IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday, the 28th day of February, 2011
Filed on 07/10/2009
Present
1. Sri. Jimmy Korah (President)
2. Sri. K.Anirudhan (Member)
3. Smt. N. Shajitha Beevi (Member)
in
CC/No. 332/2009
between
Complainant:- Opposite party:-
Sri. R. Krishnan Nair Sri. R. Sanal Kumar (Building
Panthaplavil Veedu Contractor), R.S. Bhavan No.2
Cheruthana Village Thulamparamb Vadakku
P.O. Cheruthana – 690 563 Mannarassala P.O.
Karthikappally Taluk (By Adv. K. Jayan)
Alappuzha Dt.
(By Adv. B. Somanadha Kurup)
O R D E R
SRI. K. ANIRUDHAN (MEMBER)
Sri. K. Krishnan Nair has filed this complaint on 07.10.2009. The allegations of the complaint, against the opposite party are as follows:- The opposite party is the owner of a concern under the name and style M/s.Chithira Building Construction work and the opposite party claimed that he is a Civil Engineer and have 5 years experience in the field of construction of residential building. As per the agreement with the opposite party to construct a residential building with measurement 56.5 m2 having the cost of Rs.5,15,000/- and opposite party have executed an agreement on 22.4.2008, with showing the details of building and materials required. As such opposite party had accepted a sum of Rs.1 lakh as advance from the complainant’s son and executed the agreement and amount paid by cheque through SBT., Haripad and opposite party have collected the said amount. With the materials purchased by him; opposite party started the building work on 7.6.2008. Since the quality of steel bars are not in standard, he had purchased 71 kg. of 10 MM steel bars for a sum of Rs.3600/- and entrusted with the opposite party. The basement was completed as per the direction of the opposite party and it was not as per the plan. There was defect in the foundation basement by not using the required steel and cement for the construction pillar and for sit out. The over all foundation work of the building was highly defective and weak. On inspection through the Civil Engineer, it was noticed that the total expenses for the materials costs was only Rs.31,881/93 and that the balance of Rs.68,118/70 from the advance amount of Rs.1 lakh was in the hands of the opposite party. The foundation basement constructed by the opposite party was highly defective and not in proper standard. He sustained monetary loss by purchasing materials, including advance amount. Through the direction of the Taluk Legal Service Authority Asst. Executive Engineer, PWD Building Division had inspected the foundation basement and reported that in the construction work, required cement and iron were not used. The basement of the building is to be demolished due to the poor construction work of the opposite party. There is deficiency in service on the side of the opposite party. Hence this complaint seeking relief.
2. Notice was issued to the opposite party. He entered appearance and filed objection.
3. In the objection it is stated that he has not engaged in the firm M/s.Chithira building construction, and he has not intimated the complainant that he is a Civil Engineer. He is engaged in the field of constructing residential building on contract basis. He expressed his willingness to take up the work with the approved plan, and that the foundation work was constructed in a most responsible way. Since the specification of the building was increased against the terms of agreement, the son of the complainant had agreed to pay an additional amount of Rs.1 lakh over and above the agreed amount as per original agreement. As such, the foundation was completed by putting concrete for 2 ½ in lower area, and the work was completed in the presence of the complainant. It is stated that he had not utilized the materials purchased by the complainant, and not utilized the steel rods for the construction of the belt. He had collected a sum of Rs.3600/- from him towards the price of the steel rods having the measurement of 10 MM and he had purchased steel rods having the measurement of 8 MM (133 kg.) and 10 MM (183 kg.) for the measurement. He had constructed the basement as per the agreement executed between him and the son of the complainant and it is as per the plan also. He had taken the concrete work for the pillar and it was in the presence of the complainant and used the required cement and steel rods and there is no need to reconstruct the basement for the building. He spent a total sum of Rs.1,16,292/- by way of purchasing materials required for the construction of the basement. He has to get a sum of Rs.16,292/- from the advance of Rs.1 lakh, from the son of the complainant. He has not turned up in the Proceedings of the Legal Service Authority and the matter has not settled due to the exorbitant amount claimed by the complainant. The PWD engineer has prepared the report in his absence and it was prepared at the interest of the complainant alone. The complainant is engaged in the business of purchasing materials for the building and he demanded commission from him for the materials purchased for the scheduled building work. There is no deficiency in service on his part and the complaint is to be dismissed with costs.
3. Considering the contentions of the parties, this Forum has raised the following issues for consideration:-
1) Whether there is any deficiency in service on the part of the opposite party?
2) Whether the complainant is entitled to get any compensation from the opposite
party?
3) Other relief?
