Complaint filed on: 30.12.2015

                                                      Disposed on: 23.06.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.2096/2015

DATED THIS THE 23^rd JUNE OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

Complainant/s: -                           

Sri.Shashikumar.B.V

s/o Sri.K.V.Veerabhadraiah, R/at. No.48, 6^th cross,

Magadi main road,

Balajinagar,

Vishwanneedam post, Bengaluru-91

By Advocates

M/s.Ravi Law Associates

V/s

Opposite party/s:-    

1. Mr.Somanna,

Civil Contractor,

c/o Sadashiva,

no.5, “Shivakrupa”,

Near to Pepsi Godown, Manjunathanagar,

Tumakuru Road,

Bengaluru-73

By Adv.Sri.N.G.Puneeth, Rtd.,

2. Mr.Santhosh Gowda,

Engineer,

no.73, 2^nd cross,

2^nd main, Soap Factory

layout, Nagasandra layout, Bengaluru-73

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging the deficiency in service against the Opposite party no.1/civil contractor and Opposite party no.2/Engineer in constructing the building in his site property no.48, Balaji nagar, Bengaluru-91 and thereby has claimed Rs.2,80,000/- towards completing of the pending works with compensation of Rs.5 lakhs.

          2. The case of the Complainant in brief is that in terms of the agreement dtd.18.09.13, Opposite party no.1 being the civil contractor and Opposite party no.2 being the engineer had to construct the building in his site no.48 as per the specifications and to handover it within 8 months. The said works was valued at Rs.40,20,000/- payable at various stages of the said construction. He gave up the idea of constructing 2 square room on the top floor and thereby it was reduced to 38 lakhs with the consent of both the parties.  He paid Rs.36,20,000/- as on 26.08.14 and paid further Rs.30,000/- and he had to pay the balance of Rs.1,50,000/-. He noticed the sub-standard of items of electrical and plumbing items and insisted for replacement with standard items which was not carried out. Civil works still kept pending and hence the last balance payment is withheld. The Opposite parties left the building in unfinished condition and inevitably he took the possession and started staying therein after shifting from rented house. The Opposite parties though agreed to complete the work before the police in May 2015 quoted for Rs.4 lakhs. Hence he issued legal notice informing about the balance work and the additional rents of Rs.30,000/- paid by him towards the delay in completing of the work and it was replied with untenable reply. Hence this complaint.

          3. Both the Opposite parties appeared through their counsel Sri.N.G.Puneeth on 04.05.16 and later did not participate in further proceedings. On 17.09.16 on receipt of Rs.80,000/- from the Opposite party no.2, the Complainant filed memo and got this complaint dismissed against Opposite party no.2. The advocate for Opposite party no.1 later filed retirement memo along with RPAD receipts. Hence there is no defence by the Opposite parties.

          4. The Complainant filed his affidavit evidence relaying on Ex-A1 to A12 documents.  Arguments were heard.

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the alleged deficiency in service in constructing the building in his plot by the Opposite party no.1/civil contractor ?  
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that the Complainant entered in to agreement of material and labour contract for construction of multistoried residential building as owner of the site no.48 of Balajinagara, Vishwaneedam post, Bengaluru with the contractor/Opposite party no.1 and the engineer/Opposite party no.2 subject to the terms & conditions mutually agreed for the estimated value of Rs.40,20,000/- as per Ex-A1. The stipulated period to complete the construction and to handover the building was 8 months. The Complainant paid the amount in various intervals of work as on 26.08.14 amounting to Rs.36,20,000/- as shown in Ex-A2/statement details supported by pass book entries/Ex-A12 and written entries/Ex-A11.

