IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA
Dated this the 26th day of June, 2014
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
C.C. No. 170/2012 (Filed on 06.11.2012)
Between:
Rema Bhai, aged 54 years,
Chandralayam,
Moonnalam, Adoor P.O.,
Pin – 691 523. … Complainant
(By Adv. S. Manoj)
And:
R. Vijayan, aged about 45 years,
Nirmalyam, Konnamankara Muri,
Adoor Village, Adoor P.O.,
Pin – 691 523. … Opposite party.
(By Adv. S.P. Lal)
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The brief facts of this complaint is as follows: The opposite party is an Engineer by profession and he is doing construction work of buildings on contract basis in the name ‘Buildarc Construction’ at Adoor. The complainant is the owner of certain land in survey No. 149/26-2 of Peringanadu Village. She decided to construct a 3 storeyed building in the said plot and for constructing the said building; she entered into an agreement in writing with the opposite party on 11.11.2010. As per the terms and conditions of the said agreement, the opposite party has to complete the construction within 6 months from the date of agreement for a total amount of Rs. 4,98,300/- and to deliver the key of the constructed building after completing the entire constructions as per the specifications mentioned in the agreement. As per the said agreement, complainant also paid Rs. 50,000/- on 11.11.2010 as advance for starting the work. But the opposite party was reluctant to complete the construction within the prescribed time limit in spite of the complainant’s request to complete the building within the prescribed period. At the same time, the opposite party had received a total amount of Rs. 4,78,470/- so far and the remaining balance to be paid is only Rs. 19,830/-. Though the opposite party had received the major portion of the agreed amount, he had not completed the works so far and the said delay is due to the willful laches of the opposite party. The period of construction is already expired on 10.05.2011. On the basis of the laches of the opposite party and on the basis of non-co-operation of the opposite party in spite of the complainant’s request for the construction, the complainant filed several complaints before several authorities for persuading him to complete the construction. On the basis of the complaint, opposite party made undertakings for the completion of work. Even after these complaints and undertakings given by the opposite party, he had not completed the construction work. The constructions so far carried out by the opposite party is worth Rs. 2 lakhs only and thus an amount of Rs. 2,78,470/- is excessively collected by the opposite party. The non-completion of the construction is due to the willful laches of the opposite party which put the complainant to financial loss and mental agony and the above said acts of the opposite party is a clear deficiency in service and the opposite party is liable to the complainant for the same. Hence this complaint for an order directing the opposite party to complete the remaining construction works within a stipulated period and if he fail to do so, the complainant is allowed to realize Rs. 2,78,470/-, the excess amount collected from the complainant with 12% interest with compensation of Rs. 2 lakhs and the cost of this proceedings.
3. In this case, the opposite party entered appearance and filed his version with the following main contentions: Opposite party admitted the execution of the agreement between the complainant and the opposite party. According to the opposite party, due to the nature and lie of the building site, it is very difficult to construct the building without the support of the neighbours. But the complainant and her husband are not in good terms with the neighbours. However, the opposite party managed all these hurdles and he had spend a huge amount as additional labour and he performed his part within time. The delay in completing the work is due to the unnecessary interferences and obstructions from the side of the complainant. The terms of works are mentioned in the agreement and at the time of execution of the agreement, the complainant had orally assured to provide electric connection at the site. But the complainant has not provided electric connection as against her assurance. The electric connection is highly necessary for completing the finishing works such as flooring works, works of windows and door fittings etc. The complainant is not ready and willing to provide electric connection in spite of the request of the opposite party and the complainant’s above said inaction cause much difficulty to the opposite party in completing the work. Because of the above said reason, the work is delayed which caused financial loss to the opposite party due to the increase in the material cost and labour charges. At the same time, when the opposite party requested to provide electric connection, the complainant filed so many petitions before various authorities and it also caused delay in construction, difficulties and mental agony to the opposite party. All the said petitions were disposed by the authorities as they found that there is no bonafides in the petition and still the complainant is harassing the opposite party. The complainant is bound to provide electric connection and to pay the balance amount due to the opposite party. There is no willful laches from the part of the opposite party and there is no deficiency in service as alleged by the complainant. With the above contentions, opposite party prays for the dismissal of the complaint.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral deposition of PW1, DW1 and CW1 and Exts. A1 to A6(a) and C1 series. After closure of evidence, both sides were heard.
