SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the opposite party to pay Rs.10 lakhs to the complainant towards the cost of curing the defects and deficiency in the construction work done by the OPs and to pay Rs.5 lakhs as compensation and cost of the proceedings to the complainant for the deficiency of service on their part.
The case of the complainant in brief :
The complainant is an IT professional and he was working abroad during the year 2015. The complainant is the title holder of 7 cents of landed property comprised in RS No.77/4B1 of Thalassery Amsom, Mannayad desom by virtue of document No.1749/2015 of SRO Thalassery. The 1st OP is a proprietorship concern run by 2nd OP. One family friend of complainant Mr.Sreejith introduced 2nd OP to complainant . Mother of said Sreejith viz Rohini teacher is a close friend of complainant’s aunt by name P.P.Lakshmi. The said Sreejith represented that 2nd OP is a trust worthy civil contractor and complainant discuss to 2nd OP to construction of a two storied residential building in the property during October 2015. Then the complainant contacted 2nd OP during the period of 2015 by phone and e-mail. The complainant and 2nd OP entered into an oral agreement and to construct 2 storeyed residential building in an approximate plinth area is 1600/-sq/ft and completed the construction work within a period of 1 year. Then the OP had assured quality prescribed by Indian Standard Institute and use of raw materials with standard quality as prescribed by Indian Standard Institute. The complainant entrusted payments related to the construction work with his paternal aunt P.P.Lakshmi who is a retired government employee. The OP’s started the construction work by the end of 2015 and completed the same by February 2017. The payments are received by the OP’s from the side of complainant through his paternal aunt Lakshmi on 15/10/2015 paid Rs.15,00,000/- to OP’s, on 1/3/2016 Rs.5,00,000/- ,on 29/6/2016 - Rs 3,00,000/-, on 6/8/2016 - Rs.5,00,000/-, and on 31/1/2017- Rs.7,10,000/- paid to OP’s. The complainant paid total amount of Rs.35,10,000/- to OP’s for construction work. In 2017 the monsoon period the complainant facing the problem of water leakage and entry of dampness inside the house through exterior walls of the house. The cement plastering work in the exterior walls of the toilet area in the ground floor is already damaged substantially due to the water leakage. The entire exterior walls of the ground floor toilet had became ugly in the year 2017 itself, poor quality of plastering work and destruction of painting works due to water leakage and consequent growth of algae and fungus in the area. On account of defective and unscientific construction of sunshades in the building rainwater is entering into the inner areas of the house building. The entire cement plastering work is defective and the OP’s failed to maintain the minimum standard of quality regarding plastering work done in the building. The entire painting works made in the building become shabby and ugly in appearance due to water leakage and related problems the OP was forced to do repainting work during 2018. The water leakage and related problems could not be rectified by 2nd OP. The defect in the construction is caused due to poor quality of raw materials such as sand, cement used in construction is and also due to poor workmanship. Then the complainant send a lawyer notice to OP dtd.24/2/2022 to rectify the defects in the construction to the satisfaction of the complainant. The Ops received the notice and not send a reply. The act of OP’s , the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OP’s. Hence the complaint.
After filing the complaint heard the question of limitation and allowed the petition. Then notice issued to opposite parties. The OP’s refused the notice and not appeared before the commission and not filed version. Then commission had to hold that the OP’s have no version as such this case came to be proceed against the opposite parties as set ex-parte.
Even though the opposite parties have remained ex-parte, it is for the complainant to establish the allegations made by them against the OPs. Hence the complainant was called upon to produce evidence in the form of affidavit and documents.
On 18/7/2022 the complainant filed a petition to appoint an expert commissioner to report the defects in the construction such as water leakage, unscientific manner of construction of sunshades, user of sub standard building materials, poor workmanship, defects in casting of roofing slab on 1st floor and to estimate the cost of curing the defects in the construction work. The expert petition is allowed by the commission and Mr.Riyas V.T is appointed as the expert commissioner. After inspection the expert filed the report before the commission and marked as Ext.C1(series). Accordingly the complainant has chosen to produce his affidavit along with 8 documents marking them as Exts.A1 to A8. The complainant was examined as PW1. So the opposite parties remain absent in this case. At the end the Commission heard the case on merits.
Let us have a clear glance at the relevant documents of the complainant. Ext.A6 is the lawyer notice issued by complainant to OPs. Ext.A1 is the receipt No.91 dtd.15/10/2015 paid an amount of Rs.15,00,000/- to OPs. Ext.A2 is the receipt No.143 dtd.1/3/2016 paid an amount of Rs.5,00,000/- to OPs. In Ext.A3 is the receipt No.183 dtd.29/6/2016 paid an amount of Rs.3,00,000/- to OPs. In Ext.A4 dtd.6/8/2016 receipt No.192 for an amount of Rs.5,00,000/- paid to OPs. In Ext.A5 is the receipt No.226 dtd.31/1/2017 paid an amount of Rs.7,10,000/- to OPs. It is clear that the complainant paid a total amount of Rs.35,10,000/- to OP’s in connection with the construction work. Ext.A6 is the lawyer notice issued by complainant to OPs. In Ext.A7 is the postal receipt and Ext.A8 is the acknowledgment card. Moreover in this case the expert commissioner inspected the residential building and the defects found and reported. The inspection report along with photos marked as Ext.C1(series). The rectification of defects are noted are (1) Roof slab leakage (2) leakage from sun shade(3) Dampness in walls all around(4) Defects in painting due to water leakage in various portions(5) defects in door frames and shutters due to dampness(6) Dampness in floor level due to lack of dampness course protection. As per Ext.C1 report an amount of Rs.4,83,520/- is may required to rectify the defects in the residential building. The defect in the construction work is caused due to poor quality of raw materials and poor workmanship. The act of OPs the complainant caused much mental agony and financial loss. So we hold that there is deficiency of service and unfair trade practice on the part of opposite parties
As per Ext.C1 report it clearly noted that laying water proofing on the terrace, sunshade portions, removing existing plastering portion, cleaning and applying suitable water proofing materials of desirable quality including labour charges and all others complete, terrace , sunshade, bath rooms, repainting after removing paints and finishing walls with cement primer, Re-fixing bath room tiles in ground floor including cost and conveyance of all materials and labour charges, electrification work and plumbing work. The expert commissioner reported that the total amount of Rs.4,83,520/- may required to rectify the defects in this residential building. So the OPs are liable to pay Rs.4,83,520/- to the complainant as the cost of replacement and rectification charge of the defects mentioned in the Ext.C1 report along with Rs.1,00,000/- as compensation for mental agony of the complainant and Rs.10,000/- as litigation cost to the complainant.
In the result, the complaint is allowed in part directing the opposite parties jointly and severally liable to pay Rs.4,83,520/- to the complainant as the rectification charge of the residential building along with Rs.1,00,000/- as compensation for mental agony of the complainant and Rs.10,000/- as litigation cost within 30 days of receipt of this order. In default, the amount of Rs.4,83,520/- carry interest@ 12% per annum from the date of order till realization , failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- Receipt No.91 dtd.15/10/2015
A2- Receipt No.143 dtd.1/3/2016
A3- Receipt No.183 dtd.29/6/2016
A4- Receipt No.192 dtd.6/8/2016
A5- Receipt No.226 dtd.31/1/2017
A6-Lawyer notice
A7- postal receipt
A8-Acknowledgment card
C1 series- commission report
PW1-Mithun.P.P –Complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/forwarded by Order/
ASSISTANT REGISTRAR
