1. Smt. Beena Kumari. A 2. Smt. S.K.Sreela 3. Sri G. Sivaprasad
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P.No. 459/2002 Filed on 30.10.2002 Dated : 30.07.2008 Complainant: Dr. V.S. Sreelatha, Gayathri, T.C.No. 41/370, Pavithra Nagar Second Street, Manacaud P.O, Thiruvananthapuram. (By adv. K.B. Pandarathil) Opposite parties: 1.S. Udayakumar, Proprietor and Building Contractor, 'Model Construction', Thoppil Veedu, Muttakkadu P.O, Venganoor Village, Thiruvananthapuram. 2.S. Venugopal, Proprietor and Building Contractor, 'Model Construction', Thoppil Veedu, Muttakkadu P.O, Venganoor Village, Thiruvananthapuram. (By adv. V. Bahuleyan) This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 10.02.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 05.05.2008, the Forum on 30.07.2008 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT Facts leading to the filing of the complaint are that the complainant decided to construct a new building in her property comprised in Survey No. 1100/4-1 of Manacaud village. Complainant obtained permit and approved plan from the Corporation of Thiruvananthapuram. Opposite parties are building contractors. On 28.05.2001 an agreement was executed between the complainant and the 2nd opposite party for the construction of the new building as per the approved plan and permit. As per the said agreement 2nd opposite party would construct a two storied building having an area of 1299.800 sq. ft. at the rate of Rs. 530/- per sq. ft. as per the conditions in the agreement and annexure I & II attached with the agreement by using first quality materials and within a period of 8 months from the date of agreement. 2nd opposite party started construction works from 02.06.2001 and complainant had given the amount to the 2nd opposite party as demanded by the 2nd opposite party. 2nd opposite party completed the construction work of the basement. Thereafter the 2nd opposite party engaged the 1st opposite party for completing the remaining work and also requested for extending the time limit. Hence another agreement was executed between the complainant and the 1st opposite party on 01.10.2001 with all the same terms and conditions in the first agreement, but the period was extended to one year from 01.10.2001. From the date of second agreement 1st opposite party started construction and complainant made payment to the 2nd opposite party as demanded by him. Complainant obtained loan of Rs. 400000/- from SBT, Chalai branch. The complainant decided to construct the said building for giving rent to Mr. Surendran Nair working at Thiruvananthapuram Diary, Milma, Ambalathara and he was ready for taking the said building as monthly rent arrangement from 01.10.2002 at the rate of Rs. 3000/- per month. 2nd opposite party has received an amount of Rs. 55,000/- from the complainant and 1st opposite party had received a total amount of Rs. 4,47,800/- upto 01.08.2002. But the 1st opposite party has given receipt only for Rs. 3,99,000/-. But 1st opposite party had not given the receipt for the amount of Rs. 48,800/- which is the last payment made by the complainant on 31.08.2002. The total amount for construction work was calculated as Rs. 688894/-(Rs. 530/- x 1299.8 sq. ft.) Opposite parties had received a total amount of Rs. 5,02,800/- from the complainant(i.e;75% of the total amount). But they have completed only about 50% of the construction work. Opposite parties only completed wood work for doors and windows, frames, brick work, R.C.C roof concrete, 70% of plastering work, 25% of sanitation work. After 01.08.2002 the opposite parties had not done any work. 1st opposite party had not done the roof concreting work in the first floor properly and hence heavy water leakage was caused during the rainy season. Complainant pointed out the said leakage to the 1st opposite party, but 1st opposite party did not cure the said defect. Complainant had spent an amount of Rs. 48,800/- for curing the said defect. For completing the balance work in the said building an additional amount of Rs. 3,55,000/- is necessary. Complainant sent lawyer's notice to the opposite party. Opposite party received it, but not responded. Due to the action of the opposite parties complainant had sustained huge financial loss and mental pain. Hence this complaint claiming Rs. 428800/- with interest and cost of Rs. 1000/- from the opposite parties. Opposite parties entered appearance and filed version contending that the 1st opposite party was engaged by the complainant for construction of her house. The rate of construction per sq. ft. was fixed at Rs. 530/-. As per plan the total plinth area is 1299.808 sq. ft. Complainant agreed to make payments on periodical basis for completed works. Opposite parties have completed the construction of structure, lintel concrete, roof slab concrete, first floor brick construction, construction of parapet wall, fixing of door frames and window frames, fixing of water pipes, and