IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 20^th  day of March, 2012.

Present : Sri. Jacob Stephen (President)

Sri. N. Premkumar (Member)

Smt. K.P. Padmasree (Member)

C.C.No.49/2009 (Filed on 02.04.2009)

Between:

T.R. Anilkumar,

Palanilkkunnathil Memuriyil Veedu,

Naranganam Muri,

Naranganam village. 

(By Adv. R. Gopikrishnan)                               …..    Complainant

And:

S.T. Raju,

Nedumannil Muriyil Veedu,

Cherukole.P.O.,

Cherukole Muri

Pin – 689 650.                                                      …..   Opposite party

O R D E R

Sri. N. Premkumar (Member):

                   Complainant filed this complaint against the opposite party for getting a relief from the Forum.

                   2. Fact of the case in brief is as follows:  Opposite party is a contractor by doing work on contract basis.  Complainant enters into an agreement with opposite party on 25.09.2008 for the construction of his house.  As per the agreement, opposite party is liable to do the work of removal of earth, foundation, plinth belt, bricks construction, door, window fitting, slab, shelf, roof, concrete etc., plastering, painting, floor concrete etc. properly.  As per terms the rate of ground floor is ` 135 per sq.ft. and 1<sup>st</sup> floor is ` 150 per sq.ft.  Opposite party agreed to complete the said work within six month from the date of agreement.

                   3. Opposite party has started the construction work on September 2008 itself and complainant paid up to ` 1,30,000 by several occasions.  But opposite party would not complete the work as per agreement.  He only completed the ground floor, i.e. quarry stone Co. and bricks construction and concrete till now.  In the ground floor slab has not been properly fitted over the shelf in the rooms.  The ground floor work, plastering, chimney construction etc. has not completed.  Opposite party withdrawned from agreement without any reason.  In order to complete the construction, complainant has to spent money on piece work basis.  Hence complainant has a loss of ` 1,28,081.  The opposite party is liable to pay the loss and complainant is entitled to get the same. 

                   4. Opposite party’s withdrawal from construction work was on 04.02.2009.  Complainant meets directly and with mediators for the completion of his house construction.  But opposite party has not turned up.  Thereafter, complainant filed a complaint before the Circle Inspector of Polic, Kozhencherry.  They also directed the opposite party to complete the work.  That was also not complied.  At the time of agreement, the rate of first floor work is ` 150 per sq.ft.  The present rate is ` 200 for one sq.feet.  Therefore the rate difference in construction of 573 sq.ft. is calculated as ` 28,650.  The complainant is entitled to realize the said amount from opposite party.

                   5. According to complainant, the construction work done by opposite party is only for ` 1,07,663 till now.  Therefore opposite party received an excess amount of ` 22,237 from him.  The contract is still in force and opposite party is bound to perform it.  Complainant has taken loan from SBT, Naranganam for the construction of the house.  He bought 29 packet of cement for construction purpose as per opposite party’s direction.  Opposite party willfully delayed the work and the said cement packets get damaged and caused a loss of ` 7,975.  All the said loss is due to the breach of contract on the part of opposite party.  All this caused both financial loss and mental agony to complainant.  Hence this complaint directing the opposite party to complete the house construction within a period and if not they are directed to return the excess amount of ` 22,337 with interest without understanding the account in plan, opposite party’s construction caused a loss of ` 10,000 and the same has to be returned within time.  Opposite party’s arbitrary withdrawal from construction caused a loss of ` 1,56,731 which has to be compensated with interest.  Opposite party is also liable for the damage of 29 packet cement.  The price of the said cement of ` 7,975.  The opposite party is liable to pay the said amount with a compensation of ` 25,000 with cost.

                   6. Opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts.  Opposite party admitted the contract dated 25.08.2008.  According to opposite party, complainant entrusted a plan at the time of agreement and later he taken away and replaced a new one.  There is inconsistency by subsequently created Vasthuvidya Gurukulam plan dated 29.09.2008 and the earlier plan.  Complainant compelled to work as per the said arbitrarily created plan dated 29.09.2008 and therefore complainant withdrawned from work.  The subsequent plan dated 29.09.2008 has a less areas compared to the original plan dated 25.09.2008.  If work done as per subsequent plan, there would have occurred loss to opposite party.  Therefore opposite party wanted to increase the rate of 1^st floor work and there by complainant restrained to do the work.  The contrary allegation relating to work raised by complainant is false and baseless.  Complainant’s complaint before the police is to avoid the opposite party from the work.  This fact was well known to the Circle Inspector of Police and for that they directed the opposite party to continue the work.  But complainant neglected the direction and entrusted the work to another person.  This was done before filing this complaint.

                   7. Opposite party denied the allegation of excess amount of `40,000 from complainant.  After restrained from the work, opposite party has not allowed to taken back the work tools, wooden post, box for concreting the pillar, iron sheet for concrete etc. from complainant’s premises.  This caused a loss of ` 65,000 to opposite party.  Opposite party is entitled to get the said amount.  Opposite party is not responsible for the damage of 29 cement bags.  The purchasing and custody of cement and other items were entrusted to a supervisor by complainant during the work.  There is no breach of contract on the part of opposite party.  Complainant has deviated from contract by compelling the opposite party to work as per new plan.  Opposite party has not caused any loss to complainant.  Hence opposite party canvassed for the dismissal of the complaint.

