O R D E R.

By. Sri. A.S. Subhagan, Member:

This is a complaint preferred under section 12(a) of the Consumer Protection Act 1986.

 2. Facts of the complaint in brief:-   As a part of earning livelihood the Complainant had decided to construct a building.  Subsequently after a detailed discussion, he had entered into an agreement on 28.06.2012 for the construction of a building with the Opposite Party, in the land owned by the Complainant and situated in Pulpally.  The total consideration for the contract was Rs.6,35,000/- and as per the terms of the agreement the building was required to be constructed according to the building plan approved and issued by Pulpally Panchayath.  The construction of the building was proposed to be completed before 28.02.2013.

3.  Though the Opposite Party had received the total consideration of the contract in several instalments the Opposite Party did not complete the construction of the building.  Moreover, the work done by the Opposite Party had resulted in violation of the plan issued by the Panchayath.  Due to the defective work done by the Opposite Party, there were cracks in several parts of the rooms.  There was leakage on the roof of the building and the plastering of the walls were severed and fell down on the ground.  The building was intended to be constructed for being used as a lodge.   Due to the above defects in construction, the rooms of the building could not be used for the purpose for which it was constructed.

4.  As the Opposite Party had constructed the building, violating the approved plan issued by the Panchayath, the Complainant could not get building number from the Panchayath.  So as to cure the defects in construction of the building the Complainant has to spend an additional sum of Rs.15,00,000/- (in  original complaint it was Rs.2,50,000/- which was revised to Rs.15,00,000/- as per order in amendment of the complaint in I.A.672/2016).  Even though all the materials as per the contract were supplied and delivered by the Complainant, the Opposite Party did not complete the work before 28.02.2013.  As the work was not completed in time and as the work done was defective, the Complainant was compelled to suffer financial loss.  This is due to the deficiency in service from the part of the Opposite Party.  The above acts from the part of the Opposite Party have resulted in loss and injury to the Complainant for which the Opposite Party is responsible and liable.

5.  A number of conciliation talks were done for an amicable settlement of the above issue but all were not fruitful due to the obstinancy of the Opposite Party.  Consequently on 31.10.2014 the Complainant had issued a Lawyer’s Notice to the Opposite Party which was received by him.  Instead of solving the issue, the Opposite Party had issued a Reply Notice showing untrue statements to the Complainant.

6.  With the above contentions and allegations the Complainant has approached this Commission with this complaint praying the Commission to direct the Opposite Party

(1)  To complete the construction of the building curing all the defects at the cost of the Opposite Party or

(2) To pay Rs.15,00,000/- to the Complainant for curing the defects of the building so as to get building number from the Panchayath and

(3)  To pay Rs.1,00,000/- being compensation for deficiency in service and other expenses to the Complainant.

7.  Commission registered the complaint and notice was served upon the Opposite Party for appearance.  The Opposite Party entered appearance and filed version.

8.  Main contents of the version filed by the Opposite Party:-  The Opposite Party admits the existence of the agreement mentioned in the complaint.  But the contention of the Complainant that the entire consideration of the contract price has been received by the Opposite Party is false.  The allegation of the Complainant that the building was constructed violating the approved plan issued by the Panchayath and that it was constructed without keeping the stipulated distance from the road are denied by the Opposite Party.   The Opposite Party has constructed the building as per the plan and boundary shown by the Complainant.  The allegations of the Complainant that the cracks in the walls of the rooms, leakage in the roof and the plastering were severed and fell down are denied by the Opposite Party.  The Opposite Party contents that the construction was done by using the raw materials supplied by the Complainant and under his own supervision and direction. The Opposite Party has not committed any defects in the construction of the building and if there has been any loss it has been occurred due to the poor quality of materials supplied by the Complainant for which the Opposite Party is not responsible.

9.  According to the Opposite Party, Completion Certificate has been issued by him.  If the building number is not obtained from the Panchayath it has happened as the boundary measurement has not been exactly shown to the Panchayath Authorities.  The delay in construction is not caused by the fault of the Opposite Party but is due to the delay in supply of raw materials by the Complainant.