drainage pipes in both floors, plastering of the entire building, floor concrete, kitchen slab concrete, two shelves and also purchased and finished all wooden items for doors, windows, kitchen shelf and additional two shelves. The works like flooring, fixing of some doors and windows, window panes and painting, fixing of sanitary wares etc. are to be completed. As per the agreement electric fitting are to be carried out by the owner. Opposite parties had carried out the works without any delay upto July 2002 and after 03.06.2002 there was no payment. Moreover the payments were made in a very meagre instalments not even sufficient to meet the labour charges. It is because of the latches on the part of the petitioner the opposite parties could not carry out further works after July 2002. Opposite parties are even now ready to complete the entire works as specified in the agreement. Complainant issued an advocate notice. On receipt of the notice 1st opposite party approached the complainant who agreed to co-operate with the opposite party in proceeding with the construction. But strangely this complaint has been filed. Opposite parties are not responsible for any delay. Opposite parties did not send a reply to the notice since complainant agreed to settle the matter. After the issuance of the notice the entire finished wooden articles kept by the opposite parties were removed from the work site by the complainant and her husband which includes handrails, finished doors, windows etc. Some sanitary fittings also kept in the work site which were also removed by the complainant. These are all fraudulent attempts on the part of the complainant with the evil intention to cause loss to the opposite parties. Opposite parties have never committed any breach of agreement nor their services were deficient. Opposite parties had received Rs. 3,99,000/- towards payment from the complainant for the works completed. No other amount is paid to the opposite parties. The allegation that receipt has not been given for an amount of Rs. 48,000/- is utter falsehood. The last payment all in small amounts of Rs. 1000/-, Rs. 500/- etc. There was no intentional default on the part of the opposite parties. There was no defect in the construction at all. If there is any defect in the construction opposite parties are ready to rectify them. Opposite parties are entitled to the balance amount for the work they have completed at Rs. 16,000/- plus timber value of Rs. 40,000/- and Rs. 7,900/- towards value of the removed plumbing articles and the cost of the additional works carried out. Hence opposite parties prayed for dismissal of the complaint with direction to the complainant to return the construction materials and to pay an amount of Rs. 73,900/- to the opposite parties together with cost of additional works. The points that would arise for consideration are:- (i)Whether there has been deficiency in service in the construction work on the part of opposite parties? (ii)Reliefs and costs. To support the contention in the complaint, P. Ramachandran, the power of Attorney holder of the complainant, has filed an affidavit of himself as PW1 and marked documents as Exts. P1 to P14. Opposite parties did not file affidavit by way of evidence. Points (i) & (ii):- It has been the case of the complainant that complainant decided to construct a new building in her property comprised in Survey No. 1100/4-1 of Manacaud village and obtained approved plan and permit from the Corporation of Thiruvananthapuram. Exts.P1 and P2 are the copies of said plan and permit. On 28.05.2001 the complainant entered into an agreement with the 2nd opposite party, the building contractor, for the construction of the new building as per Exts. P1 and P2. Ext. P3 is the copy of the said agreement. As per Ext. P3 agreement, 2nd opposite party would construct the said building subject to the conditions in the agreement and annexure I and II attached with the agreement, by using first quality materials. As per Ext. P3 agreement 2nd opposite party would construct the building having an area of 1299.800 sq. ft.(120.80 m2) at the rate of Rs. 530/- per sq. ft. within a period of 8 months from 28.05.2001. Submission by the complainant is that 2nd opposite party started the construction works from 02.06.2001 and completed the construction work of the basement and thereafter 2nd opposite party engaged the 1st opposite party for completing the remaining work and also requesting for extending the time limit. Both opposite parties are building contractors and their office is functioning at Muttakkadu in the name and style Model Constructions. On 01.10.2001 another agreement by Ext. P4 was executed between the complainant and 1st opposite party with all the same terms and conditions stated in Ext. P1, but period extended to one year from 01.10.2001. From the date of Ext. P4 agreement, complainant had made payment to the 1st opposite party as per his demand. Submission by