IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 30th day of December, 2021.
Filed on 19.03.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.73/2021
between
Complainant:- Opposite party:-
Smt. Vilasini Sri. Babukuttan
W/o Radhakrishnan S/o Kochucherukkan
Thekkeyattom Kollanteparambil
Mampalayil House Punnapra,Ambalappuzha,
Karoor, Ambalappuzha (Adv.Cherian Kuruvila)
(Adv. Sajila.S)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly stated are as follows:-
Opposite party is a building contractor. Complainant started construction of the residential building with the financial assistance from the Local Grama Panchayath under Life Scheme and she also intended to construct a first floor in the building having two bed rooms, one bathroom and a stair room. She entered into a mutual agreement with the opposite party on 01.12.18. By the tenor and term of the agreement opposite party had agreed and promised to construct the proposed building as per the approved plan and license at a total amount of Rs.10,50,000/-. The area was 409-418 sq.meters and the period fixed for completion was 7 months. Opposite party received an amount of Rs.2,00,000/- and later he received Rs.50,000/- from the complainant. Thereafter opposite party received Rs.40,000/- on 20.01.2019, Rs.1,60,000/- on 19.03.2019, Rs.50,000/- on 27.04.2019, Rs.60,000/- on 15.07.19, Rs.40,000/- on 07.10.2019, Rs25,000/- on 18.11.2019, Rs.50,000/- on 01.01.2020, Rs.50,000/- on 28.01.2020, Rs.50,000/- on 24.02.2020, Rs.50,000/- on 04.05.2020, Rs.20,000/- on 09.09.2020, and Rs.50,000/-17.12.2020. Thus opposite party received a total amount of Rs.8,95,000/- from the complainant.
2. The 7 months tenure already elapsed but the opposite party has purposefully failed and willfully neglected and omitted to complete the construction. Opposite party could not complete the work even after the expiry of period of agreement, though complainant made several requests for the completion of the agreed construction. So the contract between the complainant and opposite party was terminated due to lapse of time. On 14.2.21 opposite party agreed that he will complete the plumbing works within 2 days but contrary to that he did not start the work. On 24.02.2021 complainant issued a notice informing the termination of the agreement. Opposite party issued a reply notice raising false and untenable contentions. The constriction of the building is not yet completed and further more work is pending. Constructions expending an amount of Rs.6,95,000/- only was done, though opposite party received Rs.8,95,000/-. Complainant is entitled to realise an amount of Rs.2,00,000/- being the balance amount which was given as advance. Opposite party threatened the complaint demanding a further amount of Rs.3,20,000/-. Hence the complaint is filed for realizing an amount of Rs.2,00,000/- and Rs.2,00,000/- as compensation.
3. Opposite party filed a version mainly contenting as follows:-
Though the agreement is dated 1-12-18 it was signed only on 20-1-19. The agreement relied on by the complainant is not a genuine one since manipulations were done in the same. Opposite party undertook the construction of the house as per the specification in the agreement for a sum of Rs.10,50,000/-. After the commencement of the constructions complainant demanded several additional structures without amending the agreement. Payment for additional expenditures were promised.
4. Opposite party received a notice dated 24.02.21 pertaining an agreement dated 01.12.18. As per the agreement construction was to be completed within 7 months. The delay occurred due to the demands for additional works and alterations. Complainant violated conditions regarding the payment to the opposite party. Complainant had agreed to make payments on receipt of the installments of financial assistance from the Panchayat. The contents of the notice are not true. As per the agreement the area of the ground floor was 418 sq. feet and the area of the first floor is not specified in the agreement. Taking advantage of the deficiencies of the agreement complainant made the opposite party to make additional constructions promising additional payment. The ground floor constructed now is 420 sq. ft. and the first floor is having an area of 360 sq.ft. Opposite party had incurred expenditure for more than 14 lakhs for the construction.
5. On 2-3-21 opposite party issued a notice demanding the payment of balance amount. The complaint is filed to evade the payment of balance amount. Complainant is not entitled for balance amount and hence the complaint may be dismissed with compensatory cost.
6. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of opposite party as alleged?
