CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD
Dated this the 16th July, 2016
PRESENT : SMT. SHINY.P.R, PRESIDENT
: SMT. SUMA. K.P, MEMBER
: SRI. V.P.ANANTHA NARAYANAN, MERMBER Date of filing : 18/7/2014
CC /103/2014
Anandan,
S/o.Gopalakrishnan Nair,
Kannath Veedu, Manalaya Post,
Anamangad, Malappuram District : Complainant
(By Adv.K.K.Narayanan)
Vs
1. P.V.N.Builders Pvt.Ltd,
Near Government Hospital, : Opposite parties
Pattambi Road, Cherpulasseri,
Palakkad – 679 503
2. Ishaq Chekku,
Executive Director (Operations),
P.V.N.Builders Pvt.Ltd,
Near Govt.Hospital,
Pattambi Road, Cherpulasseri,
Palakkad – 679 503
(By Adv.V.Swapnalatha & Adv.B.Ravikumar)
O R D E R
By Smt. Suma. K.P, Member,
The complaint is filed for return of Rs.14,40,000/- paid by the complainant to the opposite parties and also to grant Rs.1 lakh as compensation for the mental agony and loss sustained by the complainant due to the deficiency of service on the part of the opposite parties in the construction of the house. The case of the complainant is that he had entrusted the construction of his house to the opposite parties believing their advertisement. The opposite parties had agreed to undertake the construction of the building for Rs.1,150/- per sqft. The opposite parties had promised to complete the construction by 6 months. But later on they informed the complainant that it will take 10 months for completion. An amount of Rs.1lakh was paid on 22/1/2013 and thereafter paid amounts on various date amounting to Rs.14,40,000/- to the opposite parties. The agreement dtd.10/1/2013 was handed over on 21/4/2013. Opposite parties had started construction with second hand and useless materials and threatened the complainant not to make any complaints. The doors and frames on the front and back side of the building are made of second hand wood and of poor quality. The remaining windows are of concrete and those are of low quality. The reaper and bars of concrete windows are very thin. The M-sand and other sand used were of poor quality knowing fully well that the building will have leakage. The walls are uneven. The bricks used were of low quality and hence the walls are bent. The opposite parties promised to rectify the same but has not done. The steel used for concreting was of 7x7, 7x8 instead of 6x7. The steel used was having rust and of low quality. The work was done by unskilled and in-experienced workers. The wiring and plumbing materials alone was of ISI quality and the rest of the materials were of inferior qualities. The door to the store room was not fitted. The septic tank was not of good quality. The waste tank was not fitted at the site. The stoppers of the doors and windows were loose and shaky they cannot be properly closed. Opposite parties had given wrong completion reports. The complainant had checked the building with another engineer and he pointed out the anomalies in the construction. The opposite parties had received Rs.4lakhs in excess. The steel rods used in the ventilators are of low quality. An additional bill of Rs.3,411/- was given by the opposite parties to the complainant. The tiles used in the roofs were old and with different sizes and there was leakage due to the defect in fixing the same. The opposite parties demanded amounts for work material tax, labour tax and also Rs.1,27,607/- to complete the work. Since the old house resided by the complainant had fallen down in rain, the complainant had entered in the house and started residing there along with her aged and ailed parents. The opposite parties has received Rs.14,40,000/- but they have not done any work for the same and the work done is of low quality and without fulfilling the standards prescribed, for making profit, causing loss mentally and economically. The above act of the opposite parties amounts to deficiency of service on their part. Hence the complainant had approached before this forum seeking an order directing the opposite parties to return Rs.14,40,000/- which was paid for the construction of the house along with Rs.1,00,000/- for the mental agony and sufferings, and also to pay Rs.10,000/- towards the cost of this litigation.
Notice was issued for to the opposite party for appearance. Opposite parties entered appearance and filed version denying all the allegations in the complaint.
