IN     THE  CONSUMER  DISPUTES   REDRESSAL  FORUM,  KOLLAM

DATED THIS THE   7^th    DAY OF FEBRUARY  2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

       Smt.S.SandhyaRani. Bsc, LLB ,Member

         Sri.Stanly Harold, B.A.LLB, Member

CC No.66/11

(1).Justine Joseph                                        :                  Complainants

S/o Joseph, Mavila Veedu

Vellimon P.O, Perinadu Village

Kollam Taluk, Originally belonging to

Vadakkevila Kizhakkethil House

Uliyacovil Muri

Kollam East Village

Kollam Taluk

Kollam.

(2). Sunitha

D/o Wilson and W/o Justine Joseph

Mavila House, House No.5/317

Vlaveth Junction

Vellimon P.O

Kollam

[By Adv.Sudheer Bose]

V/S

R.Kishore                                                    :                  Opposite party

Styled as Managing Director of Assiano Builders & Developers

“Souparnika Buildings”

2^nd Floor, Above Sony Service Centre (Madonna)

Kadappakada

Kollam -1

[By Adv. T.Murali& Adv.Shamla.S]

FAIR  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LLM,President

This is a case based on a consumer  complaint filed U/s 12 of the Consumer Protection Act 1986.

2.       The averments in the complaint in short are as follows:-

          The 1^st and  2^nd complainants are husband and wife respectively. The 1^st complainant is employed in Qatar and the 2^nd complainant is a housewife. The 1^st complainant decided to construct a house building in the joint property having an extent of 20 cents comprised in Block No.13, Re-Sy No.584/13/2 of the Perinad Village standing in the name of his self and his wife by availing a housing loan. The opposite party is the  Managing Director of Assiano Builders and Developers and is  involved in construction activities on contract basis to prospective customers. The 1^st complainant along with the 2^nd complainant approached the opposite party and discussed regarding the proposal to construct a residential building in the above said property. Based on such discussions and deliberations, the opposite party submitted a detailed plan and estimate of the proposed residential building and the opposite party furnished a final draft of the plan of the residential building with front elevation and other required plans of the proposed building and the estimate scientifically prepared by the opposite party. It was also agreed by the opposite party that he would apply for getting a permission and license for the construction of the building under Kerala Building Rules from the Secretary, Perinad Grama Panchayath submitting the very same plan and other required annexures.  However  the opposite party obtained permit to construct the building bearing No.436/09-10 dated 04/03/2010. Based on the plan and other details submitted by the  1^st complainant with the State Bank of India, Kollam a housing loan was granted by the SBI Kollam in favor of the first complainant to be operated by the 2^nd complainant as power  of attorney holder.

3.       The 1^st complainant and the opposite party entered into an agreement on 02/02/2010 whereby the opposite party had agreed to complete the construction of the residential building referred to above as per the specification within a span of 4 to 6 months from the commencement of construction and also handed over the site immediately upon the execution of the said agreement. The opposite party has also agreed to complete the construction of the residential building with plumbing work, electrification, compound wall etc, at a total cost of Rs.23.5 lakhs which was to be paid in four installments, that at the time of execution of the agreement Rs.2 lakhs   was   paid by the complainant to the opposite party which the opposite party acknowledged the receipt on the same date, that apart from that Rs.1,50,000/- was collected by the opposite party from the complainants for the construction of the compound wall , that the cost of construction was worked out by the opposite party as directed by the complainants on the basis of the plinth area specified in the agreement.  The  opposite party  agreed with the complainants to carry out the construction activities in accordance with the letter and spirit of the agreement, plan, specification and estimate and the building permit.

4.       However subsequently it is learnt that the opposite party has submitted a different set of plans along with the application for building permit before the Perinad Grama Panchayath, that the acts and omission on the part of the opposite party amount to deficiency in service and unfair trade practice , that the set of plans submitted before the bank as furnished by the opposite party is in accordance with the specifications, discussions  etc, arrived at between the opposite party and the complainants whereas the set of plans submitted before the Perinad Grama Panchayath under Kerala Building Rules reflected several material variations to the disadvantage of the complainants.

5.       The complainant altogether paid Rs.19 lakhs 27 thousand on 7 installment apart from the initial payment of Rs.2 lakhs on 02/02/2010, that the complainants had availed the entire loan amount from SBI and effected payment to the opposite party for completing the construction, that the construction was to be completed and the completed building was to be handed over by the opposite party to the complainants between 17/08/2010 and 16/09/2010 being the auspicious month. However the opposite party was adopting delaying tactics and extracted Rs.19,27,000/- from the complainants towards cost of construction of the building including the compound wall and again started demanding more money from the complainants, that last such demand was for Rs.5 lakhs in the month of January 2011 to be paid immediately by the complainants to the opposite party.  The 1^st complainant directed the opposite party to complete the construction activities of the residential building before 10^th  February 2011 and upon handing over of the completed building as per the agreement, specifications etc, the final payment would be effected upon measurement of the plinth area.  However the opposite party claimed to have completed 90% of the said construction activities and for completing the construction of the remaining 10 %, the above said Rs.5 lakhs was required.

