IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Tuesday the 20th day of October, 2020
Filed on 18.01.2017
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma. BA.LLB(Member)
In
CC/No.18/2017
Between
Complainant:- Opposite parties:-
Smt. Kunjamma@ Sri. K.S.Boban
Kochu Thresiamma Kuttukkadu Veedu
D/o Maria Kutty E.S.I. Road, Palluruthy Desam
Thayil Veettil Rameswaram Village
Thathampally Ward Kochi Taluk
Alappuzha Ernakulam
(Adv.C.Parameswaran) (Adv.T.N.Moris Vincent)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly discussed are as follows:-
Complainant and opposite party entered into an agreement on 17.05.2016, whereby opposite party had undertaken the construction of the residential building of the complainant on the terms and conditions contained therein. Opposite party had agreed to construct the building at the rate of Rs.1,500/- per sq.feet and the total amount will come to Rs.33,00,000/-. The period of completion was fixed as 6 months from the date of agreement. Opposite party had received an amount of Rs.21,90,000/-from the complainant.
The materials and concrete mixture used for the construction was at inferior quality and as such patches and cracks developed. The act of the opposite party in using inferior quality materials amounts to deficiency in service and is also an unfair trade practice. The work was not executed as per the terms and conditions. Complainant had sustained heavy loss due to the non fulfillment of the contractual obligation. Complainant had sustained damages to the tune of Rs.9,50,000/- due to the act of opposite party. Hence the complaint is filed for realizing an amount for Rs.9,50,000/- along with interest at the rate of 18%.
2. Opposite party filed a version mainly contenting as follows:-
The complaint is filed without any bonafides. As per the agreement dated 17.05.2016 opposite party had agreed to construct the house where there was a foundation at the height of 1 ½ feet. The height of the foundation had to be increased by 1 ¼ feet. Construction was done varying from the plan as per the request of the complainant. The 2 storied building had an area of 2352 sq.feet as per approved plan. Opposite party had not received Rs.21,90,000/- and he had only received Rs.18,23,700/- which is endorsed on the reverse of the 1st page of the agreement. Different works for Rs.2,88,500/- were done as per the request of the complainant which was not mention in the plan. An amount of Rs.10,28,000/- more is required to complete the construction. Opposite party had spent an amount of Rs.2,00,3000/- in addition to Rs.18,23,700/- paid by the complainant.
Amount for constructing a building having an area of 2352 sq.feet @ Rs.1,500/- will come to Rs.35,28,000/- . Since the plinth area was increased the total cost was Rs.38,16,500/- and opposite party is entitled for an amount of Rs.9,64,800/-. Materials of good quality such as Sankar, Ramco cements, TMT from Kairali etc. were used. Amount of Rs.18,23,700/- entrusted by the complainant is insufficient to complete the construction. No loss was sustained to the complainant and on the other hand opposite party sustained a loss of Rs.9,50,000/-. The complaint is filed to withhold the balance amount and to harass the opposite party. Due to the additional constructions, opposite party sustained heavy loss. Complainant is not entitled to realize an amount of Rs.9,50,000/- and hence the complaint may be dismissed with cost.
3. On the above pleadings following points were raised for consideration:-
- Whether there was deficiency of service on the part of the opposite party ?
- Whether the complainant is entitled to realize an amount of Rs.9,50,000/- along with interest from the opposite party ?
- Reliefs and costs.
- Evidence in this case consists of oral evidence of PW1, Ext.A1 and Ext.A2 from the side of the complainant. RW1 and RW2 were examined from the side of the opposite party. The commissioner was examined as Ext.CW1 and Ext.C1 series were marked.
- Point No.1 &2:-
On 17/5/2016 complainant and the opposite party (RW1) entered into Ext.A1 agreement by which RW1 agreed to construct a house for the complainant at the rate of Rs.1,500 per sqft. The construction was started. According to the complainant an amount of Rs.21,90,000/- was given to RW1 and it is endorsed on the reverse of 1st page of Ext.A1. However the construction was not completed and it was done using substandard materials. Hence the complaint is filed for realizing an amount of Rs. 9,50,000/- required for completing the construction alleging deficiency of service on the part of RW1. RW1 filed a version contenting that he had only received an amount of Rs.18,23,700/- and not Rs. 21,90,000/- as contented by the complainant. It was also stated in the version that altering from the approved plan several new constructions to the tune of Rs. 2,88,500/- were done. An amount of Rs. 10,28,000/- is required to complete the construction. Construction could not be completed within the prescribed period stated in Ext.A1 due to the deviation from the approved plan. It was also contended that there was paucity of funds and the complaint is filed only to grab money from RW1. Complainant’s sister’s daughter in law was examined as PW1 on the strength of Ext.A2 Power of attorney. Ext.A1 agreement was marked through her. Opposite party got examined as RW1 and one witness was examined as RW2. The expert commissioner was examined as CW1 and commission report was marked as Ext.C1 series.
Execution of Ext.A1 agreement is admitted by RW1. He
also admitted that the work was not completed as per Ext.A1 agreement. According to the complainant work for an amount of Rs.9,50,000/- is to be completed and for realizing said amount complaint is filed. In the version opposite party has stated that an amount of Rs.10,28,000/- is required for further construction. As per request of the complainant CW1 expert engineer visited the property on 7/7/2017 and 17/7/2017 and prepared Ext.C1 series commission report. In
Ext.C1 (a) it is stated that the plinth area of the building is 2,070 sqft and the amount required at the rate of Rs.1500/- per sqft for the construction is Rs.31,05,000/-. As per his assessment work for Rs.15,77,359/- was done and approximately Rs. 16,00,000/- is required to complete the balance work.
