2017

PRESENT

  SRI VISHWESHWARA BHAT D      : HON’BLE PRESIDENT

  SRI T.C. RAJASHEKAR                   : HON’BLE MEMBER

  SMT. SHARADAMMA H.G               : HON’BLE MEMBER

ORDERS IN

C.C.No.271/2013

(Admitted on 07.10.2013)

Mrs. Mukthi V. Shetty,

W/o late Vijaya C. Shetty,

Aged 49 years,

Residing at Maladi, Bangra Kuloor,

Mangalore.

                                                                                      ….. COMPLAINANT

(Advocate for the Complainant: Sri KP)

VERSUS

Mr. Praveen Kumar,

S/o Lingappa Poojary,

Aged about 38 years,

Civil Contractor Yeyyadi,

Dandakeri, Mangalore.

                                                           ….......OPPOSITE PARTY

(Advocate for the Opposite Party: Sri SS)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

The admitted facts are that the complainant entered into an agreement with opposite party to the construction of residential house measuring 1200 sq ft with agreed rate at Rs.1000/ per sq ft and the construction work will be completed by 31.3.2013 payments were Rs.4,00,000/ at the time of foundation, Rs.3,00,000/ at the time of slab of ground floor and another Rs.2,00,000/ at the time of slab of first floor and the  balance amount at the time of completion of building.

2.     The complainant further asserts even after extension of time and the complainant had to perform the house warming ceremony in an unfinished state on 2.6.2013.  The opposite party agreed to finish the work by 9.7.2013 but did not complete the work as agreed the work done by opposite party is not satisfactory and defective and used low quality materials.  He had fixed block board door, windows, grills, shutters are no fixed to the wall properly and they are unsecure door and bathrooms and the bathroom windows are not at all secure.  The water from bathroom from first floor percolates to kitchen, water pipes are not properly fitted, not properly plastered walls patches are visible on the walls outside and inside the house, and the electric wires are of inferior quality.  The opposite party has collect 10,10,000/ from complainant and complainant has supplied the vitrified tiles and ceramic tiles work and opposite party stopped the work in the middle.   The cost of the work done by opposite party is Rs 8,00,000/ only. But they collected extra from complainant and issued a bill for Rs.12,72,431.15 an inflated bill. The opposite party stopped construction work on 10.7.2013 without completing it and failed to refund the extra amount collected from complainant. Contending that the complainant had suffered loss of Rs.3,00,000/ due to defective construction and as opposite party failed to comply the demands to pay the amount and also compensation of Rs.1,00,000/ seeks the relief claimed in the complaint.

II.      Opposite party has denied the allegation made in the complaint. Further he has stated the complainant after satisfying the work done by the complainant at Abbakka Nagar Layout at Urva, Mangalore City of one Smt. Usha and others negotiated from with opposite party in the house of Smt. Usha and that opposite party agreed for construction as per the specifications which include flush doors and block board door to the main door and the flooring will be that of vertified tiles, iron grills with aluminium windows, iron railings for the steps to go to the first floor.  As also agreed no sit out in front of the house and no steps would be provided to approach the terrace was denied.  The opposite party agreed to construct the 1200 sq ft at Rs.1000/ per sqft.   The complainant got prepared plan through her engineer at the time of the dig pits to put the foundation.   The complainant insisted for 8 feet deep pit to have strong foundation and the opposite party obliged and has put very strong foundation even at the time of construction of the foundation as per plan it was two feet above from the ground level but at the instance of the complainant it was raised about three & half feet as per plan there is 5 feet pit to lay the pillars and 1 ¹/₂ feet raised.  Opposite party warning the complainant not to vary from the Engineer’s plan as so far as the dimension is concerned would not come within the permitted set back rules the complainant insisted and directs opposite party was client on constructing the house after two months of the construction the complainant was not sanctioned with the bank loan as such she could not pay as per the agreement and requested to stop the construction.  The complainant wanted to shift one of the toilets from the first floor from one side of the building which was originally provided as per the plan to another side of the building. The depth that was provided laying the slab was close and the toilet was shifted to another area and though that was provided. At that time opposite party made it clear without providing a depth the bathroom will lead to complication on a future again.  Opposite party ready to open up the floor at his cost and to show the depth that been closed on the first floor at the instance of the complainant. The opposite party has made a provision for steps to the terrace that the complainant told that she will make grill steps from the outside.  The opposite party has made clear that at the time of laying the ground floor slab minimum of nine inches of projection has to be provided beyond the line of the wall of the building to avoid running of percolation of rain water all throughout the wall during monsoon season. But at the insistence of complainant the projections was not provided.  On 6.6.2013 at about 3.00 P.M the complainant’s son along with some persons came to the site and hit to the face of one Prasad one of the worker of the opposite party by granite stone for no reasons.  There was a police complaint against complainant’s son.   The labourer’s refused to work in the complainant’s site for more than 15 days due to the incident then due to persuasion by opposite party they proceeded with the work.  The opposite party completed major portion of the work by engaging 22 labourers and by arranging for generator for electricity.  Suddenly on 10.7.2013 complainant with her son came to take possession directed to opposite party not to precede the work.  On the promise of complainant to make balance payment after jointly to the measure value of the bill through competent engineer the complainant did not cooperate for the same.  Then opposite party on approaching Station House Officer, Urva Police Station on their advice got the measurement done by the engineer and prepared bill for Rs.13,56,668.20.   After deducting towards incomplete work amount comes to Rs.12,72,431.15 due from complainant.  The measurement of construction work done was 1350 sqft to avoid payment of the balance amount of Rs. 2,62,431/ the complainant had come up with the false complaint.  Contending there is no consumer and service provider before the Forum has no jurisdiction and the complainant has to approach the Civil Court.  Hence seeks dismissal.

