KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.477/2017

JUDGEMENT DATED: 18.06.2024

(Against the Order in C.C.No.343/2015 of CDRF, Alappuzha)

PRESENT:

APPELLANT:

(by Advs. Ajay Kumar B. & Suja Madhav)

Vs.

RESPONDENT:

(by Advs. R. Gopalakrishna Pillai & R. Ajaya Ghosh)

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

           This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 by the opposite party in C.C.No.343/2015 on the file of the Consumer Disputes Redressal Commission, Alappuzha (the District Commission for short). 

          2.       On 26.06.2017 the District Commission had allowed the complaint and directed the appellant to refund Rs.3,74,707/-(Rupees Three Lakhs Seventy Four Thousand Seven Hundred and Seven only) to the complainant being the excess amount received along with interest @8% per annum and Rs.3,000/-(Rupees Three Thousand only) as costs. 

3.       The allegations contained in the complaint in short are stated below:

The complainant and the opposite party had entered into an agreement for the construction of a building with a plinth area of 743sq.ft. @Rs.1,150/- per sq.ft.  The proposed construction is the extension of a shop room and the said work was finished.  Subsequently, the opposite party had agreed to construct the first floor of the building at the rate fixed for the earlier construction.  Complainant had paid a total sum of Rs.15,00,000/-(Rupees Fifteen Lakhs only).  The opposite party delayed the construction by raising an additional demand for completing the work.  Now the complainant is staying in a rental premises since the opposite party had failed to complete the construction of the residential building.  There is deficiency in service.  Hence, the complainant would seek for a direction to the opposite party to refund the excess amount received along with compensation.

4.       Opposite party had entered appearance and filed a version stating that he never agreed to construct the building as per the rate fixed for the ground floor.  He had put up the structure which is having 1273.1sq.ft. and the remaining work to be carried out by spending Rs.1,15,000/-(Rupees One Lakh Fifteen Thousand only).  His case is that an amount of Rs.6,64,100/-(Rupees Six Lakh Sixty Four Thousand One Hundred only) has to be realised from the complainant.  There was no deficiency on his side.  He would seek for the dismissal of the complaint.

5.       On the side of the complainant PWs 1 and 2 were examined.  Exhibits A1 to A4 were marked.  An expert commissioner was deputed who filed Exhibit C1 series report.  He was examined as CW1.  For the opposite party RWs 1 and 2 were examined.

6.       In the appeal memorandum it is contended that the District Commission went wrong in fastening liability on the appellant who has performed his part for more amount than the amount received from the complainant.  The District Commission ought to have dismissed the complaint.  The District Commission ought to have found that the report filed by the expert commissioner was incomplete as no plan was appended along with it.  The District Commission ought to have found that the dispute involved in this case could not be decided unless the number of additional pillars, columns and beams erected by the opposite party and the cost incurred for the same is ascertained.  The District Commission went wrong in ascertaining the value of work done on the basis of the Delhi Area Building and not the rates prevailing in Kerala at that point of time.  The District Commission ought to have rejected the report of the expert commissioner on the sole ground that the pillars were neither ascertained nor measured.  The District Commission ought to have drawn adverse inference on the complainant as she has not brought the approved plan and estimate though admitted in evidence about such documents and expressed her readiness to cause production of the same.  The District Commission went wrong in discarding the oral evidence given by the opposite party in cross examination that a sum of Rs.6,64,100/-(Rupees Six Lakh Sixty Four Thousand only) was due to him towards the construction cost.  The appellant would seek for setting aside the order passed by the District Commission.

7.       Heard counsel for both sides.  Perused the records received from the District Commission.

8.       The complainant has testified before the District Commission as PW1.  Exhibit A1 is the karar entered into between the complainant and the opposite party dated 24.04.2013 with respect to the construction of the ground floor.  Exhibit A2 is the details of the payments made by the complainant towards the construction cost of the disputed premises.  Exhibit A3 is the copy of the complaint and estimate.  Exhibit A4 is the copy of the plan and detailed estimate for the constructed area and the balance work to be carried out. 

