DISTRICT CONSUMER DISPUTES REDRESSAL FORUM Civil Station, Palakkad – 678001, Kerala
Dated this the 29th June, 2010
Present: Smt.Seena.H, President Smt.Preetha.G.Nair, Member Smt.Bhanumathi.A.K, Member
CC.No.141/2007 P. Unnikrishnan S/o. Late Sethumadhavan Nair, Lakshmi Nivas, Keralassery, Palakkad - Complainant (By Adv.Raghudas.S.G) Vs
1. Rajeev S/o. Dr.T.K. Raveendran, Ithihas, Thandayamparambil, Ezhakkad,P.O, Palakkad. (By Adv.M.P.Ravi)
2. Bini, W/o.Rajeev, Ithihas, Thandayamparambil, Ezhakkad,P.O, Palakkad. - Opposite party (By Adv.M.P.Ravi)
O R D E R
By Smt.Seena.H, President
Case of the complainant in brief is as follows:
Complainant entrusted the work of housing construction with the opposite party No.1. Opposite party No.2 who is wife of opposite party No.1 being an Engineer supported the work of 1st opposite party. Agreement between the parties was entered into on 30/11/2006. It was agreed to construct the house upon an existing ground floor owned by the complainant. Total consideration was fixed as Rs.7,20,000/- and time for completion of the work was fixed as 30/04/2007. Complainant agreed to supply laterate stone and wooden materials in his possession and opposite party No.1 assured to value it according to the present market rate and thereby reduced it in the total cost. The value of the material was fixed as Rs.1,35,000/-.
Complainant made an advance payment of Rs.50,000/-. In effect a sum of Rs.1,85,000/- was paid towards 1st installment. Further opposite party No.1 cut and removed trees worth Rs.1,25,000/- and the same was accounted only to Rs.80,000/-. Further grievance of the complainant is that opposite party has not completed the work within the stipulated time and additional time was granted for the completion of the work. Even then the opposite party No.1 failed to complete the construction. Complainant intended to secure an admission for his daughter in Kendriya Vidyalaya. The purpose for which the house was constructed did not serve as the admission was lost on account of the fault on the part of opposite party No.1. Complainant submits that opposite party has appropriated 1 ½ lakhs more than the actual cost of the work he has executed. Further several defects were noted as far as the construction already completed. That there is level difference between the walls already in existence and the one newly constructed. That the opposite party has never complied with the terms and conditions stipulated in the agreement. That the opposite party has not given due attention regarding the proportion of concrete mixture and wooden and structural work. That the opposite party has not done the work of pillars as stipulated in the agreement. That the work of wooden, doors and sun shades are not in accordance with the plan and agreement. That the wooden frames of doors and windows as well as ventilators were not placed properly to make it open. That no wooden cross bars of windows as stipulated in the agreement was placed. That the iron bars used in the construction are also not as stipulated in the agreement. That the sun shades work is also not properly done. Complainant further submits that the opposite party No.1 is not a qualified person to carryout the said work.
Complainant prays to direct the opposite parties to refund the excess amount of Rs.1,50,000/-, Rs.2,50,000/- for completing the work, and Rs.1 lakh as compensation.
Opposite parties filed version contending the following. Opposite parties admit
the agreement executed between the complainant and opposite party No.1. However, denies entire a llegations leveled against the opposite parties. According to opposite parties the entire construction work is in accordance with the stipulation and specification mentioned in the agreement. As per the agreement complainant is liable to pay a sum of Rs.1,50,000/- as advance on the date of agreement. But the complainant has given only a sum of Rs.50,000/- as advance. Opposite parties submit that they have received only a sum of Rs.4,40,000/- in total. They have completed about 75% of the work and asked for the amount for the future work. Complainant did not pay the amount and hence opposite parties are compelled to stop the work. According to the opposite parties amount is due to them and they have initiated legal proceedings against the complainant for realisation of the said amount in the Sub Court, Palakkad. The present complaint is an after thought to escape from the liability to pay balance amount. According to opposite parties they have constructed 2640 sq. ft. roof including 444 sq ft. top slopped roof and other lofts. They have completed the work of wooden, doors and wiring works. According to opposite parties there is no deficiency in service on the part of opposite parties. The construction work was stopped only due to the non co-operation and non payment of amount by the complainant. Opposite parties prays to dismiss the complaint with costs. Evidence adduced consists of affidavits of both parties. Exts.A1 to A15 series marked on the side of complainant. Ext.B1 marked on the side of opposite parties. Expert Commissioner was examined as CW1 and Commissioner's report marked as Ext.C1.
Issues for consideration are; Whether there is any deficiency in service on the part of opposite parties? Whether there is any defects in work completed? If so, what is the relief and cost?
