DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 29th day of November 2017
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 26/07/2016
: Sri.V.P.Anantha Narayanan, Member
(C.C.No.111/2016)
1. Reji Kuriakose,
S/o, K.T.Kuriakose,
Kallananiyil House,
Olinkadavu,
Mangalam Dam,
Alathur Taluk
Palakkad.
2. K.T.Kuriakose,
S/o Thomas,
Kallananiyil House,
Olinkadavu,
Mangalam Dam,
Alathur Taluk
Palakkad. - Complainants
(Adv.Ullas Sudhakaran)
V/s
Nouhar Sha,
S/o Koya,
Proprietor, Nou Builders,
NS Tower, Near Stadium Bus Stand,
Palakkad.
Now functioning at Ilance Builders,
Cheriya Vapalassery,
Angamaly South, Ernakulam. - Opposite party
O R D E R
By Smt.Suma.K.P. Member,
The complainants are son and father respectively. 2nd complainant had entered in to an agreement for and on behalf of 1st complainant, who is the son, on 29.03.2014 under which the opposite party had undertaken to complete the construction work of the residential house of the 1st complainant situated in the property under registered assignment deed numbered 2860/2009 of Alathur S.R.O. 1st complainant had constructed one year prior to entering into agreement with the opposite party the foundation for his residential house by engaging workers and by incurring expenditure. As per the agreement, the opposite party had agreed to undertake construction of 2165 Square Feet of residential house, 1527.4 Square Feet of car porch and 74.77 Square Feet of porch add measuring 2393 Square Feet, over a foundation already laid by the 1st complainant, for a total consideration of Rs.34,00,000/- with in a period of 12 months from the date of agreement. The entire cost of wood and labour cost for the wood work was also incurred by the 1st complainant and the opposite party had agreed to fix the same by engaging his workers and that aspect is specially mentioned in clause number 8 of the agreement. The stages at which the payments were to be made were mentioned in the agreement and at the time of signing the agreement complainant suggested some changes and a consensus was arrived at by the complainant and the opposite party and the opposite party had sent an e mail on 04.02.2014 to the complainant confirming the revision in stage payments. After receiving the confirmation the construction work was started by the opposite party during last week of April 2014. The specifications regarding the constructions materials and fittings to be used are specifically mentioned in the aforementioned agreement and the time frame with in which the construction work that would be carried out by him would be strictly in accordance with the specifications and stipulations bilaterally agreed upon by the complainants and the opposite party and that the construction work would be carried out under his personal supervision. Complainant had been paying the opposite party through bank transfers as and when demanded and those payments were more than what the opposite party was entitled to as per the terms of the agreement and the complainant paid those amounts for the purpose of getting the construction work completed within the time frame. Though there was stipulation in the agreement to make endorsements regarding the payments made by the complainant, the opposite party was not in the habit of making the endorsements on the date of receipts of payments and he used to endorse it only when he visit the work site and the date that he mentioned in the endorsement are the date on which he had made the endorsement and not the actual date of receipt of amount. As the payments were effected through account transfer, the complainant also did not insist for endorsement on the date of transfer of amounts. The last endorsement made by the opposite party is the consolidated figure regarding the payments made in 4 installments. All the endorsement seen in the agreement were written by the opposite party. Opposite party had received a sum of Rs.22,10,000/- from the 1st complainant by way of transfer through accounts on 21.01.2015. Opposite party inspite of receiving the excess amount that what he was entitled as per the terms of the agreement, did not undertake the work within the time frame stipulated the agreement and there was practically no personal supervision from the side of the opposite party and he did not appoint any qualified or competent persons to supervise the construction work, to give necessary instruction to the workers and to manage the workers. As there was nobody to supervise the work and to guide the workers, the workers did not adhere to this specification in the agreement and the quality of workmanship was also very poor. Complainants had requested the opposite party many a time to supervise the work going on, manage the workers and to give necessary instructions to the workers for maintaining the quality of work, workmanship and pace and the same fell on the deaf ears of the opposite party. There were occasions when the opposite party did not clear the wages payable to the workers and the workers making protest in the work site and demanding wages from the complainants and the same had caused lot of mental agony to the complainants and resulted in complainants being portrayed in persons denying the workers of their wages among their neighborhood. As the opposite party did not clear the arrears of wages payable to the workers and did not purchase materials required for continuing the work, the work came to a standstill. Though the complainant tried to contact the opposite party over phone, opposite party did not attend the calls and avoided the complainant. Complainant had sent even an email on 28.4.2015 to the opposite party intimating him that completion of construction of his residential house is one of his dreams and that invested all his hard earned money as well as the loan availed from bank and expressed his concern about the state of affairs and requested him to complete the work without further delay. Opposite party neither