6.       The 1^st complainant  made enquiries through the 2^nd complainant who after conducting the site inspection reported that only 50% of the construction activities had been completed by the opposite party and the remaining 50% of the construction activities is to be completed and the 2^nd complainant reported that such areas of construction activities could only be completed within a period of 45 days, that further it is reported by the 2^nd complainant that the opposite party deviated from the plan and specification and thereby the utility of the building upon  completion   will    be diminished and similarly.  It is  also  reported    by   the  2^nd complainant that substandard materials had been used by the opposite party in the above said construction activities as against the specification and understanding. According to the 2^nd complainant, the construction of the building could be completed only by incurring an additional amount of Rs.15 lakhs   approximately, that the construction of the compound wall has not been completed by the opposite party, that major works such as plumbing, wiring, plastering of the walls, top roof etc, are to be completed by the opposite party, that flooring had to be done , similarly sanitary and electrical fittings are to be installed and thereby  the opposite party committed deficiency in service in executing and performing the work undertaken by  the opposite party as per agreement dated 02/02/2010 .

7.       The complainant issued a registered notice to the opposite party on 21/01/2011 who received the said notice and caused to issue reply dated 04/02/2011 making wild allegations against the complainant, that all such allegations are false and incorrect and opposed to documents voluntarily made by mutual consent by the complainant and the opposite party during the inception of the contract entered into between the complainant and the opposite party.  The 1^st complainant who is working abroad came to India on 11/02/2011 and on the next day contacted the opposite party and thereupon  the opposite party insisted for the advance payment of Rs.5 lakhs which the complainants had refused to oblige. The 1^st complainants personally inspected the building site and understood that about 50% of the work is to be completed by the opposite party and the cost of such construction of the remaining 50% is estimated roughly at Rs.15 lakhs. In the circumstances the complainants were not inclined to engage the opposite party to complete   remaining    construction   work as they have   dire need to complete the construction as expeditiously as possible and use the same as their residential home without any further delay.

8.       The opposite party intended  a second agreement to be executed by the complainant identifying the work to be completed and the payment to be effected for such work, that a draft second agreement was  prepared given by the opposite party to the complainant on 17/02/2011, that the 1^st complainant gave a reply to that draft agreement on 17/02/2011 and reported that the complainants are not agreeable to enter into any such agreement with the opposite party, that already an exorbitant amount of Rs.19.27 lakhs had been given by the complainants to the opposite party and that the complainants are entitled to get the construction activities completed through other competent builders of the exclusive choice of the complainant. The complainants are also entitled to get the remaining work in respect of the said building executed by another competent builder of their  choice. The opposite party has committed deficiency in service and unfair trade practice against the complainants, and  hence the complaint praying to pass an award allowing compensation to the tune of Rs.15 lakhs or any other amount that may be incurred by the complainants for completing the construction of the above said residential building through other approved builders of the choice of the complainant which may be ordered by this Forum, and also to award compensation of Rs.1 lakh for deficiency in service and also to award costs of the proceedings.

9.       Opposite party resisted the complaint by filing a detailed version raising the following contentions.  The complaint is not maintainable either in law or on facts, that the complainants filed this complaint by suppressing material fats with the sole intention of obtaining unlawful enrichment from the opposite party through the friend of the opposite party who gave assurance about the complainants and on the basis of that assurance the opposite party accepted the project of house building construction offered by the complainant.  As per the requirements and suggestions forwarded by the complainants the opposite party prepared the building plan through a qualified expert and the same was verified and accepted by the complainants without any objections, that the 2^nd complainant applied for building permit before the concerned authority along with above said plan and the same was approved and issued the building permit, that the very same plan was produced before the bank authorities for obtaining loan and Perinadu Grama Panchayath by the complainants, that the opposite party never prepared another plan as alleged in the complaint.

10.     The opposite party admitted to have entered into an agreement with the 1^st complainant for constructing a residential building in the property owned  by   the   complainants as detailed in the complaint having a total plinth area of 1735 sq.ft for Rs.23.5 lakhs, that the scheduled items, general specifications along with conditions of the payment for each stage of construction is elaborately mentioned in the agreement.  But according to him the agreement was executed on 02.02.2010 that as per the agreement the entire construction work should be completed between 4 to 6 months from the date of finishing the basement or structural work, that the structural work was completed on 12/01/2011 and so the opposite party is liable to complete the entire work mentioned in the agreement on or before July , 2011.

11.     The opposite party never agreed to complete the building with plumbing work, electrification, compound wall etc at a total cost of Rs.23.5 lakhs, that the construction of the compound wall was exempted from the agreement and the same shall come under the head of extra work done by the opposite party, and in the agreement it is specifically mentioned that extra work will be charged and has to be paid by the complainants besides agreement amount, that during the course of construction of the building the 1^st complainant requested to construct a compound wall for this property and as per the requirements forwarded by the complainants the opposite party constructed the compound wall and the cost for this construction was Rs.2.25 lakhs, and out of these only 1.5 lakhs was paid by the 1^st complainant to the opposite party.

12.     The agreed amount ought to  be paid in 4 installments, that the same was also violated by the complainants, that even though the opposite party without showing any hesitations continued the construction without any delay and extended all his duties without any room for complaints, that in each  stage of the construction work it was monitored by the 2^nd complainant    and      relatives of     complainants    who  are    residing near  to the construction site and they will not raise any objection or complaints regarding the method of construction or any other matter at any point of time, that the opposite party constructed the residential building according to the plan approved by the Perinad Grama Panchayat and as per the terms and conditions on the agreement, that on 04/03/2010 Perinad Grama Panchayat issued building permit in favor of the complainants, that there is no deficiency in service on the part of the opposite party.

