IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 14th DAY OF OCTOBER 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.118/2022
P.J.Harold,
S/o P.P John,
Joe Bhavan, Near Mosque,
Kundara, Kollam. : Complainant
(By Adv.Manju B.)
V/s
Saji S., Building Contractor,
Snehalayam,
Kummalloor P.O.,
Kattachal, Kollam 691573. : Opposite party
ORDER
Sri.Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.
The averments in the complaint in short are as follows:-
The complainant is a senior citizen and is residing in the above mentioned address. The opposite party is a building contractor. The complainant’s property having an extent of 2.94 ares situated Perinad Village is situated in a low lying area which had been submerged in water during the Kerala Floods causing the land to wash away hence it was urgent for the complainant to get the area protected by constructing side wall to protect the said property from any such incident in future. In order to construct a sidewall by availing loan from bank the complainant approached opposite party for concreting 30 meter length x 3.5 depth. After negotiation the above construction work had been entrusted with the opposite party by executing a contract dated 17.07.2018 between the complainant and the opposite party by agreeing the terms and conditions set forth in the agreement. The terms of the contract was that the opposite party shall construct the side wall concrete of 30m
length x 3.5m depth as per the agreement within 4 months from the date of agreement for a total consideration of Rs.4,30,000/-. As per the contract the opposite party started construction of the side wall concrete and completed 1/4th of the side wall ie. 14 meters from north to south direction at a height of 2.2 meters only and the balance is still reaming to be completed. As per the agreement opposite party need to construct 16m length from north to south and 1.3 m above to the 2.2 m and also filled soil into it. Since the perfection of the work was not up to the standards the complainant on different occasion expressed his grievance to the opposite party. The opposite party was not prepared to hear the complainant.
During the construction work of the opposite party on various dates received altogether Rs.4,25,000/- from the complainant by endorsing on the back of the original agreement. Since the perfection of the work was not up to the standard the complainant on different occasion made his grievance regarding this aspect. But the opposite party was not amenable to hear the complainant. Even though the opposite party received substantial amount in advance irrespective of the work done, adopted a lagging policy in construction work due to the reasons known to him only. When it was asked opposite party used to say flimsy excuses and prolonged without assigning any specific reason. In the course of the work done by the opposite party the complainant had noticed the following defects and irregularities. a. The opposite party had applied cheaper quality of materials in the sidewall concretes. b. The walls are irregular. c) That the edges of the wall are not correct d) That the opposite party used low quality cement for concreting. e) That the plastering is seen cracked on different points.
The opposite party used low quality materials against the agreement and hence the walls are rough without any perfection. The other finishing works are done in an irregular manner without any perfection and the entire work lacks perfection in all respect. On noticing the same the complainant requested the opposite party to rectify the above defects before completing the other works. But opposite party was not amenable for that. Dissatisfied with the genuine demands of the complainant the opposite party without assigning any reason stopped the work and withdrawn his workers as well as the materials from the work site on 20.03.2019 without the knowledge of the complainant. Considering the urgency of the complainant on several occasions requested and demanded the opposite party to complete the work within the stipulated time but there was no positive response. Now the opposite party has received Rs.4,25,000/- on different occasions and carried out the work worth Rs.1,50,000/- only.
The complainant on several occasions demanded the opposite party to complete the work and at last the opposite party agreed to complete the work before 30.12.2020. Even though the opposite party agreed to complete the work on 30.12.2020 he did not keep on his words and adopted delaying tactics by saying one reason or another. As there was no attempt to do the work as agreed the complainant demanded back the excess amount Rs.2,75,000/- received by the opposite party and upon demand they sought one month more time to complete the work and agreed to complete the work on or before 30.01.2021 if not opposite party agreed to refund the excess amount received by him. But again the opposite party did not complete the work on the extended period. The complainant has taken estimate regarding the work done by the opposite party and found that the opposite party has done work worth Rs.1,50,000/- only and the balance work as per the agreement is even now remaining. But the opposite party has received substantial amount from the complainant. The opposite party had acted in very cunningly and internationally manner by demanding and accepting excess amount irrespective of the work done and perfectly backed out from the contract for unlawful enrichment. The remaining works to be done by the opposite party as envisaged in the contract are side wall 2nd stage. The side wall concrete 3rd stage. Soil filling.
In the circumstances the complainant has no other option than to revoke the agreement due to the non-fulfillment of the obligation from the side of the opposite party and has issued a legal notice on 14.12.2021 revoking the contact and demanding the excess amount Rs.2,75,000/- with interest of 18% received from him within 7 days from the date of receipt of the notice. The opposite party accepted the notice on 15.12.2021 but did not complied with the demand and hence the complaint.
Though notice was issued from this commission to the opposite parties they failed to appear before nor made any representation hence he was set exparte. The complainant filed proof affidavit by reiterating the averments in the complaint and got marked Ext.P1 to P5 documents. Heard the counsel for the complainant and per used the records. Ext.P1 is photocopy of the sale deed No.5009/1995. Ext.P2 is the agreement 17.10.2018 executed by the opposite party. Ext.P3 is the legal notice dated 14.12.2021 issued to the opposite party. Ext.P4 postal receipt. Ext.P5 acknowledge cad evidencing the receipt of legal notice by the opposite party. Ext.C1 is commission report dated 27.06.2022.