          8. It is also undisputed that the Complainant started residing in the incompletely constructed building and later issued the notice/Ex-A7 dtd.03.07.15 making allegations of substandard items of electrical and plumbing used in the construction place demanding Rs.4,80,000/- from them. It was replied by both the Opposite parties through reply notice/Ex-A8 dtd.30.07.15 denying the allegations made against them contending that true facts are not narrated by him. Both the Opposite parties in the reply notice/Ex-A8 contended that it was not the site given to them but there was already a house measuring 30’x20’ in the site 30’x40’ property, wherein they were asked to put up the multistoried building. That the Complainant who was a quarrelsome person using abusive language, objected unnecessarily, interfering in to their work to the extent of even the labourers left the job and that he used to make the payment in belated stages as against the terms which made both of them to continue the construction work at their cost and thereafter to collect the amount from the Complainant. There was delay of more than 3 months in making of payment of 10^th stage and thereby there is no intentional delay in handing over of the possession. They used all good standard materials as the reputed professionals in the area. The police complaint as per Ex-A6 lodged by the Complainant was ended with advice to both of them to settle the dispute amicably. There is no deficiency in service by them.

          9. The Complainant by issuing the re-joinder/Ex-A9 dtd.03.10.15 has denied the escalation of the prices of the materials and the allegations made against him by the Opposite parties.

          10. The Opposite parties no.1 & 2 appeared through their counsel Sri.NGP but have not filed their versions. On 24.08.16 the counsel for the Complainant reported possibility of settlement. On 17.09.16 the Complainant filed memo reporting the receipt of Rs.80,000/- from Opposite party no.2 expressing his view to proceed only against Opposite party no.1 thereby the case against the Opposite party no.2 has to be treated as dismissed.

          11. The counsel for Opposite party no.1 filed retirement memo on 20.10.16 and thereafter none appeared for Opposite party no.1.

          12. The Complainant has relied on 11 photographs as per Ex-A3 alleging the defects and deficiency in service against the Opposite parties. The pages no.4 & 5 show the agreed quality of the materials to be used for construction work. His contention that he has retained Rs.1.5 lakhs as the final amount and paid all the balance amount stagewise, if compared with the payment particulars of page no.6 of Ex-A1/agreement, it shows he had to pay Rs.2 lakhs as last instalment and Rs.2,20,000/- as the last but one instalment, it has to be paid after completion of the electrical, painting and sanitary fittings. The contents of the Ex-A1 & A2/agreement and photos shows stage of the finished work of painting with electricity power taken.

13. In reply notice the Opposite parties have stated about the escalation of price of about Rs.2 lakhs in purchasing sand & cement bags, Rs.30,000/- & 20,000/- towards electrical and plumbing works, Rs.30,000/- towards price of wood. They have also stated that they had already invested Rs.20,000/- towards the construction work at 2^nd floor before cancelling of 2 balcony doors by the Complainant. They also have stated about the tank room constructed on terrace at the later request of the Complainant at the cost of Rs.20,000/-. Similar responsibilities borne out by them at their cost were stated with the allegation that their request for renewal or fresh agreement being postponed by the Complainant were never complied and thereby the Complainant who was benefited by their work has been trying to avoid making payment of the cost actually met by them.

14. The allegations and counter allegations made by both the Complainant and the Opposite parties merely on the basis of these photos and the estimation slip/Ex-A5 cannot be decided. Ex-A5 denotes certain new words about the places namely rented house and of the 2^nd floor. The requirement and compliance about replacing of marbles, damage due to negligence, providing of second coat washable paint, fixing by plywood and unexplained expenditure of Rs.15,000/- already spent and water proof mess work on the terrace worth Rs.24,200/- do not find place in the agreement and not properly explained.

          15. The responsibility of the contractor and the engineer in the said construction work is not differentiated. How the payment of Rs.80,000/- was adjusted is not explained with reference to allegation and settlement towards the work of the Opposite party no.2. Such being the case the Complainant has failed to prove the case against the Opposite party no.1. In the result Consumer Dispute no.1 is answered in the negative.

          16. Consumer Dispute No.2: In view of findings of the Consumer Dispute No.1 the Complainant deserves to get the following:

ORDER

          The CC.No.2096/2015 filed by the Complainant is hereby dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 23^rd June of 2017).

Copies of Documents marked on behalf of Complainant/s:

Copies of Documents marked on behalf of Opposite party/s