By Sri. K. Gheevarghese, President:
The complaint filed under section 12 of the Consumer Protection Act 1986.
The complaint in brief is as follows:- The Complainant entrusted the work of constructing a house to the Opposite Party. The Opposite Party is a neighbour of the Complainant and very close to the Complainant's husband. The terms and conditions of the work was such that the material required for the construction was to be supplied by the complainant and the work was to be done upon the direction of the Opposite Party. The Opposite Party started living in the newly constructed house since 2006. The roof of the house from the very beginning itself found to be wet and leaking. The Complainant spent near about Rs.8,00,000/- for the construction. The amount required for the expense of the construction was borrowed from the bank and other individuals. The Complainant has to met Rs.6,000/- the payment of the interest of loan. The Opposite Party contacted several times to rectify the damp and leaking condition of the roof. The Complainant is in the opinion that the damp and leaking conditions are only due to the drawback in construction. The construction works was carried out by the Opposite Party in terms of piece rate . The Opposite party altogether received Rs.1,00,825/- from the Complainant towards the wages. The acceptance of the amount from the Complainant is recorded in the diary of the Complainant. The carpentry work was done by the brother of the Opposite Party. The Complainant demanded the Opposite Party time and again to rectify the defects in construction but was not ready to responded to it. There may be an order directing the Opposite Party to compensate the Complainant Rs.1,60,000/- which is required for the rectification work. Towards the mental pain and agony the Complainant is to be compensated with Rs.25,000/-.
2. The Opposite Party filed version in short it is as follows:- The construction work as alleged by the Complainant was not done by this Opposite Party. The allegation of the Complainant is inherent with malafied intention. The Opposite Party is a carpenter and engaged in carpentry work alone. The carpentry work of the Complainant was done by this Opposite Party and the Complainant was not given the full amount agreed to be paid ie Rs.13,000/- which is yet to be paid to the Opposite Party, even though it was demanded several times earlier. The Complainant expressed some lame excuses such as the bedridden condition of her husband and the amount is not yet received from the Complainant.
3. In the carpentry work of this house no drawback is in effect. The Opposite Party was not in anyway connected to concrete work or the masontry worker as alleged by the Complainant. The complaint filed is with the ulterior motives and with the planed desire of the Complainant to evade from the amount liable to be paid. The complaint filed is only on experimental basis. The Opposite Party also filed additional version with an averment that the documents produced by the Complainant are forged and concocted. The Opposite Party has no connection with the construction work of the Complainant other than the carpentry work. The complaint is to be dismissed with cost to the Opposite Party.
4. The points in consideration are:- Is there any deficiency in service on the part of the Opposite Party in the construction of the house? Relief and cost.
5. Points No. 1 and 2:- The evidence in this case consists of affidavits of Complainant and Opposite Party. Exts A1 to A4, B1 and C1 are the exhibits. The complainant is examined as PW1. The witnesses of the Complainant are PW2 and PW3. The Opposite Party is examined as OPW1 and the witness for the Opposite Party is examined as OPW2. The Expert Commissioner is also examined as CW1 in this case.
6. The case of the Complainant is that the construction of the house was given in contract to the Opposite Party. The work entrusted was not done with standard of workmanship. The Opposite Party deviated from the terms and conditions of work which are expected to be done by the Opposite Party. It is admitted by the Complainant and Opposite Party that there was no written agreement in between the Complainant and Opposite party on the terms and conditions of the work. In the oral testimony of the Opposite Party it is admitted that the husband of the Complainant is known to the Opposite Party for 10 to 20 years. The contention of the Opposite Party is that the Complainant is bound to pay Rs.13,000/- towards the amount agreed for the carpentry work. According to the Complainant the carpentry work was done by the brother of the Complainant. The Opposite Party has not taken any steps to get the balance amount from the Complainant and nothing is brought out any evidence to bring forth the contention of the Opposite Party. Two witnesses are examined in this case PW2 and PW3. PW2 is the engineering consultant who gave the technical report containing the details of construction which is marked as Ext.A2. It is asserted in deposition of PW2 that on inspection of the house the roof is leaking apart from that the construction was not complying to the plan given. The reason for the leaking was only due to the poor quality of materials and workmanship. The roof is in a leaking condition from the very beginning onwards. The report of the Commissioner is Ext.C1 and the Commissioner is also examined as CW1. The roof work of the reception room is shown flat slab in the plan but it is constructed as slope roof laying tiles on it. The joining portion of the slope roof and flat slab crack is seen in the adjoining portion. The roof found to be leaking and in damp condition. An another independent witness who is examined as PW3. On examination he deposed that the Opposite party is a carpenter who engaged in contract work of building construction. It is not reasonable to consider that a more demand of the Opposite party for the remaining amount lead to the complaint. More over the complainant has not produced any documents in that effect such the Opposite Party has neither demanded nor taken any steps to get the amount due to him. Whereas on the other side the evidence brought up in the case establishes that the Opposite Party involved in the building construction which is with roof leakage. The poor workmanship and substandard quality of the material may be the reason for leaking of the roof according to the expert. It is an absolute deficiency in service on the part of the Opposite Party. The complaint filed is for compensation and the cost required for making the structure on the roof to prevent the leakage. According to the Complainant Rs.1,60,000/- is necessary to construct such as structure to prevent the leakage. The amount demanded for rectification of the leakage in it's entirety cannot be considered the absence of any evidence required for it. We are in the opinion that the Complainant is to be compensated with Rs.50,000/- towards the cost of rectification work along with cost.
In the result, the complaint is partly allowed. The Opposite Party is directed to give the Complainant Rs.50,000/- (Rupees Fifty thousand only) towards the rectification of the construction along with cost of Rs.2,000/- (Rupees Two thousand only). The Opposite party is also directed to pay interest at the rate of 9% from the date of filing this complaint till the date of payment to the Complainant. This is to be complied within one month from the date of receiving this order. Pronounced in open Forum on this the day of 29th January 2010. PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
A P P E N D I X Witnesses for the Complainant: PW1. P. J. Baby. Complainant. PW2. Rajesh. Engineering Consultant. PW3. T.P. Jose. Agriculture. CW1. Ismail kutty. Asst. Executive Engineer. Witnesses for the Opposite Party: OPW1. Sarasan Carpenter. OPW2. Babu. C.A. Centering Work. Exhibits for the Complainant: A1. Copy of Plan. A2. Technical Report. A3. Plan of the proposed Residential Building. A4. Diary. C1. Commission Report. dt:13.10.2009. Exhibits for the Opposite Party: B1. Copy of Certificate. dt:06.09.2009.
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