- Whether the complainant is entitled to realize an amount of Rs.2,00,000/- being the excess paid amount as claimed ?
- Whether the complainant is entitled to realize an amount of Rs.2,00,000/- as compensation as prayed for?
- Reliefs and cost?
7. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A5 from the side of the complainant and the oral evidence of RW1 and Ext.B1 from the side of opposite party. The commission report prepared by PW2 was marked as Ext.C1.
8. Point Nos.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3.
9. PW2 is the advocate/expert commissioner in this case on 22.03.21. he visited the plaint scheduled property and prepared estimate and photographs. It is marked as Ext.C1 and C1(a) series. He had taken 18 photographs to show the present position of the building.
10. RW1 is the opposite party in this case. He filed an affidavit in tune with the version and marked Ext.B1. During cross examination Ext.A4 and A5 were marked.
11. On 1/12/2018 PW1, the complainant entered into Ext.A1 Agreement with RW1, the opposite party by which RW1 agreed to construct a house having an area of 409-418 sqft at the property of PW1 for an amount of Rs.10,50,000/-. The house was allotted to PW1 under the life mission scheme from the panchayath and along with the same, PW1 wanted additional constructions on the 1st floor. The period of agreement prescribed in Ext.A1 to complete the construction was 7 months from the date of signing the agreement. The agreement though is dated 1/12/2018 it was signed on 20/1/2019. RW1 started construction and he had collected a total amount of Rs. 8,95,000/- from PW1. However inspite of lapse of 20 months construction was not completed. Hence on 24/2/2021 PW1 withdrew from the contract and sent Ext.A2 letter. Ext.A3 reply notice (Ext.B1) was sent for and on behalf of RW1 on 2/3/2021. According to PW1 construction only up to Rs.6,95,000/- were done by RW1. Hence she has filed the complaint for realizing an amount of Rs.2 lakhs which was collected in excess along with an amount of Rs.2 lakh as compensation with interest. Opposite party entered appearance and filed a version mainly contenting that the construction is almost completed. The ground floor constructed is having an area of 420 sqft and the 1st floor is having an area of 360 sqft. RW1 had spend an amount of Rs.14 lakhs for construction. The delay occurred since he was directed to do some additional works which it is not in Ext.A1 agreement. Hence according to him he is not liable to pay any amount and infact he had done work of excess amount than the amount collected by him. Complainant got examined as PW1 and marked Ext.A1 to A3. As per the request of complainant an Advocate Commission cum expert visited the property on 22/3/2021. He was examined as PW2 and the commission report was marked as Ext.C1. He had taken 18 photographs showing the present status of the building and it is marked as Ext.C1 series. Opposite party got examined as RW1 and Ext.B1 was marked. During his cross examination Ext.A4 plan, and Ext.A5 elevation was marked.
12. Execution of Ext.A1 Agreement and receipt of Rs.8,95,000/- is admitted by opposite party. The dispute is that according to PW1 construction done was only for Rs.6,95,000/- and it was also not completed within the period of 7 months as stated in the agreement. Per contra the contention taken by opposite party is that delay occurred due to additional constructions which were done as per the request of PW1’s son in law. According to him the area of the ground floor was 420 sqft and the 1st floor was 320 sqft. He has done work for a total amount of Rs.14 lakhs and hence according to him the allegation that work for Rs. 6,95,000/- alone was done is unsustainable. Since he had done work for Rs.14 lakhs complainant is not entitled to realize any amount from him and so the complaint is only to be dismissed. As rightly pointed out by the learned counsel appearing for the opposite party in Ext.A1 it is not mentioned regarding the specifications of the work to be done. In Ext.A1 it is stated that the area of the ground floor is upto 409-418 sqft which is as per the specification of the life mission scheme of the Panchayath. Though it is mentioned that certain construction had to be done like 2 bed room one bathroom, one stair room etc. on the 1st floor the area is not mentioned. Though PW1 stated that constructions only for Rs.6,95,000/- were done she has no idea regarding the same. PW2 an advocate cum expert commissioner inspected the property and prepared Ext.C1 report and Ext.C1(a) Photographs. As