DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday the 30^th  day of August 2024

CC.  248/2017

Complainant

                        Suhasini. A.V,

                        W/o Jayakrishnanm

38/1168,  ‘Meyana’, Edakkad (PO),

Calicut – 673 005.

(By Adv. Sri. Sreejith Cheroth)

Opposite Party

                        Rajeev.K,

                        Managing Partner,

Intimate Architectural solution,

Edakkad, Calicut – 673 005.

(By Adv. Sri. N.Shaju George)

ORDER         

By Sri. V. BALAKSRISHNAN – MEMBER

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

On 21/04/2017 the complainant entered into a contract with the opposite party for renovating their residential house and modify the same. It was informed by the opposite party that he is a contractor having several years of experience in construction and he would renovate the house within a short possible time. The drawing for modification was prepared by the opposite party. The works included the renovation of kitchen with additional work area, the construction of an additional hall on the first floor of the house and also construction of additional sit out at the front yard of the house. The opposite party agreed to execute the work and the total amount fixed for the completion of the entire work was Rs. 6,35,000/- and an amount of Rs. 29,000/- estimated for supervision of the work, architectural design and preparation of all drawings. The renovation work was scheduled to start on 21.04.2017 and was agreed to complete in all respects within 55days. As per the conditions of contract 40% of the amount had to be given to the opposite party on the day of signing the contract and next 25% should be given at the stage of completion of the ground floor work. As per the contractual obligation the next 15% of the amount becomes due to the opposite party at the stage of the completion of the structural work of the 1^st floor and next 10% of the amount payable on completion of doors, shutters, wooden frame work etc. of the 1^st floor and remaining last 5% of the amount is payable after the completion of all work including electrification and plumbing. The supervising charges payable to the opposite party was agreed to be paid in 2 instalments, the first instalment on completion of the ground floor work and second instalment at the time of handing over the completed building to him.

3. An amount of Rs. 2,40,000/- was paid to the opposite party on 21/04/2017 and balance amount of Rs. 14,000/- was paid on 2/05/2017 by  NEFT to Indian Bank as requested by the opposite party. But the amount of Rs. 14,000/- was returned from the bank. As required by the opposite party he remitted Rs. 14,000/- on 19/05/2017 in the SBI. A quotation for additional work was obtained from the opposite party on 21/04/2017 and Rs. 10,000/- cash payment was done on 30/04/2017. Rs. 10,000/- was remitted by NEFT as the balance and the final payment towards the quotation dated 21/05/2017 for terrace roof removal and refixing. On 26/05/2017 the complainant paid Rs. 24,500/- from her daughter’s account towards an additional work of a bay window and towards the first instalment of the supervision charges. The total payment made so far was Rs. 2,98,500/-.
4. The opposite party had not started the work in time and as a result the complainant suffered too much due to the pathetic conditions arising out of the unsystematic and careless demolition done. The rest of the area of the house was filled with rain water and it became miserable to occupy. There was no systematic and continuation of the construction activities and no proper supervision was there.  He was forced to send a letter to the opposite party on 9/05/2017 as the work was stopped on 8^th and 9^th of May 2017 and the opposite party was absent and not available on phone calls. Again on 3/06/2017 notice was also sent as the performance of the opposite party was not at all satisfactory and about 44 days had already lapsed out of the total 55 days allowed to complete the work. The complainant specifically requested the opposite party to come with clear suggestions to complete the work within the stipulated time.  
5. At the time of signing the agreement the opposite party had assured the maximum living comforts when the work goes on as per contract. But when the work was started, she was deprived of the basic amenities like water and electricity in the living house. Left with all other alternatives, the complainant was forced to discontinue the contract entered with opposite party and send letter on 25/06/2017. The opposite party had been demanding second part payment of 25% of the contract value. At the time he had not completed the work as agreed by him in the contract agreement. The opposite party had proved that he was not willing to perform the conditions of contract and violating all the terms and conditions in the contract. Finally, the complainant was constrained to avail the service of another contractor to finish the work.  The opposite party was not fully equipped to complete the work on or before the agreed date and thereby caused much mental agony and hardship to the complainant and her family. This happened only because of the indifferent attitude of the opposite party towards the work, non-availability of the labourer with the opposite party and shortage of building materials. The opposite party had already made wrongful gain out of the contract and dragging further and further with an intention to destroy the financial capacity of the complainant.
6. By suffering all the difficulties the rearrangement of the work caused much financial loss to the complainant. The non-completion of the work in time by the opposite party amounts to deficiency in service and unfair trade practice. Such an action had caused mental strain and hardship in addition to financial loss. The complainant prays to pass the orders directing the opposite party;

