BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2012
Filed on : 14/12/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 655/10
Between
M.V. Surendren, : Complainant
Virunnan, Manakkalodithundi (By Adv. Roy Varghese,
house, Smart Nagar Lane, Olimolath house,
Udayamperoor, Ernakulam, Pancode P.O.,
Kochi-682 307. Ernakulam.)
And
Mukundan P.P., : Opposite party
S/o. Prabhakaran, (By Adv. M.R. Nandakumar,
Puthenpurayil house, Room No.1, KMS, Wakf Complex,
Near St. George Hospital, Providence road, Providence
Kulayattikkara P.O., Junction, Ernakulam, Kochi,
Arayankavu, Ernakulam. Pin -682 018)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
On 16-01-2010 the complainant and the opposite party entered into an agreement for the construction of the residential building of the complainant. The foundation and the basement work of the building was already constructed by the complainant. The specification of the work is mentioned in the agreement. As per the agreement the opposite party stated the work on 25-01-2010. It was agreed that the construction work would be completed by 6 months there from. The opposite party not only failed to complete the work in time but also was negligent in carrying out the work properly. The opposite party had made concreting of the roof on 01-05-2010 only. In the meantime the complainant approached civil engineers and experts in the field and they suggested an amount of Rs. 1,27,624/- to carryout the repair works of the building. The work carried out by the opposite party amounts to only Rs. 2,22,520/- whereas he has received a sum of Rs. 3,00,000/-from the complainant. So the complainant caused a lawyer notice to the opposite party demanding to refund the excess amount and to pay the expenses to cure the defects of the building and also to pay a compensation of Rs. 1,00,000/-. But there was no response. Hence this complaint.
2. The version of the opposite party.
The opposite party has not violated the agreement conditions and carried out the work as per this specifications in the agreement. But in violation of the agreement the complainant with ulterior motive have prevented the opposite party to carryout the curing of concrete works after the roof and sunshade concreted. The complainant did not permit the opposite party and his men to carry out any work. No specific time was fixed in the agreement for doing the concrete work. The opposite party has completed more than ½ of the work for a cost of Rs. 5,00,000/-. But the complainant has paid only Rs. 3,00,000/-. In order to get away from the balance payment the complainants prevented the opposite party to continue the work. The complainant withheld the building construction tools Bamboo logs, 5 loads of river sand, ¾ inch metal and cement at an estimated cost of Rs. 1,00,000/-. The complainant did not allow the opposite party to take back the tools and materials. The opposite party is not liable to pay any amount to the complainant. The opposite party complied with the agreement conditions and carried out the work diligently. The opposite party requests to dismiss the complaint with a direction to the complainant to pay the balance amount of Rs. 2,00,000/- together with Rs. 1,00,000/- being the costs of the proceedings.
3. Witness for the complainant was examined as PW1. Exts. A1 to A8 were marked on the side of the complainant. The opposite party was examined as DW1 and Exts. B1 was marked on his side. The expert commissioner’s report was marked as Ext. C1. Heard the counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get refund of Rs.
77,480/- from the opposite party with interest?
ii. Whether the opposite party is liable to pay Rs. 2,01,824/- to
the complainant being the amount to cure the defects of the
building?
iii. Whether the opposite party is liable to pay compensation
and costs of the proceedings.
5. Points Nos. i&ii. According to the complainant the opposite party violated the terms and conditions in Ext. A1 agreement. It is stated that even though the opposite party has collected Rs. 3,00,000/- from him, the opposite party has done the work only to the tune of Rs. 2,22,520/- and thus he is entitled to get refund of Rs. 77,480/- and further an amount of Rs. 2,01,824/- to cure the defects of the building. On the contrary the opposite party refuted the allegations of the complainant and contended that the complainant himself withdrew from Exts. A1 agreement for his own reasons. It is also contended that actually he had expended a sum of Rs. 5,00,000/-in the building. Further it is stated that the complainant had retained building materials to the tune of Rs. 1,00,000/-, so he is entitled to get a sum of Rs. 3,00,000/- from the complainant.
6. At the instance of the complainant an expert commissioner was deputed by this Forum to ascertain the present condition of the building. The expert commissioner’s report was marked as Ext. C1. Though the opposite party filed objection to the report of the expert commissioner he has not taken any steps to controvert the same. It is pertinent to note that the expert commissioner’s report was admitted in evidence without demur. As per Ext. C1 report the expert commissioner noted the following
i. the total amount spent by the opposite party in the building is Rs. 2,12,200/-
ii. the total amount required to cure the defects of the building is Rs. 30,354/-.
7. Admittedly the opposite party has received a sum of Rs. 3,00,000/- from the complainant. However he had expended only Rs. 2,12,200/- in that building which goes to show that he had admittedly received an amount of Rs.87,800/- in excess which he has to be remitted back. Moreover as per Exbt C1 an amount of Rs. 30,355/- is required to cure the defects of the building constructed by the opposite party. Nothing is on record to controvert the finding in Ext. C1. The contention of the opposite party that the complainant had retained building materials to the tune of Rs. 1,00,000/- is unsustainable, since admittedly as per Ext.A8 the mediator has received the said building materials from the complainant for an on behalf of the opposite party. The Hon’ble Supreme Court in Faquir Chand Gulati Vs Uppal Agencies Pvt. Ltd. And another 2008 (iv) CPR 449 (SC) (CP) (cited by the complainant) held that if a builder of a house uses substandard materials in construction of a building or makes false or misleading representation about the condition of the house. Then its denial of the facility or benefit of which a consumer is entitled to claim value under the Consumer Protection Act. To sum up the opposite party is liable to pay a total sum of Rs. 1,18,155/- to the complainant (i.e Rs. 87,800+30,355=1,18,155)
9. Point No. iii. Since the primary grievance of the complainant having been met squarely and adequately order for compensation and costs are not necessarily called for.
10. In the result, we partly allow the complaint and direct that the opposite party shall pay a sum of Rs. 1,18,155/- to the complainant.
The Above said 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 at the rate of 12% p.a. till realization.
Pronounced in the open Forum on this the 31st day of January 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of agreement dt. 16-01-2010
A2 : Copy of letter dt. 07-06-2010
A3 : Copy of legal notice dt. 20-08-2010
A4 : Copy of reply notice dt. 31/08/2010
A5 : Copy of letter dt. 18/09/2010
A6 : copy of receipt dt. 18/09/2010
A7 : Advertisement of matrimonial copy
A8 : Copy of receipt
C1 : Commission report
Opposite party’s exhibits :
B1 : Copy of complaint filed before the
Sub inspector, Udayamperoor
Depositions :
PW1 : Vinayan M.S.
DW1 : Mukundan