the complainant is that 2nd opposite party had received an amount of Rs. 55,000/- and 1st opposite party had received a total amount of Rs. 4,47,800/- from the complainant, but had given receipt only for Rs. 3,99,000/-. Ext. P5 is the copy of the receipt for Rs. 55,000/- seen issued by the 2nd opposite party. Ext. P6 is the copy of the receipt seen issued by the 1st opposite party. As per Ext. P6, 1st opposite party received an amount of Rs. 65,000/- on 29.09.2001, Rs. 5,500/- on 09.10.2001, Rs. 62,000/- from 16.10.2001 to 28.11.2001, Rs. 40,000/- from 11.10.2001 to 21.10.2001, Rs. 60,000/- from 27.10.2001 to 08.11.2001, Rs. 45,000/- from 02.02.2002 to 15.02.2002, Rs. 60,000/- from 15.02.2002 to 11.03.2002, Rs. 56,200/- from 19.03.2002 to 03.06.2002 and Rs. 10,000/- from 07.06.2002 to 12.06.2002. Altogether 1st opposite party had received an amount of Rs. 4,03,700/- as per Ext. P6 from the complainant. As per Exts. P5 and P6, 1st and 2nd opposite party had received an amount of Rs. 4,58,700/-. Submission by the complainant is that on 31.08.2002, 1st opposite party had received an amount of Rs. 48,800/- from the complainant, but 1st opposite party had not issued receipt to that effect. Opposite parties filed version where it has been averred that after 03.06.2002, no payment was made by the complainant and that payments were made in a very meagre instalments not even sufficient to meet labour charges. Further submitted that it is because of the latches on the part of the complainant the opposite parties could not carry out further works. The pleadings in the version not seen substantiated by opposite parties by way of affidavit. In the absence of evidence by way of affidavit by opposite parties, the pleadings in the version as such cannot be accepted. It has also been the case of the complainant that the total cost of construction was calculated as Rs. 6,88,894/-(Rs. 530/-x1299.8 sq. ft. Out of which, opposite parties had received an amount of Rs. 5,02,000/- from the complainant. i.e. 75% of the total amount, but submission by the complainant is that opposite parties have completed only about 50% of the construction work. Further submitted by the complainant that 1st opposite party had not properly done the roof concreting work in the first floor, hence heavy water leakage was caused during the rainy season. Even after pointing out the said leakage, 1st opposite party did not cure the defect. Submission by the complainant that complainant spent Rs. 40,000/- for curing the said defect on the roof, otherwise the entire construction would have been taken down. Complainant never produced any document showing that complainant has spent Rs. 48,800/- towards curing the said defect. Complainant submitted that the balance work in the aforesaid building yet to be completed would imply 30% of the plastering work, 75% of the sanitation work, wood work for doors, windows, cupboard etc, electrification, flooring and painting. Submission by the complainant is that for completing the balance works in the aforesaid building for which an additional amount of Rs. 3,55,000/- is necessary. Ext. P7(a) is the copy of lawyer's notice addressed to 1st opposite party and Ext. P7(b) is the postal receipt. Ext. P8 is the copy of the abstract estimate for the balance work in the said building, prepared by one Suresh Kumar. As per Ext. P8 the complainant will have to spend an amount of Rs. 3,55,000/- for completing the balance work. Ext. P9 is the copy of the housing loan sanction letter. The photographs with negatives are marked as Ext. P10 series. Ext. P11 series are receipts issued by the Thiruvananthapuram Co-operative Urban Bank Ltd. Ext. P12 are cash receipt issued by Cochin Sanitary Wares. Ext. P13 and 14 are letters issued by LIC and UTI. This Forum deputed expert commission to assess the present condition of the construction work done by the opposite parties and its quality of work. Commission report is marked as Ext. C1. As per C1 report, commission has mentioned the salient features of the second agreement and work specifications as per Annexure in the agreement and approved plan of the building. As regards the present stage of the construction, the structure is completed. Doors, windows and ventilator frames are fitted except in case of bath where PVC door is proposed. In one bed room, one door gap is left without providing frames. It is found to be an extra door. All the window and ventilator frames are fitted with grill or M.S. Rode. Out of 16 glazed windows, shutter frames without glass panel is fitted to 8 windows. No other doors, windows or ventilator are seen provided with shutters. As regards plastering, wall plastering has been almost completed. In case of top of roof slab plastering is seen carried out. The complainant has claimed that the plastering has been done by her in order to prevent leak in the roof slab. At the time of inspection the opposite parties disputed the claim of the complainant and