10.  The work had been completed as per the contract and completion certificate was issued.  Out of the contract price of Rs.6,35,000/-, only  Rs.5,15,000/- had  been given by the Complainant to the Opposite Party.  There has been a balance of Rs.1,20,000/- and in addition, an amount of Rs.50,000/- being consideration for fixing tiles in the  old building adjacent to the building owned by the Complainant (Totaling Rs.1,20,000+Rs.50,000=1,70,000/-) remains to be paid to the Opposite Party by the Complainant.  This Rs.1,70,000/- though demanded by the Opposite Party, has not been given by the Complainant saying one or other excuses.  This complaint has been falsely filed by the Complainant in order to escape from payment of Rs.1,70,000/- due to the Opposite Party.  Hence, the Opposite Party has prayed to dismiss the complaint filed without any good faith  by the Complainant, with the cost of the Opposite Party.  Additional version was also filed by the Opposite Party.

11.  Affidavits were filed by both the parties and Ext.A1 series, Ext.A2 and Ext.C1 were marked from the side of the Complainant and he was examined as PW1.  Ext.B1 was marked from the side of the Opposite Party and he was examined as OPW1.  The Expert Commissioner was examined as CW1.

          12. On the basis of the complaint,  version, affidavits,  documents filed and marked and the oral evidence adduced by the parties,  the  Commission raised the following points for consideration.

1.  Whether there has been any deficiency in service from the part of the Opposite Party?
2. If so,  whether the Complainant has the right to get compensation and relief as prayed for?

13. Point No.1:-  It is the admitted   fact   that  there  has  been a contract to 

construct  a building at a cost of Rs.6,35,000/-  between the Complainant and the Opposite party.  The Complainant alleges that the construction of the building was not completed by the Opposite Party within the period of contract which is evident from the version filed by the Opposite Party.   The Opposite Party contents that the delay caused was not because of his fault but the delay has caused as there was delay in delivery of raw materials by the Complainant.  Another allegation of the Complainant is that though the Opposite Party had received the full contract price of Rs.6,35,000/-  in several instalments he had not completed the work and the  work done were defective.   The Complainant has taken expert report so as to substantiate his contention.  On the other hand the Opposite Party objected the commission report but his objection was rejected.    The Opposite Party contents that an amount of Rs.15,00,000/-which is required for curing  the defects of the building, is arrived by the Expert Commission without any estimate and without any basis.  The Opposite Party  has not taken or produced any expert  opinion as to the estimate to substantiate his contention against the expert report and  hence his contention  will not stand.  No proof  has been produced by either party to substantiate their contentions as  to payment of the contract price.   The Primary Expert Commission   Report    was remitted as per order in IA No.626/2015  and  the Secondary Expert Commission Report   was considered. 