1. To pay an amount of Rs. 2,98,500/- to the complainant, that the opposite party received from him as per the terms of the contract.
2. To pay Rs. 2,00,000/- as compensation to the complainant for the mental agony suffered on account of the fraud committed by opposite party.
3. To direct the opposite party to pay the entire amount that is to be estimated by an expert to complete the unfinished renovation works completed later by another contractor.
4. To direct the opposite party to pay the entire cost of the proceedings to the complainant.

7. The opposite party filed the version.
8. All most all of the averments stated in the complaint are denied by him. The opposite party has admitted that an agreement was executed on 21/04/2017 for an amount of Rs. 6,35,000/- for the completion of the house of the complainant. The work was started on 22/04/2017. As per the terms and conditions of the agreement the complainant was bound to pay 40% of contract amount as advance at the time of signing the agreement. But that was not complied with even after the work was started and 65% of the contract work was completed. As per the terms of the agreement the opposite party is entitled to get Rs. 29,000/-, in addition to contract amount as his supervision, design and drawing charges etc. He is also entitled to charge for the additional work other than which stated in the agreement, on the basis of quotation given by him. The works competed by the opposite party are stated as follow.

1. Removed kitchen concrete slab and granite of an extent of 54 square feet.
2.  3 side concrete slab near kitchen floor was cut and removed an extent of 54 square feet.
3. Cut and removed wall situated between hall and kitchen.
4. The slab of extended toilet, store, and passage were cut and removed to an extent of 110 square feet.
5. The concrete debris were also removed from the site.

Construction of a bay window was demanded by the complainant. As this item was not included in the contract. Separate quotation was given and finally approved for Rs. 20,000/- by both parties. Quotation was given for additional work of removal of the truss, grills, stair case etc., and it was agreed to do the same for an amount of Rs. 20,000/-. In this regard the opposite party received only Rs. 10,000/-. The supervision charge and consultation charge was fixed as Rs. 29,000/-. Only Rs. 14,500/- was received by the opposite party.

9. On 5^th June 2017, the complainant and her husband assured that remaining amount in the balance of first instalment would be paid without delay and they would give 2^nd instalment of 25% along with the same. An amount of Rs. 2,44,000/- was received by him with a shortage of 10,000/- in the first instalment as per the agreed contract. Even then he started the work of the first floor of the building in order to avoid the delay in construction.   Even though he was ready to complete the structure of the up stair work within 3 days, the complainant and her husband restrained the workers from the construction activities. At the time when the workers were not admitted in the premises almost 65% of the work as per the agreement were completed utilising an amount of Rs. 3,80,000/-. The work was delayed only due to the non-payment of the agreed amount and non-co-operation of the complainant.
10. The allegations regarding the discomforts caused to the complainant and her family are denied by the opposite party. According to him, there was an oral agreement between the parties that the complainant and her family would shift their residence to some other place during the time of construction. As they were not ready to move to other places there was much inconvenience in continuation of the construction activities. Even though the opposite party was ready and willing to hand over the building within the time specified in the agreement, the non-co-operation and non-payment of the instalments on part of the complainant caused delay in construction, for which the complainant alone is responsible. Hence the opposite party prays to dismiss the complaint.
11. The points that arise for determination in this case are;

