IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 15th day of December, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 160/2020 (filed on 09-10-2020)
Petitioner : Joseph T George,
S/o. late T.J. George,
Thottathu, Vakkadu P.O
Monippally, Kottayam – 686 636.
(Adv. Mallika Joseph)
Vs.
Opposite Parties : Saji T. John,
S/o. John Proprietor,
Merrit Homes,
Builders and Developers,
Idukki colony P.O.
Cheruthonhy.
(Adv. Joseph T. John)
O R D E R
Sri. Manulal V.S. President
This case is filed under Section 35 of Consumer Protection Act 2019.
Case of the complainant is as follows,
The complainant, who is a government employee entered into an agreement with the opposite party who is running a construction company under the name and style of “Merrit Homes”. For the construction of the residential building for the complainant. It is agreed by the opposite parties that the construction would have been completed within 9 months ie.27-11-2019 ie. the date on which the agreement for construction has entered. As per the agreed plan, the total area of the building is 1770 sq.ft. and the agreed construction cost was per sq. ft. is Rs.1,990/-. The opposite parties started the construction on 31-12-2019 and stop the same on 05-08-2020. The opposite party availed an amount of Rs.6,00,000/- on 06-12-2019 and further on 10-02-2020 as per the first bill. After completing the basement opposite parties availed 7,00,000/-. Thereafter the work at the roof level was completed on 05-08-2020, but the roof concreting was not done. It is alleged in the complaint that after that opposite parities submitted an exorbitant bill for an amount of Rs.15,44,010/- that too without completing the roof concreting pergola, shade concreting etc. Apart from all these, instead of providing all the machinery and materials for the work, the opposite parties had availed 70 packs of cement, iron re-bars for an amount of Rs.56,884/-, construction material for Rs.2275/- which were also availed from the complainant. It is further alleged in the complaint that the opposite parties have not paid rent and expenses incurred by the employees in the nearby shop and the rent for a house availed by them and the complainant had to spent 24,000/- to nearby provisional store and Rs.15,000/- as rent of the house. It is submitted in the complaint that the bill submitted by the opposite party on 11-08-2020 contains and include all expenses of roof concreting, pergola and car porch sheet etc. which are yet to be completed and the completed work is only up to brick works. According to the complainant the opposite party had obtained an excess amount of Rs.,3,89,359/-and the actual amount obtained by the opposite party were more than that of the work completed by him.
When the complainant noticed the huge difference in the bill submitted by the opposite parties, the complainant demanded for settlement of the bill by pointing the excess amount claimed by the opposite party for the works, which are not done by the opposite party. But the opposite party denied to settle the bill instead he stopped the work and took away all the construction equipments from the site. It is further alleged in the complaint that the works already done by the opposite party is totally defective. The door frames and window frames were not yet fixed. Instead of erecting the main door frame, other door frames and window frames he has made a construction without eructing it and completed the brick work up to the listed and said places were kept vacant. The defective construction weakens the strength of the building. According to the complainant, the above said act of the opposite party is inadequacy of experience, inefficiency and deficiency in service and amounts to unfair trade practice. It is submitted that due to the deficiency in service and unfair trade practice, on the part of opposite party the complainant had suffered a loss of an amount of Rs.3,89,359/-. Hence this complaint is filed praying to a direction to the opposite party to refund the said amount with interest and compensation of Rs.1,00,00/-.
Though the notice was duly sent to the opposite parties, it was returned as unclaimed. Hence the opposite party is set exparte.
The complainant filed proof affidavit in lieu of chief examination and Ext.A1 to A9 were marked. The report filed by the expert commissioner is marked as Ext.C1.
On evaluation of complaint and evidence on record, we would like to consider the following points.
- Whether the complainant succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
- If so, what are the reliefs and cost?
For the sake of convenience, we would like to consider Point No.1 and 2 together.