          14. On going through Ext.C1 Expert Commission Report issued by the Dean,  Planning  and Development,  NIT, Calicut, we find  adverse remarks (defects) as to the construction of the building in serial  number 2,4,5,6,7,8,9 and 10 of the second para of the report  which are serious in nature as far as a building construction is concerned.  In oral  evidence of OPW1  he has stated that “ Rm³ work IÄ FSp¯v sNbvXp sImSp-¡m-dp-­v.  Rm³  6 hÀj-ambn ta work  sN¿p-¶p-­v.  \nÀ½m-W-¯nsâ \nba hi-§Ä F\n¡v Adnbmw”  The  defects noted, regarding the construction of the building,  in the Expert Commission report could not have been happened  if the Opposite Party had constructed the building with care,  loyalty and dedication to his work.  On the other hand the Opposite Party alleges that the  poor quality of the work was due to the poor quality of materials supplied by the Complainant.  As an experienced  and responsible contractor he should not have  constructed a lodge building using the poor quality of materials supplied by the Complainant.  Being an experienced  contractor he was duty bound to ensure good quality of materials before  construction.  Moreover,  the Opposite Party has not produced  any  evidence or taken any expert opinion to  prove that the materials supplied by the Complainant were of poor quality.  So his contention that the defects caused to the building is due to the poor quality of materials  supplied by the  complainant cannot  be considered.  Another contention of the Opposite  Party is that the Complainant had not given  the structural design of the building.  In oral evidence of CW1,  the Expert Commissioner has stated that “C¯cw \nÀ½mW Imc-y-§-fn B[n-Im-cn-I-ambn ]d-bm-\p-ff kmt¦-XnI sshZ-Kv²yw Df-f-h-cmWv NIT  bnse Bfp-IÄ.  F¦n t]mepw  Structural design  Bh-i-y-amWv F¶v ]d-ªm Csænepw sN¿mw”   So,  the contention of the Opposite Party  that the Complainant had not given the structural design of the building has no relevance  in the present case.  On scrutiny of a  submission issued  by Secretary of Pulpally Grama Panchayat (seen produced by III party in this case)  reveals that  (1)  taÂ]Sn sI«nSw ØnXn sN¿p¶ Øe-¯nsâ AXnÀ¯n-IÄ hy-à-a-Ã.  BbXv IrX-y-ambn AS-bm-f-s¸-Sp-t¯-­-Xp-­v.  (2)  KPBR No.101 {]Im-c-ap-ff ag-shÅ kw`-cWn \nÀ½n-¨n-«n-Ã.  sI«n-S-¯n\v \¼-dn-Sp-¶-Xn\v ap³]mbn ag-shÅ kw`-cWn \nÀ½n-t¡-­-Xp-­v.

          15. Considering the above facts we are of the view that there have been considerable defects in the construction of the building.  This has been occurred due to the negligence on the part of the Opposite Party which is clear  deficiency in service from the part of the Opposite Party.  Therefore point No.1  is proved  against the Opposite Party.

16. Any cost or expenses for additional work for measuring and fixing of  boundary and for construction of rain water harvesting system and the like shall be borne  by the Complainant himself.  As no evidence have been produced  by either party as to the payment of  contract price we are not making  any order as to it.  

          17. Point No.2:-  As point No.1 is proved  against the Opposite Party, the Complainant has the right to get compensation  and cost from the Opposite Party.

          In the result the complaint is allowed and the Opposite Party is directed :-

1.  To pay Rs.15,00,000/- (Rupees Fifteen Lakh only) being  the amount required to cure the defects and complete the building in a useable  condition as suggested by the Expert Commission and
2. To pay Rs.1,00,000/-  (Rupees One Lakh only) towards  compensation for deficiency in service,  mental agony and cost of this complaint.

The above amount shall be paid by the Opposite Party to the Complainant within three months from the date of this order failing which the amount will carry interest @ 8% per annum from the date of this order.

          Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 25^th day of March 2022.

Date of filing: 09.07.2015.

                                                                   PRESIDENT:   Sd/-

                                                                   MEMBER    :   Sd/-

                                                                   MEMBER    :   Sd/-

APPENDIX.

Witness for the complainant:

PW1.           Joseph                            Complainant.

CW1.          Dr. Chandrakaran.          Dean Planning & Development Professor

                                                          NIT Calicut.         

Witness for the Opposite Party:

OPW1         Muraleedharan.               Building constructor.

Exhibits for the complainant:

A1 (1)         Copy of Lawyer Letter.                                dt:31.10.2014.

A1(2)          Postal Receipt.                                             dt:01.11.2014.

A1(3)          Acknowledgment.

A2.             Agreement.                                                  dt:28.06.2012.

C1.              Commission Report.                                   dt:11.11.2015.

C2.              Report on the Structural Stability of

the Building at Thazhathangadi Junction

Pulpally.                                                      dt:30.08.2016.              

Exhibit for the Opposite Party:

B1.              Reply Notice.                                              dt:14.11.2014.