IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 21st day of August, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 97/2011 (Filed on 08.04.2011)
Between:
Lissy Wilson,
Memuriyil Veedu,
Omallor Village,
Kozhencherry Taluk.
(By Adv.George Abraham Pachayil) …. Complainant
And:
Sivakumar,
Kizhakkememuriyil Veedu,
Omallor Village,
Kozhencherry Taluk.
((By Adv. R. Gopikrishnan) …. Opposite party
ORDER
Smt. K.P. Padmasree (Member):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The complainant’s case is that the opposite party is a contractor doing construction works. The complainant and the opposite party entered into a written agreement on 10.05.2010 for the construction of 2 rooms in the upstair of the complainant’s house. At the time of undertaking the work, the opposite party agreed to use quality materials like company made bricks, M-sand, good quality wood and ISI marked materials for plumbing and wiring. Opposite party completed the work within 3 months as per the agreement. But the opposite party used low quality materials for the construction, as a result of this within a short span of period, several cracks appeared in plastering, door frames and door panels. It is also noticed that, materials used for plumbing and wiring is not having ISI mark. Opposite party collected exorbitant rate for this poor construction. Complainant had given the full amount as per the agreement. Non-compliance of the terms of agreement is a clear deficiency in service on the part of the opposite party which caused mental agony, financial loss and other inconvenience to the complainant. Therefore, complainant filed this complaint for getting ` 2,75,000 as compensation with 18% interest from the opposite party.
3. Opposite party entered appearance and filed version with the following contentions: Opposite party admits that he had entered an agreement with the complainant for the construction. As per the agreement, he completed his work within 3 months. Opposite party denied the allegation that he had used substandard materials for the construction. He stated that he used quality materials for the work. He admits that only one door in the western portion of the house damaged because of the hard sunlight directly fall on that door. Opposite party assured to change that door. Other allegations regarding poor quality materials are false and hence denied.
4. Opposite party made the construction as per the agreement. There is no deficiency on the side of the opposite party. Complainant has filed this complaint in order to avoid opposite party’s demand of additional amount for the additional work done by him. With the above contentions, opposite party prays for the dismissal of the complaint with his cost.
5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
6. The evidence of this complaint consists of the oral testimony of PW1, PW2, DW1, CW1, CW2, CW3 and Ext.A1 to A3, B1 to B3 and C1 to C4. After closure of evidence, complainant filed argument note and both sides were heard.
7. The Point:- The complainant’s allegation is that the construction work done by the opposite party was defective and the materials used were of law quality as against the assurance given by the opposite party at the time of undertaking the work. Due to the use of law quality materials of the opposite party, Cracks occurred in many places including the door frames and door panels. Moreover, contrary to the agreement plumbing and wiring is not done with ISI marked products. Opposite party is liable to compensate the damage sustained to her.
8. In order to prove the complainant’s case, complainant filed proof affidavit in lieu of her chief examination and produced three documents. On the basis of the proof affidavit, complainant was examined as PW1. One witness on the side of the complainant was examined as PW2. The documents produced were marked as Exts.A1 to A3. Ext.A1 is the photocopy of settlement deed No.1743 of 1990. Ext.A2 is the agreement dated 10.05.2010. Ext.A3 is the photographs.
9. On the other hand, opposite party denies all the allegations raised by the complainant. His contention is that he had used quality materials for the construction and ISI marked products for plumbing and wiring. There is no deficiency in service on the part of the opposite party.
10. In order to prove the contention of the opposite party, opposite party filed proof affidavit in lieu of chief examination and on the basis of the proof affidavit he was examined as DW1 and the documents produced were marked as Exts.B1 to B3. Ext.B1 and B2 marked through the complainant while cross-examination. Ext.B3 marked through DW1. Ext.B1 is the copy of complaint filed before Deputy Superintendent of Police, Pathanamthitta by the complainant. Ext.B2 is the copy of compromise between the parties before the police station, Pathanamthitta. Ext.B3 is the statement given by the opposite party before the police station, Pathanamthitta.
11. As per the order in I.A.129/2011 and 129(a) an advocate commissioner along with two expert commissioners were appointed by the Forum. On the basis of the commission reports, advocate commissioner was examined as CW1 and Ext.C1 and C4 were marked through him and expert commissioners were examined as CW2 and CW3 and Ext.C2 and C3 marked through them. Ext.C1 is the commission report filed by the advocate commissioner. Ext.C2 is the commission report filed by Asst. Engineer, P.I.P Section, Vadasserikkara. Ext.C3 is the commission report filed by Asst. Engineer, PWD Special Building Section, Pathanamthitta. Ext.C4 is the mahazar filed by advocate commissioner.
12. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the agreement for construction. The question to be decided is whether the materials used were poor quality or not? According to the complainant, opposite party promised to use quality materials at the time of undertaking the work. In order to prove the said aspect the complainant is relying on Ext.A2 agreement. But the opposite party’s contention is that the materials used were quality products and he has not violated the agreement. The wording of Ext.A2 seen to be an undertaking for carrying out the construction work with quality materials.
13. Ext.A3 series are the photographs of the said building. It is marked through the concerned photographer. On going through the photographs we find that there is some cracks appeared in plastering and also in door frames and window frames.
14. Then coming to C1, the mahazar filed by the commissioner it is reported that there is cracks on the plastering. He was examined as CW1. He deposed as follows:- “`n¯n-bpsS ]e `mK-§-fn-embn hncnhv I-Xmbn tcJ-s¸-Sp-¯n-bn-«p-v………. doorþsâ I«n-fbn cracks -D-m-bn-cp¶p”. Forum appointed two expert commissioners. They have filed report and they were examined before the Forum as CW2 and CW3. The relevant portion of deposition of CW2 as follows:- “`n¯n-bn cracks DÅ-Xmbn tcJ-s¸-Sp-¯n-bn-«p-v………..I«n-fIfnepw P\-ensâ I«n-fbnepw crack DÅ-Xmbn tcJ-s¸-Sp-¯n-bn-«p-v………….front door hf-ªn-cn-¡p-I-bm-bn-cp-¶p”. The relevant portion of the deposition of CW3 is as follows:- “plasteringþ ImW-s¸« hair line crackþsâ ImcWw proper cement þsâ A`m-hhpw dustþsâ km¶n-²y-hp-amWv”. It is clear from the depositions of CW1, CW2 and CW3 that there is cracks in the plastering wood frames, door panels etc.
15. Even though the commissioners noted the defects, they also reported that cracks are not seem to structural cracks and hence may not affect much in the structural stability of the building. It can be rectified to a major extent by applying putty.
16. In the facts and circumstances and from the available evidence, it is clear that there is some defects to the building construction done by the opposite party. Further, opposite party has not adduced any cogent evidence to support his contention. Based on Ext.A2, A3, C1, C2, C3 and the oral testimony of PW1, PW2, CW1, CW2 and CW3 we find deficiency of service against the opposite party.
17. In the result, this complaint is allowed with certain modifications. This complaint is disposed with the following directions:
(1) Opposite party is directed to rectify the defects in the plastering pointed out by the complainant and noted by the commissioners in their report in Ext.C1, C2 & C3 to the satisfaction of the complainant free of cost within one month from the date of receipt of this order.
(2) Opposite party is also directed to change the door in the western side free of cost.
(3) Opposite party is also directed to rectify the wrapping cracks seen in door frames and door panels by applying putty.
Opposite party is directed to comply this order within 30 days from the receipt of this order failing which the complainant is allowed to rectify the said defects and in that event complainant can realize the whole amount spent for the said rectification from the opposite party with interest at the rate of 10% from today till the realization of the whole amount.
Declared in the Open Forum on this the 21st day of August, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Lissy Wilson
PW2 : Joseph Kunju. K.K
Exhibits marked on the side of the complainant:
A1 : Photocopy of settlement deed No.1743 of 1990.
A2 : Agreement dated 10.05.2010.
A3 series :[A3 to A3 (t)] : Photographs.
Witness examined on the side of the opposite party:
DW1 : Sivakumar
Exhibits marked on the side of the opposite party:
B1 : Photocopy of complaint dated 24.03.2011 filed before the
Deputy Superintendent of Police, Pathanamthitta by the
complainant.
B2 : Copy of Compromise between the parties before the
Pathanamthitta Police Station.
B3 : Photocopy of the statement given by opposite party before
the police station, Pathanamthitta.
Court Witnesses:
CW1 : Adv. Thomas. T. Mathew
CW2 : Vimal.P.B.
CW3 : P.S. Koshy
Court Exhibits:
C1 : Mahazar prepared by the advocate commissioner.
C2 : Commission report preparedw by Asst. Engineer, P.I.P
Section, Vadasserikkara.
C3 : Commission report prepared by Asst. Engineer, PWD Special
Building Section, Pathanamthitta.
C4 : Commission Report prepared by Thomas. T. Mathew,
Advocate Commissioner.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Lissy Wilson, Memuriyil Veedu, Omallor Village,
Kozhencherry Taluk.
(2) Sivakumar, Kizhakkememuriyil Veedu,
Omallor Village, Kozhencherry Taluk.
(3) The Stock File.
