COMPLAINT FILED ON:23.12.2009
DISPOSED ON:23.07.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
23rd DAY OF JULY-2012
PRESENT:- SRI. B.S.REDDY PRESIDENT
SRI.A.MUNIYAPPA MEMBER
COMPLAINANT | G.B.Kava, No.738, 12th Cross, 3rd Stage, Gokulam, Mysore-570 002. Adv:Sri.D.Seshadri V/s. |
OPPOSITE PARTY | Praveen Soans, C No.736/B. Sapalya, 3rd Cross, B.Block, Vinayakanagar, Konena Agrahara. HAL Post, Bangalore-560017. Adv:Sri.Thomas V.Peter |
O R D E R
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the C.P. Act of 1986 seeking direction against the Opposite Party (herein after called as OP) to refund excess amount of Rs.3,00,000/- and to complete the remaining construction work of the building on the allegation of deficiency in service.
2. In the complaint, it is stated that on 01.07.2008 the complainant entrusted the construction work of his building at HAL, Vinayaka Nagar site, agreeing to pay an amount of Rs.1,00,000/- per sq. and for other work at the rate of Rs.50,000/- per sq. OP after putting up construction of the first phase ground floor, has put up the staircase to approach the first floor. The agreement deed was required to be executed with regard to this work, the draft agreement has been prepared by the complainant and same is handed over to the OP. OP assured to complete the work. The construction work commenced on 07.07.2008, on that day the complainant has paid Rs.25,000/- as an advance to the OP subsequently from time to time as and when OP demanded the complainant has paid the amount. At last the complainant was unable to pay the amount demanded by OP. The complainant offered to pay Rs.50,000/- but OP refused to receive the same but demanded Rs.1,00,000/- to continue the further construction work. The complainant could not make that payment and the OP stopped further construction work. The complainant has paid in all Rs.8,50,000/- to the OP. The agreement deed brought by OP was not as per the draft agreement, he has mentioned more amounts for some of the items and he has left some items of work in the agreement. Therefore separate agreement was prepared by both the complainant and OP in the house of their common friend and got that agreement deed typed, the same was handed over to the OP with an instruction to put signature for the same and both of them agreed to abide by he terms of the agreement and OP to complete the work. OP has not executed that deed but he continued the construction work. Though OP agreed to alter some items of the works as suggested by the complainant but he has faild to do so and he started to do the construction on his own way. The bill for water sump was given for Rs.93,000/- but when the complainant raised objection for the same, the same was reduced to Rs.63,000/-. The water sump construction as per market rate was Rs.3 to Rs.3.50/- per feet and the estimated amount was Rs.31,500/- to 36,750/-. Without the consent of the complainant, OP has put 7 feet height concrete pillar in the first floor and he has left the work of parking area unfinished, Staircase unfinished. He has given bill for the work completed to an extent of Rs.3,72,705/-. In the front portion of the house without informing the complainant OP has put the unwanted cladding stone and for that OP said he would not charge for the same but in the bill he has claimed Rs.8,067/-. Such works are already included in the square rate of Rs.1,00,000/- but in spite of that for such work OP has charged excess amount. OP has put the concrete slab on the day of his choice without informing the complainant. Totally OP has received Rs.8,50,000/-. The ground floor portion of the house measuring 4.4 square is completed but the other works like parking, Portico, Balcony, Staircase, Compound wall are not completed and gate to the compound is not put. Without completing all these items OP has submitted the 2nd bill on 07.05.2009 for an amount of Rs.8,95.344/-. The complainant noticed some of the items work he charged is excess so he wanted to get the bill submitted by OP verified from PWD retired engineer and stated that OP has already received excess amount, in that amount only OP has to compete flooring, grill work to staircase and to finish the work. The complainant demanded to refund the excess amount so that he can get the remaining unfinished work got done at his own expenses. The bill was returned to the OP and OP was requested to give the key of he ground floor building. The OP has handed over the key of the ground floor but demanded to pay Rs.1,00,000/- promising that he would prepare another bill and submit the same in due course. Thereafter OP has submitted 3rd bill claiming total amount of Rs.8,37,891/- and 4th bill claiming an amount of Rs.1,04,917/-.
