DATE OF FILING:11/12/14

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  25th  day of April  2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

           SRI. BENNY. K. MEMBER

CC NO. 407/14

Between

Complainant       :  Dijo Mathew,

                                                                             Naduvathettu House,

                                                                             Kurinji P.O.,

                                                                             Ramapuram, Kottayam District. 

(By Adv: K.M.Sanu)

And

Opposite Party                                          :   Kunjikkannan P.G.,

                                                                         Proprietor,

                                                                         2 Day Builders & Developers,

                                                                         Adam Star Complex, Muvattupuzha Road,

                                                                         Thodupuzha.

(By Adv:   George Joseph)

 

O R D E R

 

SRI. S. GOPAKUMAR (PRESIDENT)

The case  of the complainant is that, 

 

         Complainant is working in Gulf Country. Complainant had entered into an agreement with the first opposite party for doing some additional extension works in his newly constructed house. As per these agreement dated 01/08/14 opposite party  agreed to construct stair case upper roofing, by using Alumin Zinc sheet.  Additional hand rail work to the stair case, paathy works by using 8' inch heavy PVC pipes for collecting water to the rain water reservoir.  Also agreed to  construct stair case by using quality steel etc.  For that purpose the opposite party produced a quotation stating the rate and quality of materials which he intented to use the above said  works.  As per this quotation the opposite party agreed to construct  the stair case beam by using 14 gauge  and 16 gauge steel materials having Rs.8000/- per meter.  Agreeing to the terms and specification in the quotation, complainant allowed the opposite party to start his works.   After  some  days  the  complainant noticed that, the opposite

                                                                                                                           (Cont....2)

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party had not completed the work, and the work done by him is also defective, noted that the opposite party used welded pieces of pipe for pillar of stair case instead of a single steel pipe.  It caused less strength in the stair case also noted it is shaking when somebody walks through it or when wind blows.  Also noted that the hand rails of the stair case was not fitted in proper way.  On further inspection, complainant noted that the materials which is used for constructing the stair case and other parts are  inferior in quality and is having no finishing.  Further work of hand rail was not done by the first opposite party.   Moreover it is noted that the opposite party cut and removed some portion of pillar of the truss work already constructed, without the consent of the complainant.   Complainant further noticed that, the PVC paathy filled in the roof for collecting rain water, was poor in quality and some portions of the paathy is bended and due to  that the water collecting from the roof cannot flowing toward the rain reservoir and the water falls to the earth due to the defect in filling the PVC paathy.   The purpose of water collection is totally failed and major portions of the rain water  falls to the ground.  It is also noted that for filling  the PVC paathy, opposite party removed three lines of tiles which is filled in the roof scientifically and in a row.  Due to the removal of the tiles the beauty of the new building was lost.  These all caused due to the in experienced  labours engaged by the opposite party, who carried out the job carelessly.   Complainant noted that most of the work which is agreed by the opposite party is incomplete and is having no finishing and the material which the opposite party is used  were inferior in quality and is against the  agreement and quotation he was executed in  the favour of the complainant.  For this work complainant had given an amount of Rs.1,97000/- to the opposite party in total.  But the opposite party is miserably failed to extent his service to the complainant as agreed.  Alleging deficiency in service against the opposite party, complainant filed this petition for directing the opposite party to cure the defective construction or else direct him to repay the amount which he was received from the complainant with  interest and  also direct him to pay compensation and cost  to the complainant.

 

     Along with the complaint.  Complainant filed an interim application for appointing an expert in building construction field  for ascertain the matters in the Commission application and reporting it to the Forum along with an estimate   for   curing   the   defect.  As   per   the   prays   of   the   complainant 

 

                                                                                                                          (Cont....3)

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G. Sreekumar, Engineer LSGD Section, Karimkunnam was appointed as expert Commission.

 

        Upon notice opposite party entered appearance and filed reply version, by denying all the averments in the complaint.  In his version opposite party contended that, the complainant denied the intention of the opposite party to enter into a proper contract for the execution of the work  telling that, it is only gentle man agreement and more over the work is completed accordingly to the instruction regarding the changes to be made while the work is going on.  About 98% of the work is completed and the materials used are as contracted.  The defect alleged and the possibility of danger, lake of finishing, infirmity etc are  only imaginary.  The materials used are not as advised by the opposite party, but contracted between  parties.  Further contended that, the opposite party has  not cut and use the pillars on terrace or use it for stair case, and the materials are used for the paathy work are as contracted, and with sufficient clamping.  The tiles removed for the fixation of paathy were re-laid.  More over, till date the opposite party  has received an amount of Rs.1,45,000/- from the complainant instead of Rs.1,95,000/- as alleged and the opposite party is not liable to conduct work on PWD rate as claimed by the complainant.

 

      Opposite party further contended that as per the contract, the completion of the work of staircase, the complainant is liable to pay to the opposite party 60% of the amount, that amount comes to Rs. 2,00,000/-, but only Rs.1,45,000/- is paid and the complainant evaded from paying the balance amount, further the opposite party  had spent an amount of Rs.30,000/- for the remaining work.  So now an amount of Rs.85,000/- is due from  the complainant to the opposite party.

 

        Opposite party further contended that, he is ready and willing to complete the work as agreed even though he is not liable under contract to do so, if the complainant pays the balance amount due to him.

