KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 564/2022

JUDGMENT DATED: 20.05.2024

(Against the Order in C.C. 471/2015 of DCDRC, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Vincent, Moolamkuzhi House, Kizhakkepram, Kottuvally Village, Paravur Taluk, Ernakulam.

(By Adv. Jyothi Anilkumar)

                                                Vs.

RESPONDENT:

S. Remadevi Amma, Panchajanyam House, West Kadungallur, Paravur Taluk, Ernakulam.

 (By Advs. Rajesh Vijayendran & V.K. Prasanth)

JUDGMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

This is an appeal filed by the opposite party in C.C. No. 471/2015 of the Consumer Disputes Redressal Commission, Ernakulam (District Commission for short) against the final order dated 19.09.2022, allowing the complaint and ordering compensation to be paid to the complainant.  The respondent herein is the complainant.

2.  For the sake of convenience, the parties are referred to herein, in accordance with their status before the District Commission.

3.  The complaint was filed by the complainant alleging that though the opposite party had undertaken the work of renovation and construction of portions of an existing building that belongs to her he had not completed the construction as agreed and that even in the construction that was completed there were serious defects.  Having received more than Rs. 10,00,000/- from the complainant who is a senior citizen and a retired Government employee, the opposite party had cheated her by using substandard materials in the work done by him.  Therefore, she claimed return of the amount paid by her as well as compensation. 

4.  According to the complainant, the opposite party was a contractor engaged in the construction of buildings and interior works.  The complainant owned a single storied old house bearing No. 540 in Ward No. XX in a small plot of land admeasuring 7.235 cents comprised in Survey No. 347/11A.  The said house was constructed in 1996 and was not sufficiently spacious or provided with all necessary conveniences.  Therefore the complainant decided to undertake extensive renovation of her house by effecting alterations and making additional constructions on the ground floor and by constructing an upper floor.  The construction was necessitated taking into account the marriage prospects of her son who was a medical student.  Accordingly, during December 2013 the design, requirements, specifications and purpose of the proposed construction were intimated by the complainant to the opposite party.  He assured the complainant that he would carry out the work @ Rs. 1,500/- per sq. ft. and also agreed to complete the construction within a period of six months. 

5.  The complainant entrusted the work to the opposite party.  They also executed an agreement on 20.01.2014 setting out the specifications of the work and period for completion of the said work.  The opposite party agreed to do the renovation works of the ground floor in accordance with the specifications in the agreement for an amount of Rs. 6,20,000/- and to construct the first floor with an expected area of 660 sq. ft. for an amount of Rs. 9,90,000/- (660 sq ft x Rs. 1500/-).  The total cost of Rs. 16,10,000/- (Rs. 6,20,000/- + Rs. 9,90,000/-) was inclusive of the materials required for the said construction.  The complainant, in order to fulfil her long cherished desire of a renovated house decided to meet the construction costs utilizing her savings including the retirement benefits that she had received for a long service of 30 years. 

6.  The opposite party started the work after receiving an advance amount of Rs. 2,00,000/- from the complainant.  After the construction was started, the opposite party demanded money and substantial amounts were paid by the complainant to him.  The said payments were acknowledged receipt of by the opposite party on the reverse side of the agreement.  However, progress of the work was slow and not in accordance with the specifications agreed to by the opposite party.  Alleging shortage of funds, the opposite party demanded the complainant to purchase construction materials on various occasions.  In order to avoid delay and expecting the amounts so spent to be adjusted from the agreed amount, the complainant acceded to the demand of the opposite party.  Accordingly, the complainant had to spend an amount of Rs. 4,00,000/- towards the cost of the materials purchased by her. 