6. The Point: The complainant’s case is that she had entered an agreement with the opposite party on 11.11.2010 for constructing a 3 storeyed building on turn key basis in the landed properties owned by the complainant situated at Adoor. As per the terms and conditions of the agreement, the opposite party is bound to complete the construction as per the specifications mentioned in the agreement within 6 months from the date of agreement for a total amount of Rs. 4,98,300/-. But the opposite party has not completed the construction within the specified time or even today in spite of the complainant’s request. Complainant filed complaints before various authorities and several mediations were also conducted by the mediators in this matter. Opposite party also made undertakings for completing the works. But he had not completed the work as per his undertakings. At the same time, he had received a total amount of Rs. 4,78,470/-, out of the total agreed amount of Rs. 4,98,300/-. Though he had collected Rs. 4,78,470/-, the constructions done by him is only for Rs. 2 lakhs. The above said acts of the opposite party caused much financial losses due to the escalation in the price of materials and labour and severe mental agony to the complainant. Since the act of the opposite party is a clear deficiency in service, he is liable to the complainant for the same. So the complainant prays or allowing the complaint.
7. In order to prove the case of the complainant, the complainant filed a proof affidavit in lieu of her chief examination along with certain documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced are marked as Exts. A1 to A6(a). Ext. A1 is the agreement dated 11.11.2010 executed between the complainant and the opposite party. Ext. A1(a) is the building plan and Ext. A1(b) is the scope of work attached to Ext. A1 agreement. Ext. A1(c) are the written undertakings dated 11.11.2010, 31.03.2011, 20.06.2011, 11.07.2011 and 25.08.2011 executed by the opposite parties in Ext. A1. Ext. A2 is the copy of the site plan in respect of the building in question. Ext. A3 is the copy of the sanction order dated 27.07.2009 issued by Adoor Municipality for constructing the proposed building. Ext. A3(a) is the revised sanction order dated 04.08.2012 issued by Adoor Municipality. Ext. A4 is the copy of the registered letter dated 18.04.2011 issued to the opposite party by the complainant requesting the opposite party for completing the construction work of the building. Ext. A4(a) is the postal receipt of Ext. A4. Exts. A5 and A5(a) are the copies of the petition register of Adoor Police Station showing the settlement made in respect of the petitions submitted by the complainant before Adoor Police against the opposite party. Ext. A6 is the receipt signed by the opposite party showing the payments received by him from the complainant. Ext. A6(b) is the undertaking-cum-cash receipts dated 10.09.2012 signed by the opposite party.
8. On the other hand, the contention of the opposite party is that the delay in completing the construction was caused due to the non-co-operation of the complainant by not providing electricity and water and her default in the payments as against the terms and conditions of the agreement. The building site was also not handed over to the opposite party in time after clearing the site. The lie and nature of the site is also prevented the opposite party from carrying out the works in a speedy way as the site is situated adjacent to the main road and the total extent of the site is very small to stock and keep the building materials and other equipments which are required for the construction. Further, there are some disputes between the complainant and her neighbours in connection with the construction. Complainant also filed illegal complaints against the opposite party before police and other authorities which also caused inconveniences to the opposite party in completing the construction. Even then the opposite party had managed to carry out the major portions of the construction. The remaining works are only minor works such as laying of tiles, fixing of windows and shutters which required electric connection which is not so far provided by the complainant. Further opposite party had done extra works over and above the works mentioned in the agreement and the complainant has not made any payments for the said extra works done in spite of the request of the opposite party. All the above said problems are the reasons for the delay in completing the works and the complainant alone is responsible for the same. Therefore, the opposite party argued that he had not committed any deficiency in service or unfair trade practice as alleged by the complainant and hence he prays for dismissing this complaint.
9. In order to prove the contentions of the opposite party, he had filed a proof affidavit in lieu of his chief examination. On the basis of the proof affidavit, he was examined as DW1. There is no documentary evidence from the side of the opposite party.
10. Apart from the above evidences, an Expert Commissioner (Asst. Engineer, PWD Building Section, Pathanamthitta) appointed by this Forum inspected the site and filed a report and 2 estimates as per the matters sought for in the commission application filed by the complainant. The Commissioner was examined as CW1 and the documents produced by the Commissioner are marked as Exts. C1, C1(a) and C1(b). Ext. C1 is the Commissioner’s Report and Ext. C1(a) is the estimate of the approximate cost of works already carried out by the opposite party and Ext. C1(b) is the estimate for the approximate cost of works to be done by the opposite party as per the terms and conditions of the agreement.