13.     The opposite party admitted to have received and  acknowledges the receipt of Rs.19.77 lakhs rupees out of the agreement amount he would contend that an amount of Rs.1 lakhs 50 thousand paid on 29/06/2010 is the construction cost for the compound wall and the same was exempted from the agreement. He would further content that as per the agreement the  work should be completed between 4 to 6 months from the date of finishing of basement and structural work, that the opposite party never adopted any delaying  tactics to the complainants and never demanded more money as alleged by the complainants, that during the course of construction the complainants directed the opposite party to fix bath tubs in the ground and 1^st floor bathrooms, that for that purpose the area of the bathrooms shall be increased whereby the opposite party caused to increase the area of the bathrooms for fixing the bath tubs, that fixation of bathtubs was not in the agreement, but happened only under the compulsion of the complainants, that due to this the plinth area of the building increased to 1848 Sq ft, that the complainants is  also liable to make additional payments for the increased plinth area.

14.     As per the agreement if the cost of construction materials increases up above 25% before the completion of the project due to any act or empowerment made by the Government 50% of the loss should be borne by the complainants, that during the period of construction the price of river sand increased by 70% , cement   price has increased by 38%, iron bars rate has increased by 45% and other items cost also increased up to 40% , that moreover the labour charges also increased by 30%, that from these increases the opposite party suffered huge financial loss by spending more money than the agreed amount.

15.     The expert report dated 23/03/2011 it is mentions the percentage of increase of the construction materials on the basis price available at the production centre, that the opposite party obtained the construction materials from the open markets and not from the production centre and therefore the percentage of price increase mentioned in the  expert report is not correct.  As per the terms and conditions of the agreement the complainants are liable to compensate the opposite party for the increase in the rate, that in order to evade from the increased payment mentioned above and also from paying the construction cost of additional plinth area the complainants willfully created false disputes with the opposite party and instituted this case by raising false allegations.

16.     The agreement will not contain the specification regarding the  quality of construction materials.  Even then being a duty bound builder the opposite party constructed the said building with the top quality materials and with experienced labourers, that at each stage of construction, the work was monitored by 2^nd complainant and their relatives, that they have not raised any objections or complaints regarding the    method    of   construction or regarding the quality    of materials used, that the complainants never expressed any sort of dissent about opposite party’s construction and they were fully satisfied with the mode of construction.

17.     As per the agreement the complainants are bound to pay 50% increased construction cost, materials and labour charges during the course of construction and hence the opposite party demanded Rs.2.5 lakhs to the 1^st complainant being the 50% of the increased construction cost, that initially the 1^st complainant agreed to pay the said amount with other balances, but later the 1^st complainant turned indifferent and raised unnecessary contentions and objections with some ulterior motive and also he tried to evade from the payment by saying lame excuses, false allegations and several times he threatened the opposite party by saying that he will defame opposite party’s institution by giving false news in medias and also making false complaints before police, and also issued a legal notice to the opposite party stating false and imaginary allegations for which the opposite party sent a detailed reply notice stating the real facts. After receiving the reply the 1^st complainant contacted the opposite party over telephone and agreed that he is ready to pay the amount stated in the reply notice for the completion of the building and he further met and assured to pay the amount stated in the reply notice.  However the opposite party    never    stopped    the    work   and  he continued the construction as per the agreement, and for that purpose he insisted the opposite party to create another agreement for the remaining construction and for the balance payment and accordingly a proposed agreement was prepared as per the directions  of the  1^st complainant, that after receiving the proposed agreement on 17/02/2011 the complainants abused the supervisor and workers who were present in the construction site and obstructed the construction without any reasons, and also behaved in a rude manner to the opposite party and also threatened by stating  that he is going to file case against the opposite party and also informed that he is not ready to pay the balance amount.  By this time more than 80% of the construction work had been completed by the opposite party.

18.     The complainants are trying to suppress the actual work done by the opposite party in order to obtain unlawful gain, that the expert who filed the report dated 08/03/2011 not properly assessed the construction and filed the report only for helping the complainants and therefore the opposite party filed a commission application for properly assessing the construction work and on the basis of that the expert filed a report on 23/03/2011, it is clear that the opposite party had already done work for Rs.15 lakhs and the amount estimated for the completion of pending work is Rs.5.31 lakhs. But later the complainants entered into an agreement with somebody for the completion of pending works for a higher amount.  It is clear that the expert report is not fully correct, that he calculated the construction rate as per the    basic rates, which   will  not tally with  the rates exists in  that locality  where construction work going on, that from this it is clear that the opposite party done work for more than that mentioned in the expert report.

19.     The complainants have not paid an amount of Rs.30,000/-to the opposite party being the cost of clearing the site for starting construction by cutting and removing trees and for shifting the bathroom and also leveling the ground, that the complainants not arranged water for the construction purpose and therefore the opposite party brought water from outside through vehicles, that for that purpose the opposite party spend an amount of Rs.10,000/-and that amount also is still due to the opposite party, that the nature of work done by the opposite party is evident from the commission report and expert report, that due to the indifferent attitude of the complainants the opposite party suffered a total loss of Rs.5,20,000/- on different counts including construction cost of increased plinth area of 113 sq.ft.  It is further contented that in addition to this amount the complainants are liable to pay 15% of agreement amount as the profit and other supervisory charges and the day to day losses suffered by the opposite party which was limited to Rs.1,00,000/- and by considering the above said fact it is very well clear that in order to evade from the above said liabilities the complainants played all these drama and caused to file this complaint.   The opposite party is intending to file a civil suit against the complainants for realizing the amounts  shown above, that the opposite party is conducting the institution without any complaints from its customers and already completed the construction of several buildings without any deficiency in service and possess goodwill for its efficiency and good service and having good reputation.  The opposite party further prays to dismiss the complaint with his costs.

