<br /> <br /> <br /> By SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant entered into an agreement with the opp.party for the construction of a building. The agreement amount of the contract was Rs.3,10,417/- and period within which the construction is to be completed was 3 months. Certain items of work such as though window, electrification ,plumbing etc work were supplied by the complainant. It was also agreed that additional work would construction will be given addition charges accordingly Rs. 40,000/- was paid towards additional work. But the building was not completed as agreed. There were also certain defects in the construction which were enumerated in the complaint. Due to the defects and deficiency in the construction work, the complainant sustained damages and mental agony . Hence the complaint.<br /> <br /> The opp.party filed a version contending interalia that the complainant is not maintainable either in law on or facts. The complainant is not a consumer. The complainant is filed with malafide intention to not paying the amount due to the opp.party from the complainant the defects alleged are false. All the defects alleged in the petition are so vogue in nature and also slight in nature and it knot be construed any material defect on each and every stage of building, no objection has been raised by the complainant. The complainant’s son who is an Engineer also supervision in the construction on each and every day besides the supervision of the complainant till the completion of the construction. No complaint was raise by the complainant or his son. When the construction is completed and at the time of settlement of amount due to the opp.party with view to delay in the payment of money this complaint was filed. There is no deficiency in service involved in this case and therefore the complainant is entitled to get any compensation and accordingly the opp.party prays for the dismissal of the complaint.<br /> <br /> This complaint was originally dismiss by the Forum against which the complainant filed A.No.662/02 before the Consumer Disputes Redressal Commission and the Consumer Disputes Redressal Commission set aside the evidence of the Forum and demanded the matter for fresh disposal after agrees affording the opportunity to both sides for adducing evidence.<br /> <br /> The points that would arise for consideration are:<br /> <br /> [1] Whether there is deficiency in service on the part of the opp.parties.<br /> <br /> [2] Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined. Ext.P1 to P16 are marked.<br /> <br /> For the opp.party DW.1 is examined. And Ext. D1 and D2 is marked.<br /> <br /> <br /> Points [1] and [2]<br /> <br /> <br /> The complainant and opp.party entered into Ext.P1 agreement for the construction of building to the complainant. The cost of construction was agreed by the parties was Rs.3,10,417/- and the period for completion of the building was three months. The grievance of the complainant is that the opp.party practiced unfair trade practice in the construction and that there is deficiency in service.<br /> <br /> Ext.P1 shows that there were 11 items of work and within 2 days after completion of each items of work the amount for that work as per the estimate has to be paid to the opp.party. Certain items of work such as doors windows plumbing, electrification etc. were excluded from estimate work were to be done by the complainant himself. In Ext.P1 there was provision for supervisory charges @ 2% of the estimate which was subsequently scorned off and the scorning was attested by the opp.party.<br /> <br /> Ext. P3 to P14 are the estimate for each item of work with receipts issued by the opp.party for having received the amount for each item of work. From Exts.P3 to P14 it can be seen that on completion of each items of work palyments were made by the complainant and such payments were made upto estimate No.9. Though the receipts would show certain payments for additional work the details of such additional work are not forth coming.<br /> <br /> Had there been any defect in work would PW.1 pay account as per estimate ?<br /> <br /> An expert was appointed at the instance of the complainant who filed Ext. C1 report. It is an an admitted fact that Ext.P2 was prepared in the absence of the opp.party. Though the expert would state that two registered notices were issued to the opp.party the same were refunded with the endorsement “addressee not known” no material worth believable was produced to prove that notices have been issued to opp.party. The expert in Ext. C1 has reported that there were fool defects viz [b] to [g] [b] defect in south wall of south east room.<br /> <br /> <br /> [c] Defects in Terrace and drop slab.<br /> [d] Defect of beams.<br /> [e] Defect in the protection Coconut tree<br /> [f] Defects in the fool steps.<br /> [g] Defects in plastering<br /> <br /> <br /> The expert has reported that defects c,d,e and of is due to bad workmanship and lack of supervision . In this context it is worth pointing out that the scoring with repaid to 2% supervision charge would lead to an inference that the opp.party was not supervising the work. The son of PW.1 is a Civil Engineer who is engaged in the construction field is not disputed. DW.1 has stated that the supervision of the work was being done by PW.1 and his son which is not effectively challenged. Ext.P1 was produced from the custody of PW.1 and so it cannot be said that the scoring was made subsequently by DW.1 From Ext.P1 and from the evidence of DW.1 it can safely be concluded that the technical supervision of the work was being done by the complainant and his son and therefore the opp.party cannot be held liable for the above defects.<br /> <br /> <br /> The expert in Ext.C1 has stated the balance work to be carried out under item [h] . According to the expert two items of work remain to be completed as detailed below <br /> <br /> <br /> [i] Mosaic work according to Ext.C1 grinding and polishing of Mosaic is to be completed for which he assessed the cost at Rs.8883/-<br /> <br /> [ii] Parapet and staircase rail the cost of which is assessed by the Expert at Rs.8858/-<br /> <br /> [iii] Ceramic flooring and Dadoing work the cost of this work is assessed by the expert at Rs.20,260/-<br /> <br /> [iv] White washing, painting etc. the cost of this item of work is assessed by the expert at Rs.9640/-<br /> <br /> [v] Furnishing work and lining board which is assessed atRs.1140/-<br /> <br /> <br /> Thus the expert has reported that certain items of work remains to be completed and the total cost of such works as assessed by him comes to Rs.48781/- From Ext.C1, the rate at which the above amount has been calculated by the expert is not forthcoming. The complainant did not make any attempt to examine the expert and prove Ext.C1. It is to be noted that Ext.C1 is an exparte report prepared in the absence of the opp.party. Taking all aspects into consideration we are inclined to accept Ext.C1 to come to a conclusion that there are certain items of work to be completed which would establish deficiency in service on the part of the opp-.party. In the absence of the rates we award a seem of Rs.25,000/-towards compensation under this item.<br /> <br /> <br /> The complainant is claiming Rs.2 lakhs towards damages for the defect in construction. As pointed out earlier the supervision of the work was not carried out by the opp.party but by the complainant and his son. If there was any defect in construction the same could have been rectified their and there by those who were making technical supervision . In Ext.C1 the expert has reported that most of the defects would not have any adverse effect on structural stability.<br /> <br /> <br /> Case of the complainant is that the opp.party has collected excess payments were as according to opp.party huge sum are due to him from complainant. There is no materials to assess the additional works done by opp.party. It has come in evidence that Ext.D1. Smt. Filed by the opp.party is pending in the Sub Court , Kollam in which the opp.party is claiming net amount of accounts relating to the construction of the building involved herein and the complainant can agitate his grievance regarding excess payment in that suit. On a careful consideration of the entire evidence in this case we are of the view that there is deficiency in service on the part of the opp.party in nthe construction of building.<br /> <br /> <br /> In the result the complaint is allowed in part directing the opp.party to pay complainant a sum of Rs.25,000/- and a sum of Rs.5,000/- towards costs. The order shall be complied with within one month from the date of receipt.<br /> <br /> <br /> <br /> <br /> Dated this the 21st day of February, 2008.<br /> <br /> <br /> <br />