DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 17th day of December 2012
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 30/05/2009
(C.C.No.72/2009)
1. Anilkumar.K
S/o.Late Vinod Krishnan
Moolathodiyil House
Panamanna South (P.O)
Kanniyampuram
Ottappalam.
2. Gouri
W/o.Late Vinod Krishnan
Moolathodiyil House
Panamanna South (P.O)
Kanniyampuram
Ottappalam. - Complainants
(By Adv.S.M.Unnikrishnan for complainants)
Vs
Safar Altaf
S/o.Mohammed
Chozhikunnathu House
Pilathara
Chunangad
Ottappalam. - Opposite party
(By Adv.C.Sreekumar)
O R D E R
By Smt.Preetha.G.Nair, Member
Brief facts of the complaint:
The 1st complainant and the opposite party entered into an agreement to construct a house having an area of 1163 sq. ft. on 19/04/2007. The opposite party agreed to complete the work within 6 months from the date of agreement for an amount of Rs.4,50,000/- excluding the wooden works. The complainant paid advance amount of Rs.50,000/- to the opposite party. For the construction of the house the complainant had taken a housing loan from State Bank of Travancore for an amount of Rs.4,93,000/-. The complainant had paid Rs.3,95,000/- by way of cheques to opposite party. But the opposite party has not completed the work as he agreed. Thereafter in 2008, the opposite party left to Gulf countries without completing work. When he returned to India, the 1st complainant contacted the opposite party and told him that he is going to take legal action against the opposite party. Then the opposite party undertook that he will complete the work as agreed on 19/03/2008. Believing the words of opposite party, the complainant entered into another agreement for the completion of the construction of the 1st agreement. On the same day a cheque for Rs.40,000/- was given to opposite party. Even after the second agreement the opposite party has not performed his part of the contract. On 22/04/2008 the 1st complainant filed a complaint against the opposite party before the Ottappalam Police Station. The opposite party has not completed the work as agreed in both agreements. Thereafter the opposite party left to gulf countries. The complainant suffered huge loss due to the unfair trade practice and deficiency in service on the part of opposite party. The opposite party has received a total sum of Rs.4,35,000/- by way of different cheques and also Rs.5,000/- by way of cash from the complainants. The complainant has bought sand of Rs.25,000/- for constructing the house. The above sand was not stated in the agreement and the opposite party has used this for construction. The complainants are now residing in the house for rent of Rs.3,000/- per month because the construction was not completed. Thus the complainants claim an amount of Rs.42,000/- on account of rent, Rs.75,000/- on account of Bank interest, Rs.2,00,000/- for completion of work and Rs.50,000/- as compensation for mental agony. Hence the complainant prays for an order directing the opposite parties to pay an amount of Rs.3,67,000/- with 12% interest from the date of filing of complaint till realization.
Opposite party filed version stating the following contentions. Opposite party stated that 1st complainant and the opposite party had entered into an agreement in the year 2007 wherein he had agreed to complete the work within 6 months is wrong. It is further false to state that the opposite party had gone to Gulf. Opposite party denied that the complainant had at his own cost bought sand worth Rs.25,000/-. Opposite party stated that he is a licensed supervisor by profession and only undertaken to supervise the construction of the building of the complainant. Opposite party submitted that the above building was in exclusive possession and enjoyment of the complainant. Thereafter the complainant took out expert commission to prove the opposite party has not acted according to the terms of agreements. The expert commissioner filed report on 04/06/2010.
On 07/08/2010 the opposite party filed IA for receiving additional version. IA was allowed. As per the additional version the opposite party stating the following contentions. As per the agreement the total plinth area of the house constructed would be 1163.83 sq. ft. with Rs.387/- per sq ft. But in the commission report, commissioner measured the house and found that the total plinth area is 1394 sq. ft. Hence there is an extra area of 231 sq. ft. being constructed by the opposite party. The amount spent by the opposite party for the extra construction will come to around Rs.89,397/-. Further the opposite party stated that as per agreement only a single phase wiring to be done. But on the demand of complainants a three phase wiring was done as noted by commissioner. On the extra wiring the opposite party has spent an amount of Rs.15,000/-. The next additional work was ‘drops’ for an amount of Rs.13,000/- spent by the opposite party. The next additional work was the charupadi for an amount of Rs.10,000/- was spent by the opposite party. An extra addition was the leach pit which was not there as per the original agreement and spent an amount of Rs.15,000/-. For other internal modification an extra amount of Rs.20,000/- had to be spent by the opposite party. The extra expense that was incurred and paid from the hands of the opposite party will come to an amount of Rs.1,62,397/-. Further opposite party stated that the extra expense amount was not paid by the complainants. Under the circumstances the opposite party was constraint to stop further work in the site. Hence the opposite party prays to dismiss the complaint with cost and order the complainant to pay an amount of Rs.1,62,397/-.