20.     In view of the pleading the points arise for consideration are:-

1. Whether Ext.P1 is the copy of the original agreement alleged to have been executed between the 1^st complainant and the opposite party?
2. Whether the opposite party has constructed the incomplete house building by deviating from the approved plan, specifications and the terms of  agreement executed between the 1^st complainant and opposite party as alleged?
3. Whether complainant has avoided the opposite party from the construction work and entrusted the remaining construction work with another contractor due to the deficiency in service or due to the unfair trade practice on the part of the opposite party?
4. Whether the complainant is entitled to get compensation to the tune of Rs.15 Lakhs for the non completion of construction work by the opposite party?
5.  Whether the complainants are entitled to get compensation for  deficiency in service on the part of the opposite party?
6. Reliefs and costs?

21.         Originally the case was disposed of by the previous Forum by passing separate orders one by the President and the other by 2 members together.  The opposite party  taken the matter in appeal by filing appeal No.428/14 & 480/14 against the said order.  The learned CDRC set aside both the orders by finding that there is no effective order which can be put into execution,  and also sent  back the case for taking fresh decision on merit in accordance with spirit  of Section 14 2(a) of the CPA and its proviso afresh after hearing both sides .

22.                   After receiving the case file along with the remand order notice were issued  to both sides and both of them appeared through their respective advocates.

          23.     The evidence on the side of the complainant consists of the oral testimony of  PWs 1 to 4 and Ext. P1 to P16 series documents.  The expert engineer  Sri.Ommen Samuel has been examined as PW1 and got marked Ext.C1 expert report.  The report filed by the 2^nd expert deputed on the application the opposite party has been marked through PW2 and Ext.C2.  The 2^nd contractor Sri.Vijayakumar.C.R, Proprietor, Appolil Builders has been examined as PW3. PW4 is the Deputy Manager of SBI Rasmeec Branch.  He proves Ext.X1 series to X4 documents

24.     The Commissioner Advocate deputed by the Forum  along with two experts one after another has been examined as CW1 and got marked Ext.C1(a) and C2(a).

25.     Evidence on the side of the opposite party consists of the oral evidence of DW1.  No documentary evidence except Ext.C2&C2(a) has been adduced by the opposite party.

26.     Both sides have filed notes of argument.

27.     Heard both sides.

Point No.1 to 5

28.     For avoiding repetition of discussion of materials these 5 points are considered together.  The specific case of the complainants is that they decided to construct a house building  to their joint property situated in Perinad village for which they approached the opposite  party Managing Director of Assiano Builders and Developer who are involved  in construction activities.  After mutual discussion they entered into Ext.P1 agreement with the opposite party to construct a residential building according to Ext.P2 series building plan and permit.  The opposite party furnished final draft of the plan with the front elevation and an estimate on the basis of which the complainants have availed a housing loan from the SBI.  The opposite party has also obtained necessary permit and license to the building from the Secretary, Perinad Grama Panchayath.  Accordingly the complainants handed over the site immediately to carry out the construction as per P1 agreement. 

29.     It is the further case of the complainant that the opposite party agreed to carry out the construction work of the building as per P2 plan and permit for a total cost of Rs.23,50,000/- and during the course of the construction a total sum of Rs.21,27,000/- was received by the opposite party in 8 installments which is clear from Ext.P3 to P10 receipts.  The opposite party has no much dispute regarding the receipt of  amount  covered by P3 to P10 receipts.

30.     The specific allegation of the complainant is that construction ought to have been completed on or before 10.02.2011 but the opposite party has completed only 50% of  the construction work and demanded Rs.5,00,000/- more during the month of January 2011.    According to   the complainant the opposite party has deviated from the plan and specification and thereby the utility of the building  on completion will be diminished.  The 2^nd allegation of the complainant is that the opposite party has used sub standard materials for the house construction.  The 3^rd allegation is that Rs.15,00,000/- more is necessary for completion of the building as per the plan and specification.  In the circumstances the complainant issued Ext.P11 notice to the opposite party who admittedly  received the same and issued Ext.P13 reply stating wide allegations.  Thereafter for completion of the work a draft agreement was prepared by the opposite party on 17.02.11 and handed over the same to the complainants.  But the complainants were not amenable for executing another agreement and they decided to complete the building by deputing   other competent builder. The complainants have also got appointed an Advocate Commissioner with the assistance of the qualified civil engineer and got prepared a mahazar and report and also obtained an interim order against the opposite party in continuing the work.

   31.           Though the opposite party admitted to have entered in to an agreement for construction of house building with 1^st complainant he would contend that Ext.P1 is not the said agreement. According to the opposite party the scheduled item, general specifications along with condition of the payment for each stage of construction etc. are elaborately mentioned in the original agreement. But the said  agreement was deliberately suppressed   by the complainant and produced a photo copy of  the draft agreement executed on 13.01.2010 before this Forum and the final agreement was  executed on 02.02.2010. We find no merit in the above contention of the opposite party due to the following reasons.  The first reason is that the opposite party has stated in Ext.P13 reply notice that himself and the 1^st complainant executed an agreement dated 02.02.2010 and accordingly advance amount of Rs.2,00,000/-was received and work started. The fact that Rs.2,00,000/-was received while executing agreement is mentioned in the 1^st page of P1 agreement itself. Scheduled item general specifications along with schedule of payment at each stage of construction etc are also seen mentioned in Ex.P1. In view of the above reasons. We find no force in the above contention of the opposite party. Furthermore as the opposite party is one of the parties to the agreement, he might have received the alleged original agreement dated 02.02.2010 or at least a copy of the said original agreement and he can very well produce the same before court and would establish his contention that Ext.P1 is not the original agreement but it is  a copy of draft agreement prepared on 13.01.2010 as contented by him. Without producing the original or copy of the purported original agreement the opposite party is not expected to contend that P1 is only a copy of the draft and not the original agreement.