In the 3rd bill the plinth area of the ground floor is shown as 417.59 sq ft (in 2nd bill the same is shown as 4.05 sq ft) staircase 76 sq ft (in 2nd bill the same is shown as Rs.116 sq ft) Portico, Balcony, parking area he shown as 669.41 sq.ft (in the 2nd bill 589 sq ft is shown in the cladding the same is including in the plinth area and an amount of Rs.8,36,891 is claimed in 3rd bill. In the 4th bill an amount of Rs.800/- is shown for one load of water for the tanker (the same is not shown in the first bill). In the first bill the amount paid is not included. Thus, it is alleged OP has not properly issued the bills he has taken an excess amount of Rs.2 to 3 Lakhs of the work done. Thus it is stated that there is deficiency in service on the part of the OP, the excess amount is to be refunded and the remaining pending works are to be completed.
3. On appearance OP filed version contending that the complaint is devoid of merits. When the OP prepared the agreement of contract and sent it to the complainant, he refused to sign it on the ground that he wanted the OP to sign the agreement prepared by him. In these circumstances, the agreement could not be signed. It is stated that in the beginning the complainant wanted the OP to put up a first floor and second floor and the plans were also approved by all concerned including that of the family members of the complainant and the complainant wanted to retain the ground floor for parking purposes. In these circumstances, the OP made provisions for the columns to be placed and cast even the roof it was at this point of time that the complainant changed his mind and compelled the OP to alter the entire structure as he wanted the construction even in the ground floor which was not earlier agreed upon. However the OP at his cost and risk put up the ground floor as per the wishes of the complainant. OP has to put up a new foundation for the said construction this was done at the cost of the OP. At no time the work was stopped OP admits that he has received total sum of Rs.8,50,000/- from the complainant but at the same time work to that extent has been executed except the works concerning the compound, gate, staircase. The complainant has falsely stated that minor alterations were not complied with, as a matter of fact whatever changes were asked to be made by the OP were attended to at his cost. Regarding the cladding stone the OP waited for over two months for the complainant to decide on the same, ultimately the OP has to fix the best material of a good cladding stone. OP has done his best and has co-operated with all the requirements of the complainant and has executed all the works that were entrusted to him. OP is willing to complete the balance of work like finishing the compound wall of four and a half inches, gate, external stair case with kota stone leading to the first floor and MS hand railing. OP will complete the work within 30 days provided the complainant gives it in writing that he shall not cause any issues further. OP will complete the said job without any further payment. OP has with him an excess of Rs.12,109/- which he is willing to refund to the complainant. OP has given the complainant a statement of expenses which the complainant has not paid to this day. The said expenses have to be paid necessarily as the said sum has been paid by the OP from out of his pocket. The complainant has throughout the construction not provided for water including other expenses. The complainant is to be directed to pay the said expenses. It is because these amounts were claimed by OP, in order to avoid the same the complainant has rushed to this Forum. Hence it is prayed to dismiss the complaint with direction to the complainant to pay sum of Rs.92,000/- to the OP after adjusting Rs.12,109/- which is held in excess by the OP.
4. The complainant in order to substantiate complaint averments filed affidavit evidence. OP filed affidavit evidence in support of the defence version and produced documents.
At the instance of the complainant Commissioner was appointed to visit the spot and submit the report regarding work to be completed and valuation of the work completed. The Commissioner submitted the report, in the report the valuation of the work done and to be done was not shown. Accordingly, the Commissioner was directed to submit additional report. The Commissioner submitted the Additional Report. Thereafter, the complainant produced documents and photos when the matter was posted for hearing on Commissioner Report. The complainant filed another I.A to appoint fresh Commissioner. OP has not filed any objection for the same. In view of the same, the 2nd Commissioner was appointed by allowing I.A. The Commissioner submitted his report. OP has not filed any objection for the said report.
5. Arguments from complainant’s side heard, OP side taken as heard.
6. The points now that arise for our consideration in this complaint are as under:
Point No.1:-Whether the complainant has proved the deficiency in service on the part of the OP?
Point No.2:-If so, whether the complainant is entitled for the relief’s now claimed?
Point No.3:-To What order?
7. We record our findings on the above points:
Point No.1:-Affirmative
Point No.2:-Affirmative in part
Point No.3:-As per final order.
