IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 22nd day of June, 2019.
Filed on 27-05-2017
Present
Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)
2. Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.139/2017
between
Complainant:- Opposite party:-
Smt.Sulochana Sri.Midhun K.P,
W/o Late Sundaran Achary, Pattantayyathu Kizhakkathil,
Kuttiyil House, Pallarimangalam.P.O.,
Olakettiyambalam.P.O., Mavelikkara.
Mavelikkara -690510 (By Adv.S.Sameer)
(By Adv.M.K.Unnikrishnan)
O R D E R
SRI.E.M. MUHAMMED IBRAHIM(PRESIDENT-IN-CHARGE)
This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The averment’s in the complaint in short, are as follows:-
The complainant who is an unemployed widow decided to construct a house building in her landed property for the occupation of herself and the members of her family. The opposite party approached the complainant and made her to believe that he is having rich experience in constructing buildings on contract basis and also showed photographs of some of the house buildings which he had already constructed and offered to provide drawings free of cost. By believing the above representation the complainant on 14-3-2014 entered into an agreement with the opposite party for the construction of the single storied house building having an area of 1181.5 sq.ft. to be constructed on 6 foundation pillars, sceptic tank, car porch having 286.5 sq.ft. For a total construction of Rs.24,68,650/-. The complainant has also paid Rs.2,00,000/- to the opposite party as advance on the date of executing the agreement. The opposite party started construction and received altogether amount of Rs.25,70,000/- on different occasions during the construction period which is in excess of the agreed construction cost. But during half way of the construction, the opposite party showed slackness towards construction. Even though the complainant insisted to complete the entire construction works as per the contract, the opposite party refused to carry out the remaining works and abandoned the work on 04.07.2015. The following are the works to be carried out by the opposite party.
1. Septic Tank
2. Kitchen Work
3. Sit out roof work
4. Staircase room
5. Repair of cracks
In spite of repeated request the opposite party failed to carry out the above works. In view of the urgency of the matter the complainant carried out the following essential works by spending money from her own source.
1. Septic Tank - 50,000/-
2. Kitchen fabrication with S.S pipes - 10,000/-
3. Crack repair - 5,000/-
and thereby spend Rs.65,000/-. The details of remaining works which is to be completed with the expected costs are as follows.
1. Kitchen furnishing - 60,000/-
2. Sit out roof work - 50,000/-
3. Stair room - 100,000/-
Total - 2,10,000/-
As the opposite party has received more amount than the agreed construction costs he is expected to carry out all the work but he left the work site by abandoning the above works for Rs.65,000 + 2,10,000 as detailed above. Hence the opposite party is liable to return Rs.2,75,000/-. Since the opposite party has violated the terms of the contract, cheated the complainant and committed unfair trade practice, he is liable to pay compensation to the complainant apart from the excess amount received from her. Hence the complaint.
3. The opposite party resisted the complaint by filing a detailed version raising the following contentions and also raising counter claim:-
The complaint is not maintainable either in law or on facts. The complaint is not a consumer under Sec.2 (1)(d) of the Consumer Protection Act and therefore the complaint is to be dismissed inlimini. The complainant has filed the present complaint without any bonafides and with malafide intention to grab money from the opposite party. Even after the completion of the building based on the contract dated on 14.03.2014 the complainant has never paid the correct instalment amount for duly committing the construction work. In several occasions the opposite party paid towards the construction cost from his pocket. The complainant is yet to pay Rs.6,17,613/- towards the above contract.
It is further contended that as per the terms of the agreement complainant has to pay for the extra charges for the extra work. The opposite party completed the extra work by paying from his pocket and now the amount of Rs.2,00,000/- is due from the complainant to the opposite party. The complainant conducted her house warming in the year 2015 itself. The roof work and additional water proofing to the building was made by the opposite party which resulted in huge financial burden in several occasions the opposite party has caused certain improvements in the construction was made as per the complainant's direction. However the opposite party would admit that he failed to construction Septic Tank as the complainant failed to pay the cost of construction of the Septic Tank and there was some legal issue with regards to the compliance of Kerala Municipality Act, 1994. It is further contented that as per the lawyer notice 17-11-2016 the complainant demanded only in 2,00,000/- as compensation but as per the claim raised in the complainant the amount claimed Rs.2,75,000/- with 12% interest to the complainant towards the cost of the completion of the contract work which shows the evil motive of the complainant for grabbing money from the opposite party. The opposite party further prays to dismissed the complaint by awarding counter claim to the tune of Rs.2,00,000/- to the opposite party along with cost and compensatory costs.
