Tamil Nadu

North Chennai

82/2013

Mrs.Swarnalatha Subramaniyam, - Complainant(s)

Versus

Raja, K.C.Contractor, - Opp.Party(s)

M/s.S Namasivayam

12 Aug 2016

ORDER

 

                                                             Complaint presented on:  08.04.2013

                                                                Order pronounced on:  17.08.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

WEDNESDAY THE 17^th   DAY OF AUGUST 2016

 

C.C.NO.82/2013

 

 

Mrs.Swarnalatha Subramanyan,

W 302 19^th Street,

Annanagar Western Extension,

Chennai.

                                                                                               ..... Complainant

 

..Vs..

	1. Mr. Raja K.C. Contractor, 51/5, Eastern Park, Soundarya Colony, Anna Nagar, Western Extension, Chennai – 600 101.   2. Mr.Nambirajan Rajakumar, Contractor Sree Associates, 51/5, Eastern Park, Soundarya Colony, Anna Nagar, Western Extension, Chennai – 600 101.
	.....Opposite Parties

Date of complaint                                  09.04.2013

Counsel for Complainant                      : M/s.S.Namasivayam

Counsel for opposite parties                     : M/s. R.Samy and Jayaveerapandian

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IN BRIEF:

          The Complainant’s husband owns a plot at No.476, 9^th street, Kapaleeshwarar  Nagar, Neelankarai Chennai -41. They entered into an agreement with a Civil contractor for construction of a house. The said contractor completed only 85% of the work. To complete the remaining 15% of work, the 2^nd Opposite Party offered to complete the residuary civil work. Prior to entering into the agreement, the Opposite Parties visited the site, number of times and met the project manager team Mr.Paul K Jacob, Mr.Boopathy and Ms. Dimple at their office. During meeting it was specifically informed that architect and the project co-ordinator shall provide model bill of quantities and with liberty to the 1^st Opposite Party to modify the same based on site condition. As requested by the 2^nd Opposite Party due to his personal conveyance the 1^st Opposite Party entered an agreement with the Complainant on 06.04.2012 for a consideration of Rs.15,86,821/- and the work should be completed on or before 31.07.2012. The Complainant also offered incentive for early completion. The 1^st Opposite Party shall submit the weekly invoices in the agreed format with minutes. However the Opposite Parties did not raise the bill every week and produced all the bills at the one stroke for 30 days. Further the 1^st Opposite Party had claimed differential rates of more than 100% increase for the same work in different parts of the premises with an intention to make false claims. In addition he had also been in misappropriation funds and diversion of labour and materials purchased for the construction. The Opposite Parties have not completed 1/3^rd of the construction as agreed and left the Complainant in lurch. The Opposite Parties committed deficiencies by way of misappropriation and embezzlement. The Complainant had no other alternative had done the painting and tile laying which was left and not done by the 1^st Opposite Party. The Complainant had met those works with increased cost of construction and he suffered with mental agony. The Complainant project manager certified the work done under the agreement by him for Rs.14,65,921/-. Out of said amount he already paid a sum of Rs.11,18,124/- and he is willing to pay the balance amount of Rs.3,47,797/- . However the Opposite Parties did not furnish any books of accounts of measurements with the project manager. The 1^st Opposite Party threatened the Complainant to pay a balance sum of Rs.20,00,000/- without completing the work.  The Complainant issued legal notice dated 17.09.2012 for deficiencies committed by the Opposite Parties and however the 1^st Opposite Party gave a bald reply. Thereafter the Complainant filed this Complaint for compensation for Deficiency in Service, mental agony and punitive damages with cost of the Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTIES IN BRIEF:

          The entire contract work of undertaking Civil works to the residence of the Complainant was recommended by a relative of the Complainant one Mr.S.Karpaga Vinayagam , retired Chief Engineer and Mr.Anbazhagan, retired Engineer. The following works are carried out at the instruction of the Complainant at her premises.

1. FRB Water Tank

2. Septic Tank

3. Weathring Course

4. Slopped roof at Second floor and Chemical treatment

5. Window slopped roof Chemical treatments

6. Supply of doors, windows, French doors, ventilators

7. Bathroom modification at First floors

8. Stair case modification at Landings

9. Introducing windows at first floor

10. Introducing lintel beams etc.,

11. Insertion of dowel rods for lintels

12. Screening concrete for making levels at first floor

13. Introducing new openings, at the second floor open terrace

14. Introduce second floor slopped roof brickworks

15. Front compound wall and allied works

16. Other petty works etc.,  

 