2.     In support of the above complainant Mrs. Mukthi V Sheety filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked Ex.C1 to C21 and Commissioner Report as Court Document No.1 as detailed in the annexure here below.  On behalf of the opposite parties Mr. Praveen Kumar (RW1) Civil Contractor, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R4 as detailed in the annexure here below.

In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of arguments earlier.   We have considered entire case file on record including evidence tendered by the parties.  Our findings on the points are as under are as follows:                        

               Point No.  (i): Affirmative

              Point No.  (ii): Partly Affirmative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i):  There was a written agreement between complainant and opposite party with specifications of the construction of the residential building marked at Ex.C1 is admitted by both sides.  Complainant who sought construction of the house and the opposite party who agreed to construction of house as specified at Ex.C2 service provider is established. The work entrusted to opposite party is not completed is also admitted facts. The complainant alleged poor quality of work execution by opposite party and not completing the construction work in time by opposite party and the allegation of opposite party on failure of the complainant to pay the amount is indicated a live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer Point No.1 in the affirmative.

POINTS No.(ii): In this case one Mr. Mohan Raj G.S, Karnataka Government Polytechnic was appointed as Court Commissioner to report and inspect the nature of construction done and executed by opposite party for complainant. Court Document No.1 is the said report filed by the Court Commissioner. In his report he specifically mentions the building construction work of complainant is not satisfactory and the work is not completed and he also mentions the iron grills fixed were defective even in fixing aluminium window walls also found defective.  He also mentions there was no sufficient arrangement made for draining out of the rain water from the terrace. He also mentions the operation capability of the fixtures to doors and windows is defective and the aluminium ventilators fixed to the bathrooms were also defective.  And it may provide entry to an unauthorized person from outside.  He also mentions the iron rods fixed on to the North Eastern side near pillar and the some of the iron rods fixed to the window sunshade were also defective and technically not correct. He also pointed out some more defects found in the building. 

2.     Of course some of the objection were filed to the Commissioner’s Report examination of the Commissioner was not sought.

3.     Suffice to mention in respect of certain changes effected to the construction of the building namely shifting of the bathroom in the first floor and resultant not providing the depth leading to leakage is not disputed by complainant in as much as complainant did admit on her request the location of the bathroom in the first floor is shifted.  Even in respect of not providing the 9 inch projection than the wall as protection to the wall from the rain water was not provided in view of the incidence of complainant resulting to damage involved. This aspect is admitted by the complainant in her reply to the interrogatories as seen answered from question No.26.   In fact the complainant in answer to question No.46 as loss of amount at Rs.8,00,000/.   She has answered that was made by engineer. But no such separate estimation substitute to the work done by opposite party is produced by the complainant.

4.     Thus it is clear from the evidence available on record there were numerous defects in the construction carried out by opposite party in the construction work of the complainant’s residential house.  It is also claimed that some of the changes from the original plan in the construction was effected by opposite party at the insistence of complainant that led to certain defects in the building like not providing the 9 inch projection to rain water seeping to the wall due to change of first floor bathroom resulting in providing outlet pipe without depth leading to dirty conditions on the wall.  As such in the respect of these aspects the complainant has to blame herself. 

5.     As to the claim of complainant of not utilizing the agreed materials for construction of the door as seen from Ex.C1 the agreement entered between the parties clause 6 reads thus:

6. The Second party shall lay vitrified tiles to floors, aluminium shutters to windows, fibre doors to bath rooms and bed rooms, wooden door to main entrance, quality paint as agreed by First Party.

Thus as to the nature of material used to the construction of work tiles, window shutter, fibre doors to bathroom and bedroom and wooden door to main entrance is provided in agreement itself.  Hence complainant cannot complain on these aspects. 

6.     As seen from the photograph produced and the evidence and marked in this case there were numerous defective constructions as already observed in respect of window doors and ventilator the bathrooms.  As seen from Ex.C11 the photograph of the window shutter indicates there is gaping hole on the right side indicative of defective construction.  Ex.C15 is photograph of the foot steps leading to the door of the house and there is not even plastering done.  Similarly Ex.C17 of photograph also indicates the fixing of the window grill is not properly done there is also no foot step to the house.  Thus we are of the view that the construction done by opposite party to complainant is defective. 