1. Whether there was any deficiency of service from the part of the opposite party, as alleged?
2. Reliefs and costs.

12. Evidence in this case consists of the oral evidence of PW1 and Exts A1 to A10 on the part of complainant. On part of opposite party oral evidence was also given as RW1 and Exts B1 to B4 were marked. The expert Commission reports C1 and C2 were also marked.
13. Heard both sides. Argument notes are also submitted by both parties.
14. Point No. 1:  In order to substantiate the case, the complainant got himself examined as PW1. PW1 has filed proof affidavit and disposed in terms of the averments in the complaint. Ext A1  is the copy of the contract agreement signed on 15/04/2017 and the plan of proposed modification, Ext A2 is the copy of the registered letter dated 09/05/2017 send to the opposite party, Ext A3 is the copy of letter issued to opposite party on 3/06/2017, Ext A4 is the print out of email send to opposite party, Ext A5 is the print out of email dated 18/06/2017 send to the opposite party, Ext A6 is the copy of the reply letter received by complainant from opposite party, Ext A7  is the copy of the letter dated 25/06/2017 issued by the complainant to opposite party, Ext A8 in the copy of lawyer notice dated 30/06/2017 send to opposite party, Ext A9 is the copy of reply letter to legal notice, Ext A10 is the copy of bank account statement of complainant and her daughter.

12. The opposite party had filed the chief affidavit, in support of the averments in the version.  Ext B1 to B4 were produced. Ext B1 is the copy of the letter dated 09/05/2017 and on 03/06/2017 sent by the complainant to the opposite party. Ext B2 is the copy of the quotation given for the entire work of construction of bay window, Ext B3 is the copy of reply letter dated 11/06/2017 given by the opposite party to the complainant, Ext B4 is the plan details of proposed construction.
13. The specific case of complainant is that the opposite party had entered into the contract on 15/04/2017 to complete the modification work within 55 days and after receiving the advance amount as per the agreement conditions there was no progress in the work and only some demolition work was done. They had to live in dismantled building in percolated water in rainy seasons.
14. On careful examination of Ext A1, it is seen that the agreement executed by both parties is not in a scheduled format of infrastructure construction and it is only in a stage completion format showing various construction completion stages.
15. The contract was signed by both parties on 15/04/2017 and the time of completion fixed in the agreement was 55 days. The total cost of all the works as per the agreement is Rs. 6,64,000/- which includes Rs. 29,000/- for supervision , architectural design, preparation of drawings etc. A separate quotation was given for bay window construction. Ext B2 shows the amount of construction of this part comes to Rs. 20,000/- additionally.
16. The agreement condition clearly shows the first instalment of 40% has to be paid as advance. It is an admitted fact that on 21/04/2017,  Rs. 2,40,000/- was transferred to the account of opposite party. On verification of A10, it is true that the additional amount of Rs. 14,000/- was transferred on 02/05/2017 to the account of opposite party, but seen returned. It was paid to opposite party in a later date. The actual cost of proposed work was Rs. 6,35,000/-  and the complainant paid 38% of the amount of contract and he made his effort to pay the balance 2% (Rs. 14,000/-) within 10 days. According to Ext A10, entry shows on 26/05/2017, Rs. 24,500/- was transferred to opposite party. In cross examination the opposite party admitted that Rs. 10,000/- was received on 30/04/2017. He also admitted that additionally Rs. 14,000/- was received by him.   So, within the received payment the opposite party could had completed the first stage of construction. Verifying the payment terms in Ext A1, the next 25% after initial payment is to be given at the stage of completion of ground floor work including Kitchen structure proposed, additional sit out, work area with toilet (foundation, basement and floor concrete work and windows and doors for safe inhabitation)
17. The expert commission appointed visited the site on 10/08/2017. In the report submitted, it is mentioned that only the structural work in the ground floor is done in addition to the dismantling. Cement door is fitted without shutters. Old plastering is seen dismantled and certain laterite works and cement block works are done. In the Commission report it is mentioned that no replastering work is started. The whole floor area is in a dismantled stage and plastering in many places are dismantled. The toilet constructed is not fit for use. The Commission report specifically says that the ground floor is not fit for satisfactory inhabitation, even on the day of inspection  (10/08/2017).
18. In the Commission report C2 it is pointed out that the contract executed is a lumpsum contract for execution of work. In such a contract total amount for completion of the enlisted works are quoted and rate for each item and quantity are not mentioned. So, the Expert Commission expressed his inability to assess the value of the balance work of the contract.  The amount required for the completion of the balance work can be assessed only in the item rate contract covering quantity of each item and its rate. In the present case in hand  in the executed contract there is no quantity and rate.
19. Going through the lumpsum contract conditions in Ext A1, it is clear that before receiving the second instalment of payment ground floor work is to be completed including kitchen structure, proposed additional sit out, work area and toilet (foundation, basement, floor concrete work and windows and doors for safe inhabitation). The expert commission has reported that even in the month of August the ground floor is not fit for satisfactory inhabitation.
20. According to the complainant an amount of Rs. 2,98,500/- was given to the opposite party as advance payments.      
21. The opposite party has taken the contention that the work was delayed as the complainant and his family was staying in the house at the time of construction. On verifying the contract there is no such conditions that the building should be free from inhabitants during the period of construction. So, the opposite party had failed to execute the initial part of the work in time and delay in execution of work is established in the Commission Report. The opposite party should have made the ground floor of the building fit for suitable inhabitation before asking for the second instalment of payment. The delay in completion of construction of the ground floor suitable for inhabitation had caused much difficulty to the complainant and they had to live in rooms where rain water was pouring inside in rainy seasons. So there is deficiency of service on the part of the opposite party and complainant is to be compensated.
22. As stated earlier the contract entered  was with stage wise finishing of work and not with the standard specification of each item of work.
23. The complainant had not provided any authentic assessment of the value of work done by the opposite party. Also no authentic valuation of balance work required to be completed is not there with the Commission. Hence the complainant is eligible for the compensation only as he suffered mental agony and physical strain due to the work program adopted by the opposite party in a damaging way to the complainant. We find that Rs. 40,000/- will be a reasonable compensation in this regard.
24. Point No. 2: In the light of the finding of above points, the complaint is disposed of as follows.
    1. CC.248/2017 is allowed in part.
    2. The opposite party is directed to pay Rs. 40,000/-(Rupees forty thousand  only) as compensation to the complainant. 
    3. The payment shall be made within 30 days from the dated of receipt of   copy of this order, otherwise this amount will bear 9% interest till actual payment from the date of the order.
    4. The opposite party is directed to pay Rs. 7,000/- (Rupees seven thousand only)  as cost of the proceedings to the complainant.