cared to reply to the said email nor contacted the complainant offering to settle the issue amicably. First complainant kept on trying to contact the opposite party over phone and after lot of attempts the opposite party attended complainant’s call and complainant requested the opposite party to sort out the problem and to complete the work as early as possible and the opposite party informed the complainant that the advance payments made by the complainant to the opposite party towards the construction work were diverted by him towards his other construction projects undertaken by him and that he is running short of funds and that is the reason why he is not in a position to pay wages to the workers and to purchase materials required for continuing the work. Complainant for the purpose of settling the issue amicably and for getting the work completed by the opposite party had a personal discussion with the opposite party on 31.07.2015 at the opposite party office situated at Pongam, Angamally and had put forward a proposal to the opposite party that the complainant shall make payments to the workers supplied by the opposite party directly and shall purchase materials required for completion of work and that the opposite party shall depute a competent person to supervise the workers and the construction work and that after completion of work the accounts between the opposite party and the complainant as per the terms of the agreement could be settled and opposite party agreed for the same. It was agreed by the opposite party that the payments made by the complainant towards wages and materials would be treated as advance to the remaining stage payments and that considering the amount already received by the opposite party, the tiles as specified in the agreement would be purchased by the opposite party at his cost. The work at the complainant’s site commenced as per the above terms and the opposite party engaged one person named Siddique as supervisor and supplied workers and wages payable to the workers were paid by the 2nd complainant and the materials required by purchase out of the funds provided by the 1st complainant. Complainant had sent an e mail 16.08.2015 to the opposite party referring to the above mentioned terms of settlements of opposite party acknowledge the said e mail on the same day. 1st complainant used to sent e mails to the opposite party showing the details of payment made by the 1st complainant and requested the opposite party to confirm and reply for the e mail received by the opposite party, but he did not care to acknowledge or reply. As per the terms of settlement arrived at by the complainant and opposite party, the tiles as per the specification in the agreement had to be purchased by the opposite party for completing the flooring work but the opposite party did not do the same and the work had to be stopped again. Complainant contacted the opposite party over phone and requested him to purchase the tiles and make the same available for continuing the work and the opposite party informed the complainant that he is not having funds to purchase the tiles and that the work could be completed only if the complainant purchase the tiles. Complainant was not initially ready to accept the proposal made by the opposite party but had to agree for the same for the purpose of getting the work completed and had purchased tiles by incurring expenses for the same. 1st complainant had incurred an expenditure of Rs.12,17,157/- out of his pocket in addition to the payments already effected to the opposite party. On verifying the accounts the complainant realized that he had already spend Rs.27,157/- more than the amount agreed upon under the agreement i.e,Rs.34,00,000/- for completion of work and that works, like painting, polishing, glass, sewage, plumbing electrical, porch, kitchen, staircase, roof tiles, carpentry, sanitary fittings, cladding work etc. remains to be completed and that the opposite party had already received excess payment of Rs.8,00,000/- than what he is legally entitled under the agreement. Complainant directed the opposite party to complete the work without any further delay and the opposite party informed the complainant that he would carry out further work only on payment of amounts towards the same by the complainant and that the opposite party’s financial condition is bad and hence would not be in a position to afford labour charges and material charges required for completion of work agreed to be carried out by him under the agreement and that he would pay back the excess amount received by him from the complainant after he gets over his financial crisis. Complainant was not ready to accept the said proposal as he was aware that if further amounts are spend by him out of his pocket, he would not be in a position to recover the same from the opposite party. Opposite party did not comply the direction issued by the complainant and the work in the site became stand still. Complainants tried to contact the opposite party over phone but opposite party did not attend the calls and avoided the complainants. On 19.04.2016, 1st complainant had sent an e mail to the opposite party intimating him about the payments effected by the complainant, about the work that remains to be completed, hardships and the mental agony being caused to the complainant due to the non completion of the work and requesting him to complete the same without dragging and delaying the same further. Opposite party did not care to respond to the said e mail and did not undertake the works that required to be completed. On enquiry the complainant came to know that the opposite party had closed his office situated at Palakkad and that he had cheated other customers also. Opposite party had really cheated the complainant and induced him to pay amounts and the opposite party had no intention to complete the construction work and his attempt was to extract more amounts