32.     One of the main allegations of the complainants is that there was inordinate delay in completing the construction work. According to the complainant the construction of the building has to be completed and the building has to be handed over to the complainant as early on 16.09.2010.  But there is no such stipulation in Ext.P1 agreement.  As per Ext.P1 agreement the work would be completed between 4-6 months from the date of finishing basement or structural work.  It is very vague stipulation regarding the time required for completing the building.  Generally period of completion of the work would be fixed from the date of agreement or from the date of handing over the work site or from the date of 1^st payment.  Here in this case the agreement has been cunningly got executed by the opposite party by stating that the entire job has to be completed 4-6 months from the date of finishing the basement or structural work.  The opposite party is not ready to consider the date of finishing the basement which will be the earliest date after commencement of the work.  Instead he has reckoned  the date of finishing the structural work with malafide intention to protract the completion of work.  Finishing  structural work would indicate that almost half of the construction work is over. Thereafter plastering, electrical, plumbing, sanitary, flooring  and painting work alone are left. There is no stipulation in Ext.P1 regarding the starting of work or completing the basement or structural work.   In view    of     the    vague    provisions in    Ext.P1 agreement regarding  the date of completion of construction it cannot be held that there is inordinate delay in completing the construction work.  But it is clear that opposite party has cunningly stated the period required for completion of work to his advantage so as to claim enhanced rate of construction cost. 

33.     Another allegation of the complainant is that construction made by the opposite party by deviating from the plan and specification and thereby utility of the building upon completion will diminish.  It is true that the plinth area of the building has been increased from 1735 to 1848 sq.ft.  No other deviation has been alleged and proved.  The opposite party has explained reasons for the deviation from the plan and specification and increase in the plinth area of the building.  DW1 has sworn   in  paragraph 8 of the proof affidavit that during the course of the construction the complainant directed the opposite party to fix bath tubs in the ground and 1^st floor bath rooms.  For that purpose the area of the bathroom should be increased.  It is clear from the P1 agreement that fixation of bath tub was not provided.  But it is clear from the available materials that provision has been made for installing bath tubs in 2 bath rooms.  In the circumstances there is no merit in contenting that there is deviation from the approved plan and specifications.

34.     Yet another claim of the complainant is that the opposite party has used substandard materials and after completing only 50% construction work and obtaining Rs.21,27000/- in 8 instalments and also demanded Rs.5,00,000/- more to complete the construction which is against the provisions of the agreement.  According to the 1^st complainant he got verified the work done by the opposite party by deputing expert engineer and thereupon  it is revealed that Rs.15,00000/- more is to be invested to complete that work.  Now we shall examine whether there is any merit in the above allegations.  It is clear from the available materials that at the instance of the complainant  the forum has deputed  one Advocate Commissioner and qualified Senior Civil Engineer by name Ommen Samuel to visit the property and prepare a Mahazar and report.  Accordingly the Commissioner and expert visited the disputed house building under construction in the presence of both sides and  prepared  mahazar and report.  The said expert has been examined as PW1 and got marked his  expert report as Ext.C1 and also got marked the mahazar prepared by the commissioner advocate as Ext.C1(a).   In Ext C1 the expert has reported that the structure of the building is almost complete and plastering of wall and ceiling partly done, that door frame and  window frames with iron bars and flats grills are fixed, that conduits for wiring and boxes for junctions and switches are placed, that wires are drawn inside ground floor area alone, that regarding sanitary and water supply some pipes are laid , that two sets of cement rings are sunk to substitute septic tank, that compound wall is constructed on three sides, that the construction is not in accordance with the plan approved by the Secretary of Perinad Grama Panchayath that the quality of work is poor, that many portion of the concrete which is not covered up by plaster and available for inspection now is porous and honey combed, that the drop board made in concrete is hollow at very many places, that the reinforcement is exposed in several areas of R.C.C. work, that the bricks used in construction are not the best quality, that they are smaller in size and not uniformly burnt, that the sand used is of very poor quality containing clay as is seen from the brown  patches in the plastered portions of walls, that the wood used for the door and window frames are found split and defective at many places, that in the estimate the contract is for teak wood, but the wood used in Malasian “Cheruthek”. Floor concrete is not complete, Not layed vitrified tiles, ceramic tiles for toilet , water tank, vitrified tiles used only Malasian wood for joinery.

35.     PW1 has also appended an elaborate valuation.  Accordingly  the value of the work done is Rs.10,60,326/- and the value of the work to be done for completion of the building as per the estimate is Rs.10,60,150/-. Now let us examine whether Ext.C1 report can be relied upon or not. It has come out in evidence through the oral evidence of PW1 (expert) that he is a post graduate degree holder in structural engineering, a  retired professor of T.K.M collage of Engineering, Karicode Kollam and an approved and licensed  Engineer and Valuer. In Ext C1 report after valuing each and  every work, the expert has specifically  opinioned that the quality of work is substandard that the materials used are also not having the quality specified that  the construction is not as per the approved plan and that the plinth area now constructed is more than 1735 Sq.ft as mentioned in the agreement and also more than 1770 Sq.ft as per approved plan.