Point No.1&2
It is proved by Ext.A1 ie. The agreement for the construction which was entered between the complainant and opposite party that the opposite party has agreed to construct a residential building for the complainant in his property. The total area to be constructed as per Ext.A1 agreement is 1872 sq.ft. Opposite party agreed to complete the construction work for a total amount of Rs.32,30,000/- and he further agreed to complete the work within 9 months from the date of agreement. According to the complainant though the opposite party received a total amount of 14,65,159/- from the complainant the opposite party abstained from completing the construction of the house. It is stated in the proof affidavit as well as the complaint that the complainant had paid Rs.6,00,000/- on 26-12-2019 and 7,00,000/- on 10-02-2020. On going through the conditions of the payment of bill in Ext.A1 agreement it can be seen that the complainant had paid Rs.6,00,000/- as advance to the opposite party. It is further agreed by the parties that the balance payment would be made at the different phases of the construction work. It is agreed that Rs.7,00,000/- would be paid at the completion of the basement and another 3,00,000/- would be paid at the completion of block work and another 4,00,000/- would be paid at the completion of slab work. The specific case of the complainant is that even though the opposite party received Rs.14,65,159/- he had completed the work only for Rs.10,75,800/- and thereafter he refrained from completing the construction work. In order to prove his case the complainant had applied for an appointment of an Expert Commissioner and an Expert Commissioner, who is appointed by this Commission filed Ext.C1 report after the inspection of the subject matter building. In C1, it is reported by the Expert commissioner that the construction of the building is completed upto roof slab level and roof slab is yet to be done. It is further reported by the Expert Commissioner that as per the Ext.A1 agreement a contractor has promised to do the random rubble mesonry for foundation and basement with cement mortar 1:6. But the same was done with mud mortar. Expert Commissioner further reported that the opposite party has made such changes without the prior permission of the complainant and it shows negligence on the part of the opposite party. In Ext.C1 it is stated that the pergolas on the porch front side is missing. He further reported that the depth of the basement belt is only 7.1 cm which s less than the promised width of 10 cm. He further reported in Ext.C1 that the thickness of the shade at site is 5 cm. which is less than what is stated in Ext.A9 bill as 8.5 cm. Expert Commissioner categorically reported that the actual quantity of soild block masonry at site is 50.05m3 that is 5.53m3 less from what is stated in Ext.A9 bill. He categorically reported that the contractor raised Rs.4,68,282/- vide Ext.A9 bill for the incomplete works. It is further reported by the Expert Commissioner is that the grade of concrete at the site is 1:2:4 though the promised grade in agreement was 1:1.5:3. He further reported that the rate quoted for R.C.C. and block works, coating and other R.C.C works and cost of steel and cement is very high. Ext.A9 ie. The running bill issued by the opposite party on 11-08-2020 proves that the opposite party has completed the work for an amount of 10,75,800/-. According to the complainant he had paid Rs.14,65,159/- to the complainant. There is no contrary evidence before us to disbelieve the evidence adduced by the complainant regarding the payment of the amount to the opposite party. It is proved by the C1 commission report that the opposite party has not completed the construction work upto the slab level. On perusal of Ext.A1 agreement complainant is bound to pay the 1st 3 phases of the bill after the completion of the work upto slab level. Therefore we are of the opinion that the opposite party had received an excess amount of Rs.3,89,359/- from the complainant and thereafter he abstained from the further construction of the house.
Section 2 (11) of the Consumer Protection Act, 2019 defines
‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes –
- any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
- deliberate withholding of relevant information by such person to the consumer.
Thus on the evaluation of the above discussed evidence, we are of the opinion that the opposite party has committed deficiency in service by committing imperfection, shortcoming and inadequacy in the quality of the construction which he undertook to maintain vide Ext.A1 agreement for the construction of the residential building of the complainant. No doubt the complainant had entrusted the work of construction to the opposite party by believing that the opposite party would have realised the dream of the complainant for a good dwelling house without any defect. Due to the deficiency in service committed by the opposite party the complainant had suffered much mental agony and hardship for which the opposite party is liable to compensate. In this circumstances, we allow the complaint and pass the following Order.
- We here by direct the opposite party to pay Rs.3,89,359/- to the complainant with interest @6% from 09-10-2020 ie. the date on which the complaint filed till realization.
- We hereby direct the opposite party to pay Rs.50,000/- as compensation for the mental agony due to the deficiency in service.
- We hereby direct the opposite party to pay Rs.10,000/- as cost.
The Order shall be complied with within a period of 30 days from the date
of receipt of Order. If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 15th day of December, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1 - Copy of contract agreement.
A2 – Copy of lawyers notice dtd.15-09-2020
A3 – Postal receipt
A4 – Postal acknowledgement card
A5 – Tax invoice dtd.18-07-20 issued by Cochin Steels and Cements
A6 – Receipt dtd.10-08-2020
A7 – Receipt dtd.15-08-2020
A8 – Receipt dtd.10-08-20
A9 – Cash bill dtd.11-08-2020 issued by opposite party
Commission report
C1 – Commission report submitted by Er.Sunil K. Jose dtd.17-11-20
By Order
Senior Superintendent
