SMT. RAVI SUSHA  : PRESIDENT

         Complainant   filed this complaint  U/S 12 of Consumer Protection Act 1986  for getting an order directing opposite parties to pay Rs.20,00,000/- together with cost of proceedings of this case.

   In brief the facts of the case are that the 1^st  complainant is the brother of 2^nd complainant.  2^nd complainant is the owner of 4.11 areas of property in Chembilodu having Re.SyNo.23/3.  As the 2^nd complainant’s husband is working at Bangalore, she had entrusted 1^st complainant to make arrangement for the construction of new house for the residential purpose.  Thus 1^st complainant  entered in to an agreement with 2^nd OP on  10/12/2014 for the construction of the house of 2^nd complainant and the total cost  agreed for the construction was Rs.2225000/-.  But OPs received Rs.24,10,000/- in different dates for the construction.  Thus the OPs received Rs.185000/- in excess from the agreed amount.  In addition  to that OPs received Rs.38000/- for purchasing door, Rs.37000/- for the materials of stair case, for purchase tiles Rs.33000/- Rs.24000/- for plumbing materials, Rs.26000/- for electric items, Rs.46,000/- for tiles laying expense, Rs.23000/- for painting work and Rs.25000/- for labour expense to Excavator .  OPs assured to get the construction  completed within a period of 8 months.  The OPs failed to complete the construction within the  stipulated time  and the  materials used for  construction was of  very poor quality instead of good quality .  According to complainant, the work, as mentioned in para 3 of the complaint  has been incompletely by the OP.  Since complainant observed that the OPs are not taking interest in the construction work, he  was compelled to arrange another contractor for the balance construction.  Thus he had to spend Rs.2,00,000/- in the  new contractor for the work.  According to complaints OPs have received Rs.437,000/- an excess amount from them.  The complainant, therefore, filed this complaint alleging deficiency in service on the part of the OPs.

    After receiving notice OPs filed  version denying the entire allegations raised by the complainant against him.  OPs contended that he had constructed the house by using materials  as per the terms in the agreement.  He denied the averment of complainant about using poor quality materials for  the construction work.  OPs further contended that as per the agreement conditions, complainant should have paid  additional amount than the amount agreed in the agreement for the additional construction work.  He has stated  that though an additional work amounts to Rs.437000/- had been done  by him, the complainant had paid only Rs.1,85,000/-.  The complainant had not paid  the balance amount to him.  OPs denied the allegation of complainant about the balance work as stated in para 3 of the complaint.  OPs pleaded that he had completed the construction within the stipulated time as stated in agreement and also used materials for construction as per the agreement.  OPs alleged that complainant has filed this complaint when OP insisted for paying the balance amount  Rs.2,52,000/- to him.  According to OPs in order to avoid the said payment to him, complainant has filed this complaint.  It is stated that there is no deficiency in service on their part and prayed for the dismissal of the complaint.

   Complainant No.2 has filed his chief affidavit and documents.  He has been examined as PW1 and marked Exts.A1 to A4 and Ext.C1.  Ext.C1 is the expert commissioner’s report  prepared as per the  direction of this commission on the basis of the application of the complainant.  On the side of OPs , 2^nd OP filed his chief affidavit and was examined as DW1.  Both witnesses were subjected to cross-examined for the other party.

   We have considered the rival contentions of the parties as well as the affidavits, including documents.  Complainant alleged deficiency in service on  the reason of construction  made by OPs by using low quality materials, work done was defective, not complete the work within the period agreed, so he had to arrange another person for the balance work and had to pay Rs.2,00,000/- for that work  and also the OP has received excess amount from the complainant.

    In order to prove the allegations, complainant submitted agreement  executed between parties  1^st complainant and 1^st OP, which was marked as  Ext.A1.  In which it is seen that the consideration of the work was 22,25000/- and also the  contractor shall complete the  construction of the building for eight months time from the date of advance payment and the total area of construction will be 1550Sq.ft.  It is also stated in  Ext.A1 that if any suggestion is put forward by the owner for major additions in the construction of the said building within the  so agreed plan, then the contractor  shall be  under obligation  to carry out such additions at the cost of the owner.  In Ext.A1 it is seen that OP has received in total Rs.24,10,000/-  on different dates and put signature in each payment.  The said fact is not denied by the OPs.

   Here for proving the quality of materials said to have been  used, resulting repairs, requiring  rectification etc, complainant has taken steps to appoint an expert commissioner.  As per the application  Mr.Sreekumar.K(Regd.Engineer-A) has  been appointed  as Expert  commissioner to note down the defects and  has filed  a detailed report with photos  after inspection  of the premises.  On perusing the Ext.C1, expert commissioner’s report, it is clearly evident that the  defect mentioned  by the complainant in Para 3 of the complaint are correct.  OP has not led any expert evidence.

   The complainant alleged that in addition to the amount of Rs.2,41,000/-, he had paid about  Rs.2,50,000/- to OPs on different head as stated  in page 3 of complaint for purchasing materials and for the work.  On the other hand OP  claimed that complainant has to pay Rs.2,52,000/- in account of additional work he had done.

   For substantiating the rival contentions, both parties failed to bring evidence before us.  Though during cross-examination, Pw1 has deposed that the purchase bills are with her, those are not produced before the commission.  With regard to OP, he has not taken any steps  for realizing the alleged amount from the complainant.  Under the said circumstance, we cannot come to a point with regard to the additional amount.  Further complainant’s failed to substantiate the contention that they had arranged another contractor and completed the construction  work by paying Rs.2,00,000/-.   Without any evidence to corroborate the contentions` we cannot come to a conclusion  that complainant had spent the additional amount as mentioned above, due to the  deficiency in service  of OPs.  Since OPs opposed the said facts, complainants should have proved her contention by substantial evidence.

   On the facts and  in the circumstances of the case, and in the absence of  any evidence to rebut the expert commissioner’s report(Ext.C1) we are of the view that there is no reason to disbelieve the defects noted by the Expert  in the Ext.C1 report.  From the Ext.C1 report it is clearly evident  that there is defects as stated in it in the construction of OPs.  Hence there is deficiency in service on the part of OPs.

   In the result complaint is allowed in part.  Opposite parties are directed to pay Rs.2,00,000/- to the complainant No.2 for rectifying the defects as noted in Ext.C1 report together with compensation for the mental agony happened to complainant No.2.  Opposite parties are further directed to pay Rs.10,000/- as litigation expense to the complainant No.2.  Opposite parties  shall comply the order within one month from the date of receipt of this order.  Failing which the amount Rs.2,00,000/- carries interest @7% per annum from the date of order till realization .  Complainant is at liberty to execute the order by filing execution application against opposite parties as per provisions stated in Consumer Protection Act 2019.

Exts:

A1- copy of construction agreement(subject proof)

A2-Copy of the title document(subject proof)     

A3-Building tax receipt

A4- copy of marriage certificate

C1-Expert commission report

PW1-Shehira.C.V-2^nd complainant

DW1-R.Vijayan-2^nd OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                       ASSISTANT REGISTRAR