IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 20th day of November, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No.179/2012 (Filed on 16.11.2012)
Between:
Chacko. N.C.,
Nedumamkunnil House,
Kunnamthanam.P.O.,
Thiruvalla – 689 581.
(By Adv. Gopikrishnan) ….. Complainant
And:
1. M/s. Samagratha Holistic Homes,
Thayil Building, R.S.P.O.,
Thiruvalla – 689 111,
Rep. by Renjith. T. Mathew.
Addl.2. Annamma Abraham,
M/s. Samagratha Holistic Homes,
-do. –do.
(By Adv. Mathew Kuriakose) ….. Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he had entered into an agreement with the 1st opposite party who is a building contractor, on 22.02.2012 for the renovation and extension of the complainant’s residential building as per the drawings and specifications attached to the agreement. The term of completion of the work was 6 months from the date of fixing of the door frames. As per the agreement, the total area is approximate 1400 sq.ft. and the rate is Rs.1,550/- per sq.ft. From the beginning of the construction it was noticed that the work was slowed down and the same was enquired to the opposite party who had not given any positive reply or has not taken any attempt to speed up the construction. So the complainant’s wife given a complaint before the Circle Inspector of Police, Thiruvalla where in the opposite party had agreed to complete the remaining works within 75 days from 09.05.2012. But he had not completed the work as per his assurance. The works already done by the opposite party is also not perfect. The sit out portion of the 1st floor was not concreted by the opposite party in spite of the request of the complainant. The non concreting of the sit out portion resulted in the leakage of rain water to the ground floor hall. So the complainant was constrained to concrete that portion by spending Rs.25,000/- on 16.10.2012. Later, the opposite party had abandoned the work and thereby he had violated the terms and conditions of the agreement. The period of completion of the work as per the agreement was also over. In the meantime, opposite party had collected an amount of Rs.16,50,000/- from the complainant. The major work of the building is still remaining. Though the opposite party had collected Rs.16,50,000/-, the works done by him is only for Rs.8 lakhs. The above said act of the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant and the opposite parties are liable to the complainant for the same. Hence this complaint for the realization of the excess amount of Rs.8,50,000/- collected by the opposite party with 12% interest and for the realization of Rs.25,000/- spent by the complainant for concreting the sit out along with compensation of Rs.1 lakh and cost of this proceedings from the opposite parties.
3. Opposite parties entered appearance and filed their version. The main contentions are as follows: Opposite parties admitted the constructions in question and he started the work as per the agreement executed between them. According to the opposite parties, complainant failed the payments in accordance with the terms and conditions of the agreement. Even then opposite party had done the concrete work up to the main roof and had done the outer plastering works and the internal electrical and plumping works. The progress of the works was known to the complainant and on the basis of the progress of the works opposite party requested for the 3rd instalment of Rs. 2 lakhs from the wife of the complainant as per the instruction of the complainant who is abroad. But she had not made the payment willfully in order to avoid the opposite party and to entrust the works to another contractor by name Jose. She also filed a complaint before the C.I. of Police, Thiruvalla for materializing her intention. On the basis of the discussions before the C.I. of Police, the complainant’s wife had given Rs.50,000/-and with that amount opposite party had done works for about Rs. 2 lakhs. At that time, she asked opposite party to stop the works for entrusting the remaining works to the new contractor. She also told that she will not pay any amount thereafter. So the opposite party filed a complaint before the Dy.S.P., Thiruvalla for getting the balance amount from the complainant. On the basis of the complaint of the opposite party, Dy.S.P called the parties and after discussions he directed the complainant’s wife to pay the balance of the advance payment for completing the works. But she is not prepared to accept the direction of the Dy.S.P and she asked the Dy.S.P that she wants to remove the opposite party from the works and she left from the office of the Dy.S.P. Even then opposite party tried to complete the works within the agreed period. But the complainant’s wife obstructed opposite parties attempts to complete the works by various ways. Works were delayed due to the non-compliance of the terms and conditions of the agreement by the complainant and hence the opposite party is not liable to the complainant. An advocate notice dated 19.11.2012 also issued to the complainant and his wife demanding Rs.10 lakhs as compensation for the losses sustained to the opposite party due to the illegal acts of the complainant. In the circumstances and this being the real facts, the complainant had no cause of action against the opposite party. Opposite party has not committed any deficiency in service against the complainant. With the above contentions, opposite parties prays for the dismissal of the complaint.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral deposition of PW1, DW1 and CW1 and Exts.A1 to A5, B1 to B8 series and C1 and C3 series. After closure of evidence, both sides were heard.