It is not correct to say that only 15% of the work was remaining to be completed by the previous contractor. The 1^st Opposite Party admits that the 2^nd Opposite Party is known to the relative of the Complainant, it was agreed by him in the entire agreement with the Complainant. Without referring to arbitration the Complainant resorted to the Forum is not acceptable. It was agreed among the parties that the additional work would be carried out separately. The Complainant with a view to  escape from her  liability  to pay the additional cost of civil work carried  out by the Opposite Parties for which bills has been produced nearly for Rs.20,00,000/- apart from the quantum specified in the agreement, the Complainant has levied various allegation of Deficiency in Service to enrich herself. The Complainant committed breach of contract and created a situation whereby the work could not be continued and unilaterally given the Opposite Parties to discontinue the work to the adventure of the Complainant as done by her with her previous contractor. The 1^st Opposite Party raised so far five invoices in respect of work completed on 14.06.2013 and the same was certified on 23.07.2013 and the 2^nd invoice raised on 22.06.2013 and the said invoice certified on 27.03.2013 belatedly. The Complainant and her team prevented the 1^st Opposite Party in completing the work within the time frame and unilaterally stopped the work after completing 90% of the contracted work in addition to enormous additional work carried out by the Opposite Parties. Therefore the Opposite Parties have not committed any Deficiency in Service and prays to dismiss the Complaint.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4.POINT NO:1

          It is an admitted fact that the Complainant’s husband owns a plot at No.476, 9^th street, Kapaleeshwarar Nagar, Neelankarai, Chennai – 41 and in the said plot a Civil contractor agreed to contract a house therein and in furtherance of the same, the said civil contractor constructed a house and however without completing the house 10 to 15% of the work he stopped the work and to complete the remaining work the Complainant searching a contractor to complete the construction and through her relatives of Mr.S.Karpagavinayayam and Mr.Anbazhagan govt engineers of the Complainant, they engaged the 2^nd Opposite Party and at his request the Complainant entered an agreement Ex.A7 with the 1^st Opposite Party to complete the construction on 06.04.2012 for a consideration of Rs.15,86,821/- and the said work should be completed on  or before 31.07.2012.It was further agreed in the agreement that invoice would be submitted on weekly basis as per the agreed format and shall be accompanied with minutes.

          5. The Complainant alleged deficiencies of the Opposite Party’s are that as per Ex.A7 agreement the invoices are not raised weekly and all invoices for 30 days produced at one stroke and further the 1^st Opposite Party claimed differential rates for more than 100% increase for the same work in different part of the promises by making false claim and the 1^st Opposite Party had been in misappropriation and diversion of materials purchased for the construction of the work and hence thereby the 1^st Opposite Party committed breach of trust and further he failed to complete the painting and tile laying and the said works were completed by the Complainant and  thereby she suffered with mental agony and monetary loss.

          6. The Complainant marked mail correspondences between her and with the Opposite Party’s. The alleged misappropriation and criminal breach of trust have to be proved by the Complainant. To accept the same no documents is available. Further misappropriation and breach of trust requires criminal action. Even assuming that misappropriation and breach of trust are Deficiency in Service the same requires elaborate evidence including cross examination.

          7. It is an admitted fact that the Opposite Parties has undertaken to complete the remaining civil work as per Ex.A7 through the Complainant relative Mr.S.Karpagavinayagam. The Opposite Parties categorically stated in their written version that only proves the assessment of all the works done and carried out in the residence of the Complainant by an expert panel would reveal the truth. However no expert evidence adduced by either party to ascertain what are the actual deficiencies of work committed by the Opposite Parties and what are the additional work done by them apart from the agreed work in Ex.A7 agreement. Unless such evidence forthcoming it is very difficult to decide the deficiency committed by the Opposite Parties. Further the Complainant herself rectified the deficiencies of painting and tile laying work left by the Opposite Parties. Though she rectified the said works the value of the work done by the Complainant has not been stated. Therefore as such the facts and circumstances of the case require elaborate evidence through the persons in the project team of the Complainant, expert evidence and necessary documents. From the available documents and evidence deficiencies committed by the Opposite Parties could not be determined and the same can be done only in the criminal suit and therefore we hold that the Opposite Parties have not committed Deficiency in Service.

8. POINT NO:2

In point No.1, it is decided that only by way of filing a Civil Suit and adducing elaborate evidence and documents, the case can be decided and in view of such conclusion the Complainant can be given liberty to file a Civil Suit and work out his remedy and this Complaint is liable dismissed without cost.