Pronounced in open Commission on this, the 30^th day of August, 2024.

Date of Filing:  26/07/2017

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PRESIDENT                                              MEMBER                                                    MEMBER                               

APPENDIX

Exhibits for the Complainant :

Ext A1  - Copy of the contract agreement signed on 15/04/2017 and the plan of proposed modification,

Ext A2 - Copy of the registered letter dated 09/05/2017 send to the opposite party,

Ext A3 -  Copy of letter issued to opposite party on 3/06/2017.

Ext A4 - Print out of email send to opposite party,

Ext A5 - Print out of email dated 18/06/2017 send to the opposite party,

Ext A6 - Copy of the reply letter received by complainant from opposite party,

Ext A7- Copy of the letter dated 25/06/2017 issued by the complainant to opposite party,

Ext A8 - Copy of lawyer notice dated 30/06/2017 send to opposite party,

Ext A9 - Copy of reply letter to legal notice,

Ext A10 - Copy of bank account statement of complainant and her daughter.

Exhibits for the Opposite Party

Ext B1 - Copy of the letter dated 09/05/2017 and on 03/06/2017 sent by the complainant to the opposite party.

Ext B2 - Copy of the quotation given for the entire work of construction of bay window.

Ext B3 - Copy of reply letter dated 11/06/2017 given by the opposite party to the complainant.

Ext B4 - Plan details of proposed construction.

Commission Exhibits

Ext C1 – Report filed by Assistant Executive Engineer, PWD Building Sub Division, Kozhikode.

Ext C2  - Report filed by Assistant Executive Engineer, PWD Buildings Sub Division, Kozhikode.   

Witnesses for the Complainant

PW1 – Jayakrishnan.M.

Witnesses for the opposite parties 

RW1 – Rajeev.K (Opposite party)

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PRESIDENT                                              MEMBER                                                    MEMBER                               

                                 True Copy,      

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                                                                                                                    Assistant Registrar.