DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 31^st day of August 2011

Present : Smt.Seena.H. President

:Smt. Preetha G Nair, Member

: Smt.Bhanumathi.A.K. Member Date of filing: 09/03/2009

(C.C.No.30/2009)

Dr.K.R.Leena,

D/o.K.Rajkumar,

“Rajeevam”,

Puduppariyaram Post,

Palakkad. - Complainant

(By Adv.P.Sreepraksh)

V/s

1. M.V.Kannan,

Registered Supervisor,

“Silpi” Constructions,

Puduppariyaram Post,

Palakkad.

(By Adv.M.Abdhul Kaleel)

2. Muraleedharan,

Contractor, House No.37,

A.K.G.Nagar, Murikkavu,

Yakkara Post, Palakkad. - Opposite parties

(By Adv.T.V.Praveenkumar)

O R D E R

By Smt.BHANUMATHI.A.K. MEMBER

The brief facts of the complaint is as follows:

The complainant approached the opposite parties for the construction of a residential building having the total plinth area of 132.35 Sq.Mtr. The construction was started on 09/2/2007. The payment to 2^nd opposite party was also effected by the complainant at the various stages of the construction as demanded by 2^nd opposite party. The contract between the complainant and opposite parties was an oral contract. Supervision charge of 5% of the total cost of construction was also fixed. 2^nd opposite party has obtained the supervision charge of 5% of the total cost of construction from the complainant. 2^nd opposite party has constructed the building of the complainant and 1^st opposite party supervised the same. After the construction the completion certificate of the house had been given by 1^st opposite party. Complainant paid the total amount of Rs.8,19,000/- to the 2^nd opposite party. The furnishing works like flooring and painting had been directly done on the supervision of the complainant. The reason is that though she was making prompt payments the 2^nd opposite party had never give the details of accounts and she was unhappy. After the completion of 95% of works which was done by opposite party the complainant compelled to do the remaining work.

In the first month of staying in the house itself the complainant noticed two major cracks in the upstairs having a width of 10mm. This matter had informed to 2^nd opposite party but he had done nothing. He told that there is nothing to worry about it. On a rainy day water started sweeping through the cracks and intimated the same to the 2^nd opposite party. But 2^nd opposite party not cared even to visit the house and cure the defects. Besides these cracks many other cracks formed many other parts of the house like drawing room, kitchen, bedroom etc. Some cracks are visible even from outside. From these cracks water oozes out. These cracks are having a width of 2 – 3 cm and very deep.

At last the complainant compelled to consult a civil engineer and sought his opinion. He has informed that the cracks are not a silly matter as told by 2^nd opposite party. When the complainant informed this the 2^nd opposite remained mum. So the complainant send a lawyer notice to both opposite parties. Instead of settling the issue the opposite parties sent reply notice stating false statements. The complainant denies all the allegations contained in the reply notice.

So the complainant seeking an order directing the opposite parties to pay Rs.4,00,000/- as damages for their deficiency of service and mental agony and cost of the proceedings.

Opposite parties entered appearance and filed their version denying all the allegations of the complainant.

The 1^st opposite party contents that there is no contractual relationship between the petitioner and 1^st opposite party. The petitioner approached 1^st opposite party with one Mr.Krishnakutty, who is a Panchayath Member and requested to do liaison work to get building permit and completion plan. The complainant already came into an agreement with 2^nd opposite party for the construction of the above said petition schedule building. 1^st opposite party neither done any work in connection with the construction nor received any remuneration for the paper work in connection with the getting of building permit and completion certificate. 1^st opposite party visited the above property only once along with Panchayath Oversear. According to complainant she paid entire amount to 2^nd opposite party and the entire construction was done by the 2^nd opposite party. There is no deficiency of service on the part of 1^st opposite party.

2^nd opposite party filed version denying all the contention put forward by the complainant. There is no written contract between complainant and opposite parties When the complainant and her friends wanted to construct a house by using labourers and materials from the construction company owned by 2^nd opposite party. 2^nd opposite party agreed to help the complainant without any remuneration. It is not correct to say that the completion report was given after completing the whole construction work. Only 90% was completed. The formation of the cracks were not informed to the 2^nd opposite party. The opposite parties wanted to the complainant to construct cantilever and plastering of the wall of terrace. But the complainant and her relatives viewed that the plastering and cantilever are not at all necessary. If any defect occurred the responsibility goes only towards complainant. Opposite parties spent an amount of Rs.12,04,600/- for which the complainant paid only Rs.3,44,000/- So the opposite parties are entitled to get an amount of Rs.8,60,000/- more. So the opposite party prays for the dismissal of the complaint with cost.

