By Sri. Chandran Alachery, Member:-
The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite party to pay a sum of Rs.4,50,000/- towards damages caused to the Complainant due to the defective construction by the Opposite Party with 12% interest from the date of damage.
2. Complaint in brief:- The Opposite party is a contractor engaged in the building construction. The Complainant entered in to an oral agreement with Opposite Party to construct the house, retaining wall and compound wall to the house of the Complainant. The Complainant had provided 25 loads of granite and sufficient soil in the spot for the construction of retaining wall and to level the courtyard. The Opposite party had constructed a retaining wall. 34 meters length and 3 ½ meters height in the western side of the house. The Complainant spent sum of Rs.2,70,000/-. The Opposite Party had completed the construction work through Bengali workers on 30.10.2013. On 23.10.2014 entire retaining wall fell down in toto. The filled soil is completely slided down in the southern side very close to the house. This was due to the defective construction of Opposite party. The retaining wall constructed of the Opposite Party in the eastern and western parts are likely to be fallen down at any time. The Complainant spent Rs.70,000/- for the construction of two retaining walls in the northern and southern side. The Opposite party has not provided sufficient air holes and no sufficient drainage system were provided in the wall to drain the rain water. Adequate foundation were not provided, Sufficient pillers were not constructed by the Opposite Party while constructing retaining wall. For clearing the damage, the complaint requires Rs.4,50,000/-. There is deficiency of service from the part of Opposite Party. Aggrieved by this, the complaint is filed.
3. On receipt of complaint, notice were issued to Opposite Party and Opposite Party appeared before the Forum and filed version. In the version, the Opposite Party denied the averment that the Opposite party had entered in to an oral agreement with Complainant for the construction of house, retaining wall and compound wall. The Opposite Party had done the construction work on coolie basis. The Complainant is liable to pay Rs.2,00,000/- on coolie basis to the Opposite party and the amount is still pending. When the Opposite party demanded the amount, the Complainant filed this complaint only to escape from the liability. The construction work of retaining wall and compound wall is done by the Complainant by using his own workers. The Opposite Party had no relation with this construction. The Complainant asked the Opposite Party to do the construction work of house after the construction of compound wall and retaining wall by the Complainant. This Opposite party had done the construction work of house as daily coolie basis. The Opposite Party denied the averment that the Opposite Party received Rs.85,000/- towards the construction of retaining wall and compound wall and the amount that the Opposite party had done such work with Nepali workers is also denied by the Opposite Party. There is no deficiency of service from the part of Opposite Party.
4. On perusal of complaint, version and documents, the Forum raised the Following points for consideration.
1. Whether there is deficiency of service from the part of Opposite parties?
2. Relief and cost.
5. Point No.1:- The Complainant filed Proof affidavit and is examined as PW1 and Ext.A1 series marked and Two Commission Reports are marked as Ext.C1 and C2. The Opposite Party not adduced any evidence. Ext.A1 series are the photos and CD with respect to the damage sustained to the retaining wall and compound wall. In Ext.C1 series ie Ext.C1(s), the Commissioner stated that at present 25 meter of retaining wall at collapsed stage and 5 M length existing condition. The exposed face of existing retaining wall in plastered that it is not safe and not allowing the free passage of water. The wall collapsed is due to non providing of proper drainage. In Ext.C1 report, it is stated that the wall in Northern side is totally collapsed. In the additional version of Opposite party, Opposite party admitted that the house construction work is on oral contract with Complainant. The Opposite party also admitted that he had done retaining wall and compound wall work on coolie basis. The PW2 is a witness who supported the complaint. PW2 deposed that he knows the Complainant and Opposite Party and the oral contract between them. The Opposite party had done the work of retaining wall and compound wall and thereafter construction of the house. PW2 deposed that the wall collapsed immediately after one year. So PW2's evidence corroborates the evidence of PW1. The Opposite Party not adduced any oral evidence. But in Opposite Party's additional version, Opposite Party admitted that the Opposite party had done the work of retaining wall and compound wall in coolie basis. So it is found that the retaining wall and compound wall work had done by the Opposite party by himself. So the contention in 1st version filed by the Opposite Party that the Complainant had done compound wall and retaining wall work by his own labours is false. As per Commission Report, the compound wall and retaining wall is collapsed due to no providing of sufficient water halls in the walls. If it is on contract basis or coolie basis, the Opposite Party had accepted consideration for the work done by him. By analysing the entire evidences the Forum found that there are defects in the work done by Opposite party which resulted deficiency of service from this part. Point No.1 is found accordingly. The Complainant can utilise some granites from the collapsed wall and it can be valued as Rs.50,000/-. The Complainant stated that the Complainant had spent Rs.2,70,000/- for the construction of retaining wall and compound wall. From this Rs.2,70,000/-, Rs.50,000/- can be deducted as value of granites.
6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.
In the result, the complaint is partly allowed and the Opposite Party is directed to pay Rs.2,20,000/- (Rupees Two Lakh and Twenty thousand) only being the cost of construction of compound wall and retaining wall and also the Opposite Party is directed to pay Rs.25,000/- (Rupees Twenty Five thousand) only as compensation for the deficiency of service from the part of Opposite Party and Rs.5,000/- (Rupees Five thousand ) only as cost of the proceedings. The Opposite party shall comply the order within 30 days from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the whole sum.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 25th day of August 2015.
Date of Filing:07.11.2014.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
PW1. Jose. Complainant.
Witness for the Opposite Party:
OPW1. Ayyappan. Coolie.
Exhibits for the complainant
A1 series 6 Photos and CD.
C1(1) Estimate Report.
C1(2) Report II (CC No.230/2014 dated 02.03.2015)
C2. Letter. dt:21.04.2015.
Exhibits for the opposite Party.
Nil.