The unchallenged averments in the affidavit coupled with Ext.P1 to P5 documents would establish prima facie that that complainant had entered into a contract with the opposite party on 17.10.2018. Ext.P2 agreement for construction would make it clear the details of the construction total amount required for the construction of the side wall the period in which the work has to be completed. But the opposite party failed to carry out the work as per the terms of Ext.P2 agreement. It is clear from the available materials including Ext.C1 commission report that the opposite party has started and completed only ¼ of the construction work which is 14 meters from north to south direction at a height of 2.2 meters only and the balance is still reaming to be completed. As per Ext.P2 agreement the work has to be constructed 16m length from north to south and 1.3 m above to the 2.2 m and also fill soil into it. It is also clear from the available materials that the completion of the work was not up to the standard and several occasion complainant had made complaints before the opposite party about the same. But he did not prepared to hear the grievance of the complainant. It is also clear from the available materials including the endorsement of opposite party. On the reverse side of Ext.P2 that the opposite party on various dates received altogether Rs.4,25,000/- from the complainant. However the work was not fully carried out and perfection of the work done was not up to the minimum standards. The grievance of the complainant was not at all considered by the opposite party even though the opposite party received substantial amount in advance irrespective of the work done, adopted a lagging policy in the construction work due to the reasons known to him only. It is also brought out in evidence that the opposite party used low quality materials in contravention of the terms of agreement and hence the walls are rough without any perfection. Moreover the finishing works are done in an irregular manner without any perfection and the entire work lacks perfection in all respect. This was pointed out by the complainant and requested to rectify the above defects before going for other works but no response was from the part of the opposite party. In the circumstances dissatisfied with the genuine demands of the complainant the opposite party without assigning any reason stopped the work and withdrawn his work and withdrawn his workers and materials from the work site on 20.03.2019 without the knowledge of the complainant. It is also clear from the available materials that on several occasions complainant approached the opposite party to complete the work within the stipulated time but there was no positive response that the opposite party had received Rs.4,25,000/- on difference occasions and completed work worth Rs.1,50,000/- only. Even though the opposite party agreed to complete the work on or before 30.12.2020 he did not keep on his words and adopted delaying tactics by saying one reason or another.
The cost of work so far done are stated in Ext.C1 commission report which are (a) work for a) work for excavation is Rs. 1818/-b) Cement concrete 1:4:8 is Rs.24,150/- c)steel reinforcement cut, bent and tied in position Rs.76,049/-d) cement concrete 1:3:6 Rs.1,04,558/- e) Shuttering for concrete Rs.48,688/- f) random rubber masoning 1:6 Rs.24,584/- total Rs.2,79,847/-. In view of the unchallenged averments in the affidavit filed by the complainant coupled with Ext.C1 commission report it is clear that the total value of the completed work done by the opposite party is for Rs.2,79,847/- only. As per the Ext.C1 commission report the remaining work to be completed are mainly balance 1:3:6 concrete reinforcement works repairs to concrete etc. and the cost of the such work is assessed as Rs.1,45,153/-. And requires Rs.50,804/- as labour charge. It is also clear from Ext.C1 report the works so far completed is average and substandard at some portion. The commissioner has also opined in Ext.C1 urgent remedy is taken the house close to the retaining wall is in a dangerous condition. The commissioner has further opined that the amount of Rs.4,25,000/- received by the opposite party is excess payment. The commissioner had also assessed Rs.35,000/- for rectifying the defects in the construction. It is also clear from the available materials that due to the defective and incomplete construction the complainant has sustained much mental agony apart from financial loss. Hence the complainant is entitled to get the compensation from the opposite party. Complainant is entitled to get back Rs.2,75,000/- which the opposite party received in excess of the work carried out.
On evaluating the entire materials available on record we hold that the opposite party had entered into a contract with the complainant and performed the construction work with low quality materials and not in a minimum standard as per the agreement. However the opposite party failed to complete the work. The opposite party is under an obligation to perform the work of the side wall in a perfect condition as per the terms of Ext.P2 agreement which he failed to do so. The non-fulfillment of the obligation on the side of the opposite party amounts to deficiency in service .
On evaluating the entire materials available on record we find merit in the complaint and the same is only to be allowed.
In the result complaint stands allowed in the following terms.
- The opposite party is directed to refund Rs.2,75,000/- received by him in excess with 6% interest from 20.03.2019 onwards.
- The opposite party is also directed to pay Rs.35,000/- for repairing and rectifying the defects of the work done by the opposite party in construction work done.
- The opposite party is directed to pay Rs.25,000/- as compensation to the complainant for the mental agony inconvenience caused to the complainant due to the non-completion and defective construction of the wall by the opposite party.
- The opposite party is also directed to pay Rs.5,000/- as costs of the proceedings.
- The opposite party is directed to comply with above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to realize the amount of Rs.3,35,000/- along with interest @ 9 % p.a. from the date of complaint till realization along with costs from the opposite party and from his assets both movable and immovable.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission this the 14th day of October 2022.
STANLY HAROLD:Sd/-
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-
Suomoto corrected as no such witness has been examined in this case.
Documents marked for the complainant
Ext.P1 : Photocopy of the sale deed No.5009/1995
Ext.P2 : The agreement 17.10.2018 executed by the opposite party.
Ext.P3 : The legal notice dated 14.12.2021 issued to the opposite party.
Ext.P4 : Postal receipt
Ext.P5 : Acknowledge cad evidencing the receipt of legal notice by the opposite party
Ext.C1 : Commission report dated 27.06.2022
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-Nil