Complainant filed affidavit. Ext.A1 to A5 are marked on the side of the complainant. Opposite parties not filed any affidavit. Commission Report are marked as Ext.C1 and C2. Complainant is cross examined as PW1. Complainant filed IA 91/11 to cross examine 2^nd opposite party which was dismissed on the ground that opposite parties not filed any affidavit. No documentary evidence is adduced by opposite parties.

Heard both parties.

Issues to be considered are

1. Whether the opposite parties received excess amount from the complainant ?

2. Whether there is any deficiency of service on the part of opposite parties ?

3. If so what is the relief and cost ?

Issue I to III

Complaint is regarding the deficiency in service in the house construction. The complainant entrusted the opposite parties to reconstruct a residential house. There is no written agreement. In an oral agreement opposite parties entrusted to handover the key on payment of Rs.7 lakhs. 2^nd opposite party has to construct the house and 1^st opposite party has to supervise the same. The construction was started on 9/2/07. Before 7/1/08 itself the complainant has paid Rs.8,19,000/- to the opposite parties. While cross examine the complainant deposited that the amount was paid to the opposite parties in cash and bank cheques. Ext.A5 series shows Rs.7,61,000/- was withdrawn by the complainant. Back side of some cheque leaves carries the signature of 2^nd opposite party. Opposite parties contents that it can't be consider that all the amount withdrawn by the complainant is paid to the opposite parties. Opposite parties did not take any steps to prove their case. Opposite parties admits that on 12/5/07 Rs.1 lakh was received by them. But the cheque leaf dated 12/5/07 does not carry the name of 2^nd opposite party. Thus it can be considered that even though the cheques are not issued in the name of opposite parties the amount was received by them. Opposite parties themselves admit that they are very familiar to the complainant. Complainant deposited in the cross examination that 5% of total expenses of the construction is paid to the 1^st opposite party through 2^nd opposite party. 1^st opposite party made deficiency in supervising the house construction properly.

As 2^nd opposite party is a well reputed contractor, will not spent such a huge amount even without a written contract. The 1^st opposite party also admitted in their version that “The complainant already came into an agreement with 2^nd opposite party for the construction of the above said petition schedule building.” In such situation there is nothing to disbelieve the complainant.

Opposite parties themselves admit that only 90% of total construction was completed. To inspect the defects in the construction and assess the value two commissions were appointed. Both the reports C1 and C2, shows that there are many cracks in the house. Definitely it cause much mental agony to the complainant. The photographs taken at the time of visiting the commissioners also reveals defects. 1^st and 2^nd commissioner assessed amount for curing the defects and completing the house construction as Rs.2.6 lakhs. Ext.C1 and C2 reveals that in order to rectify the defects in the house an amount of Rs.40,000/- is needed. In the Commission report also stated that the completed work costs for an amount of Rs.7.5 lakhs. Ext.A5 document shows that an amount of Rs.7,61,000/- was withdrawn from the bank. While in the cross examination complainant deposited that the payments to 2^nd opposite party were through bank and in cash. In order to complete the work an amount of Rs.2.2 lakhs more is needed. In the absence of solid evidence it is not proper to direct the opposite parties to pay the same.

From the above discussion we are of the view that both opposite parties made deficiency in service in the house construction. In the result complaint allowed.

Opposite parties are jointly and severally directed to pay Rs.1 lakh (Rupees One lakh) as compensation and Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.

Pronounced in the open court on this the 31^st day of August 2011. Sd/-

Smt.Seena.H

President

Sd/-

Smt.Preetha G Nair

Member

Sd/-

Smt. Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Copy of lawyer notice sent by complainant's advocate to opposite

parties dated 3/12/08

Ext.A2 – Reply to lawyer notice on behalf of 2^nd opposite party dated

17/12/08

Ext.A3 – Reply to lawyer notice on behalf of t opposite party dated 24/12/08

Ext.A4 – Copy of plan and elevation prepared by 1^st opposite party

Ext.A5 series – Photocopies of cheques 11 nos.

Commissioner Report

Ext.C1 – Commission Report

Ext.C2 – Commission Report

Exhibits marked on the side of the opposite parties

Nil

Cross examination of complainant

PW1 – Dr.K.R.Leena

Cost Allowed

Rs.5,000/- allowed as cost of the proceedings