SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of Consumer Protection Act 2019 for an order directing the opposite party to return the amount of Rs.33,00,000/- to the complainant along with compensation of Rs.12,00,000/- and cost to the complainant for the deficiency of service on his part.
The case of the complainant in brief
On 01/07/2015 the complainant andoP ented in to a written agreement to carry out the work of the newly constructed residential building of the complainant. The OP has agreed to do the entire work of 3150 Sq.feet at a rate of 1125/- per Sq.feet. As per the written agreement the complainant entrusted the work to OP and the amount covers cost and convenience of all materials including leading, lifting and all labour charges. The teak wood for the construction was supplied to him by the complainant. As per the agreement he further agreed to use cement of Ultra tech company Malabar classic, Dalmia Vajram, steel of Vizag TMT, Peekay steel TMT, filtered sand and MS sand & 1st quality of laterate, etc for the construction. As per the terms of the agreement he had to commence the work after getting finalised plan and specification and to complete the work in all aspects within 8 months form the date of agreement. Moreover the OP had to execute the specifications clauses of the agreement such as excavation of land for foundation, foundation is laterite masonry throughout (approximately 6 lines), plinth with laterite masonry, earth filling inside plinth, plinth beam throughout, reinforced concrete columns will be provided as and where required, concrete belt throughout and sunshade on both ground and 1st floor, main slab concrete, floor concreting in plain cement concrete, reinforced concrete retaining wall will be provided at the required areas, electrical conduct works and rain water pipes, De box and main board will be provided, plastering in cement mortar 1:3. As per the agreement the complainant had to pay Rs.34,50,000/- by installments mentioned in the agreement on completion of half of plastering work. The balance amount shall be paid after the completion of the entire work. As per the agreement the OP had to finish construction work within 8 months. But after the lapse of 4 year the OP could complete only 70% of the work. The complainant had paid an amount of Rs.32,50,000/- out of total amount to be paid as per the agreement. Actually the OP failed to convince the complainant regarding the in ordinate delay occurred in executing the work. The complainant had unloaded teak wood worth Rs. Lakhs at the site for the construction, one year after the agreement the OP did not keep the same in a protected area, most of the wood destroyed and became useless and consequent to which the complainant suffered huge loss. Since the construction did not complete in time, severe damage like leak and cracks caused to the already completed structure. Moreover the work already done by the OP is not as per the approved plan also. The OP has omitted to fit some door frames and sunshade & down in the plan and also one box in front of the house. As per the agreement the OP is bound to use filter sand and M sand for construction instead of that he used only M sand that affected the strongness of the structure. In the case of cement the OP used some JSW cement instead of Ultratech, ACC etc. The repeated demand of the complainant the OP is not ready to complete the work and cure the defect also. Then the complainant send a lawyer notice to OP and the notice refused by the OP. Thereafter some mediators approached the OP and asked him to complete the work at earliest and the OP demanded Rs.50,000/- to start the work. Then the complainant paid Rs.50,000/- to OP on 11/11/2020. But the OP not started the work. The work only done by him was digging a pit for septic tank, which is not yet completed. The pit dig for septic tank was also not closed so far. Then the complainant constrained to file a complaint before the district superintendent of police Kannur on 10/04/2021. The act of OP the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OP. Hence the complaint.
After filing complaint notice issued to OP. Then OP received the notice and not appeared before the commission and not filed version. Then commission had to hold that the OP have no version as such this case came to be proceed against the OP as set ex-parte.
Even though the OP remained ex-parte it is for the complainant to establish the allegation made by him against OP. Hence the complainant was called up on to produce evidenced in the form of affidavit and documents. On 11/04/2022 the complainant filed a petition to appoint an expert commissioner to inspect the subject building and to file report regarding the nature of construction done by the OP and the valuation of work of OP, the expense to be spent for the completion of the remaining work and the rectification of the work done by the OP. The petition allowed by the commission on the basis of the steps taken from the side of complainant, Mr. Sujith kumar P, Assistant Engineer PWD special building, civil station, Kannur was appointed as expert commissioner. After inspection the expert filed the report before the commission and marked as Ext.C1. Accordingly the complainant has chosen to produce his affidavit along with 5 documents marking them Ext.A1 to A5. The complainant was examined as Pw1. So the OP was remain absent in this case. At the end the commission heard the case on merit. Moreover the complainant filed objection to the commission report also.
Let us have clear glance at the relevant documents of the complainant. Ext.A1 is the agreement which clearly shows that the terms and conditions, specifications and the payment terms towards the OP from the clients(complainant). In Ext.A2 is the lawyer notice issued by the complainant to OP dated 17/09/2020, Ext.A3 and Ext.A4 are the returned notice of OP. Ext.A5 is the complaint filed by the complainant to OP before the superintend of police Kannur dated 10/04/2021. More over the report of the expert were marked as Ext.C1 through the complainant. The report of expert brings out the details of the defective work of the OP and also delaited estimate of residential building. It has been mentioned in the report that the plastering work was completed but the plastering work done in a poor quality materials. The OP build windows and doors of the residential building of the complainant and is also ruined the furniture due to termites the complainant caused much loss. Out of the plastering work 75 % of the work was done in poor quality of raw materials. As per Ext.C1 report an amount of Rs.3,66,251.12 may required to rectify the residential building and the rectification of doors and windows may required Rs.63,557.69. So the OP is liable to pay a total amount of Rs. 4,29,808.81 to complainant as the cost of the rectification charge of the residential building. The defect in the construction work is caused due to poor quality of raw materials and poor workmanship. Moreover the loss caused due to delay in construction also. The act of OP the complainant caused much mental agony and financial loss. So we hold that there is deficiency in service and unfair trade practice on the part of OP.
In the result the complaint is allowed in part directing the opposite party to pay Rs.4,29,809/-(Rs.3,66,251.12+63,557.69) as the rectification charge of the residential building and the rectification charge of doors and windows to the complainant along with Rs. 90,000/- as compensation for mental agony of the complainant and Rs.10,000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs.4,29,809/- carries 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts.
A1- Agreement
A2- Copy of lawyer notice
A3-Returned notice
A4- Returned notice
A5-Complaint copy filed before SP
C1-Expert report
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