7.  On 20.07.2014, the scheduled date of completion of the work, only 50% of the work was completed.  The completed works suffered from many defects.  Though the above aspects were brought to the notice of the opposite party, he assured that they would all be rectified before the completion of the work.  He also promised to speed up the work.  In spite of the above, the work did not progress and dragged on causing untold hardships to the complainant.  Finally the complainant took a stand that further payment would be made only after measuring the work already completed and after adjusting the payments already made for purchasing the construction materials.  The opposite party then stopped the work in February 2015.  The works that remained unfinished had to be completed by the complainant by engaging another contractor.  She had incurred an amount of Rs. 2,06,000/- for completing the remaining works of the building and for rectifying the defects in the construction made by the opposite party, in part. 

8.  According to the complainant, the conduct of the opposite party amounted to gross deficiency in service and unfair trade practice for which she claimed compensation.   She also sought for return of the excess amount paid by her including the amounts paid for purchase of construction materials.

9.  On receipt of notice, the opposite party entered appearance and filed version disputing the contentions made in the complaint.  The opposite party admitted to the execution of the agreement with the complainant.  According to him, the delay in completion of the work occurred due to the fact that the complainant made frequent alterations in the nature of the work.  As a result, the beam and walls of the dining hall had to be demolished.  Many other modifications also had to be incorporated.  Consequently, the area of the building increased to 730 sq. ft.  Since the construction works were being done when the complainant and family were continuing to reside therein, the expected progress could not be achieved.  The complainant being a person who had undergone a heart surgery she had insisted on the construction being proceeded with only minimum noise and dust.  The complainant also used to ask the opposite party to do additional works, from time to time.  Since the complainant and family were residing on the ground floor, the work of the first floor was done first and only thereafter the ground floor work was undertaken.  According to the opposite party he had done everything in order to ensure that the work undertaken by him was completed to the satisfaction of the complainant.  In the guest room the existing wiring had to be removed and concealed wiring had to be done, all of which were additional works.  In spite of the above, the opposite party had completed all the works for which substantial amounts were due to him.  It was because of the disputes regarding the rates of the additional works, that the disputes had arisen between the complainant and opposite party.  According to him the complainant had filed her complaint before the District Commission on an experimental basis and therefore the complaint was only to be dismissed. 

10.  During the course of the proceedings, the complainant filed I.A. No. 491/2015 to appoint a qualified expert commissioner to inspect the residential house of the complainant and to submit a report regarding the quality of the construction undertaken by the opposite party and the estimated amount for the said construction.  Accordingly the expert commissioner inspected the construction.  Both parties had filed work memos and the expert commissioner filed his report which has been marked as Ext. C1 by the District Commission.  Though the case was posted for filing objections if any to the commission report on 09.03.2016 and 10.06.2016, no objections were filed by the opposite party.  Therefore, the case was posted for evidence.

11.  Complainant filed proof affidavit and marked Exts. A1 to A3 on her side.  The report of the Expert Commissioner was marked as Ext. C1.  The opposite party was not present for cross examination of the complainant and such an opportunity was granted on payment of costs.  Thereafter, though the case was posted on a number of occasions, the complainant was not cross examined.  On 09.01.2020 though the complainant was present and ready for cross examination, there was no representation for the opposite party.  Therefore, the District Commission has observed in its order that though the complainant had mounted in the witness box she was not cross examined.  In the above circumstances, evidence was closed and the matter was posted for hearing.  Thereafter, the opposite party filed a petition to recall the complainant for cross examination.  The petition was allowed on payment of Rs. 2,500/- as costs.  Thereafter the case was again adjourned to 30.03.2021, 16.02.2022, 22.02.2022 and 24.03.2022.  On 16.02.2022 and 22.02.2022 opposite party sought time due to Covid pandemic and the District Commission granted time.  On 28.06.2022 the complainant was present and ready for examination.  But the opposite party was not present.  The District Commission noted that so many chances had been given to the opposite party for cross examination of the complainant.  Since the complaint was filed in the year 2015 and considering the fact that the complainant was a senior citizen evidence was closed and the case was posted for hearing.  The case was thereafter heard.  Though the opposite party had thereafter filed a petition to re-open the evidence and to be heard again, the petition does not appear to have been pursued seriously thereafter.  Therefore the District Commission proceeded to finally dispose of the complaint on the basis of the evidence adduced by the complainant. 

