DATE OF FILING : 10.2.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 18th day of November, 2010
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.44/2010
Between
Complainant : Vasudevan, S/o Narayanan,
Kochucheruvin House,
K. Chappath P.O.,
Uppuathara, Idukki District.
(By Adv: Biju Vasudevan)
And
Opposite Party : Raju @ Rajendran, S/o Raghavan,
Kampisseriyil,
K. Chappath P.O.,
Porikanni, Upputhara,
Idukki District.
(By Adv: Lissi M.M.)
O R D E R
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
The complainant and opposite party created an agreement for the construction of one bed room and sit-out adjacent to the complainant's residence on 30.11.2008. The amount for the construction was fixed as Rs.90,000/- and the sheet, tiles, ventilations, windows etc. were agreed to be purchased by the complainant himself and the balance materials should be purchased by the opposite party. Another clause was included and it was the construction of the courtyard of the building. In the estimate amount, Rs.80,000/- should be paid with the completion of the work and the balance amount Rs.10,000/- should be paid within 30th of May 2009. The complainant himself erected the post for the construction of the courtyard. It was also agreed to construct the sunshade of the new building and the wall of the old building in order to strengthen the old building. The opposite party never acted upon the directions of the complainant, in the construction of the court yard. So the complainant enquired about the same and the opposite party agreed to construct a slab on the constructed courtyard to increase the width of the courtyard. 4 sheets were broken when the roof was constructed in the new building. Water started to leak from the sun shade because of the defect in materials used for the construction. After the completion of the work of the residence, the concrete slab was constructed in order to widen the courtyard, but it was broken afterwards and it is not reconstructed again. The opposite party received Rs.80,000/- from the complainant before the completion of the work. A legal notice was issued against the opposite party on 7.7.2009 demanding to clear the defect caused to the construction. But nothing was done afterwards. So this petition is filed.
2. As per the written version filed by the opposite party, it is admitted that the opposite party created an agreement with the complainant for the repair of his building and the opposite party received Rs.75,000/- as advance for the same. The entire construction were completed by him. The courtyard of the building was also constructed as per the directions of the complainant. In front of the complainant's building, the tea plantation of Chinnar Company is situated. The eastern side of
the building is having less width and the south east portion is having greater width so the property is situated in a triangle shape. So the courtyard was constructed as per the area and shape of the property and also as per the “vasthu” of the building. The sheet of the roof were thatched by the complainant himself by his own carpenter. The opposite party has done the work of the courtyard only. The newly constructed building is having no other defect. The slab in the front of the courtyard was done by one Mr. Wilson, as per the direction of the complainant himself. The slab was broken because of the defect in construction. Speedy construction was done because, the marriage of the complainant's son was fixed. But the complainant paid only Rs.75,000/- to the opposite party even though it was agreed to pay Rs.90,000/-. The balance amount was not given to the opposite party, telling that there is no width for the courtyard. So the opposite party constrained to file a petition before the Upputhara Police on 1.6.2009. After filing that petition, the complainant deliberately issued a lawyer's notice and this petition is filed in order to make unnecessary loss to the opposite party and also for avoiding the payment of the construction work. Hence the petition may be dismissed.
3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to ?
4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P3 and Exts.C1 and C2 marked on the side of the complainant and the oral testimony of DW1 on the side of the opposite party.
5. The POINT :- The petition is filed for curing the defect in the construction of the extension work of the complainant's building. The complainant deposed as PW1. The agreement created between the opposite party and PW1 for the construction is marked as Ext.P1. It is agreed to construct a bed room and sitout adjacent to the remaining building of PW1 and also for the construction of the cour yard of the residence. The amount agreed was Rs.90,000/- for the same. But the opposite party never acted upon the directions of the complainant and agreement, and so PW1 approached the opposite party for curing the defect, but it was not done by the opposite party and a lawyer's notice was issued on 7.7.2009 and it is marked as Ext.P2. The opposite party after receiving the same, a reply was issued which is marked as Ext.P3. The Commission Report was also marked as Ext.C1. The courtyard constructed was not having the width as per the direction of the complainant. It was constructed ½ feet away from the marking given by PW1. Including slanting portion, there is about 4 feet difference in the width. The slope was given in order to get profit for the opposite party. On cross examination of the learned counsel for the opposite party, the complainant replied that there is 6 feet width for the courtyard, the width is decreased in the portion where the boundary of the company's estate is situated. It was directed by the complainant to construct sun shade, after removing one layer of bricks. But the opposite party constructed the sun shade after making a hole of 6 inches width. 4 sheets were broken when the new sheets were inserted forcibly on the old one. The construction were completed in the month of February. PW2 is the wife of PW1. PW2 deposed that the eastern boundary of their property is the property of the company's estate. 2.5 feet of property in front of the property of them, is owned by the company. The sheet was broken when it was changed. The concrete slab was constructed by the mason named Mr. Wilson and it was instructed by PW1. The dispute was arised after when the half of the construction of the courtyard was done. The husband of PW2 appointed the said Wilson because Wilson is a better mason than the opposite party. DW1 who is the opposite party, deposed that he had constructed the court yard, but the slab was not constructed by him. There is no agreement for the construction of the slab of the court yard. DW1 have to get Rs.15,000/- from the complainant. It is the balance amount as per the agreement. The new wall constructed as per the direction of the complainant, touching the old wall and the bricks of the old wall were not removed because the complainant told that the old construction was not strong. This complaint is filed after filing the petition before the Upputhara Police. Leaking was caused because the wastes were fell on the slab and the waste pipe was blocked. That was cleaned by the opposite party himself. The opposite party is not having any connection with the construction of the slab.