36.     On scrutiny of Ext C1 report and deposition of PW1, and CW1 Commissioner Advocates it is clear that the expert has noted each and every aspect required to evaluate the construction work as required and as instructed by the Commissioner Advocate.  It is true that PW1 has failed to note certain aspects such as F{X sX§v apdn-¨p, F{X ]pfn-acw apdn¨p  removal bathroom situated at the site before starting construction etc.  But he was not asked to note all those aspects in his report. After completing 50% of the house construction one cannot find out the status of the property prior to the date of starting construction or the number of trees standing at the property  prior to the starting of construction or the nature of work done to prepare the site for construction. According to PW1 I­-sXÃmw dnt¸mÀ«n ]d-ªn-«p-­v.   If PW1 has omitted to note any such details it is not due to his fault.  The expert is not expected to note anything on the basis of hearsay information, surmises or hypothesis.  He is expected to verify the facts sought to be ascertained and note the details which is expected to be noted which he has done properly.  It is true that PW1 would admit that he is a friend of the lawyer then appearing for the complainant, but the same alone is not a criteria to disbelieve the expert or discard his report especially when there is no allegation or evidence to show that the expert is biased or he has been influenced by the complainant or his advocate and that he has shown a  partisan  attitude.  In view of the details noted in the report, the qualifications and experience of the expert we are of the view that Ext.C1 report can be relied upon.  Furthermore  during Cross examination of PW1 by the counsel appearing for the opposite party has not brought out anything to discredit the material aspect  noted in Ext C1 report. CW1 who is the Advocate Commissioner has also deposed that the expert commissioner ascertained all the points as required by him. The oral evidence of PW1&CW1 coupled with Ext.C1&C1(a) would indicate that the expert has noted all material aspects expected to be ascertained in the commission application and we find no reason to disbelieve the contents of Ext C1 expert report.

37.     The opposite party has been  relying  on Ext C2 report  which  is prepared by the 2^nd expert  by name K.Chithrabanu deputed at the instance of the opposite party without setting aside the Ext.C1 which is the earlier expert report.  However the very same advocate commissioner has accompanied the 2^nd expert.  They visited the disputed building and prepared and submitted Ext.C2 expert report and Ext.C2(a) Mahazar by the commissioner advocate by stating that the cost of the work already done as per the plan is Rs.14,97,873/- and the work to be done for completion of the building is Rs.5,31,381/-. However it is to be pointed out that the complainants filed IA.No.45/2011 and requested the opposite party for completion of the remaining work of the said building by the opposite party as per the assessment made by the 2^nd expert in Ext C2 report .  But the opposite party was not amenable for the same but prayed for further time for completion which was not acceptable to the  complainants.  The fact that the opposite party was not amenable to complete the building as per the estimate shown in C2 report itself would indicate that Ext.C2 expert report regarding the cost of construction is not correct and not acceptable to the opposite party himself.  As the opposite party has failed to carry out the remaining work for the cost estimated by the 2^nd expert the Forum granted permission to the complainant to  engage another passion of his choice to complete the work of the building vide order dated 26.03.11passed in IA.45/2011.  Thereafter  the complainants engaged PW3, the proprietor of Appolil Builders to carry out the remaining construction work of the building. The oral evidence of PW3  would show that he prepared an itemized and detailed estimate (Ext P15)  regarding the work to be done for completion of the buildings and its cost, which was calculated to  Rs.12,73,271/-. PW3 has also completed the construction of the building for which the complainants paid Rs.12,73,000/- in twelve installments for which PW3 issued cash receipts (Ext P16 series-12 Nos).

38.     It is further to be pointed out that Ext.C2 report of the 2^nd expert has not been duly proved by examining the expert who prepared the same. After getting summons from the Forum, the expert filed an exemption petition, with a medical certificate. But on perusal of said document, we are of the view  that the medical certificate produced is only a photocopy of a certificate issued by an Ayurveda doctor without specifying the nature or name of  illness.  However after perusing the certificate the then Forum rejected the exemption application. But thereafter  the opposite party’s counsel has not  taken any steps to examine the expert and hence the Forum has not get any opportunity to test the correctness of Ext.C2 expert reports.  It is further to be pointed out that without setting aside Ext.C1 expert report, another expert has been appointed to ascertain the very same facts.  Hence there are two inconsistent expert report.  The 2^nd expert was also not examined before the  forum.  It is further to be pointed out that the opposite party was not willing to complete the construction work for the amount estimated by the 2^nd expert and that the oral evidence of PW2 coupled with Ext.P15 detailed item wise estimate and Ext.P16 series cash receipts would corroborate the findings of PW1 in 1^st expert regarding the cost of remaining construction.  The opposite party did not adduce any documentary evidence to prove the expenditure incurred by him for purchase of building materials, transporting expenses and cost of labour for the workers etc. which would also indicate that there is no merit in the claim of the opposite party that he had already spent Rs.1497873/- as shown in Ext.C2, 2^nd expert report.  In the circumstance we are not inclined to accept Ext.C2 expert report.

39.     Complainants allege that Opposite Party used substandard materials for the construction of the building, Opposite Party claimed that he used super quality materials for the construction such as Ramco Cement, Superior quality wire cut  Bricks, high quality river sand, ISI labeled paragon iron steel bars, ISI labeled wiring and plumbing materials etc. But Opposite Party has not proved the above claim that he used  Superior quality materials for the construction.  He ought to have produced and got marked such as invoices, bills, receipts, passes etc. to disprove the above allegation which stands corroborated by Ext.C1 expert report.