6. The Point:- The complainant’s allegation is that the construction works of the complainant’s residential building entrusted to the opposite parties as per the agreement dated 22.02.2012 executed between the parties for carrying out the renovation and extension of the complainant’s residential building for an approximate area of about 1400 sq.ft. is not completed by the opposite party within the stipulated time, though he had received Rs.16,50,000/- whereas he had done only works for Rs. 8 lakhs. He also abandoned the works without any justification. The above said act of the opposite party is a clear deficiency in service and he is liable to the complainant.
7. In order to prove the case of the complainant, the complainant’s wife as power of attorney holder filed proof affidavit in lieu of her chief examination along with 5 documents. On the basis of the proof affidavit, she was examined as PW1 and the documents produced were marked as Exts.A1 to A5. Ext.A1 is the power of attorney executed by the complainant in favour of PW1. Ext.A2 is the copy of the agreement dated 22.02.2012 executed between the complainant and the opposite party for the construction works in question. Ext.A3 is the photocopy of the plan and design of the proposed constructions prepared by the 1st opposite party. Ext.A4 is the certified copy of the complaint dated 22.09.2012 before the C.I. of Police, Thiruvalla filed by the wife of the complainant against the 1st opposite party. Ext.A5 is the certified copy of the complaint dated 10.10.2012 filed by the 1st opposite party against the complainant before the Dy.S.P of Police, Thiruvalla.
8. On the other hand, the contention of the opposite party is that the work was delayed due to the non payment of the advances agreed by the complainant as per the terms and conditions of the construction agreement and due to the non co-operation of the complainant’s wife for completing the works by the opposite party. The request for the balance payment was also denied by the complainant. The denial of the payment was solely for avoiding the payments of the amount entitled by the opposite party and for entrusting the works to another contractor by avoiding the opposite party. Negotiations made before the police officers for settling the disputes were also failed due to the non co-operation of the complainant’s wife. Therefore, opposite party argued that this complaint is not allowable as he had not committed any deficiency in service as alleged by the complainant.
9. In order to prove the case of the opposite party, the 1st opposite party filed a proof affidavit in lieu of his chief examination along with certain documents. On the basis of the proof affidavit, he was examined as DW1 and the documents produced by him were marked as Exts.B1 to B8 series. (Ext.B1 was marked through PW1). Ext.B1 is the copy of advocate notice dated 19.11.2012 issued in the name of the complainant and his wife for the opposite party. Ext.B2 is the photocopy of the agreement between the parties for the construction works. Ext.B3 is the copy of the petition before the Dy.S.P, Thiruvalla, which is already marked as Ext.A5. Ext.B4 is the plan of front elevation of the proposed building. Ext.B5 is the copy of the sketch prepared by the commissioner. Ext.B6 is the undelivered advocate notice addressed to the complainant. Ext.B7 is the postal acknowledgment card of the advocate notice signed by the complainant’s wife. Ext.B8 and B8(a) are the postal receipts of the advocate notice issued by the complainant.
10. Apart from the above evidence, a commissioner appointed by this Forum who visited the site and prepared report and a sketch and taken photographs of the building in construction and he filed the same before this Forum. He was examined as CW1 and his report is marked as Ext.C1 and the sketch prepared by him is marked as Ext.C2 and the photographs are marked as Ext.C3 series.