The complaint is not maintainable and is filed only to extort money on the threat of litigation. The Forum has no jurisdiction to entertain the complaint since in the prayer in the petition is to return the amount paid for the construction of the work. The amount of Rs.14,40,000/- claimed is not as compensation but to return the amount paid by the complainant to the opposite parties as consideration. The opposite parties had contented that the rate demanded was Rs.1,250/- per sqft. The complainant had stated that the work will be supervised by him and requested to reduce the rate to Rs.1,150/- per sqft and it was agreed as such. The terms and conditions of the contract were given to the complainant and it was agreed by him. But the complainant had violated the terms and condition and the payments were unreasonably delayed. As the payments were not made in time opposite parties had sustained considerable loss. The complainant had to pay a further amount of Rs.7,66,905/- more for the work done by the opposite parties and also 5% of the amount on completion of the building. Moreover he had to pay the tax TDS and watt. The said amounts were paid by the opposite parties and the same has to be reimbursed by the complainant. The allegation that the materials used were second hand materials and are of inferior quality is not correct. All the materials were purchased at the instruction, direction and satisfaction of the complainant. The floor tiles were purchased for the higher price than that was agreed as per the direction of the complainant. The foundation of the building was altered increasing the plinth areas of the building. The allegation that the materials and things such as doors, windows, iron bars and reaper and windows, steel , M-sand , sand were of low quality are all incorrect. Further allegation that the work was done through unskilled workers is also not correct. The allegation that the septic tank was made not as per the standards and that opposite parties had promised to construct a waste tank etc. are all incorrect. The complainant had infact trespassed in to the house without the knowledge and consent of the opposite parties before the final finishing of the building. The complainant has denied entry to the house for the final finishing . The opposite parties had denied that there is any defect in the construction. The complainant had violated the terms of the contract agreed between the parties. The allegation in the complaint that an amount of Rs.4lakh was received in excess of the amount to be paid was also denied by the opposite parties. The complainant is bound to pay the actual amount spend by the opposite parties and also the supervision charge @10% of the total cost of construction as the construction was done under the strict direction and control of the complainant and also for the reason that a slight deviation of the original plan was made at the demand of the complainant. There is absolutely no deficiency of service on the part of the opposite parties. There was no stocking facility available at the site. Hence none of the materials could be purchased in bulk. The entire things were purchased on retail price and thereby the opposite parties had sustained a loss of Rs.49,450/-. Further as a heavy vehicles could not be taken to the plot, the materials like bricks sand, metal, steel, tiles etc. were transported in small vehicles causing additional transport expense. Due to water scarcity in the well the opposite parties had sustained additional labour charges. The complainant is not entitled to get any of the relief sought for in the complaint and the complaint is liable to be dismissed with cost.
Complainant filed application for appointment of expert commissioner. Commissioner was appointed and a detail report was filed. Both parties filed objection to commission report. Complainant filed chief affidavit. Opposite parties filed application seeking permission to cross examine complainant. Complainant was examined as PW1. Ext.A1 to Ext.A23 was marked from the part of the complainant. Expert Commissioner’s report was marked as C1. Opposite parties also filed chief affidavit and complainant filed application to cross examine opposite parties. Opposite party was examined as DW1. Ext.B1 – B14 was marked from the part of opposite parties. Evidence was closed and the matter was heard.
The following issues are to be considered.
- Whether there is any deficiency of service on the part of the opposite parties?
- If so, what are the reliefs and cost?
ISSUES 1 & 2
We had perused the documents produced from both sides as well as commission report filed before the forum. Admittedly the complainant had paid an amount of Rs.14,40,000/- to the opposite parties. According to the commissioner the cost of completed construction is Rs.16,79,722/-. According to the commissioner’s report the tipper lorry will reach till the front of the house of the complainant and there are enough space to stock building materials in the premise but bushes are standing at that areas during his visit. In the complaint as well as in chief affidavit, the complainant had admitted that there was an agreement between the parties which was marked as Ext.A3. During cross examination he had deposed that he is not accepting and admitting the agreement and there was an understanding between the parties. This fact was not stated in the complaint or in the chief affidavit or he has not stated anything about the details of understanding or its terms and conditions in the complaint nor in the affidavit. The commissioner had noticed in his report that only the front and back doors and frames are made in wood and the thickness of the wooden panel of the door was very lean. Grill and door are made of using only 5 mm thickness MS rod. The hurdies used to construct the house are bent and some are broken near the roof slab. There was no proper passage to the open terrace. The wall is not properly plumbed and it is uneven. The outer wall of the bathroom is getting leak from the use of bathroom and it may result in speedy damage. As the complainant had denied Ext.A3 and had not stated anything about the alleged understanding, the violations of the agreement cannot be assessed on the basis of Ext.A3. Further the Commissioner has also not reported what are the expenditure to be incurred for rectifying the defects. According to the opposite parties there was no shed for stocking the materials. So the cement and other materials could not be stored in the site. Further he had done additional works which resulted for the additional expense. They had produced bills showing the expenditure incurred for extra work which was marked as Ext.B1-B5. It is well settled position of law that the deficiency of service in the construction of a building cannot be proved by documents or oral evidence. It requires a local inspection by an expert and to get a report. In this case the commissioner has filed a report and even according to the report he had assessed the cost of completed construction will amount to Rs.16,79,722/- especially when even as per the complainant the total amount paid is only Rs.14,40,000/-. More over the complainant had denied Ext.A3 during cross examination. Hence as per the case of the complainant, this Forum is in total darkness with regard to the terms and conditions agreed by the complainant and the violations of the alleged terms and conditions. It has also come out in evidence that there was additional construction in the foundation as well. The opposite parties has also contented that the complainant had defaulted payments and all the payments agreed to be paid by the complainant is not paid so.