In the result the Complaint is dismissed with liberty to the Complainant to file a Civil Suit with same set of cause of action within two months from the date of this order and  to work out his remedy in the manner known to law. There will be no order as to costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 17^th day of August 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT

Ex.A1 dated 24.03.2012                   Minutes of meeting held complied by project

                                                Manager

Ex.A2 dated 26.03.2012                   Mail from Complainant to 2^nd Opposite Party

Ex.A3 dated 29.03.2012                   Mail from 2^nd Opposite Party to Complainant

Ex.A4 dated 30.03.2012                   Mail from 2^nd Opposite Party to Complainant

Ex. A5 dated 03.04.2012                  Mail from 2^nd Opposite Party to Complainant,

                                                 along with estimate

Ex.A6 dated 04.04.2012                   Mail from 2^nd Opposite Party to Complainant,

                                                along with schedule

Ex.A7 dated 06.04.2012                   Agreement between Complainant and 1^st Opposite

                                                 Party

Ex.A8 dated 09.04.2012                   Mail from 2^nd Opposite Party to Complainant

Ex.A9 dated 12.04.2012                   Report of meeting

Ex.A10 dated 20.04.2012                 Mail from 2^nd Opposite Party to project manager

Ex.A11 dated 23.04.2012                 Mail from 2^nd Opposite Party to project manager

Ex.A12 dated 08.05.2012                 Mail from 2^nd Opposite Party to Complainant

Ex.A13 dated 08.05.2012                 Mail to the 2^nd Opposite Party

Ex.A14 dated 21.06.2012                 Mail from 2^nd Opposite Party to Complainant

Ex.A15dated 22.06.2012                  Mail from 2^nd Opposite Party to Complainant

Ex.A16 dated 25.06.2012                 Mail from 2^nd Opposite Party to Complainant

Ex.A17 dated 07.07.2012                 Mail from 2^nd Opposite Party to Complainant Reg

                                                Progress Schedule

Ex.A18 dated 18.07.2012                 Mail from 2^nd Opposite Party to Complainant Reg

                                                Requirements

Ex.A19 dated 27.08.2012                 Mail from 2^nd Opposite Party to Complainant

Ex.A20 dated 28.08.2012                 Mail from Complainant to 2^nd Opposite Party

Ex.A21 dated 31.08.2012                 Mail from Complainant to 1^st Opposite Party

Ex.A22 dated 01.09.2012                 Mail from 1^st Opposite Party to Complainant

Ex.A23 dated 02.09.2012                 Mail from Complainant to 1^st Opposite Party

Ex.A24 dated 11.09.2012                 Legal Notice form Complainant to 1^st Opposite

                                                Party

Ex.A25 dated 11.09.2012                 Police Complaint filed by Complainant along with

                                                photographs

Ex.A26 dated 17.09.2012                 Reply Notice from 1^st Opposite Party to

                                                Complainant

Ex.A27 dated 12.11.2012                 Reply to reply notice from Complainant to 1^st

                                                Opposite Party

Ex.A28 dated 01.11.2012                 Mail Project Manager

Ex.A29 dated 16.11.2012                 Letter from project manager along with bill No.1

                                                to 5

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

Ex.B1 dated 25.03.2012                   Residence site visit & Status

Ex.B2 dated 26.03.2012                   Project details

Ex.B3 dated 28.03.2012                   Boq format

Ex.B4 dated 28.03.2012                   Correspondence

Ex.B5 dated 29.03.2012                   Correspondences

Ex.B6 dated 29.03.2012                   Minutes of meeting

Ex.B7 dated 01.04.2012                   Project Estimate

Ex.B8 dated 01.04.2012                   Estimate of work letter

Ex.B9 dated 03.04.2012                   Time schedule

Ex.B10 dated 09.04.2012                 Project progress details

Ex.B11 dated 13.04.2012                 Discussion details

Ex.B12 dated 19.04.2012                 Material details   

Ex.B13 dated 20.04.2012                 Sanitary works details  

Ex.B14 dated 26.04.2012                 Correspondences

Ex.B15 dated 04.05.2012                 Correspondences

Ex.B16 dated 08.05.2012                 Correspondences

Ex.B17 dated 09.05.2012                 Correspondences

Ex.B18 dated 13.05.2012                 Punch list

Ex.B19 dated 15.05.2012                 Punch list

Ex.B20 dated 16.05.2012                 Correspondence

Ex.B21 dated 17.05.2012                 Punch list

Ex.B22 dated 18.05.2012                 Punch list

Ex.B23 dated 20.05.2012                 Punch list

Ex.B24 dated 21.05.2012                 Correspondence

Ex.B25 dated 28.05.2012                 Meeting details

Ex.B26 dated 21.06.2012                 Correspondence

Ex.B27 dated 27.06.2012                 Bill certification

Ex.B28 dated 29.06.2012                 Cancellation of meeting

Ex.B29 dated 30.07.2012                 Project detail

Ex.B30 dated 27.08.2012                 RA Bill 3 & 4 release lr

Ex.B31 dated 31.08.2012                   -do-

Ex.B32 dated 08.09.2012                 Payment request letter

Ex.B33 dated 14.06.2012                 Work bill and certification by Complainant

                 & 04.09.2012        

 

MEMBER – II                                                               PRESIDENT