Complainants and opposite party filed chief affidavits. Complainants filed documents marked as Ext.A1 to A4. Expert commissioner filed report marked as C1. 1st complainant was cross examined.
Matter heard and complaint allowed. Thereafter opposite party filed appeal before the State Commission. Then the matter is remitted back for fresh disposal. Both parties submitted that earlier commissioner can be appointed. The same Commissioner was appointed and filed Commission Report. Opposite party filed objection to Commission Report and also filed petition to examine the commissioner. Petition allowed and commissioner was examined as CW1. 2nd Commission Report marked as C2.
Issues to be considered are
1. Whether there is any deficiency in service on the part of opposite party ?
2. If so, what is the relief and cost ?
Issue No.1 & 2
We perused relevant document on record. As per Ext.A1 on 19/4/2007 the 1st complainant and the opposite party had entered into an agreement to construct a house having an area of 1163 Sq.ft. and agreed to complete the work within 6 months from the date of the agreement for an amount of Rs.4,50,000/- excluding the wooden works. On that day the complainant handed over Rs.50,000/- to the opposite party. According to the complainant he paid Rs.3,95,000/- by way of cheques. But the opposite party has not completed the work as agreed. As per Ext.A2 dated 19/3/08 they were entered into another agreement for the completion of the construction work as continuation of the 1st agreement and paid Rs.40,000/- to the opposite party. But the opposite party denied the agreement. The opposite party stated that he had only undertaken to supervise the construction of the building of the complainant. Also opposite party stated that it is the complete responsibility of the complainant to source all the building materials. But the complainant stated that he paid Rs.4,35,000/- to the opposite party by way of different cheques and Rs.5,000/- by way of cash. No documentary evidence produced by the complainants to prove that Rs.4,40,000/- given to opposite party. In Ext.A1 stated that Rs.50,000/- given to opposite party and in Ext.A2 stated that Rs.40,000/- given to opposite party by 1st complainant. No contradictory evidence produced by the opposite party.
After filing the commission report commissioner has noted the facts that a plinth area of 231 Sq.ft. was additionally constructed and three phase wiring was done and architectural drops, charupady were fitted and also some internal modification were done. According to the complainant all these works were done by the complainant at his own cost. Moreover charupady mentioned in the Ext.A2 agreement. Thereafter the opposite party filed additional version stated that he has done the additional construction of 231 Sq.ft. three phase wiring and Charupady and internal modification at his own cost. The opposite party has not produced any evidence to show that the internal modification has been done at their own cost.
No documentary evidence produced by both parties to prove that additional works were done for additional payments. The complainant stated that opposite party had not completed the work within the time mentioned in Ext.A1. Then they were entered into Ext.A2 the 2nd agreement and mentioned that additional amount of Rs.40,000/- given to opposite party. After remanding back the complaint from the Hon’ble State Commission the opposite party filed fresh vakkalath.
At the time of examination 1st complainant deposed that he paid Rs.1,50,000/- for the additional construction without any receipt. No contradictory evidence produced by the opposite party. The complainant stated that after the period of Ext.A1 agreement the opposite party has not completed the construction and left to gulf countries. In the present case also the version and affidavit filed by the power of attorney.