As per the complainant, the width of the court yard was decreased very much because the opposite party never constructed as per the direction of the complainant. So the opposite party himself agreed to construct a concrete slab on that court yard, but it became damaged due to the defective construction. The bricks of the new wall should be connected to the old wall after removing the bricks of the old wall, but it was not done by the opposite party, so there is some space left between the walls and a leak caused to the building. Ext.C1 is the Commission Report filed by the Advocate Commissioner. As per the commission report, the steel and metal can be seen in the inside portion of the slab constructed for widening the court yard. The construction of the slab is not yet completed. And it is supported by some wood pillars. There is a space of 2 cms between
the sun shade and the old wall because the sun shade was not constructed into the old wall. There is a gap of 1.5 cms between the old and new walls because of the same. Two of the asbestos sheets were broken and 2 of them partially broken. As per the Expert Commission Report filed by the Assistant Project Engineer, Nirmithi Kendra, Idukki, which is marked as Ext.C2, there is no technical defect caused to the construction of the court yard. There is a projection wall constructed to the court yard in order to protect the court yard. One side of the concrete construction of the court yard is not erected strongly. There is only 3 inches width for the concrete slab. There is a small space in between the new and old walls because, usually the new constructions are done after breaking the bricks of the old walls. That was not done in this case. But there is no effect caused to the strength of the building because of the same. There is no defect caused to the thatching of the sheets, but there is possibility for leakage in rainy seasons because there is no sufficient slope given to the sun shade. As per the opposite party, the courtyard was constructed as per the direction of the complainant, and considering the shape and area of the property of the complainant. But the concrete slab was not constructed by the opposite party. The newly constructed wall was not connected to the old wall after breaking the bricks of the old wall because the complainant told that there is no sufficient strength for the old wall. The leakage was caused because the waste was formed inside the pipe and it became blocked.
As per PW1, the courtyard of the building is not having sufficient width and it was not constructed as per the direction of PW1. So a concrete slab was constructed above the same, but it was not constructed properly and the width of the same is also very low. PW1 also deposed that the construction of the concrete slab is not written in the agreement and it is not constructed as per the agreement. PW2, the wife of the complainant deposed that the concrete slab was constructed by one Mr. Wilson and PW1 engaged him because he is a better mason than the opposite party. The property in front of the complainant's building having 2.5 feet width, is the property of the estate. As per the Ext.C1 Commission report, there is defect caused to the construction of the concrete slab and also the construction is not completed. There is 1.5 cms space in between the old and new walls because the new wall is not connected with the old wall. But as per Ext.C2 Commission Report filed by the Expert Commissioner, there is no technical defect caused in the construction of the courtyard, only the defect is in the construction of the concrete slab. Usually, the new walls are reconstructing by breaking the bricks of the old wall and connecting to that. But it was not done by the complainant, but it never affected the strength of the building. The only possibility for leakage is because the sun shade was constructed without proper slope. PW1 himself deposed that, the building was constructed in the month of February. As per DW1, the complainant never paid the
entire amount for the construction, as per the agreement Rs.75,000/- was received and for getting the balance Rs.15,000/-, he filed a petition before the Upputhara police on 1.6.2009. As per DW1, the legal notice was issued only after that, on 7.7.2009. Ext.P2 notice also shows that there is no specific mentioning of the defect of the construction . In the complaint, it is written that there was some damages caused on the old walls of the building. So the construction of the wall may have done by the opposite party without breaking the bricks of the old wall, may be as per the direction of the complainant that the old wall is not at all strong. The complaint is filed only on 10.2.2010, the constructions were completed in the month of February, 2009. The legal notice was issued only on 7.7.2009, only after filing police complaint before the Upputhara police, on 1.6.2009. The complainant never explained what caused delay to file this complaint before this Forum. So we think that the version of the opposite party is much believable because this petition may be filed in order to avoid the balance payment that is Rs.15,000/-. The opposite party filed a petition before the Upputhara police on 1.6.2009, in order to get the balance payment and after that only the legal notice was sent by the complainant to the opposite party describing the defect of the construction. Even in the legal notice, there is no specification about the defect caused to the building. So we think that the petition is filed only for avoiding the payment and for making defence to the police complaint.
Hence the petition dismissed. No cost is ordered against the complainant.
Pronounced in the Open Forum on this the 18th day of November, 2010
Sd/-
SRI. LAIJU RAMAKRISHNAN (PRESIDENT)
Sd/-
SMT. SHEELA JACOB (MEMBER)
Sd/-
SMT. BINDU SOMAN (MEMBER)
APPENDIX
Depositions :
On the side of the Complainant :
PW1 - Vasudevan
PW2 - Sathi
On the side of the Opposite Party :
DW1 R. Rajendran
Exhibits :
On the side of the Complainant :
Ext.P1 - Copy of the agreement created for the construction.
Ext.P2 - Lawyer's notice issued by the complainant to the opposite party dated 7.7.2009.
Ext.P3 - Copy of the reply notice issued by the opposite party for Ext.P2 notice.
Ext.C1 - Commission Report by the Advocate Commissioner dated 22.6.2010.
Ext.C2 - Commission Report by the Expert Commissioner dated 19.10.2010.
On the side of the Opposite Party :
Nil.