per Ext.C1 report and Ext.A4 plan it is seen that the area of the ground floor is 418 sqft and area of the 1st floor is 332 sqft. In Ext.C1 report it is stated that vitrified tiles are laid in the rooms and plumping sanitary pipe works which were done are incomplete. Electrical works are also incomplete. So from Ext.C1 report it can be seen that the work was not completed. As per the assessment of PW2 the amount spend for total work is Rs.7,90,750/- However as rightly pointed out by the learned counsel appearing for the opposite party the amount calculated for the structural work is @ of Rs.850/-per sqft and the total area is 750 sqft. Though PW2 stated that it was calculated as PWD rate it appears that it is very much on the lower side. It was pointed out that since the specifications are not mentioned in Ext.A1 agreement, it will not stand in the eye of law. Specifications regarding vitrified tiles sanitations, electrical etc. are not mentioned in Ext.A1 agreement. It was also pointed out that as per Ext.A1 agreement complainant had to help opposite party to bring the building materials to the site since it was difficult. However during cross examination PW1 stated that it was brought by opposite party at the site. Since the specifications are not mentioned in Ext.A1 agreement we are of the opinion that it cannot be safely acted upon. Though PW1 claims that works only upto Rs.6,95,000/- was done by the opposite party, from Ext.C1 report it is seen that works upto Rs. 7,90,750/- was done. As stated earlier Ext.A1 agreement is silent about the area of 1st floor and so we are at dark regarding the area of 1st floor. It is true that from Ext.A4 plan it is seen that the area of the ground floor was 418 sqft and the area of the 1st floor was 382 sqft. Admittedly PW1 was a beneficiary of the life mission of the Panchayath. The maximum area of a house construction under the life scheme is 409 -418 sqft. PW1 wanted to construct the building under life scheme and wanted to make additional constructions in the 1st floor. Though PW1 stated that she had obtained permission of the Panchayath for additional constructions it is not seen produced for the best reason known to her. As a matter of fact if additional construction are to be done in a house allotted to a beneficiary under life mission scheme prior permission of the panchayath is necessary. As discussed earlier receipt of Rs.8,95,000/- is admitted by opposite party but according to him he had done construction for Rs.14 lakhs. It is to be noted that PW1 has no complaints regarding the material used for construction or the quality of construction. Even according to PW1 90% of the work is completed. The specification of the building regarding painting, tiles to be used, sanitation equipment to be used electrical equipments to be used are silent in Ext.A1 agreement. If that is so it is not known how PW1 calculated that work only for Rs.6,95,000/- was done by opposite party. As stated earlier according to PW2 expert commissioner work for Rs.7,90,750/- was done and even PW1 admitted that about 90% of the work is completed. As per Ext.A1 agreement the total amount payable is Rs.10,50,000/- ie, without mentioning the area of 1st floor. If 90% of the work was completed RW1 is entitled to claim Rs.9,45,500/- out of which he has only received Rs.8,95,000/-. At the time of hearing the learned counsel appearing for the complainant stated that as per Ext.C1 report work was done for Rs.7,95,750/- and so PW1 is entitled to realize the balance amount. But as discussed earlier the amount calculated in Ext.C1 report was at the PWD rate and materials will not be available at the prevailing rate of PWD. For example for constructing the structure PW2 has calculated an amount as Rs.850/- per sqft which is very much on the lower side and construction cannot be done. In said circumstances we are of the opinion that complainant could not establish the case as stated in the complaint and so she is not entitled for any relief. These points are found against the complainant.
13. Point No.4.
In the result complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30th day of December, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Vilasini (Complainant)
PW2 - Dileep Rahman(Commissioner)
Ext.A1 - Copy of Agreement
Ext.A2 - Copy of Notice
Ext.A3 - Reply Notice dtd. 2/3/2021
Ext.A4 - Copy of Plan
Ext.A5 - Photograph
Ext.C1 - Commission Report
Evidence of the opposite parties:-
RW1 - Babukuttan(Opposite party)
Ext.B1 - Reply Notice dtd. 2/3/2021
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