from the complainant. The work already completed by the complainant is defective and substandard. Opposite party though agreed to use river sand for the purpose of doing the construction work had used M sand and there by violated the terms and made illegal enrichment. The complainant alleges that the above mentioned acts and shortcomings from the part of the opposite party amount to deficiency in service and unlawful trade practice and the same had caused untold hardships, severe mental agony and huge monetary loss to the complainants and the opposite party is legally liable to compensate the complainants for the same. Opposite party anticipating a legal action threatened the complainants and hence the complainants were constrained to file a suit for permanent prohibitory injunction against the opposite party as O.S.272/2016 before the Court of Munsiff of Alathur and in the said suit an application numbered I.A 1426/2016 for appointing as Advocate Commissioner was also filed nothing and reporting about the stage of work and states quo. Advocate Commissioner was appointed by the Hon’ble Court and the Advocate Commissioner had visited the property and noted about the stage of work and status quo. 1st complainant is working as a Headmaster in a school in Nagaland and he had come to his native place for settling the entire issue amicably and to get the work completed by the opposite party. Opposite party has no intention to settle the issue amicably and to complete the work and his intention is to wriggle out of his liability under the agreement and the complainants have no other option than to approach this Forum for their reliefs. Hence the complainants had filed the complaint seeking an order to direct the opposite party to pay the 1st complainant sum of Rs.8,00,000/- (Rupees eight lakhs only) along with interest @ 12% till the date of realization of the said amount towards the excess amount received by the opposite party and also to direct the opposite party to pay the 1st complainant a sum of Rs.12,00,000/- (Rupees twelve lakhs only) towards compensation for deficiency of service, mental agony, monetary loss and towards expenditure required for rectifying the defects and completing the work and also to pay the cost of this proceedings. Along with the complaint the complainant had also filed an emergent application for appointment of an expert commissioner to inspect the disputed construction and note the present status of the building. Considering the emergency of the case the application was allowed and an expert commissioner was appointed to inspect the property after giving notice to both parties and to file a detail report.
Notice was issued to opposite party for appearance. Notice was returned stating addressee not known. Hence complainant was directed to take necessary steps. Complainant filed application for substituted service. Draft publication was approved and publication was effected in Mangalam Daily and the publication was produced. Opposite party was called absent and set ex-parte. Commissioner filed an interim report. Complainant filed objection to the said report and also an application to remit the commission report. IA was allowed and accordingly commission report was remitted to the same commissioner for filing additional report. Commissioner inspected the property and filed additional report along with photographs. Complainant filed chief affidavit. Exts.A1 to A4 series was marked from the side of the complainant. Commission report was marked as Exts.C1 to C3. Evidence was closed and the matter was heard.
The following issues that arises for consideration are.
- Whether there is any deficiency of service from the part of opposite parties?
- If so what are the relief and cost?
Issues 1 & 2
We have perused the affidavit and expert commissioner report along with documents
produced by the complainant before the Forum. In Ext.C2 report the commissioner has stated that the opposite party had completed works for an amount of Rs.16,50,000/-. The balance amount of Rs.5,50,000/- is kept by the 2nd party. The balance works like plastering, flooring, painting and other finishing works were completed by the 1st party and the building is 100% finished and occupied. According to the commissioner the complainant had suffered a monetary loss of Rs.5,50,000/-. According to the final report submitted by the commissioner, he has calculated a monetary loss of Rs.5,50,000/- to the complainant for completing the balance work left by the opposite party. In the above circumstances we allow the complaint and the opposite party is directed to pay an amount of Rs.5,50,000/- (Rupees five lakh fifty thousand only) along with interest @ 6% from the date of filing of this complaint till the date of realization. We also direct the opposite party to pay a sum of Rs.2,00,000/- (Rupees two lakhs only) towards compensation for the deficiency of service, mental agony and monetary loss towards expenditure for completing the work along with Rs.5,000/- (Rupees five thousand only) as cost towards this proceedings.
This order shall be executed within one month from the date of receipt of this order; failing which the complainant is entitled to realize from the opposite party interest at 9% p.a on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 29th day of November 2017.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P.
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - photo copy of an agreement entered - between the complainant and opposite party
Ext.A2 series - CD and Photographs (15 No’s)
Ext.A3 series - Copy of bills for construction of building
Ext.A4 series - Copy of bills for construction of building
Exhibits marked on the side of Opposite parties
Nil
Commission Report
C1 - Interim Report Dated.14.11.2016
C2 - Commission Report dated.14.06.2017
C3 - Commission Report Dated.03.01.2017
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite party
Nil
Cost
Rs.5,000/-