In Ext.C2 report commissioner stated that cost of wood work is Rs.2,13,000/- and the building is now completed. At the time of examination commissioner deposed that the cost of wood work for an amount of Rs.2,13,000/- considered at the rate of construction time. In Ext.C1 the commissioner stated that the total plinth area of the building measured during inspection is 1394 Sq.ft. and the total cost of construction may be around 8.35 lakhs @ Rs.600 Sq.ft. to complete finish. Further commissioner stated that approximately Rs.6.85 lakhs is already expended including cost of wood work. According to the Hon’ble State Commission Ext.C1 report is not helpful in coming to a conclusion regarding the liabilities of each parties. There is no separate estimation for wood work. In C2 report commissioner stated that cost of wood work is Rs.2,13,000/- So the total cost of construction excluding wood work is 6.85 lakhs after deducting the cost of wood work of Rs.2,13,000/- lakhs. The balance is Rs.4,72,000/- The complainant admitted that he paid Rs.4,40,000/- to opposite party. As per Ext.A1 agreement the cost of construction of 1163 Sq.ft. was Rs.4,50,000/- at the rate of Rs.387/- per Sq.ft. At the time of cross examination 1st complainant deposed that Rs.4,45,000/- paid to the opposite party. In the complaint and affidavit mentioned that complainants had paid Rs.4,35,000/- by way of cheque and Rs.5,000/- as cash to the opposite party. As per Ext.C1 report dated 2/06/2010 Commissioner mentioned that Rs.6.85 lakhs is already expended including cost of wood work. In Ext.C2 report commissioner noted that cost of wood work is Rs.2,13,000/- . So the balance amount of construction work is Rs.4,72,000/- 1st Complainant stated that he had at his own cost bought sand worth Rs.25,000/- No contradictory evidence produced by the opposite party. Also in Ext.A3 the 1st complainant purchased electrical goods for an amount of Rs.17,777.50. The total amount paid by the complainant is Rs.4,40,000/- + Rs.25,000/- + Rs.17,777.50 is Rs.4,82,777.50. So the complainant spent Rs.4,82,777.50 and the cost of construction work is Rs.4,72,000/-.
In C1 report the commissioner noted that Rs.1,50,000/- is the approximate estimate for completing the building.
According to the opposite party he has incurred a sum of Rs.1,62,397/- for extra works. But the opposite party has not produced evidence to show that spent Rs.1,62,397/- for extra work. The commissioner has noted that the plinth area extended to 1394 Sq.ft. Hence the opposite party has filed additional version stating that he constructed 231 Sq.ft. in excess. According to the complainant he paid more than Rs.1,50,000/- for extra work.
As per Ext.A4 the complainants availed a loan from SBT Ottapalam branch. Normally interest was given to the bank by the complainants. Also at the time of Ext.A1 agreement the cost of one Sq.ft. was Rs.387/- The commissioner assessed the cost of construction at the rate of Rs.600/- per Sq.ft. The commissioner inspected the house on 25/5/2010. Admittedly the opposite party has not completed the construction work. The cost of materials of construction is increased day to day. In the present stage the cost of construction work was above Rs.1200/- per Sq.ft.
The complainants had not produced evidence to prove that they lived in rented house. Both parties not produced evidence to show the payment except Ext.A1 and A2 agreement. The opposite party in the version stated that he had only undertaken to supervise the construction of the building. In the additional version he stated that he has done the additional construction of 231 Sq.ft. three phase wiring charupady and internal modification at his own cost. No documentary evidence produced by the opposite party. No witness was examined by the opposite party to show that additional work done at his own cost. The construction of charupady is mentioned in Ext.A2 agreement. The opposite party has different views in version and additional version.
In the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result complaint allowed. We direct the opposite party to pay the complainant an amount of Rs.1,60,000/- (Rupees One lakh sixty thousand only) as the cost of remaining works and compensation and pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 17th day of December 2012.
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Agreement dtd.19/4/2007
Ext.A2 – Agreement dtd.19/03/2008
Ext.A3 – Bill No.1592 dt.28/11/2007 for Rs.17,777.50
Ext.A4 – Statement of bank account for the period from 09/05/2007 to
6/8/2010
Witness examined on the side of the complainant
PW1 – Shri.Anilkumar.K
Exhibits marked on the side of the opposite party
Nil
Commissioner Report
Ext.C1 – Commissoner Report by Mohandas.K.A
Ext.C2 – Commissioner Report by Mohandas.K.A
Cost
Rs.5,000/-allowed as cost of the proceedings.
District Consumer Disputes Redressal Forum
Civil Station, Palakkad – 678 001, Kerala
Dated this the 13th day of December, 2010
Present: Smt.Seena.H, President
Smt.Preetha.G.Nair, Member
Smt.Bhanumathi.A.K, Member Date of filing: 30/05/2009
CC. No.72/2009
1. Anilkumar.K
S/o.Late Vinod Krishnan
Moolathodiyil House
Panamanna South (P.O)
Kanniyampuram
Ottappalam.