9.       According to the complainant the opposite party had completed the construction work of the ground floor without any complication and she had confidence in the opposite party and that is why she had entrusted the opposite party for the construction of the first floor.  Her case is that no separate agreement was executed as the opposite party had agreed to carry out the work at the rate as fixed in Exhibit A1.  An expert commissioner was deputed to the property who had inspected the structure and filed a report which is marked as Exhibit C1.  The commissioner was examined as CW1.  He has given convincing evidence with regard to the facts reported in Exhibit C1 by inspecting the premises.  According to the opposite party the expert commissioner went wrong in placing reliance upon DAR which is Delhi Area Building Rates.  But the evidence let in by the commissioner would show that DAR 2014 indicates Data Analysis Rate fixed by the Central Government not Delhi Area Building Rate. 

10.     The detailed estimate with respect to the work carried out by the opposite party has been furnished by the expert commissioner.  The main grievance of the opposite party is that the expert commissioner went wrong in not locating the pillars and columns put up for the construction of the structure.  On going through the detailed estimate incorporated with the report filed by the expert, it could be seen that the expert commissioner had prepared the estimates with respect to the beams and columns put up in the construction.  So it is incorrect to state that there was omission on the part of the expert commissioner in not assessing the cost incurred in the construction.  He had elaborately shown the entire details of the construction effected and its cost in the estimate.  He had also prepared an estimate with respect to the work to be carried out. 

10.     On going through the report and estimate prepared by the expert commissioner we could not find any discrepancy as argued by the counsel for the appellant.  There is no illegality or impropriety pointed out or brought out in the report submitted by the expert commissioner.  The expert commissioner had valued cost of work carried out by the opposite party as Rs.11,25,293/-(Rupees Eleven Lakhs Twenty Five Thousand Two Hundred and Ninety Three only) and the estimate prepared by the expert commissioner would show that a sum of Rs.7,31,184/-(Rupees Seven Lakh Thirty One Thousand One Hundred and Eighty Four only) is required for the completion of the work.  So it could be seen that the opposite party had received an excess amount of Rs.3,74,707/-(Rupees Three Lakh Seventy Four Thousand Seven Hundred and Seven only) from the complainant. 

11.     Exhibits A3 and A4 are the two estimates produced by the opposite party before the Police Station.  Exhibit A3 was brought by the opposite party before the Kurathikkadu Police Station wherein it is seen that the opposite party has to pay Rs.84,156/-(Rupees Eighty Four Thousand One Hundred and Fifty Six only) to the complainant.  He had later produced a plan and estimate before the Kareelakulangara Police Station which is marked as Exhibit A4.  As per Exhibit A4 the opposite party has to pay a sum of Rs.2,18,000/-(Rupees Two Lakh Eighteen Thousand only) to the complainant.  So it could be seen that the opposite party had already received a surplus amount that the actual cost of the construction put up. 

12.     Admittedly, the opposite party has not completed the construction work of the complainant.  The version given by the complainant is more probable than that of the opposite party.  Complainant would submit that no separate agreement was executed, since the opposite parties had agreed to carry out the construction as per the rate agreed in Exhibit A1 with respect to the construction of the first floor.  If any variation from the rate was proposed, one would expect preparation of a fresh agreement.  The absence of causing execution of a separate agreement with respect to the first floor would only probabilise the stand taken by the complainant that the opposite party had agreed to carry out the construction as per the rates fixed by both parties in the construction of the first floor. 

13.     The District Commission had exhaustively considered the evidence and reached a proper conclusion that there was deficiency in service on the part of the opposite party in collecting surplus amount and not completing the work of the premises.  The expert commissioner has correctly assessed the cost incurred and the surplus amount received by the opposite party.  We find no merit in the contentions raised in the appeal.  Therefore, the order passed by the District Commission is affirmed. 

In the result, the appeal is dismissed.  Parties shall bear their respective costs.  The amount of statutory deposit Rs.25,000/-(Rupees Twenty Five Thousand only) made by the appellants shall be disbursed to the respondent on proper acknowledgement, to be adjusted towards the amount found due and payable to him.

SL