40.     The learned counsel for the opposite party has argued that the opposite party has completed 80% of the construction work. But C1 report would indicate that he has not even completed 50% of the work.  The oral evidence of PW3 coupled with P15 item wise estimate  would further indicate that the opposite party has not even completed the entire structural work and he left almost all work involving costly items.  In the circumstance we find no merit in the above contention of the opposite party.

 41.    Admittedly Opposite Party agreed to carry out the construction for a total cost of Rs. 23,50,000/-. It is clear from the available materials that  total sum of Rs. 21,27,000/- (Twenty one lakhs twenty seven thousand only) was received by Opposite Party in 8 installments as evidenced by Ext. P3 to P10 receipts which is admitted by Opposite Party but he would contend that out of the said amount Rs.1,50,000/- received as per Ext.P5 receipt is towards the construction of compound wall which is admittedly an extra work.  However it is brought out in evidence that the opposite party  has  completed less than 50% of the work as pointed in Ext.C1 report and Ext.P15 item wise detailed estimate prepared by PW3.  Ground clearance is included in the project undertaken as per Ext.P1 agreement.  In short the Opposite Party has received Rs. 19,77,000/- (21,27,000-1,50,000)  for the construction of the building.  But C1 expert report would show that the value of the work done is 10,60,326/- only and cost of the remaining work is Rs. 10,60,150/-. As per the order in IA 45/11 this Forum permitted the Complainant to complete the work of the building and Complainant paid  Rs. 12,73,000/- to PW3 in 12 installments as evidence by Ext. P16 series (12 Nos) for the completion of the building. Thus the Complainant had spent a total sum of Rs. 32,50,000/- (19,77,000+12,73,000) except for the  compound wall instead of  the agreed amount of Rs.23,50,000/-.  At the same time it is to be pointed out that there is an increase in the plinth area to the extent of 113 sq.ft for which an additional expense of Rs.1,35,600/- is required at the rate agreed by the opposite party.  It is clear from the available materials that the complainant was constrained to incur additional expenses due to the lapse, latches and negligent construction of the building by violating the approved plan and against the terms of contract.  Therefore it is clear that there is  deficiency in service and unfair trade practice on the part of the opposite party/builder.  Hence there is ample justification for avoiding the opposite party/builder from constructing the remaining work of the building by deputing another contractor.

42.     The learned counsel for the opposite party has argued that  agreement will not contain specification of materials  and therefore it cannot be held that the materials used by the opposite party for the building construction are substandard materials.  It is further argued that only standard materials has been used by the opposite party in constructing the building.  The above contention of the opposite party is devoid of any merit in view of the oral evidence of PW1 and Ext.C1 commission report and also the oral evidence of PW3 and Ext.P15 detailed estimate of the remaining work.  It is to be pointed out that specification  No.4 under Annexure 1 of Ext.A1 agreement would indicate that front doors and front door panel and windows frames will be made of teak wood and the remaining would be Malesian wood or Mahagony.  But C1 report would indicate that the wood used for front door panel and windows frames are not made of teak wood and wood used is substandard also.  It is further stated as specification No.6 that electrification and plumbing are included in the project cost at average specifications (ISI marked).  The above specification would clearly indicate that the electrical and plumbing materials should be ISI marked and having average cost.  In Ext.C1 report the expert has stated that the wood used for the door and window frames are found  split and defective at many places.  In the estimate the contract is for teak wood but the wood used for is Malesian Cheruteak.  It is clear from the available materials that the opposite party has not used teak wood or mahagony  for any of the doors including front door, window or window panels but used cheruteak for the entire wooden construction as indicated in Ext.C1 commission report.  Ext.P15 items wise estimate prepared by the subsequent contractor(PW3) would indicate that the opposite party has not even fitted any door shutters, window shutters etc. for which PW3 has charged separately as item No.3 to 7 in Ext.P15  estimate.

43.     Another contention of the opposite party is that  he has spent Rs.30,000/- for clearing  the site.  But that amount is not included in the estimate and in the agreement.  The above contention is devoid of any merit in the light of specification No.10 shown in Annexure No.1  in Ext.P1 agreement which would show that  ground clearance is included in the project  cost of Rs.23,50,000/- stated in the agreement.

44.     Yet another contention of the opposite party is that he has spent Rs.10,000/- for bringing water by using vehicle and the complainant has to pay for the same.  However there is no stipulation in Ext.A1 agreement stating that the complainant has to pay additional expenses for water or electricity.  The opposite party has also  no case that there is any oral agreement regarding the cost of water.  According to PW2 he has dug a well at the premises of the building.  In the circumstance there is no need to bring any water by transporting in any vehicle.

45.     It is also argued by the learned counsel for the opposite party that the opposite party  has shifted one bathroom and toilet  to adjacent property to facilitate the transportation of materials to the work site.  Learned counsel for the complainant has pointed out that  there is no mention regarding  the requirement of shifting bathroom or toilet  in Ext.A1 agreement.  Usually a building construction agreement is being executed  between the parties after visiting the proposed site and after evaluating the requirement such as water, electricity, transportation etc.  Therefore there is every chance of including these aspects in the written agreement if any such requirements are genuine.  But in Ext.A1 there is no such stipulations.

46.     Another contention of the opposite party is that the complainant has agreed to pay 15% profit and supervisory charge amounting to Rs.1,00,000/- including profit.  The above contention is having no leg to stand at all since there is no provision regarding profit in the agreement.  A person who is expected to carry out a particular work for a particular rate as per written agreement is not expected to claim profit apart from the total cost of construction stipulated in that agreement which may include profit and supervisory charges.