2. Gouri
W/o.Late Vinod Krishnan
Moolathodiyil House
Panamanna South (P.O)
Kanniyampuram
Ottappalam. - Complainants
(By Adv.S.M.Unnikrishnan for complainants)
Vs
Safar Altaf
S/o.Mohammed
Chozhikunnathu House
Pilathara
Chunangad
Ottappalam. - Opposite party
(By Adv.Manoj Ambat)
O R D E R
By Smt.Preetha.G.Nair, Member
Brief facts of the complaint:
The 1st complainant and the opposite party entered into an agreement to construct a house having an area of 1163 sq. ft. on 19/04/2007. The opposite party agreed to complete the work within 6 months from the date of agreement for an amount of Rs.4,50,000/- excluding the wooden works. The complainant paid advance amount of Rs.50,000/- to the opposite party. For the construction of the house the complainant had taken a housing loan from State Bank of Travancore for an amount of Rs.4,93,000/-. The complainant had paid Rs.3,95,000/- by way of cheques to opposite party. But the opposite party has not completed the work as he agreed. Thereafter in 2008, the opposite party left to Gulf countries without completing work. When he returned to India, the 1st complainant contacted the opposite party and told him that he is going to take legal action against the opposite party. Then the opposite party undertook that he will complete the work as agreed on 19/03/2008. Believing the words of opposite party, the complainant entered into another agreement for the completion of the construction of the 1st agreement. On the same day a cheque for Rs.40,000/- was given to opposite party. Even after the second agreement the opposite party has not performed his part of the contract. On 22/04/2008 the 1st complainant filed a complaint against the opposite party before the Ottappalam Police Station. The opposite party has not completed the work as agreed in both agreements. Thereafter the opposite party left to gulf countries. The complainant suffered huge loss due to the unfair trade practice and deficiency in service on the part of opposite party. The opposite party has received a total sum of Rs.4,35,000/- by way of different cheques and also Rs.5,000/- by way of cash from the complainants. The complainant has bought sand of Rs.25,000/- for constructing the house. The above sand was not stated in the agreement and the opposite party has used this for construction. The complainants are now residing in the house for rent of Rs.3,000/- per month because the construction was not completed. Thus the complainants claim an amount of Rs.42,000/- on account of rent, Rs.75,000/- on account of Bank interest, Rs.2,00,000/- for completion of work and Rs.50,000/- as compensation for mental agony. Hence the complainant prays for an order directing the opposite parties to pay an amount of Rs.3,67,000/- with 12% interest from the date of filing of complaint till realization.
Opposite party filed version stating the following contentions. Opposite party stated that 1st complainant and the opposite party had entered into an agreement in the year 2007 wherein he had agreed to complete the work within 6 months is wrong. It is further false to state that the opposite party had gone to Gulf. Opposite party denied that the complainant had at his own cost bought sand worth Rs.25,000/-. Opposite party stated that he is a licensed supervisor by profession and only undertaken to supervise the construction of the building of the complainant. Opposite party submitted that the above building was in exclusive possession and enjoyment of the complainant. Thereafter the complainant took out expert commission to prove the opposite party has not acted according to the terms of agreements. The expert commissioner filed report on 04/06/2010.
On 07/08/2010 the opposite party filed IA for receiving additional version. IA was allowed. As per the additional version the opposite party stating the following contentions. As per the agreement the total plinth area of the house constructed would be 1163.83 sq. ft. with Rs.387/- per sq ft. But in the commission report, commissioner measured the house and found that the total plinth area is 1394 sq. ft. Hence there is an extra area of 231 sq. ft. being constructed by the opposite party. The amount spent by the opposite party for the extra construction will come to around Rs.89,397/-. Further the opposite party stated that as per agreement only a single phase wiring to be done. But on the demand of complainants a three phase wiring was done as noted by commissioner. On the extra wiring the opposite party has spent an amount of Rs.15,000/-. The next additional work was ‘drops’ for an amount of Rs.13,000/- spent by the opposite party. The next additional work was the charupadi for an amount of Rs.10,000/- was spent by the opposite party. An extra addition was the leach pit which was not there as per the original agreement and spent an amount of Rs.15,000/-. For other internal modification an extra amount of Rs.20,000/- had to be spent by the opposite party. The extra expense that was incurred and paid from the hands of the opposite party will come to an amount of Rs.1,62,397/-. Further opposite party stated that the extra expense amount was not paid by the complainants. Under the circumstances the opposite party was constraint to stop further work in the site. Hence the opposite party prays to dismiss the complaint with cost and order the complainant to pay an amount of Rs.1,62,397/-.
Complainants and opposite party filed chief affidavits. Complainants filed documents marked as Ext.A1 to A4. Expert commissioner filed report marked as C1. 1st complainant was cross examined.