R E A S O N S
8. At the outset, it is not at dispute that on 07.07.2008 the complainant entrusted the construction work of his residential building at HAL Vinayaka Nagar site, Bangalore to the OP agreeing to pay an amount of Rs.1,00,000/-per sq and for other work at the rate of Rs.50,000/- per sq. OP after putting up construction of the first phase ground floor, has put up the staircase to approach the first floor. The terms and conditions with regard to the construction work were not put into writing though it is stated that the agreement was prepared but OP has not put his signature for the same. OP continued the construction work, the ground floor work was completed but some work with regard to the staircase, compound and other work was incomplete. At that stage, it appears that the dispute has arisen between the parties with regard to the bills submitted by OP for the work carried out. The complainant has paid in all Rs.8,50,000/- and Op has admitted the said fact. OP has submitted the bill for total amount of Rs.8,95,344/- on 07.05.2009. On 13.07.2009 OP has submitted the revised bill for a total sum of Rs.8,37,891/- in this revised bill the cost of construction of the under ground sump is not shown. In the first bill the cost of the said sump is shown at Rs.63,000/-. On 13.07.2009 OP has submitted another bill with regard to extra work and miscellaneous showing the total amount of Rs.1,07,375/- the excess amount which remained with him of Rs.12,109/- and another sum of Rs.2,458/- was given deduction in the total amount and the balance amount of Rs.92,808/- is shown as due from the complainant for the work carried out.
9. The complainant claims that the construction work carried out by OP is not to an extent of Rs.8,50,000/- paid. The work carried out by OP if estimated, he has received Rs.2 to 3 lakhs excess and some minor works remained unfinished. Thus the complainant claims for refund of that 2 to 3 lakhs and further he is not liable to pay Rs.92,808/- claimed by OP.
10. The entire case of the complainant rests on the report submitted by the Commissioner on 07.12.2011. We have gone through the said report, the total value worked out by the Commissioner is Rs.6,91,450/-. It may be noted that for the construction portion of the ground floor the cost of construction is taken at Rs.900 per sq.ft whereas the agreed rate is Rs.1000/- per sq.ft i.e., Rs.1,00,000/- per sq Therefore, the Commissioner was not justified in taking the construction cost of the ground floor at Rs.900 per sq. ft the same ought to have been taken at Rs.1000/- per sq ft. The total area of constructed portion is 416 sq. ft as such at the rate of Rs.1000/- per sq. ft, the same works out at Rs.4,16,000/-. In addition to that the Commissioner has not taken into account the following items in working the total cost of the work carried out.
SL. Nos. | Description | Quantity | Rate (Rs.) | Amount (Rs.) |
1. | RCC M200 for columns up to 7 feet high | 57.75 Cft | 130.00 | 7,507.00 |
2. | Providing, fabricating and placing reinforcement bars | 446.00 Kgs | 57.00 | 25,422.00 |
3. | Front Cladding | 158.18 Sft | 51.00 | 8067.00 |
4. | Over head tank (Sintex) | 1000 Lts | 4.50 | 4500.00 |
5. | Rear compound 4 ½ feet brick work 40X1 feet | 40.00 Sft | 55.00 | 2200.00 |
Total Rs.47,696/- |
OP in his revised bill dt.13.07.2009 has shown the above items but the Commissioner has not taken into account of these items. The total amount of all these 5 items works out at Rs.47,696/-. Op has claimed an amount of Rs.5,000/- towards Architect Fee, Rs.6,000/- towards Structural Engineer Fee and an amount of Rs.20,000/- towards payment to BBMP, Additional payments of Rs.4,545/- for water connection but in support of these payments no receipts are produced. Therefore, we are unable to accept these claims made by the Op. The Commissioner while fixing the valuation for the staircase portion and portico area it is taken as Rs.300/- and Rs.350/- per sq.ft on account of incomplete construction. The agreed rate between the parties was Rs.500/- per sq ft. Thus by adding the above 5 items amounts to the Commissioner Valuation and by taking the construction cost of the ground floor at Rs.1000/- per sq.ft the total amount for construction of the entire work carried out works out at Rs.7,80,746/-. The complainant has paid Rs.8,50,000/- to the Op. The OP has carried out the construction work to an extent of Rs.7,80,746/-. After giving deduction for the said amount, the balance amount that remains with OP is Rs.69,254/- and the same is rounded up to Rs.70,000/-. The complainant is entitled for the said amount from the Op.
11. The act of Op in not completing the building construction amounts to deficiency in service.
12. The Commissioner has shown that for completion of the unfinished work of the compound walls, staircase and the other works an amount of Rs.1 Lakh to Rs.1,20,000/- may be required. Op cannot be saddled with this liability on account of the cost of construction of staircase portion and portico is already reduced of Rs.300/- and 350 per sq ft as against Rs.500 per sq. ft as agreed. Under these circumstances, we are of the view that the complainant is entitled for an amount of Rs.70,000/- and Op is liable to pay the same along with litigation cost of Rs.5,000/-. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant allowed in part.
Op is directed to refund an amount of Rs.70,000/- and pay litigation cost of Rs.5,000/- to the complainant.
This order is to be complied within four weeks from the date of this order.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 23rd day of JULY-2012.)
MEMBER PRESIDENT
Cs.