claimed that it was done by them. Flooring not done, finishing works not done. As regards water supply and sanitary arrangement, most of the plumbing lines are laid. No closet or wash basin or sink is fitted. Water supply fittings are not executed. Electrification not attended. Only pipes are concealed for taking the wire. As regards the allegation of delayed construction it is to be noted that as per Ext. P4 agreement dated 01.10.2001, the time given for completion was one year from the date of agreement. As per C1 report, the total performance of the 1st opposite party was not upto the mark as he failed to complete the work within the agreement time. Commission reported that the items of work remained are very less time consuming and having high money value such as marble flooring, water supply and electrical fitting. Usually non-completion of work would affect the construction cost, but commission reported that in this case the upward cost increase had not been taken into effect and hence no loss on this account. Further submission by the complainant was that her intention was to give the building for rent from 01.10.2002. Because of the delay in completing work, the complainant is likely to loose the rent of building. In addition, complainant has to pay interest for the loan. On that account complainant would incur loss. As regards the quantum of work completed and payment received by the opposite parties, a statement showing the items of work involved the rate of item for apportioning the total contract amount to various individual items, quantities of work so far done, its value and quantities and value of balance work to be carried out is worked out by the commissioner and annexed as annexure I. It can be seen from the above statement, the value of work done by the opposite parties based on their total rate comes to Rs. 4,15,090/-. In this connection it is worthwhile to examine the authenticity of the claim of complainant that she plastered the top of roof slab. On examination by the commission it is found that the work of plastering is carried out by different mason. By this and other circumstances noted by the commission we are of the opinion that the roof top has been plastered by the complainant. For roof plastering commission estimated a cost of Rs. 7,535/-. After deducting the said cost of Rs. 7,535/- incurred by the complainant from the gross value of work completed worth Rs. 4,15,090/- the net value of work completed by opposite parties would be of Rs. 407555/-. As already stated above, opposite parties had received an amount of Rs. 4,58,700/- from the complainant as per Ext. P5 and P6. Hence 2nd opposite party is liable to refund an amount of Rs. 51,145/- to the complainant. Commission has reported that the construction of the said building is of good quality. No noticeable defects in construction reported by the commission. Since opposite parties failed to complete the works within the agreement time, complainant might have lost the benefit of enjoying rent of building. Denial of benefits due to delay in completion by opposite parties would be compensated by paying Rs. 10,000/-. In the result, complaint is allowed. 2nd opposite party shall refund an amount of Rs. 51,145/- to the complainant. 2nd opposite party shall pay an amount of Rs. 10,000/- towards compensation and Rs. 2,500/- towards cost of the complaint. The above said amounts shall carry interest at the rate of 12% per annum if not paid within two months from this order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th July 2008. G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER S.K.SREELA : MEMBER O.P.No. 459/2002 APPENDIX I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of building application certificate. P2 - Photocopy of permit No. TSL 02530/01 dated 22.05.2001 issued by the Thiruvananthapuram Corporation. P3 - Photocopy of agreement deed dated 28.05.2001. P4 - Photocopy of agreement deed dated 01.10.2001. P5 - Photocopy of receipt of Rs. 55000/-. P6 - Photocopy of receipt dated 29.09.2001, 09.10.2001 and 16.10.2001. P7 - Photocopy of advocate notice dated 23.09.2002. P7(a) - Photocopy of postal receipt No. RL-AD 3760, 3761 dated 23.09.2002. P8 - Photocopy of detailed estimate for Rs. 355000/-. P9 - Photocopy of specimen of sanction letter No. 3213 dated 16.01.2002. P10 - 6 photographs. P11 - Original of 29 cash receipts. P12 - Original cash bill No. 2960 dated 07.06.2002. P13 - Original letter dated 16.10.2001of LIC of India to the policy holder of policy No. 041304908 dated 16.10.2001. P14 - Original letter Ref. No. 00038 2087/MIP-96/ADR/dated 12.04.2001 from UTI, investor services Ltd. III OPPOSITE PARTIES' WITNESS : NIL IV OPPOSITE PARTIES' DOCUMENTS : NIL V COURT EXHIBIT : C1 - Commission Report dated 10.12.2002. PRESIDENT
......................Smt. Beena Kumari. A ......................Smt. S.K.Sreela ......................Sri G. Sivaprasad
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