Issues to be considered are;
1. Whether there is any deficiency in service on the part of opposite party?
2. If so, what is the relief and cost entitled to the complainant?
Issues 1 & 2:
According to Ext.A1, the 1st complainant and opposite party had entered into an agreement to construct a house on 19/04/2007 and paid Rs.50,000/- to the opposite party. The complainant stated that he paid an amount of Rs.3,95,000/- to the opposite party. But the opposite party has not completed the work as per the agreement. On 19/03/2008 the 1st complainant entered into another agreement with the opposite party for the completion of the construction work as continuation of 1st agreement and paid Rs.40,000/- by way of cheque. The opposite party has totally denied the terms of agreements and construction of work in his first version. Thereafter the opposite party filed additional version and stated that extra construction work was made and claimed Rs.1,62,397/-. According to Ext.C1 commission report stated that the house is in exclusive possession of the complainant. Further commissioner stated that the building is not completed and the total plinth area is 1394 sq. ft. In fact the opposite party in his first version stated that he had only undertaken to supervise the construction of the building. In construction of building the area of the measurement can be calculated at the time of concreting. The opposite party has no statement regarding the construction of additional area. But after filing the commission report, the opposite party has stated the extra expense incurred for construction of additional area. After admitting the complaint notice was served to opposite party. But the notice returned with endorsement that addressee left without instruction. Thereafter paper publication allowed and then opposite party present before the forum. The complainant stated that he had given Rs.4,35,000/- by way of different cheques and Rs.5,000/- by way of cash to the opposite party. No contradictory evidence was produced by the opposite party. So we accept that the agreement was executed and the amount was received by the opposite party. But the construction of house was not completed as per Ext.C1. The 1st complainant stated that they have lived in the house for rent of Rs.3,000/- per month. In the above discussion there is deficiency in service on the part of opposite party for non completion of house. Also the complainants have availed loan for constructing the house. As per Ext.A4 the complainants have availed loan from State Bank of Travancore, Ottappalam branch and paying the loan amount. According to Ext.A3 the 1st complainant and opposite party had entered into 2nd agreement. In the 2nd agreement dt.19/04/2007 the opposite party has not mentioned the additional work of the house and extra amount. At the time of cross examination of 1st complainant stated that extra work was done at the request of 1st complainant and additional amount was paid to the opposite party. No documentary evidence was produced by the opposite party to show the extra work was done at his own expense.
As per the Ext.A1 agreement the complainant has given Rs.4,50,000/- for total construction. Ext.A2 agreement the complainant had given Rs.40,000/-. But at the time of cross examination of 1st complainant stated that he had paid Rs.4,45,000/- and the additional amount of Rs.1,50,000/- paid for the extra works. Therefore the complainant has to pay Rs.5,000/- to opposite party for the completion of construction work as per Ext.A1. In Ext.C1 the commissioner stated that Rs.1,50,000/- is required for completing the house. The complainant has not produced documentary evidence to show that they residing in the house for rent of Rs.3,000/- per month. The opposite party stated that the complainant has not given entire amount. So the opposite party has not completed the construction work. No legal steps was taken by the opposite party against the complainant. As per Ext.A1 agreement the entire amount to be paid within 30 days from the date of completion of work. In the above discussions we hold the view that there is deficiency in service on the part of opposite party. In the result complaint allowed.
We direct the opposite party to pay Rs.1,45,000/- (Rupees One lakh and forty five thousand only) for completing the construction work and pay Rs.20,000/- (Rupees Twenty thousand only) as compensation and pay Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.
Pronounced in the open court on this the 13th day of December, 2010
Sd/-
Smt.Seena.H,
President
Sd/- Smt.Preetha.G.Nair,
Member
Sd/-
Smt.Bhanumathi.A.K
Member
Appendix
Witnesses examined on the side of complainants
PW1 - Shri.Anilkumar.K
Witnesses examined on the side of opposite party
Nil
Exhibits marked on the side of complainants
Ext.A1 – Agreement dtd.19/04/2007
Ext.A2 - Agreement dtd.19/03/2008
Ext.A3 – Bill No.1592 dt.28/11/2007 for 17,777/50
Ext.A4 – Statement of bank account for the period from 09/05/2007 to 06/08/2010
Exhibits marked on the side of opposite party
Nil
Ext.C1 – Commissioner’s report
Cost (allowed)
Rs.5,000/- (Rupees Five thousand only) allowed as cost of the proceedings.
