BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 01/08/2009

Date of Order : 30/06/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 408/2009

Between

And

O R D E R

A. Rajesh, President.

1. The complainant's case are as follows :

On 31-10-2007, the complainant and the opposite party entered into an agreement for the renovation/repair works and construction of 1^st floor of the house of the complainant. The construction should have been completed on 31-01-2008. In addition to the agreed amount, the complainant paid a sum of Rs. 40,000/- to the opposite party for the additional works. However, the opposite party failed to complete the work in spite of lapse more than 18 months. The quality of the work is poor. The complainant is constrained to live in a rental building by paying Rs. 7,000/- per month. He is paying Rs. 6,000/- per month towards the housing loan availed by him. The complainant issued a notice dated 30-06-2009 requesting the complainant to complete the construction, but there was no response. Thus, the complainant is before us seeking direction against the opposite party to pay a compensation of Rs. 3 lakhs for the deficiency in service together with costs of the proceedings.

2. Version of the opposite party :

Neither the complainant a consumer nor the opposite party a service provider is as defined in the Consumer Protection Act. The complainant has disclosed complicated question of facts which only has to be decided by a Civil Court. The opposite party admits the execution of the agreement. The complainant agreed to meet the expenses for the additional work, but he failed therein. The complainant himself violated the terms of the agreement. The total cost of the work done by the opposite party was Rs. 4,98,500/-, but the complainant paid only Rs. 2,90,000/- that too in instalments. The complainant has no cause of action against the opposite party. The claim of compensation of Rs. 3 lakhs is only imaginary and it is only ruse to deny the legal claim of the opposite party. The opposite party requests to dismiss the complaint.

3. The complainant was examined as PW1. Exts. A1 to A3 were marked on his side. The opposite party and his witness were examined as DWs 1 and 2 respectively. Exts. B1 and B2 were marked on the side of the opposite party. The report of the expert commissioner was marked as Ext C1. Heard the counsel for the parties.

4. The points that arose for consideration are :-

1. Whether the complainant is a consumer?

2. Whether the complaint is maintainable in this Forum?

3. Whether the complainant is entitled to get a compensation of Rs. 3 lakhs from the opposite party?

4. Cost of the proceedings?

5. Point Nos. i and ii :- According to the opposite party, the complainant is not a consumer. However going into the matter deeply, we find a decision rendered by the Hon'ble Apex Court in Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. and Another (2008 (4) CPR 449 (SC), (cited by the complainant) para 23 of the judgment, which reads as follows :

“On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, for relief as consumer, against the builder as a service-provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant.”

In the instant case, the complainant opted to approach this Forum to get his grievances redressed. In view of the above authority, we are only to hold that the complainant is a consumer and the complaint is maintainable in this Forum.

6. Point No. iii :- Admittedly, Ext. A1 is the agreement entered into between the parties in which the details of construction work are mentioned. The opposite party agreed to complete the work at a total cost of Rs. 2,50,000/- in 3 months. The complainant agreed to pay expenses, for additional works and modification if any required in the construction. It is not in dispute that the complainant paid a total sum of Rs. 2,90,000/- to the opposite party.

7. According to the complainant, the opposite party failed to complete the work on time and there were several defects in the construction work done by the opposite party and thus he is entitled to get a compensation of Rs. 3 lakhs from the opposite party. On the contrary, the opposite party vehemently contended that he had completed the work to the tune of Rs. 4,98,500/- and out of the amount he received only Rs. 2,90,000/- from the complainant. Both the parties deposed in tune with their contentions. The dispute between the parties can be resolved with the help of Ext. C1 expert commissioner's report which has been marked without demur. The learned expert has arrived at the following findings :

“To prepare a valuation report of the renovation repair works and construction made by the opposite party in then building.

As per the agreement, the total cost for the construction of 34.16 m² (367 sq.ft) is Rs. 2.5 lakhs. But the actual area done is 50.03 m² (538 sq.ft). Hence the total cost due to the increase in area will be Rs. 3,66,059/- as per the agreement rate.

1. Wood work Rs. 36,665/-

2. R.C.C. Works marble or granite slab to kitchen slab Rs. 2,340/-

3. Flooring Rs. 19,955/-

   Dadoing Rs. 564/-

4. Car porch floor concrete Rs. 1,860/-

5. White cement washing 1 coat Rs. 1,325/-

6. Washable wall painting Rs. 11,970/-

7. Painting with synthetic enamel paint Rs. 1,450/-

8. Electrification Rs. 12,000/-

9. Plumbing Rs. 15,000/-

10. Iron works Rs. 1 8,000/-

    --------------------

Rs. 1,09,134/-”

============

8. Nothing is before us to controvert the findings of the expert commissioner in Ext. C1. In view of the report, the account of the parties can be settled as under:

Total cost for construction Rs. 3,66,059/-

(including the additional work)

Works to be completed as per Ext. A1 agreement Rs. 1,09,134/-

-------------------

Total amount incurred by the opposite party to

accomplish the work (Rs. 3,66,059 -1,09,134) Rs. 2,56,925/-

Total amount received by the opposite party

from the complainant. Rs. 2,90,000/-

Excess amount received by the opposite party

from the complainant (Rs. 2,90,000 - 2,56,925) Rs. 33,075/-

That is, the opposite party has received an amount of Rs. 33,075/- in excess to that of the completed work done by the opposite party. The opposite party is liable to refund the above amount to the complainant. The complainant has not adduced any evidence to substantiate the other claims which repudiate his other claims.

9. Point No. iv. :- Since the primary grievance of the complainant has been met squarely costs of the proceedings are not called for.

10. Resultantly, we allow the complaint in part and direct that the opposite party shall refund Rs. 33,075/- (Rupees thirty three thousand and seventy five only) to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.

Pronounced in open Forum on this the 27^th day of June 2011.