47.     The opposite party by relying on the provision stated in the 2^nd page of P1 agreement has argued that if the cost of material has gone up above 25% before completion of the project due to any act or empowerment made by the Government 50% of the loss should be borne by the client and the remaining 50% by the opposite party.  However there is no reliable materials to show that the cost of material has gone up above 25% before completion of the project due to any act of the Government.  If labour charges increased or cost of river sand or iron rode has increased without the intervention of the government the complainant is not bound to make amend the loss.  It is brought out in evidence that cost of construction has been increase to some extent.  But it was due to the delay in carrying out the construction and not due to the  complainant’s involvement.  As I have already pointed out that the opposite party has cunningly inserted the date of completion as between 4-6 months from the date of finishing the basement or structural work.  The above provision in P1 agreement would indicate that he can take as much as time as he wants to complete structural work.  Usually if the  construction is delayed for more than 6 months  there will be increase in the material cost and labour charges.  the opposite party is expected to know these facts as he is an experienced contractor.  Even then he has not specifically stated in the agreement regarding the date of commencement of the project and completion of the project.  He has vaguely stated the period as 4to 6 months from the date of completion of basement or structural work.  Even according to    the    opposite party the structural work was completed only    on   12-01-11  ie,  about 1 year of the commencement of the work.  According to the complainant he expected the completion of the building and handing over the building between 17-08-2010 and 16-09-2010 ie, after 6 months of the commencement of the construction as if the period of completion stated in the agreement is 4-6 months from the date of agreement.  In the circumstance we are of the view that the complainant is not at all responsible for the increase in cost of  construction including  labour charges due to the construction  of the building by the opposite party.

48.     In view of the materials discussed above it is cristal clear that the opposite party though  claims to be an expert and experienced hand in the construction filed,  he has committed breach of  trust, gross negligence and serious deficiency in service and unfair trade practice in the construction of the building as per Ext.P1 agreement undertaken by him and therefore the opposite party is liable to return the excess amount collected from the complainant which is calculated as follows.  The value of work estimated as per C1 report  10,60,326+ the cost of additional construction of 113 sq.ft at the rate of Rs.1200/- per sq.ft = 1,35,600=11,95,926/-.  The said amount is to be deducted from the total amount already received by the opposite party from the complainant ie, 19,77,000-11,95,926=Rs.7,81,074/-.

49.     On evaluating the entire materials available on record we come to the conclusion that the opposite party is liable to pay Rs.7,81,074/-  as the excess amount received from the complainant after adjusting the cost of additional construction of 113 sq.ft.

50.     It is also clear from the available materials that the complainants have sustained mental agony apart from financial loss due to the defective construction of the house building by using substandard construction materials.  Hence the complainants are entitled to get compensation to the tune of Rs.1,00,000/- .  They are also entitled to get Rs.10,000/- as costs of the proceedings.  Points answered accordingly.

Point No.6

 In the result the complaint stands allowed in the following terms:-

1. The opposite party is directed to pay Rs.7,81,074/- (Rupees Seven Lakhs Eighty One Thousand and Seventy Four only )  being the excess amount received from the complainant towards the building construction. 
2. The opposite party is also directed to pay Rs.1,00,000/- as compensation for the mental agony sustained to the complainant. 
3. The opposite party further directed to pay Rs.10,000/- as costs of the proceedings.
4. The opposite party is directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover the same with interest @ 9% p.a from the date of complaint till realization except for costs from the opposite party and his  assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  7^th   day of  February  2020.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

                                                                                    Senior Superintendent

I N D E X

PW1: - Oomman Samuel

Ext.C1:- Expert report by Professor Oommen Samuel

PW2:-Justine Joseph

Ext.P1:- Agreement of construction

Ext.P2:- Plan and building permit

Ext.P3:- Receipt from Assiano Builders & Developers dated 02/02/10

Ext.P4:- Receipt from Assiano Builders & Developers dated 13/01/10

Ext.P5:- Receipt from Assiano Builders & Developers dated 29/06/10

Ext.P6:- Receipt from Assiano Builders & Developers dated 30/06/10

Ext.P7:- Receipt from Assiano Builders & Developers dated 04/09/10

Ext.P8:- Receipt from Assiano Builders & Developers dated 12/10/10

Ext.P9:- Receipt from Assiano Builders & Developers dated08/11/10

Ext.P10:- Receipt from Assiano Builders & Developers dated 07/12/10

Ext.P11:- Advocate notice

Ext.P12:- Postal receipt dated 22/01/11

Ext.P13:- Reply notice dated 04/02/11

Ext.P14:- True copy of  agreement  for construction

Ext.P15:- Detailed estimate prepared by Vijayakumar .C.R(Licensed Supervisor Appolil Builders)

Ext.P16:- Bill series

C2: Details of work report from K.Chitrabhanu, Rtd.Asst.Exe. Engineer

PW3:- Vijayakumar .C.R

CW1:- Sreeraj.R

C1(a): - Commission report

C2(a):- Commission report filed by the Commissioner Advocate

PW4:- A.Mattai Kutty

X-1 :-Copy of SBI housing loan form

X.1(a):- Appendix .C (Building permit  from Perinad Grama Panchayat)

X.1(b):-Copy of building plan

X.1(c):-Abstract estimated cost of the residential building

X-2:-  True copy of General Power of Attorney

X-3:-  Statement of account

X.4:-  Copy of Completion Certificate

DW1:- R.Kishore

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent