IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 8TH DAY OF August 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Sri. M.Praveen Kumar,Bsc, LLB ,Member
CC.29/2014
Yesmi Joy : Complainant
D/o Gilda
Karimbalikizhakkathil
Uliyakovil
Sneha Nagar – 239
Kollam
[By Adv.S.Suresh kumar, Kollam]
V/S
Pradeep : Opposite party
S/o Sadasivan
Kailasam
Mulakkal Kizhakkathil
Uliyakovil P.O
Kollam
[By Adv.Dheeraj Ravi, Kollam]
ORDER
SRI. M. PRAVEEN KUMAR, MEMBER
This is a case based on a consumer complaint filed by the complainant against opposite party under Section 12 of the Consumer Protection Act seeking to direct opposite party to pay compensation, return the amount received in excess and also to pay for rectification of mistakes committed by the opposite party in constructing the building along with costs of the proceedings .
(2)
The averments in the complaint in short are as follows:
The complainants husband has 3 cents of property at Kadappakada wherein the complainant decided to construct a house building. Opposite party contacted her claiming that he had vast experience in the field of building construction and further agreed that if he is entrusted with the work, he would complete it within 6 months. By believing the above representation the complainant entrusted the construction work to the opposite party .
The work was started on 03/03/2013 by agreeing to complete the work within six months for a total construction cost of Rs.16,50,000/- and also by receiving Rs.11,50,000/- as advance. Since the work has been supervised by the father of the complainant, she has not been going to the work site and was under the impression that everything was going well as per the plan and estimate. During the 1st week of December 2013, the complainant made a visit to the site for assessing the progress of the construction and was found that it was not going to be completed soon and has noticed several works done in contravention of the approved plan and Vasthu Sasthra. Hence she required the opposite party to rectify the mistakes including the position of the stair case and the position of the bathroom at the upper floor. The opposite party conceded for that and since the work was not completed in time, the complainant required for a written contract incorporating all the conditions and accordingly a contract was signed between the complainant and the opposite party on 09/12/2013.
(3)
Opposite party has assured that he will rectify the defects in construction and will complete the work as early as possible. But he did not keep his words and has abandoned the work without finishing it as agreed. So far he has done works for maximum Rs.9 lakhs and 2.5 lakhs is still with him. He has used only inferior quality materials as against the terms of the agreement and the wood used is not Anjilia wood as agreed. The iron bars used in the window are second hand purchases. The upper floor bathroom is constructed in such a way that one person can hardly enter into and has to come back in the same posture. The iron stair fixed for reaching the terrace cannot be used without bending to 60 degree. The ceiling of the 1st floor is extending to the staircase in such a position making it difficult to climb the steps without hitting on the roof.
Complainant on several occasion requested the opposite party to rectify the mistakes and to complete the work as agreed. She was ready to give the balance money as and when required. But the opposite party did not rectify the mistakes and instead he had decided to teach the complainant a lesson.
Now the opposite party from whom the complainant has availed service has abandoned the work without intimating her and without finishing it as agreed and has caused much mental agony, irreparable injury, financial loss and inconveniences. His acts amount to deficiency in service and unfair trade practice. The complainant is entitled to get compensation for the loss suffered by her in addition to the amount received by him in excess. Hence the complaint.
(4)
Opposite party resisted the complaint by filing written version. According to the opposite party on the request of complainant he had entered in to an agreement which was executed on 09/12/2013. The construction of the building has to be carried out as per the building permit issued by Kollam Corporation. But during construction the complainant requested the opposite party to carryout additional work which are not stated in the plan. He carried out the additional works on the basis of the terms and conditions specified in the agreement. Thereafter the complainant became aware that if the construction work is not done in terms of the permit, she will not get license from the Corporation. Thereafter she requested the respondent to rectify the additional work, which is not possible because the additional work were already made on the request of the complainant.
The respondent accepted the contract for an amount of Rs.16,50,000/- and that the amount will be paid step by step of the work.
On the basis of the above agreement more than 90% works were completed by spending Rs.13,50,000/- but the complainant paid only an amount of Rs.11,50,000/- to the opposite party . Though he demanded the balance amount of the completed work, the complainant refused to pay the same which is against the terms of the agreement. The opposite party is not in a position to continue the work without getting the balance amount of the work already completed. The building materials like M-sand , doors, window frames , frame
(5)
glass, cement Katta, fittings items etc worth Rs.52,500/- purchased by the opposite party were kept in the building site. Other materials of building construction like large quantity of Palaka, Thlan and Kazha, Kutta, drum , 3 horse bench (iron) etc worth Rs.50,000/- belonging to the opposite party are also kept in the construction site.
The opposite party has carried out additional works including Grill fittings in the kitchen in inside stair , two doors and Kattala fitted in the upstairs of the building, outside stair grill etc having worth Rs.96,000/- .
The new building is constructed after demolishing the old building, shops, well etc situated in the present site. He has leveled the plot by removing the hill land by using labours and incurred transporting cost to the tune of Rs.1,76,250/-.
The complainant has no allegation in the complaint that there is any deficiency in service on the side of the opposite party. The complaint has been filed with a malafide on an experimental basis to grab money from the opposite party. The complaint is an abuse of process of law. The complainant is liable to pay an additional amount of Rs.2,50.000/- to the opposite party for the additional works carried out by the opposite party. The complainant is liable to be dismissed with his costs.
In view of the pleadings the points for consideration are:-
(6)
1.Whether there is any deficiency in service on the part of the opposite party?
2. Whether the reliefs sought for in the complaint is allowable?
3. Reliefs and costs?
Evidence on the side of the complainant consists of the oral evidence of PW1 . Ext,P1 and P2 documents and Ext.C1 to C3 commission and expert reports.
Evidence on the side of the opposite party consists of the oral evidence of DW1to 3 .
Complainant’s counsel has not filed any notes of argument. Opposite party filed notes of argument . Both advocates have not turned up and argued on the merit of their respective case though sufficient opportunity was granted. Hence taken up for judgment.
Point No.1 and 2:- For avoiding repetition of discussion of materials these 2 points are considered together. According to complainant the opposite party started construction of her house building on 03/03/2013 as per the approved plan of the Kollam corporation by agreeing to complete the work within 6 months at a total construction costs of Rs.16,50,000/- and received Rs.11,50,000/- as advance. The opposite party would admit that he had received the said amount as advance from the complainant and started construction work. The learned counsel for the complainant submitted that opposite party had made so many
(7)
contraventions from the approved plan, and caused so many mistakes and has not carried out the construction work for Rs.11,50,000/- and therefore the opposite party is entitled to return the excess amount received from himself. The crucial question to be considered is whether the opposite party constructed the building as per the approved plan and whether the opposite party has carried out the construction for the amount of Rs.11,50,000/- received as advance from the complainant.
In order to substantiate the above case, complainant rely on the oral evidence of PW1 coupled with Ext.P1 agreement, C1 to C3 expert and commission reports. Ext.C1 and C.2 reports which would clearly indicate that the commissioner has visited the building along with the expert engineer who is none other than a Charted engineer and approved/registered valuer and prepared Ext.C3 mahazar and report in the presence of both parties .
In page No.2and 3 of Ext C3 mahazar the following facts have been stated.
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(8)
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The expert engineer has also noted several deviations from the approved plans and other matters in C1 report. The expert has noted the following facts.
Deviations from the approved plan
- Ground Floor :-
- Main stair case from ground floor to first floor :-
- The width as per the approved drawing is 90 cm, but now the width is only 82 cm (average ).
- The starting point of the stair is 90 cm from the kitchen east wall ( as per ground floor plan drawings). But now the stair is abutting the east kitchen wall facing main entrance door. Due to this , all stair alignment, kitchen and first floor toilet has been altered.
- Bed room entrance :- As per the approved drawing, the entrance is from east wall, but now the same has been shifted to north wall (facing kitchen) replacing the space for wash hand basin (as in the approved plan)
(9)
- Toilet:- As per the approved plan the size is 2.00m 1.20 m, but now it measures 1.75 m 1.20 m.
2.First Floor :-
a, Stair room dimensions has been altered , from (1.70 m 3.86 m) to (1.90 2.75 m) . Replaced window (on east wall ) with a door of size 0.90 m 2.10 m to roof stair ( not in the approved plan).
b. Back bed room :- (above kitchen) dimension (width) has been reduced from 3.00 m to 2.85 m.
c. For attached toilet , shape has been altered and converted it to a common toilet for the first floor.
d. Common toilet above stair has been reduced in width, from 1.20 m to 0.80.m .
e. Front bed room on west, the width of the room has been reduced from 3.14m to 2.85 m.
f. Front bed room (on east) dimensions has been increased from 2.76 m to 2.85 m. A balcony of size 3.10 m 0.70 m has been introduced at front with door of size 0.90m 2.10 m replacing window of size 1.00 m
The same commissioner and expert again visited the house building on 26/06/15 as per the order of this forum dated 25/03/2015 and filed Mahazar and
(10)
expert report which are marked as Ext.C2. Wherein the expert has noted the following points.
- Total plinth area (Ground Floor + First floor ) as per the approved drawings is 94.32 square meter , as per the actual measurement it is 93.16 square meter . The value of the building materials erected is Rs.9,85,000/- and materials at site (sand, blocks etc )Rs.1500/-.
The expert engineer has noted the following aspects in C2 report.
- Plinth area of the ground floor (GF) is same as in the approved plan ie 47.16 Sqm. In the first floor as per the approved plam the plinth area is 47.16 Sqm, but as per, the actual measurement the plinth area measures 46.00SQm only.
Total plinth area (Ground Floor +First floor) as per the approved drawing is 94.32. Sqm, and as per the actual measurement it is 93.16 Sqm.
- All flooring, toilet tile works, fixing of door and window shutters has been completed and painted with wood primer and walls/ceiling has been painted with cement primer. All toilet fixtures like , water taps, showers, closets, wash basins, towel roads& PVS doors frames with shutters has been fixed. Electrical (wiring, switches, light fixtures, fans, breakers etc ) has been completed. Stainless hand rails for staircase, granite steps (for
-
entrance & stair steps), granite kitchen slam top, fixing of kitchen sink etc has been completed. Both floors have been occupied by the house owner.
- Drawings (GF &FF plan only) enclosed.
- All wooden door shutters are of mahagony and plavu except front door, which is of teak wood shutter (front door -1No-1.00 2.10 m and other doors -9 nos-90 cm 2.10 m ) with all hard - wares has been fixed and painted with wood primer. All PVC toilet door frame with shutters (3 Nos) has been fixed with all hard-wars. All wooden window shutters and ventilator shutters have been fixed(are of mahagony/plavu) with all hard wares/glass and painted with wood primer.
- The remaining building materials /tools are found at the site are about 35 Nos. cement concrete solid blocks (of size 15 cm 20cm 30 cm) about 5 cft m –sand, 1-MS bench (pipe framed with wood plank top), 1 pick axe, 2 –shade (manavetti), 1 –PVC drum (to store water)[photos enclosed]
a, Additional MS ladder has been fabricated and fixed in the first floor to roof. Cost of ladder and all labour charge for fixing as per the prevailing market rates in the locality comes to Rs.15,000/-
b, A steel ventilator has been fixed which is not in the plan) in the kitchen –ground floor. The total cost (fabrication, erection & finishing) as per the prevailing market rates comes to Rs.1500/-
(12)
- From the remaining part of the foundation (about 2.40 m length at front yard) it is difficult to assess the size/shapes and quality of debris of the demolished building.
- The value of the building materials erected Rs.9,85,000/- and materials at site (sand, blocks etc)Rs.1500/-
- The depreciated value of the tools comes around Rs.3000/-
- Distance of the building from drain (property line) is 3.00m
According to the complainant opposite party had received an excess amount of Rs.2,50,000/- from the complainant. But according to the opposite party he had spend an amount of Rs.1,76,250/- for leveling work of the plot. It is contented in the written version filed by opposite party that he has demolished the existing building, closed the well situated in the plot and leveled the plot by removing the debris of the building and removing 18 loads of soil from the plot for which he spent the above amount of Rs.1,76,250/- . However the opposite party when he was in the witness box as DW1 would admit that he had not paid the amount received by selling the 18 loads of soil. DW1 would also admit that he has appropriated the materials collected from the old building while demolishing the same . In the circumstance the opposite party is not entitled to claim any amount for demolishing the old building and leveling the plot by closing the well and removing soil.
(13)
It is further contended that the opposite party is entitled to the cost of additional construction. But even according to DW1 there is no provision in written agreement for additional construction.
In view of the materials available on record including Ext.C1 & C2 report and the oral evidence of PW1 and DW1 it is clear that the value of the building materials erected is Rs.9,85,000/- including the costs of additional construction and materials belonging to the opposite party lying at the worksite .Admittedly the opposite party had already received an amount of Rs.11,50,000/- from the complainant as advance. Hence the opposite party has received an excess amount of Rs.1,63,500/- ie 11,50,000-9,86,500. Therefore the opposite party is liable to return the excess amount of Rs.1,63,500/-to the complainant.
It is also brought out in evidence that due to the defects in the construction of the house building and non completion of the house building as per the agreement the complainant has suffered mental agony and sufferings. In the circumstance the complainant is entitled to get sufficient compensation for the defective construction and non completion of the building by the opposite party with in the stipulated period.
In view of the facts and circumstance of the case we are of the view that Rs.50,000/- will be sufficient compensation. In the circumstance of the case the complainant is also entitled to realize the costs of the proceedings from the opposite party. The points No.1 and 2 answered accordingly.
(14)
Point No.3:-
In the result the complaint stands allowed in the following terms.
(a).The opposite party is directed to return an amount of Rs. 1,63,500/- being the excess amount received from the complainant with interest @ 9% per annum from the date of filing the complaint ie 11/03/2014 till realization.
(b).The opposite party is further directed to pay an amount of Rs.50,000/- as compensation to the complainant for rectification of the defective construction of the building and for the non completion of the building with in the stipulated period as per the agreement between the parties.
(C). Opposite party is also directed to pay Rs.5000/- as costs of the proceedings.
(d).The opposite party is directed to comply with the above directions within 45 days from today, failing which the complainant is entitled to realize an amount of Rs.2,13,500/- with interest @12% per annum along with costs of the proceedings from 11/03/2014 till realization from opposite party and from his assets.
Dictated to the Confidential Assistant Smt.Vijimole.G transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 8th day of August 2018.
E.M .MUHAMMED IBRAHIM:Sd/-
M.PRAVEENKUMAR: Sd/-
Forwarded/by Order
Senior Superintendent
(15)
INDEX
Witnesses Examined for the Complainant
PW1:-Yasmi Joy
Documents marked for the complainant
Ext.P1:- Agreement (original)
Ext.P.2:-Photographs (2 Nos)
C.1:- Expert report dated 11/08/2014
C.2:-Expert report dated 01/07/2015
C.3:-Commission report
Witnesses examined for the opposite party
DW1:- Pradeep
DW2:- Bensili Greek
DW3:-Rajeev
Documents marked for the opposite party
Ext.D1:- Reply from Public Information Officer East Police Station, Kollam
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:-Sd/-
Forwarded/by Order
Senior Superintendent