Issue No.1 & 2:
The allegation leveled against the opposite parties is with respect to a housing construction entered into between the parties vide agreement dt.30/11/2006. According to complainant opposite parties failed to complete the work within the time mentioned in the agreement. Further opposite parties failed to strictly follow the terms and conditions in the agreement. Moreover the work already done has several defects. The main defects noted by the complainant in the work already completed is as follows: Only 6 pillars erected instead of 16 as stipulated in the agreement Level difference between the walls constructed earlier and the one build over the earlier one. Windows at the northern side of the house projecting outwards. Windows in the southern side of the house when opened will touch the sunshade etc.
Opposite parties on the other hand contended that all the work done are in accordance with the agreement and opposite parties has completed about 75% of the whole work. Remaining work could not be completed for want of fund from the side of the complainant.
We have gone through the entire evidence on record and heard the learned counsels for both parties.
It was argued on behalf of the opposite parties that almost 75% of the whole work has been completed by opposite parties. Commissioner in his report as well as while cross examination has specifically stated that 65% of the work was over. Payment seen to be made as endorsed on the back side of the agreement is Rs.3,97,500/-. However, opposite party has admitted that an amount of Rs.4,40,000/- was received from the complainant. Adjustments in the payment regarding the cost of laterate stones, timber, pump etc is not seen in Ext.A1 agreement. Complainant has no case that the whole amount as agreed in the agreement has
been paid. In these circumstances, we are of the view that opposite parties cannot be made liable on account of non-completion of work within the stipulated period.
The other point to be decided is with respect to the defects noted in the work already executed by the opposite parties. The defects noted by the commissioner in tune with the allegation of complainant are that instead of 16 pillars only 6 pillars were erected and in one pillar crack has been developed, windows at the northern side of the house is projecting outside, window shutter not fitted, 4mm grew is given for windows instead of 5mm as stipulated in the agreement, windows fitted in the southern side of the house when open will touch the sun shade etc. Commissioner while examined has also deposed the same. Commissioner has also deposed with respect to the uneven laying of roof tiles. Even though commissioner has stated that some of the defects like level difference in the slab of slop roof can be rectified at the time of plastering, we find that opposite parties has deviated from the agreement in several respects and the work executed has several defects. Commissioner has calculated the total cost for completion of the whole work as per the current market rate as Rs.9 lakhs. Since we do not find any fault with respect to the non completion of the work, it is not justifiable to award the said amount. We are of the view that an amount of Rs.1 lakh as compensation will meet the ends of justice.
Opposite parties has further contented that the present complaint is an after thought of the complaint filed by the opposite party before the Hon'ble Sub Judge for realization of dues to opposite party. The said complaint was filed on 4/12/2007. The present complaint is filed subsequently on 9/12/2007.
We do not find any substance in the said argument since there is less chance to receive notice to complainant in the case filed by opposite party before 9/12/2007.
In view of the above stated facts and circumstances of the case we are of the view that complaint be partly allowed.
In the result complaint partly allowed. Opposite parties 1 & 2 directed to pay complainant an amount of Rs.1,00,000/- (Rupees One lakh only) as compensation for the deficiency in service on the part of opposite parties and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings. Order shall be complied within one month from the date of order failing which the whole amount shall carry interest at 9% p.a from the date of order till realisation.
Pronounced in the open court on this the 29th day of June, 2010 Sd/- Seena.H, President Sd/- Preetha.G.Nair, Member Sd/- Bhanumathi.A.K, Member Appendix Date of filing: 09/12/2007 Witnesses examined on the side of complainant Nil Witnesses examined on the side of opposite parties Nil Expert Commissioner was examined as CW1 Exhibits marked on the side of complainant Ext.A1 – Agreement executed between the parties
Ext.A2 - (Series) – Photo copy of letter 15/06/2007 and acknowledgement card Ext.A3 – Reply letter dt.11/07/2007 sent by 1st opposite party to complainant EXT.A4 – Copy of lawyer notice dt.04/01/2007 sent by complainant to opposite party Ext.A5 – Reply notice dt.11/07/2007 sent by 1st opposite party to complainant Ext.A6 – Photo copy of letter dt.10/12/08 Ext.A7 – Letter No.G2.18607/2008 dt.12/01/2009 Ext.A8 – Photo copy of letter dt.19/01/2009 Ext.A9 – Letter No.E2/18602/08 dt.02/02/2009 Ext.A10 – Photo copy of plan Ext.A11 – Photo copy of sectional drawing Ext.A12 – Photo copy of elevation Ext.A13 – Photo copy of letter dt.27/07/2007 Ext.A14 - Residential Certificate issued by Keralassery Grama Panchayat Ext.A15 (Series) – Photos Exhibits marked on the side of opposite parties Ext.B1 – Photo copy of plant filed by opposite party before Subordinate Judge, Palakkad Commissioner's report marked as Ext.C1 Cost (allowed) Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings
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