                   8. From the above pleadings, the following points are raised for consideration:

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs & Costs?

          9.  Evidence of the complaint consists of the oral deposition of PW1, DWs.1 to 3,  and CWs.1 to 3, and marked  Exts.A1 and A2, C1 to C4 and Exts. B1 to B3.  After closure of evidence, both parties were heard.

          10. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents.  He was examined as PW1 and the documents produced were marked as Ext.A1 to A2.  Ext.A1 is the agreement between the complainant and opposite party.  Ext.A2 is the plan.  Ext.C1 and C2 are report and mahazar prepared by the commissioner.

          11. In order to prove the opposite party’s contention, opposite party filed proof affidavit along with certain documents.  He was examined as DW1 and the documents produced were marked as Exts.B1 to B3.  Ext.B1 is the agreement dated 25.09.2008 between the complainant and opposite party.  Ext.B2 is the plan from Vasthu Vidhya Gurukulam.  Ext.B3 is the copy of complainant’s petition before the Kozhencherry Circle inspector of Police.  Exts.C2 and C3 are the mahazar and report prepared by the commissioner.

                   12. On the basis of the contention and averment of the parties, we have perused the entire material on record.  Complainant’s case is that opposite party entered in to an agreement with him for the construction of his house within six month.  Though accepted ` 1,30,000 opposite party has not completed the work as agreed and deviated from the contract without any reason, which caused loss, damage and mental agony to complainant.

                   13. Opposite party’s contention is that complainant compelled to work as per Ext.A2 plan, which is a subsequent plan prepared after the creation of Ext.A1 by Vasthu Vidhya Gurukulam.  On a perusal of Ext.A1, B1, A2 and B2, it is evident that there is no dissimilarity and the plan and agreement produced by both parties are one and the same.  If at all any plan other than Ext.A2 and B2, opposite party has neither produced nor adduced any material to prove the same.  It is evident in PW1’s deposition, which is as follows:- “Ext.B1 planþ \n¶pw hyXy-Ø-amb ]Wn-IÄ sN¿-W-sa¶v lÀPn I£n \nÀt±-in-¨p-sh¶ Xm¦-fpsS XÀ¡w prove sN¿m³ Fs´-¦nepw sXfn-hp-IÄ lmP-cm-¡n-bn-«pt­m? tcJ-IÄ lmP-cm-¡n-bn-«nÔ.

                   14. Opposite party’s another contention is that the reason for withdrawal from contract is due to the compulsion of complainant to work as per Ext.A1 new plan.  But opposite party failed to prove the actual reason and even not informed the intention of withdrawal from contract.  Moreover, if any breach of contract or withdrawal on the part of complainant, opposite party has neither proved nor given notice to that effect.  It is evident in DW1’s deposition which is as follows:- “Ext.B2 Icm-dn \n¶pw lÀPn I£n ]n·mdn F¶ Xm¦-fpsS Btcm-]-W-¯n\v lÀPnI£ns¡Xnsc Xm¦Ä Fs´-¦nepw t\m«okv \ÂIn-bn-«pt­m? CÃ. (A)”.

                   15. From the above discussion, it is learned that the allegation regarding the existence of two plan had no basis.  The work done by opposite party is ascertained and explained in Ext.C1, C2, C3 and C4.  If any deviation in between Ext.A1 and A2, opposite party is bound to answer why he undertake the work and completed 50% of the work.  Since opposite party has undertaken the work as per Ext.A2 and B2 plan, the question of compulsion and withdrawal from the work is neither sustainable nor believable.  Therefore, it is crystal clear that non performance of Ext.A1 is a breach of contract on the part of opposite party.  It is a clear deficiency of service also.  Hence complaint is maintainable and partly allowable by taking due importance to Ext.C1 and C2 report by considering the following aspects.

                   16. As per Ext.C1 and C2, the report and mahazar prepared on 19.06.2009.  Thereafter this Forum ordered to complete the unfinished work and accordingly the work was carried out by complainant himself.  Ext.C3 and C4 were prepared on 20.11.2009.  At that time, the nature and circumstances work changed and expert cannot ascertain the exact position of incomplete nature.  This was evident in Ext.C3 report page No.1 as shown below:- “21þmw \¼-cn Bh-iy-s¸-«n-cn¡p¶ {]Imcw 19.05.2009-þ\v ap³]pw AXn-\p-ti-jhpw \S-¯n-bn-«pÅ \nÀ½mW {]hÀ¯-\-§-fpsS Afhpw aqeyhpw Xn«-s¸-Sp-¯p-hm³ \nÀÆm-l-an-Ãm-¯-Xp-amWv ”.

