IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 23rd day of February 2010 CC.43/2007 P.Karunakaran, ‘Vishnu Maya’, P.O.Pallikkunnu, Kannur. (Rep. by Adv.P.Vimalakumari) Complainant P.Reejith, ‘Sivasakthi’, Kundamchal Road, Panamkavu, P.O.Chirakkal (Rep. by Adv.T.C.Anurag) Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection Act for an n order directing the opposite party to pay the amount of Rs.2, 10,254/- as compensation. The case of the complainant in brief is as follows: Complainant approached opposite party for construction of 1st floor of complainant’s house at Pallikkulam in Chirakkal Panchayath. Complainant had been residing with family in the ground floor for the last several years. Agreement was executed between complainant and opposite party whereby complainant has to pay an amount of Rs.3, 95,000/-. Opposite party has to complete the construction of the first floor with RCC roof including demolition of parapet wall of the ground floor and undertaken to plaster the ceiling with 1.3 inch sponch finish plastering. Opposite party received the amount but failed to finish his work as agreed. Due to the default in the work done by the opposite party the complainant constrained to suffer much mental agony and compelled to pay an additional amount of Rs.95,000/-. Opposite party omitted to plaster the roof before laying roof tiles. The laying of floor tiles was not proper and stagnating water in the bathroom and thereby roof is leaking. Moreover the doors and windows were not improper measurement. The entire construction was made with low quality materials. Due to repeated request opposite party entrusted one Mr. Suresh to complete the replastering work. He demanded Rs.1000/- and received the same but neither returned the amount nor to complete the work as promised. Opposite party made unlawful gain by receiving Rs.4, 95,000/-. Complainant suffered much mental pain, physical sufferings and financial loss. He suffered a loss of additional amount of Rs.95, 000/-. He also assesses an amount of Rs.15, 000/- as compensation for the mental agony and physical sufferings. Thus the opposite party is liable to pay these amounts for the deficiency in service on his part. Hence this complaint. Forum issued notice to both parties but returned opposite party’s notice with an endorsement ‘returned to sender’. Substitute service (SS) was ordered but before publication opposite party entered appearance and filed version denying the main allegations of complainant. The contentions of opposite party in nutshell are as follows: The complainant approached the opposite party for construction of the first floor ofthe house of complainant. Agreement was executed on 29.12.05 whereby complainant has to pay a total amount of Rs.3, 95,000/- after the completion of the work. It is stipulated in the agreement to construct first floor with RCC roof including demolishing of parapet wall and ceiling with 0 inch sponch finish plastering and all the material cost and labour charge including wall plastering and the finishing charge was fixed as per the amount above mentioned. The opposite party completed construction work as stipulated in the agreement. Only after finishing the work as per the agreement the amount of last installment was given. The opposite party provided the additional services to the complainant by providing materials as directed by him or the interior decorations of the rooms of the complainant’s house as per his special request which was not included in the agreement. For the additional services provided by the opposite party, he has given a bill for Rs.95, 000/-. The allegation that the roof is leaking since opposite party omitted to plaster the roof is false. The allegations that doors and windows were not improper measurements and the entire work was made with low quality materials are false. Opposite party entrusted Mr. Suresh to complete the re-plastering work is also false. The opposite party has not made any unlawful gain. The complaint is false, frivolous and vexatious with malafide and ulterior motive. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite party? 2. Whether the complainant is entitled to get the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral evidence of PW1 and exts.A1 to a4 on the side of the complainant and Exts.C1 commission report also marked. Neither oral evidence adduced or documents produced on the side of opposite party. Issue Nos. 1 to 3 Admittedly the complainant approached the opposite party for the construction of the first floor of his house. The agreement Ext.A4 was executed. As per agreement complainant has to pay Rs.3, 95,000/- and opposite party has to complete the construction of the 1st floor with RCC roof including demolition of parapet wall of the ground floor and undertaken to plaster the ceiling with sponch finish plastering. The main case of the complainant is that opposite party failed to complete the construction work as stipulated in the agreement even though the entire agreed amount Rs.3, 95,000/- has been paid. Complainant further alleged that he was compelled to pay an additional Rs.95, 000/- to complete the work. Opposite party contended that complainant has paid the last installment only after finishing the work as per the agreement. The opposite party provided additional services to the complainant by providing materials as directed by him for the interior decorations of the rooms of the complainant’s house as per his special request which was not included in the agreement. In other words opposite party’s case is that he has done interior decorations of the rooms as additional services other than the stipulations in the agreement Ext.A4 and it is for that additional work he has given a bill of Rs.95,000/- to the complainant. And he further contended that complainant paid only part payment of the bill for Rs.95, 000/- and Rs.50, 000/- remains to be paid as balance. Though the opposite party has contended that he has done addition work of interior decoration he has not adduced any evidence to prove the same. There is no evidence before the Forum that the additional bill given by the opposite party for an amount of Rs.95,000/- if for the work that has been carried out for the interior decorations of the rooms, though he has admitted that he has received only Rs.45,000/- and contending that Rs.50,000/- is now in balance. Complainant in his evidence by way of proof affidavit in lieu of chief examination stated that it is false to say that the opposite party has done the interior decoration other than agreed upon and there is balance of Rs.50,000/-. Ext.C1 report of the expert commissioner also has not mentioned anything about such an extra work though opposite party and his advocate was present at the time of his inspection. Hence there is no substance in the contention of opposite party that he has performed such an extra work over and above what has been stipulated in the agreement Ext.A4. But complainant failed to produce any receipt to show that he has paid Rs.95, 000/-. There is nothing prevented complainant to get a receipt. Hence it can only be assumed that the admitted amount Rs.45, 000/- has been paid. If the opposite party wanted to deny he could have denied that he has not received any amount at all. Hence it can only be considered that opposite party has received Rs.45, 000/- as excess. The report of the expert commissioner is a relevant piece of evidence available that helps to assess the factual situation. Ext.C1 report of the expert commissioner reveals that the arch is not constructed properly; cheruppady in Varandah also having some defects, kitchen platform is constructed with abnormal height, the verandah slab near the smokeless oven’s pipe is leaking, the door frames in bed rooms and drawing rooms in the first floor is seen bend at lower and one at middle, RCC sloping slab requiring replastering, laying of tiles are not proper. Though objection filed it can be seen that the deficiency in construction is quite clear. Even if slight difference could be found the defects in construction cannot be ignored. In the light of the above discussion we hold that there is deficiency in service on the part of the opposite party and he is liable to compensate the complainant for the loss sustained by him. Considering the defects found in the construction of the building and of excess amount received by the opposite party we are of open ion that complainant is entitled to get a total amount of Rs.70, 000/- as compensation. Complainant is also entitled for Rs.1000/- as cost of these proceedings. Hence the issues 1 to 3 are found in favour of the complainant. In the result, the complaint is allowed directing the opposite party to pay a sum of Rs.70, 000/- (Rupees Seventy thousand only) as compensation together with an amount of Rs. 1000/-(rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant will also be entitled for 10% interest for the amount of compensation from the date of filing this complaint. The complainant is allowed to execute the order on the expiry of one month. Sd/- Sd/- Sd/- President Member Member Appendix Exhibits for the complainant A1.Copy of the lawyer notice sent to OP A2.Postal receipt A3.Returned cover A4.Quotation Exhibits for the opposite party:Nil Exhibits for the court C1.Commission report. Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