11. On the basis of the contentions and arguments of the parties, we have perused the available materials on record and found that the parties have no dispute with regard to the agreement marked as Ext.A1 executed between the parties. As per the said agreement, the proposed plinth area of the total works is 1400 sq.ft. and the rate per sq.ft. is Rs.1,550/- subject to the variations of extra works to be measured after the completion of the works and the period for completion is 6 months from the date of fixing of the door frames. The complainant’s case is that the opposite party had collected Rs.16,50,000/- and he had not completed the work within the stipulated period and the works done by the opposite party, if assessed will come only for Rs. 8 lakhs and that too is defective. But the contention of the opposite party is that the complainant failed to pay the instalments and the complainant’s wife purposely obstructed the opposite party from carrying out the works with an ulterior motive for avoiding the opposite party and for denying the balance payments of the works done by him and for entrusting the remaining works to a new contractor related to the complainant. But on a perusal of Ext.A2(a), it is seen that the opposite party had received Rs.16 lakhs as on 09.05.2012 with an undertaking to complete the works within 75 days from 09.05.2012. Moreover, he also assured that he will pay 12% interest for the whole amount if he fails to complete the work as agreed on 09.05.2012. It is further revealed from Ext.A2(a), that he had received an amount of Rs.50,000/- again on 25.09.2012. This payment was made on the basis of the mediation conducted in the presence of the police officers on the basis of the complaint of the complainant. The said payment of Rs.50,000/- was made on 25.09.2012 which is after 4 months from the date of assurance of the opposite party dated 09.05.2012 for completing the works within 75 days from 09.05.2012. This undisputed facts shows that the opposite party had purposely delayed the completion of works even after receiving about 90% of the amount required for the completion of the works. The above said act of the opposite party cannot be justified and it is a gross negligence from the part of the opposite party. The above said act of the opposite party is a clear deficiency in service and is a cheating and his efforts was only for squsing money from the complainant rather protecting the interest of the complainant by completing the works within the stipulated time. Moreover, opposite party has not adduced any reliable or cogent evidence supporting his contentions. At the same time, the evidence adduced by the commissioner vide Ext.C1 to C3 series also supports the case of the complainant. As per Ext.C1 report the commissioner had assessed the value of the works done by the opposite party. He valued it as Rs.9,24,205/- whereas the opposite party had received altogether an amount of Rs.16,50,000/- from the complainant. We find no reasons to disbelieve the evidence of the commissioner though a detailed objection to the commission report was filed by the opposite party. Therefore, we find that the opposite party has committed a clear deficiency in service against the complainant and hence this complaint is allowable.
12. In the result, this complaint is allowed thereby, the opposite parties are directed to pay an amount of Rs.7,25,795/- (Rupees Seven Lakh Twenty Five Thousand Seven hundred and ninety five only) being the excess amount collected by the opposite party as evident from Ext.C1 with 10% interest from the date of filing of this complaint along with compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) and cost of Rs.3,000/- (Rupees Three Thousand only) within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 12% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 20th day of November, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Annamma Chacko
Exhibits marked on the side of the complainant:
A1 : Power of attorney executed by the executant Chacko. N.C in favour
of PW1.
A2 : Copy of the agreement dated 22.02.2012 executed between the
complainant and the opposite party.
A3 : Photocopy of the plan and design.
A4 : Certified copy of the complaint dated 22.09.2012 before the C.I. of
Police, Thiruvalla.
A5 : Certified copy of the complaint dated 10.10.2012 filed by the 1st
opposite party.
Witness examined on the side of the opposite parties:
DW1 : Renjith. T. Mathew
Exhibits marked on the side of the opposite parties:
B1 : Copy of advocate notice dated 19.11.2012 issued by the opposite
party in the name of the complainant and his wife.
B2 : Photocopy of the agreement dated 22.02.2012 between the
complainant and opposite parties.
B3 : Copy of the petition before the Dy.S.P, Thiruvalla.
B4 : Plan of front elevation of the proposed building.
B5 : Copy of the sketch prepared by the commissioner.
B6 : Untold advocate notice addressed to the complainant.
B7 : Postal acknowledgment card.
B8 & B8(a) : Postal receipts
Court Witness:
CW1 : Jayaprakash. M.T
Court Exhibits:
C1 : Report
C2 : Sketch
C3 : Photographs
(By Order)
(Sd/-)
Senior Superiintendent
Copy to:- (1) Chacko. N.C., Nedumamkunnil House, Kunnamthanam.P.O.,
Thiruvalla – 689 581.
(2) Renjith. T. Mathew, M/s. Samagratha Holistic Homes, Thayil
Building, R.S.P.O., Thiruvalla – 689 111.
(3) Annamma Abraham, M/s. Samagratha Holistic Homes,
Thayil Building, R.S.P.O., Thiruvalla – 689 111.
(4) The Stock File.