In the complaint it is alleged that construction was done using low quality materials and thereby patches and cracks had developed in certain portions. The complainant was not available to give evidence. Her sister’s daughter in law was examined as PW1. She stated that she had not seen any
cracks in the building. Further in Ext.C1 series report CW1 had stated that materials used for construction were not bad. So the contention of the complainant that building was constructed using low quality materials stands disproved by the evidence of her on witness that is PW1 and CW1 who is the expert engineer. As discussed earlier the complaint was filed for realizing an amount of Rs.9,50,000/- which was required for completing the building. Breach of contract is alleged by the complainant. According to RW1 the construction could not be completed due to paucity of funds and that there was deviation from the approved plan. According to RW1 extra works for an amount of Rs.2,88,500/- was done by him for which payment was not made. From the oral evidence of CW1 and C1 series report it can be gathered that works for an amount of Rs. 15,77,359/- was done by RW1.
As discussed earlier there is difference of opinion regarding the payment given and collected by RW1. RW1 admitted that as and when payment is made it is endorsed on
the reverse of the 1st page of Ext.A1 agreement. On 20/5/2016 an amount of Rs. 5,00,000/- was given and it is endorsed with his signature. According to PW1 an amount of Rs. 21,90,000/- was given as eight instalments. However according to RW1 he had only received Rs.18,23,700/-. There is a dispute regarding the seventh instalment dtd. 22/9/2016. According to PW1 the amount paid on that day was Rs. 3,70,000/- whereas according to RW1 it was only Rs. 3,700/- On a perusal of Ext.A1 it is seen that a slash(/) is put after figures Rs. 3,700/- and after the slash two zeros(00) has seen put. Hence according to RW1the amount paid was only Rs. 3,700/-. There is an explanation for RW1 for the same which was brought out in his re-examination. RW1 stated that on 22/9/2016 it was decided to do concreting at the slope portion. However since there was some intervention by the union leaders the work could not be done. So he had collected an amount of Rs.3,700/- which is to be paid as rent for the machineries. As stated earlier complainant was not available to give evidence. According
to PW1, complainant used to sent money to the account of her son and her son along with herself used to give amounts to RW1. However during cross examination PW1 stated that she could not remember the exact amounts paid on each instalments except the 1st instalment. PW1 admitted that complainant used to put the money in the account of her son and from that account amount will be paid to RW1. If that is so the son of the complainant will have more knowledge than PW1 regarding the instalments paid to RW1. Documents also will be available with him to show the withdrawal of Rs. 3,70,000/- for paying to RW1 on 22/9/2016. For the best reason known to the complainant her son was not examined as a witness to prove atleast the money transaction. It is to be noted that in the version itself RW1 has taken a contention that he had only received Rs.18,23,700/- and not Rs.21,90,000/-. Hence it was incumbent upon the complainant to examine her son which is not seen done in this case. So we are of the view that complainant had only paid Rs.18,23,700/- to RW1 and not Rs.21,90,000/-.
Though the rate per sqft is shown as Rs.1,500/- in Ext.A1agreement the area of the building is conspicuously absent. As per C1 report the area is 2070 sqft and according to PW1it is 2150 sqft. Per contra RW1 contented that the area is 2352 sqft. But no evidence is adduced to substantiate his claim. However the area is immaterial in this case since in Ext.C1 series report CW1 had stated that work for Rs. 15, 77,359/- was done by RW1. He has calculated the area as 2070sqft and reported that at the rate of Rs.1500/- Rs.31,05000/- is required for the total construction and after deducting the amount spent by RW1 approximately Rs.16,00,000/- is required to complete the construction. We had already found that RW1 had received an amount of Rs.18,23,700/- from the complainant and as per Ext.C1 report works for Rs.15,77,359/- was done. If that is so RW1 has received an amount Rs.2,46,341/- in excess than the amount of work done by him. It is true that in the version and from the evidence of RW1 it is seen that he had done work for Rs.2,88,500/- deviating from the approved plan.
However no evidence is forthcoming to substantiate such a claim. Ext.C1 series was prepared after giving notice to both sides. RW1 has not taken any steps to ascertain through the commissioner regarding the work done by him deviating from the plan. In said circumstances his contention cannot be upheld for want of sufficient evidence. However as discussed earlier it is seen that RW1 has received an amount of Rs.2,46,341/- in excess and so complainant is entitled to get a refund of the excess amount paid by her. These points are found accordingly.
6. Point No.3:-
In the result complaint is allowed in part.
(A) Complainant is allowed to realize and amount of Rs.2,46,341/- (Two lakh forty six thousand three hundred and forty one only) along with interest at the rate of 9% from 18/1/2017(date of complaint) from the opposite party.
(B) Complainant is allowed to realize an amount of Rs.3000/-(Three thousand only) as cost from the opposite party.
Order shall be complied within one month days from the date of receipt of a copy of this order.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Commission on this the 20th day of October, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Reshma(Witness)
Ext.A1 - Agreement
Ext.A2 - Special Power of Attorney
Evidence of the opposite parties:-
RW1 - K.S.Boban(Opposite party)
RW2 - Kunjukunju(Witness)
CW1 - C.M.Joseph((Witness)
C1series - Commission Report
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