12.  The District Commission noticed that, the opposite party had no dispute regarding the fact that he had undertaken the work of renovation and construction of the complainant’s house.  He also had no dispute regarding the execution of Ext. A1 agreement.  He had also admitted to have received the amounts paid by the complainant as acknowledged by him on the reverse side of the agreement.  Therefore, what remained to be determined was whether the construction made by him was qualitatively inferior as alleged by the complainant and what was the cost incurred by the complainant for completion of the works that remained unfinished. 

13.  The report of the expert commissioner that was not objected to by the opposite party was considered to be a reliable piece of evidence by the District Commission.  On the basis of Ext. C1 report it has been concluded that there were defects and deficiencies in the work executed by the opposite party.  Since the opposite party had received a total amount of Rs. 12,95,000/- credit had to be given to the complainant for the additional amount that she had spent for the purchase of the construction materials.  The credit for the work done by the opposite party on the basis of the valuation report Ext. C1 had also to be given to the opposite party.  Accordingly, after giving due credit to both the complainant and the opposite party, the District Commission has found that an amount of Rs. 4,93,828/- was due to the complainant from the opposite party.  An amount of Rs. 50,000/- has been fixed as compensation for the deficiency in service of the opposite party and an amount of Rs. 10,000/- as costs.  It is challenging the said order that this appeal has been filed. 

14.  We have heard the counsel appearing for the appellant as well as the respondent.  We have also carefully examined the records of the case including the Lower Court Records called for and produced before us by the District Commission.  We find from the records that a number of chances had been granted to the opposite party to adduce evidence, to cross examine the complainant as well as to place and prove his case.  The complaint that was filed in 2015 was finally disposed of only on 19.09.2022.  We find that most of the time, the case was being adjourned at the instance of the opposite party/appellant.  Therefore, we are satisfied that sufficient opportunity had been given to the appellant to contest the case by the District Commission.  The contention before us by the appellant was that he had not been provided with sufficient opportunity to put forward his case.  It appears to be true that various alterations and modifications had been suggested by the complainant and undertaken by the opposite party, as the construction progressed.  However, a very serious allegation that requires to be addressed is the one regarding the use of inferior quality materials of wood and other ingredients.  An expert had inspected the construction and submitted his report to the District Commission which has been marked as Ext. C1.  The appellant had no objection to the said report.  Therefore, the District Commission has placed implicit reliance on the conclusions of the expert commissioner, which cannot be found fault with.

15.  We notice from the order of the District Commission that, expenses incurred for completing the various works that remained unfinished had been calculated and the cost estimated by the expert commissioner has been added.  The cost of execution of the additional construction has also been added, adopting the quantification done by the expert.  The District Commission has on the basis of the above inputs, made calculations and has arrived at the actual amount that the opposite party has to return to the complainant.  We find that the amount of Rs. 4,93,828/- arrived at by the District Commission is correct and no modification of the same is either called for or necessary.  The amount of Rs. 50,000/- granted as compensation for the deficiency in service and the amount of Rs. 10,000/- stipulated as costs of the litigation are only reasonable and do not require to be interfered with. 

16.  For the above reasons, we do not find any merit in the contentions put forward by the appellant in this case.  In view of the above, this appeal fails and is accordingly dismissed with costs of Rs. 10,000/-.

The statutory deposit amount of Rs. 25,000/- remaining before this Commission shall be disbursed to the respondent in this appeal.  Out of the said amount Rs. 10,000/- shall be appropriated as the costs of this appeal and the balance amount of Rs. 15,000/- shall be adjusted towards the amounts found due to her from the appellant by the District Commission.  An amount of        Rs. 2,50,000/- has been deposited by the appellant herein before the District Commission as condition for the grant of stay.  The said amount shall be disbursed to the respondent, which shall be adjusted by the respondent towards the amounts ordered to be paid to her.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

jb                                                                                                  RADHAKRISHNAN K.R.         : MEMBER