                   17.  It is admitted that opposite party had withdrawn from Ext.A1.  In Ext.C1, commissioner ascertained the incompleted works and the needed work for further completion.  As per report, complainant has to pay an additional amount of ` 1,28,081 for piece work to the completion of ground floor.  The cost of construction of each item is categorically ascertained in Ext.C1.  But in Ext.C3, it does not disclose the real fact.  The cost of construction of unfinished work is not measured and estimated.  It is evident in C3 which is as follows:- “Xd-hmÀ¸v, tX¸v apX-em-bh sNbvXn-«n-Ãm-sb¶v FXr-I£n hm¡m k½-Xn-¨n-«p­v ”.

                   18. In this juncture, we cannot be in a position to rely Ext.C3 and C4.  Moreover as per Ext.A1, opposite party has to construct the 1^st floor.  Evidence on record also shows that opposite party has not done any work in 1^st floor.  Ext.C3 also reveals the same fact as shown below:- “c­mw \ne-bpsS ]Wn-IÄ FXr-I£nIÄ sNbvXn-«n-Ãm-¯-Xn-\m AXnsâ hnkvXoÀ®w Af¶p Xn«s¸-Sp-¯n-bn-«nÔ.

                   19. Since opposite party has not done the work in 1^st floor, on further construction as per Ext.C1.  Complainant has to pay the prevailing rate of ` 200 per sq.ft. for completion of work.  Therefore complainant has to pay an excess amount of ` 50 per sq.ft. for the completion of 1^st floor.  The total sq.ft. of 1^st floor is 573.  Hence opposite party is bound to compensate the variation of cost i.e. 573 x 50 = ` 28,650.

                   20. Opposite party’s unfinished ground floor work needed piece work for its perfection.  As per Ext.C2, the needed amount is ` 1,28,081. Taking into consideration of opposite party’s objection and Ext.C3 and C4 report, we reduced the amount for piece work as ` 90,000.  The said amount has to be paid by opposite party.  As per Ext.A1 and B1 complainant paid ` 1,29,900 for work.  But opposite party has done the work only for ` 1,07,663.  Therefore, opposite party has to return the excess amount received i.e. ` 22,237. 

                   21. Another allegation is that due to opposite party’s delay in construction; complainant has sustained a loss of 29 bags of cement which was damaged.  The loss of said cement bags were calculated as ` 7,975.  But evidence on record shows that it is the duty of complainant to preserve the building material in safe custody without causing any damage.  CW1 also admit the same in his deposition as follows:- “sI«nSw ]Wn-bpsS materials kq£n-t¡­ Npa-Xe DS-a-Ø-\mWv ”. Therefore the claim of ` 7,075 raised by complainant with regard to the damage of cement is not allowable.  Another contention of claiming ` 10,000 by complainant for improper construction without understanding the plan is also not allowable for want of better evidence.

                   22. In the light of the findings and on the basis of the evidence, I.A’s 154/09, I.A.157/09 and I.A.73/10 were disposed vide order therein.

                   23. The facts and circumstances of this case, no amount is allowable for compensation and cost.

                   24. In the result, this complaint is partly allowed, thereby the opposite party is directed to pay ` 1,40,887 (Rupees One lakh forty thousand eight hundred and eighty seven only) to the complainant within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 9% interest per annum from today till the realization of the whole amount.

                   Declared in the Open Forum on this the 20^th day of March, 2012.

                                                                                                         (Sd/-)

                                                                                                N. Premkumar,

                                                                                                     (Member)

Sri. Jacob Stephen (President)                  :         (Sd/-)

Smt. K.P. Padmasree (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :         T.R. Anilkumar.

Exhibits marked on the side of the complainant:

A1     :         Copy of agreement dated 25.09.2008 between the complainant

                      and the opposite party.

A2     :         Plan prepared by Vasthuvidya  Gurukulam, Aranmula.

Witness examined on the side of the opposite party:

DW1 :         S.T. Raju.

DW2 :         Joby Varghese.

DW3 :         Joby Abraham.

Exhibits marked on the side of the opposite party:

B1     :         Plan prepared by Vasthu Vidhya Gurukulam, Aranmula. 

B2     :         Copy of agreement dated 25.09.2008 between the complainant

                     and opposite party.

B3     :         Copy of petition submitted by the complainant before the

                     Circle inspector of Police, Kozhencherry. 

Court Witnesses:

CW1 :         Manog. G. Kumar.

CW2 :         Abraham Joseph.

CW3 :         V.S. Abraham.

Court Exhibits:

C1     :         Report prepared by Manoj. G. Kumar, Commissioner.

C2     :         Mahazar.

C3     :         Mahazar prepared by V.S. Abraham, Expert Commissioner.

C4     :         Report prepared by V.S. Abraham, Expert Commissioner.

                                                                                                (By Order)

                                                                                                    (Sd/-)

                                                                                           Senior Superintendent.

Copy to:- (1) T.R. Anilkumar, Palanilkkunnathil Memuriyil Veedu,

                       Naranganam Muri, Naranganam Village.

                 (2) S.T. Raju, Nedumannil Muriyil Veedu, Cherukole.P.O.,

                      Cherukole Muri, Pin – 689 650.

                (3)  The Stock File.