The complainant has filed additional version raising objection to the counter claim by contenting that the counter claim is not maintainable either in law or on facts. The opposite party has raised counter claim only to defeat the genuine and legal claim of the complainant. The opposite party being the service provider is not entitled to proceed against the consumer in the CDRF. The complainant has duly paid all instalments and also paid excess amount actually due as per the contract. The counter claim raised by the opposite party is only a pretext to run away from his liabilities. No details of expenditure is mentioned in the counter claim for Rs.2,00,000/-. The agreement was inclusive of all expenses towards the construction of building. The opposite party has received excess amount than the agreed amount as per the agreement but he left the work site without completing the work. The counter claim is not supported by any materials. It is only a frivolous attempt to thwart the legal claim of the complainant and the complainant further prays to dismiss the complaint with her costs.
4. In view of the above pleadings the points that arise for consideration are:-
1. Whether the complainant is a consumer as defined under Sec.2 (1)(d) of the Consumer Protection Act.
2. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party in carrying out the construction work as per the terms of the agreement dated 14-03-2014.
3. Whether the complainant is entitled to get back Rs.2,75,000/- with interest from the opposite party contractor as claimed.
4. Whether the complainant is entitled to get compensation.
5. Whether the counter claim raised by the opposite party in the version is allowable?
6. Reliefs and costs.
5. Evidence on the side of the complainant consists of the oral evidence of PW1 to PW3 and Ext.A1 to Ext.A4 series documents. Evidence on the side of the opposite party consists of the oral evidence of RW1 to RW4 and Ext.B1 to Ext.B4 documents.
6. Both parties filed notes of argument. Heard the counsel for the complainant. Learned counsel for the opposite party has not turned up and advance any argument though sufficient opportunity was granted before the same.
7. Point No.1
The specific case of the complainant is that she availed the service of the opposite party to construct a house building in her landed property for the purpose of the occupation of herself and her family members. It is the further case of the complainant that the opposite party approached her and made her to believe that he is having the rich experience in the field of construction of the building on contract basis and also showed photographs of some of the buildings which he has already constructed and also offered to provide plan and drawings of the building free of cost. The above claim of the complainant is not undisputed. It is also an admitted fact that both the complainant and opposite party entered into an agreement on 14.03.2014 for the purpose of constructing a single storied building having plinth area of 1181.5 sq.ft for the ground floor a stair room having 118.5 sq.ft and a car porch having a plinth area of 286.5 sq.ft. The building has to be constructed on 6 pillars and the construction cost of each pillar is Rs.20,000/- and a safety tank also has to be constructed for Rs.1,00,000/-. Altogether the cost of construction is Rs.24,68,650/-. It is also an undisputed fact that the complainant paid Rs.2,00,000/- to the opposite party as advance on the date of executing the agreement. In view of the above admitted facts it is clear that the complainant is a person who hired the service of the opposite party building contractor by executing Ext.A1 agreement for the construction of her building and by paying Rs.2,00,000/- as advance and agreed to pay the remaining amount at different stages as per the progress of construction work. It is also an undisputed fact that the construction of the above building is for the occupation of the complainant and her family members. Even the opposite party has no case that the complainant has availed his service of the opposite party for any commercial purpose. In the circumstances it is crystal clear that the complainant is a consumer under Sec.2 (1) (d) of the Consumer Protection Act,1986 and we find no merit in the contention of the opposite party to the contrary. The point answered accordingly.
8. Point No.2 to 4
For avoiding repetition of discussion of materials these 3 points are considered together. In view of the oral evidence of PW1 coupled with Ext.A1 agreement it is crystal clear that the opposite party is a construction contractor who agree to construct a house building in the land belongs to the complainant as per the terms of Ext.A1 agreement. The said agreement would indicate that the building has to be constructed in 6 pillars. The plinth area of the ground floor stair room, area of car porch, cost of each construction and expense of safety tank etc are specifically mentioned. The net amount of construction cost is shown as Rs.24,68,650/- including foundation pillars, safety tank, stair room, and car porch.