7.     As to the claim of opposite party that in all on measuring to construction work carried out by him at constructed area of 1350 sqft.  But there is no document produced to substantiate this claim. 

8.     Ex.C20 is a report by one Mr. K Ramprasad, Consulting Engineer. Dated 20^th July 2013 in respect of the house of complainant he mentions the pending work at he has calculated the pending work at Rs.78,724/.   There is no mention made by him of any additional construction work beyond the agreed extent of 1200 sqft.  In fact even the Court Commissioner in his report Court Document No.1 has specifically mentioned that there is no excess construction work executed by opposite party and that constructed area is only 1109.18 sqft only.  Hence the claim of opposite party on this count is rejected. 

9.     Thus it is clear from the evidence discussed there is deficiency in service on the part of opposite party in the execution of the work entrusted to him by complainant for the construction of residential house as at Ex.C1 the agreement.  As mentioned under Ex.C20 pending work was assessed at Rs.78,724/ considering that the poor quality of the work the complainant which were complied by opposite party the complainant assessed the damages measured at Rs.3,00,000 the Court Commissioner has not assessed the poor quality of the work in his report.  In the circumstance we are of the view on non standard basis assess the loss to the complainant on this count at Rs. 1,50,000/ is just and proper.

10.     As to the compensation claimed by complainant against opposite party for incomplete work executed and poor execution of the work she had sought an amount of Rs.2,00,000 on this count in our view compensation of Rs.2,00,000 will meet the hands of justice.  Hence the total compensation with the agreed amount at Rs.1,000/ per sqft for 1109.18 sqft comes to Rs.11,09,180. The complainant had paid Rs.10,10,000/ to opposite party on that count she is due a some of Rs. 9180/ only to opposite party.  Hence Rs.9,180/ only is the amount due on this count by complainant to opposite party.

11.     The complainant has contended opposite party is responsible in respect in delay of the construction of the work and for not completing the work in time.  However to the specific question raised by opposite party that due to delay in sanction/release of the loan made by bank to complainant the construction work was stopped by the opposite party.   The complainant had not given any specific answer to this question in her reply affidavit. Hence the claim of opposite party that there was delay due to release of the fund to complainant has to be accepted.  Hence on this count the complainant cannot blame opposite party.

12.     Secondly there was some incident at the site on 6.6.2013 when complainant’s son assaulted a labourer engaged by opposite party in the construction work that led both the parties to the police station ultimately it resulting in settlement of that criminal dispute.  However the assertion made by opposite party that due to this incident of assault his labourer’s refused to execute any work in complainant’s construction site was not specifically denied by complainant. In the circumstance on the head of damages to complainant an amount of Rs.50,000/ in our view will meet the ends of justice. 

13.     Total compensation which the opposite party is directed Rs. 4,00,000/ less 9,180= 3,90,820. Hence answer point No.2 partly in the affirmative.

POINTS No. (iii): Wherefore the following order

ORDER

The complaint is partly allowed with cost. Opposite party is directed to pay Rs.3,90,820/ (Rupees Three lakh Ninety thousand Eight hundred Twenty only) to complainant with future interest at 8% per annum from dated of petition till the date of payment.

2.     Advocate fee fixed at Rs.5,000/-(Rupees Five thousand only).

3.    Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 12 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open         court on this the 18^th January 2017)

             MEMBER                                    PRESIDENT

(SRI T.C. RAJASHEKAR)         (SRI VISHWESHWARA BHAT D)

D.K. District Consumer Forum         D.K. District Consumer Forum

 Additional Bench, Mangalore           Additional Bench, Mangalore

                   MEMBER

      (SMT. SHARADAMMA H.G)

  D.K. District Consumer Forum                   

   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mrs. Mukthi V Sheety

Documents marked on behalf of the Complainant:

Ex.C1:             : Agreement entered into with opposite party

Ex.C2: 2.9.2013: Copy of Lawyer’s Notice

Ex.C3: 6.9.2013: Reply sent by opposite party

Ex.C4  C18     : Photos

Ex.C19:           : Bill given by opposite party

Ex.C20:           : Estimation given by Engineer K.Ramprasad About the pending work  

Ex.C21:            : CD

COMMISSIONER’S REPORT:

Court Document No.1

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Praveen Kumar, Civil Contractor

Documents marked on behalf of the Opposite Party:

Ex.R1: 07.06.2013: NCR No.276/13 issued by the Station House Officer, Kavoor P.S. Kavoor, Mangalore (True Copy)

Ex.R2: 07.06.2013: Complaint given by Prasad to Kavoor P.S (True Copy)

Ex.R3: 12.06.2013: Endorsement issued by Kavoor P.S (True Copy)

Ex.R4: 07.06.2013: Statement of Rithesh given before the Kavoor P.S. (True Copy)

Dated: 18.01.2017                                    PRESIDENT