4. Issues 1 to 3:- Complainant has filed proof affidavit along with documents – Exts.A1 to A6 marked, and he has been examined as PW1 and cross examined by the opposite party. Independent witness was examined as PW2 and commissioner was examined as PW3. Documents of the complainant – Ext.A1 is the original consent deed executed in favour of Sri.Rajes.K. (Son of the complainant) by Sri. Sanal Kumar, the opposite party. This deed shows that the details of the work to be conducted for the completion of the residence building. It further shows that an amount of Rs.1 lakh is to be paid as advance by Sri.Rajesh to the said Sanal kumar. A copy of the consent deed is attached with Ext.A1. It shows that the actual amount for the construction of the said building ie. Rs.5,15,000/- and Rs.1 lakh will be the advance amount to be paid. Ext.A2 is the Power of Attorney deed executed by Sri. Rajesh authorizing his father Sri. Krishnan Nair to conduct the case before the Forum. Ext.A3 is the bill dt. 21.6.2008 for a sum of Rs.3000/- being the price of steel TMT. The bill is silent with regard to the name of the purchaser. Ext.A4 is the details of materials and its price, taken in a plain paper. Ext.A5 is the commission report and the copy of petition in PLP No.140/2009 filed by the complainant before the Taluk Legal Service Authority against the opposite party. Ext.A6 series are the Land tax receipt, possession certificate and location map relating to the property.
5. Opposite party has filed proof affidavit. No document produced by the opposite party. He has been cross examined by the complainant. Ext.A5 – commission report filed by the Asst. Executive Engineer, Building Sub Division, Haripad shows that at the time of inspection, it was seen that the basement of the building was completed by using Rubble and further noted that the brick was conducted on the top of the rubble with concrete belt. It further shows that certain minor works are to be completed. The report is prepared for filing before the Legal Service Authority.
5. We have carefully examined the whole matters involved in this case and perused the documents given by the complainant in evidence, and verified the deposition of PW1, PW2, PW3 and deposition of RW1 and heard the case of both sides. It is alleged that the complainant’s son had entrusted the work of constructing the residential building to the opposite party after execution of a consent deed by the opposite party. The deed shows the specification of the work (Ext.A1). After that a consent deed was also executed by the opposite party showing the actual amount for the said work, ie. Rs. 5,15,000/-, and the deed further shows the details of advance amount of Rs.1 lakh to be entrusted with the opposite party and other details of the payment. The further allegations of the complainant is that the opposite party has not executed the basement work properly and deviating the specifications, and not used the required quantity of cement and steel in the foundation basement. Further dispute was also occurred due to the purchase of materials required for the work. Ext.A3 document produced by the complainant shows that an amount of Rs.3600/- was spent by him for he purchase of steel. In the objection of the opposite party, he has stated that he had spent a total sum of Rs.1,16,292/- in connection with the purchase of materials for the schedule building and that he has to get a sum of Rs.16,492/- from the son of the complainant. It is further stated that opposite party has completed the work of basement as per the agreement, after using the required quantities of cement, metal, steel and that there is no deviation from the plan. In this respect, it is to be noticed that the opposite party has completed the basement with required materials as per the plan. Ext.A5 document – commission report shows that the basement work was completed with Rubble and made concrete belt on the top of the Rubble with Bricks and the report further shows that there are certain minor works are to be completed. These works cannot be treated as major item for the basement. On a detailed study of the matter, we are of the view that the opposite party has constructed the basement work of the building as per the estimate with required materials. So the allegations of the complainant cannot be accepted as a valid ground to state that the opposite party has committed deficiency in service in the said work. In this respect, it is to be noted that the work was entrusted with the opposite party by the son of the complainant as per written consent and that the son of the complainant has not raised any objection regarding the construction of the basement and other matters. In this context, the complainant cannot be considered as a consumer. After a detailed verification of the entire facts of this case, and after the perusal of the evidence, deposition of PW1, PW2 and PW3 and after verification of the Commission report, we are of the view that there is no deficiency in service, negligence or latches on the part of the opposite party in the construction of the basement of the building. The allegations raised by the complainant against the opposite party lacks bona fides and it has no merit. In this circumstances, we are of the further view that, since the complaint have no substance, it is to be disallowed. All the issues are found in favour of the opposite party.
In the result, the complainant is disallowed. No orders as to costs.
Pronounced in open Forum on this the 28th day of February, 2011.
Sd/- Sri. K. Anirudhan:
Sd/- Sri. Jimmy Korah:
Sd/- Smt.N.Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
PW1 - R. Krishnan Nair (Witness)
PW2 - Shyamkumar (Witness)
PW3 - B. Padmajan (Witness)
Ext.A1 - Agreement deed
Ext.A2 - Power of Attorney
Ext.A3 - Retail invoice – cash bill
Ext.A4 - Copy of the statement
Ext.A5 - Copy of the report
Ext.A6 series - Copy of the tax receipt, possession certificate and sketch
Evidence of the opposite party:-
RW1 - Sanal Kumar.R. (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainants/Opposite parties/S.F.
Typed by :-pr/-
Compared by:-