From the above discussions, we are of the view that the complainant had failed to prove the allegations stated in the complaint and hence complaint is dismissed without cost.
Pronounced in the open court on this the 16th day of July, 2016.
Sd/-
Shiny.P.R
President
Sd/- Suma. K.P
Member
Sd/-
V.P. Anantha Narayanan
Member
A P P E N D I X
Exhibits marked on the side of complainant
Exhibits marked on the side of Complainant
Ext.A1- Advertisement notice 2 nos (Original)
Ext.A2-Copy of payment details dts.06/05/2014
Ext.A3- Copy of payment terms
Ext.A4-Plan and estimate of proposed residential building dtd.14/12/2013
Ext.A5-Copy of invoice No.263 dtd.01/03/2013
Ext.A6-Copy of invoice No.236 dtd.05/02/2013
Ext.A7-Copy of invoice No.273 dtd.07/03/2013
Ext.A8-Copy of invoice No.371 dtd.30/05/2013
Ext.A9-Copy of invoice No.376 dtd.10/06/2013
Ext.A10-Copy of invoice No.379 dtd.16/07/2013
Ext.A11-Copy of invoice No.385 dtd.27/07/2013
Ext.A12-Copy of invoice No. 396 dtd.19/08/2013
Ext.A13-Copy of Receipt dtd.23/09/2013
Ext.A14-Copy of Receipt dtd.2/10/2013
Ext.A15-Copy of Receipt dtd.3/10/2013
Ext.A16-Copy of Receipt dtd.4/11/2013
Ext.A17-Copy of Receipt dtd.19/11/2013
Ext.A18-Copy of Receipt dtd.3/12/2013
Ext.A19-Copy of Receipt dtd.19/02/2014
Ext.A20-Copy of Receipt dtd.5/03/2014
Ext.A21-Copy of Receipt dtd.22/03/2014
Ext.A22-Project Schedule (Photocopy)
Ext.A23- Project Schedule dtd.15/2/14(Photocopy)
Ext.C1-Commission Report (Adv.O.Ramesh)
Witness marked on the side of complainant
PW1-Anandan
Exhibits marked on the side of opposite party
Ext.B1 - True copy of letter dtd.01/2/2013 about extra charges for the conveyance for vehicle to Auto goods.
Ext.B2- True copy of Extra work bill dtd.08/05/2014
Ext.B3 - True copy of Letter dtd.13/2/2014 about work stops due to non-payment
Ext.B4 - True copy of Letter dtd.6/5/2014 about balance payment
Ext.B5 - True copy of Letter dtd.11/6/2013 about Road worst condition
Ext.B6 - True copy of Letter dtd.25/10/2013 about revised schedule
Ext.B7 - True copy of Letter dtd.10/2/2014 about revised schedule
Ext.B8 - True copy of Letter dtd.26/3/2014 about progressive payment request for the stage work
Ext.B9 - True copy of Letter dtd.30/4/2013 about progressive payment request for the stage work
Ext.B10- True copy of Letter dtd.19/5/2013 about progressive payment request for the stage work
Ext.B11- True copy of Letter dtd.15/6/2013 about progressive payment request for the stage work
Ext.B12- True copy of Letter dtd.5/7/2013 about progressive payment request for the stage work
Ext.B13 - True copy of Letter dtd.13/2/2014 about progressive payment request for the stage work
Ext.B14 - Certified true copy of extracts of the Minutes dtd.16/8/2014
Witness examined on the side of opposite party
DW1-Ishaq Chekku
Cost Allowed
No cost.