11. On the basis of the available materials on record, it is found that the parties have no dispute with regard to the execution of the building construction agreement and the payments so far made by the complainant and received by the opposite party. On a perusal of Ext. A1 agreement, it is seen that the opposite party had agreed to construct a building for the complainant on turn key basis within 6 months for a total amount of Rs. 4,98,300/-. It is further seen that the complainant has to pay an advance amount of Rs. 50,000/- for starting the works and the said payment is also made on 11.11.2010 itself. Thus it is clear that the opposite party has to start the work on 11.11.2010 onwards as per the agreement. As he had accepted the advance amount and started the work, he has to complete the work and he has to give the key of the completed building within 6 months i.e. before 10.05.2011. This being the facts, it is an undisputed fact that the construction work undertaken by the opposite party as per Ext. A1 agreement is not completed till today in spite of receiving 96% of the total agreed amount. Even then the opposite party is still racing severe allegations against the complainant for justifying his laches and negligence by saying that the complainant has not performed her part and the complainant’s laches is the main causes that prevented him from completing the constructions within time. His allegations are that the complainant has not handed over the site after clearing the land; she had not provided electricity and water supply, she had not paid instalments in time and she had filed so many complaints against him before the police and other authorities. Thus opposite party’s argument is that all the above said matters prevented him from carrying out the constructions and delayed the completion of the constructions.
12. On a perusal of Ext. A1 agreement, we could not see any mention about the clearing of the land and providing electricity and water. So the argument of the opposite party in this respect is not sustainable. Further on a perusal of Exts. A5 and A5(a), it is seen that the complainant’s complaint against the opposite party before the police is after the expiry of the period prescribed for the construction. The complaint of the complainant before the police against the opposite party is for redressing her grievances and for persuading the opposite party for completing the construction at the earliest. Opposite party also made written undertaking before the police for completing the works within a particular time. But he had not complied the above said undertakings. So the argument of the opposite party based on police complaint is also not sustainable. Further nobody can found any fault to a person like the complainant for approaching police officials for redressing a grievance like this. Ext. A1(c) clearly shows that the opposite party had made written undertakings on 31.03.2011, 20.06.2011, 11.07.2011 and 25.08.2011 for completing the construction. These undertakings are much before the undertakings made before the police as per Exts. A5 and A5(a). As per Ext. A6(a), dated 10.09.2012 also shows that he had made a written undertaking for completing the works. In all the above said undertakings, opposite party has clearly admitted his laches in completing the construction work. Ext. A6 shows the payment details. The said payment details clearly shows that the opposite party had received 96% of the total agreed amount. Even if any delay is seen in the payments, it is not a fault of the complainant as the opposite party had willfully delayed the construction. At the same time, it is very pertinent to note that the opposite party has not raced any objection regarding the electricity or water at any point of time till the filing of his version. What prevented him from racing or recording anything about his grievances against the complainant in any of the written undertakings made by him in connection with the construction in question? He has not even made an attempt to prove his contentions by adducing independent evidence especially when the complainant categorically deposed against him during her cross examination. In view of the terms and conditions of Ext. A1 agreement, numerous written undertakings made by the opposite party before the complainant and the police, Ext. A4 registered notice of the complainant and the present stage of the construction etc. as evidenced from Ext. C1 series and the oral evidences of the parties will clearly shows that the opposite party has committed grave deficiency in service.