 

       Evidence adduced by the complainant by way of proof affidavit , witnesses and documents.  Complainant was examined as PW1 and Exhibit P1 to P4 were marked.  One Joby Thomas, Complainant's brother – in -law examined as PW2, Ext.P1 is the copy of quotation cum agreement dated 01/08/14, Ext.P2 is the details  of  payment to the opposite party, Ext.P3 is the statement of account of

                                                                                                                            (Cont....4)

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State Bank of Travancore from 20/07/14 to 07/10/14, Ext.P4 is the print out of whatsApp Message  and Ext.C1 is the Expert Commission Report.  From the defence side, no oral or documentary evidence is produced.

 

Heard both sides,

 

        The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

The Point:-  We have considered the submission made by the counsel for the complainant as well as the opposite party and gone through the materials on record.

 

        Ext.C1 is the expert Commission Report as per which the expert noted the defect in the construction and reported the same along with the detailed estimate.

 

       The main thrust of argument of learned counsel for the complainant was that the opposite party deviated from the Ext.P1 agreement and quotation and partly done the construction with inferior quality of materials and is having no finishing at all.  More over opposite party  for the construction work discussed in the complaint, opposite party engaged in competent labours and they caused much damages to the roof, tiles, already laid by there and it soiled the entire beauty of the building.  More over complainant invested a huge amount  for harvesting  or collecting the rain water by constructing a rain water reservoir with water filters.  For that purpose he engaged the opposite party fitting the paathy all over around the roof of the building.  But due to the uneven filling of the PVC duct  with clamp, it bented in most places, and  due to that the water flowed outside duct to the earth and a little portion of the rain water flowed towards the rain water reservoir.  Due to this the purpose of rain  water reservoir is not full filled or not served and it caused much  water deficiency in almost all months.  The learned counsel  summarised his argument that the entire work carried out by the opposite party with the help of un expert labours with out his supervision, even though he received an amount of Rs.1,95000/- from the complainant.  This act of the opposite party caused  much  mental  agony  and  financial  loss  to the complainant and even 

                                                                                                                           (Cont....5)

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though the complainant contacted him personally and through mobile phone, he failed to complete the work with quality materials and cure the defect of the works.  Hence the opposite party is liable to compensate the  complainant adequately.

 

        On the other hand the learned counsel for the opposite party  vehemently argued that, the Ext.C1 report is  biased and for that the opposite party filed detailed objection.  More over the materials used by the opposite party as per the contract and the construction was done with well experienced hands in this filed with his direct supervision.  About 98% of the agreed work is completed.  The complainant is indebted to pay an amount of Rs.85,000/- still.  In order to escape from the balance payment, that the opposite party legally entitled, the complainant filed this petition without having any bonafide and to cause losses to the opposite party.  Hence the complainant is liable to be dismissed with cost.

 

        Perusal of Ext.P1, quotation and Ext.C1 Commission Report, it is seen that, opposite party used some inferior quality materials for the construction and the work done by the opposite party is very defective.  The expert Commission noted every nuke and corner of this construction and reported it in detail.  Along with the expert report, the Commission filed an estimate  report, prepared it for the construction of stair case and bridge portion at south side of the residential building of the complainant Commission reported that steel tubular section are used for construction of stair case and bridge portion.  Roof covers is done with GI sheet roofing.  Thickness of tubular section are measured using screw gauge.  Unit weight of tubular section is considered for arriving the rate.  The painting done over steel section at various portions is in dilapidated stage and requires repainting.

 

         Even though opposite party filed an objection to the Commission report in four or five lines, no scrap of evidence is produced before the Forum for contradicting the findings of the expert.  No effort was taken to examine the  expert and no objection was raised in marking Ext.C1 Commission report.  In the reply version opposite party specifically stated that he used the quality materials for the construction as per the agreement and completed the work up to 98%.  To substantiate their version also opposite party failed to produce any supporting evidence.  At  the  same  on  going  through Ext.P3 print out of

                                                                                                                           (Cont....6)

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whattApp message  of  the  complainant  and  the  opposite  party, it is obvious                                                                                                                        

that, the beginning stage of the work itself opposite party acted carelessly and  irresponsibly.  It is also to be noted that, the Expert conducted enquiry and inspection in this matter in the presence of the opposite party and the opposite party has not raised any objection at that time and has not demanded the Commissioner to ascertain any point from his side.

 

             From  the above discussion, the Forum is of a considered view that, the opposite party failed to adduce any evidence either orally  or documentary to counter the allegation levelled against him.  Under the above circumstances, the complaint is allowed, the opposite party directed to  cure the defects of the construction which is specifically stated in the complaint, with the supervision of an expert in this field to the satisfaction of the complainant or else the Forum direct the opposite party to pay an amount of Rs.1,95,000/- to the complainant with 12% interest from the date of  complaint and also to pay Rs.10,000/- as litigation cost within one month from  the date of receipt of a copy of this order.  Failing which  amount  shall carry 12% interest per annum from the date of default  till the realization

 

     Pronounced in the Open Forum on this the 25th  day of April, 2018.

 

                                                                                          Sd/-

                                                                  SRI. S. GOPAKUMAR (PRESIDENT)

                                                                                        Sd/-                                                                                                                                                                                                                                                                 

  SRI. BENNY. K.  (MEMBER)

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                                           (Cont....7)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1               - Dijo Mathew

PW2               - Joby Thomas

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1            -    The copy of quotation cum agreement dated 01/08/14

Ext.P2            -     The details of payment to the opposite party

PW3             -  The statement of account of State Bank of Travancore 

                          from 20/07/14 to 07/10/14

Ext.C1          -   The Expert Commission Report. 

On the side of the Opposite Party :

Nil.

 

 

             Forwarded by Order,

 

 

                    SENIOR SUPERINTENDENT