13. In the nature and circumstances of the dispute in question, this Forum has to ascertain the present stage of the construction. For ascertaining the same, we have to rely the evidence adduced by the Commissioner/CW1 as per Ext. C1 series. The report and estimates submitted by the Commissioner also shows that the construction is not completed so far. Ext. C1(a) prepared on the basis of the PWD rate prevailed in the year 2012, opposite party had carried out the work worth Rs. 4,09,567/- and as per Ext. C1(b), the works to be done for completing the construction as per 2012 PWD rates is Rs. 2,84,898/-. But the total amount agreed by the parties for the construction as per Ext. A1 agreement is Rs. 4,98,300/- and it is based on the market rate prevailed in the year 2010. Since the total amount agreed by the parties as per Ext. A1 agreement is based on the market rate prevailed in the year 2010, the rate adopted by the Commissioner which is the PWD rate for the year 2012, cannot be taken into account for ascertaining the quantum of work done and the quantum of work to be done. So, the assessment of the Commissioner can be converted into percentage and it will be the safest method for ascertaining the works done and the works to be done. If it is so, the percentage of works already carried out by the opposite party as per the assessment made by the Commissioner in Ext. C1(a) is 60.72% (Rs. 4,40,567 + Rs. 2,84,898 = Rs. 7,25,465/- (i.e. the works done and the works to be done as per Ext. C1(a) and Ext. C1(b)). The calculation is as follows: (Rs. 4,40,567 ÷ Rs. 7,25,465 x 100 = 60.72%). Thus it is clear that the opposite party had completed only 60.72% and he has to carry out 39.27% of the works for the completion. If the work had been completed within the stipulated time, the complainant would not have been affected price escalation and hence the complainant is not liable to suffer the price escalation. So it is the duty of the opposite party to complete the constructions at his cost and he is entitled to get Rs. 19,830/- on completion of the constructions. All the above said facts clearly shows that due to the deficiency of service of the opposite party, the complainant has sustained financial loss and mental agony. Therefore, this complaint is allowable.
14. In the result, this complaint is allowed as follows:-
- The opposite party is directed to complete the constructions at his cost within 45 days from the date of receipt of this order
- The complainant is directed to pay the balance amount of Rs. 19,830/- (Rupees Nineteen thousand eight hundred thirty only) to be paid by her on completion of the construction.
- Since the complainant had not adduced any evidence for substantiating her claim of compensation of Rs. 2 lakhs, an amount of Rs. 10,000/- (Rupees Ten thousand only) is allowed as compensation to the complainant.
- The complainant is also allowed to realize cost of Rs. 2,500/- (Rupees Two thousand five hundred only).
- Though providing electricity and water is not the duty of the complainant, complainant is directed to deliver required documents to the opposite party for obtaining temporary electricity and water connection at the expense of the opposite party for the construction purpose.
15. In the even of non-compliance of this order by the opposite party, the complainant is allowed to complete the constructions at her cost and the cost incurred by the complainant for the completion of the construction can be realized from the opposite party along with compensation and cost ordered herein above with 10% interest per annum from the date of completion of the construction till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed him, corrected by me and pronounced in the Open Forum on this the 26th day of June, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member-I) : (Sd/-)
Smt. Sheela Jacob (Member-II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Rema Bhai.
Exhibits marked on the side of the complainant:
A1 : Agreement dated 11.11.2010 executed between the complainant and
the opposite party.
A1(a) : Building plan.
A1(b) : Scope of work attached to Ext. A1 agreement.
A1(c) : Written undertakings dated 11.11.2010, 31.03.2011, 20.06.2011,
11.07.2011 and 25.08.2011 executed by the opposite parties in Ext. A1.
A2 : Copy of the site plan.
A3 : Copy of the sanction order dated 27.07.2009 issued by Adoor
Municipality.
A3(a) : Revised sanction order dated 04.08.2012 issued by Adoor Municipality.
A4 : Copy of the registered letter dated 18.04.2011 issued to the opposite
party by the complainant.
A4(a) : Postal receipt of Ext. A4.
A5 & A5(a) : Copies of the petition register of Adoor Police Station.
A6 : Receipt signed by the opposite party showing the payments received
by him from the complainant.
A6(b) : Undertaking-cum-cash receipts dated 10.09.2012 signed by the
opposite party.
Witness examined on the side of the opposite party:
DW1 : Vijayan
Exhibits marked on the side of the opposite party:
Court Witness:
CW1 : Subha. P.K.
Court Exhibits:
C1 : Commissioner’s Report .
C1(a) : Approximate cost of work completed.
C1(b) : Approximate cost of work to be completed.
(By Order)
Copy to:- (1) Rema Bhai, Chandralayam, Moonnalam, Adoor P.O.,
Pin – 691 523.
(2) R. Vijayan, Nirmalyam, Konnamankara Muri,
Adoor Village, Adoor P.O., Pin – 691 523.
(3) The Stock File.