Ext.A1 agreement is seen executed on 14.03.2014.The endorsement regarding the receipt of the amount is recorded in the reverse side of the 1st page of Ext.A1 agreement. The 1st endorsement is regarding in the receipt of Rs.2,00,000/- on 14.03.2014 which is the date of execution of the Ext.A1 agreement. Each endorsement regarding the receipt of amount from the complainant is recorded in handwriting and under the signature of opposite party who has not disputed the receipt having received of the amount as per the above endorsements. As per the above endorsement an amount of Rs.25,70,000/- is seen received by the opposite party on different occasion.
The pleadings and evidence adduced by the complainant would show that the opposite party after completing half of the construction work showed slackness towards construction but he received Rs.25,70,000/- on different occasions during the construction period which is in excess of the construction cost, agreed as per Ext.A1 agreement and in spite of the repeated request of the complainant the opposite party has not completed the construction work and he abandoned the work on 04.07.2015 without constructing safety tank, kitchen work, sit out roof work, constructing stair case room and the repair works of the cracks. It is also deposed by PW1 that as the opposite party refused to carry out the above work the complainant herself has carried out some of the above works such as construction of safety tank, kitchen fabrication and crack repair by spending Rs.65,000/- altogether. The remaining works to be carried out is worth Rs.2,10,000/-. According to the PW1 though the opposite party has not carried out the above works though he received more than the construction costs. Hence he is bound to return 2,75,000/- for the remaining work carried out by the complainant by using her own funds and thereby opposite party has violated the terms of the contract, cheated the complainant and committed deficiency in service and unfair trade practice and therefore the complainant is entitled to get compensation apart from the cost of construction left by the opposite party and subsequently carried out by her.
The opposite party would content that he has not received Rs.25,70,000/- as claimed by the complainant and he has only received Rs.24,20,000/-. According to him the total contract cost amount to Rs.25,88,650/- and therefore he is entitled to get the amount Rs.1,68,650/- more from the complainant. Before discussing the merit of above contention of the opposite party it is to be considered whether he has completed the work as stipulated in Ext.A1 agreement to claim the entire contract amount. Admittedly the opposite party has not completed the work of septic tank opposite party alleges 2 reasons for non-construction of septic tank. The first reason is that nothing has been paid by the complainant for the construction of the septic tank and the 2nd ground is that there was some legal issues with regards to the compliance of the Kerala Municipality Building Rules. Even according to the opposite party construction of septic tank is also a work that will come as Ext.A1 agreement. In other words the said work is not an extra work as per Ext.A1 agreement and therefore no specific amount need to be paid for the construction of septic tank apart from paying stipulated amount of Rs.1,00,000/- which is included in the total amount of Rs.24,68,650/- in Ext.A1 agreement. In the circumstances after receiving more than the agreed amount the opposite party is not expected to get separate amount for the construction of safety tank.
The opposite party has no contention when the complaint was in the witness box as PW1 to the effect that there was any legal issue regarding violation of Municipal Rules and that is why he has not constructed the safety tank. What was the legal impediment in constructing safety tank is not pleaded and proved by the opposite party. Usually when a plan for the construction of the building is submitted in a Municipality seeking permit the plan for the construction septic tank should be shown separately without which the Municipality/ Panchayath will not approve the plan and issue permit to construct the building. If there is any legal impediment or violation of Municipal rules or regulations in constructing the safety tank the Municipality/Panchayath will not approve the plan. It is also brought out in evidence through PW1 that she had constructed safety tank by spending Rs.50,000/-. The above evidence of PW1 remains unchallenged also. In the circumstances we find no excuse in not constructing the safety tank and the opposite party is entitled to return the cost of construction of safety tank included in the total cost shown in the 2nd page of Ext.A1 agreement. Hence the complainant is entitled to get back Rs.1,00,000/- on this count.
According to the complainant the next item of work which was remaining to be completed are kitchen fabrication and kitchen furnishing. PW1 has sworn in the proof affidavit page 3 that he has spent Rs.10,000/- for kitchen S.S pipe fabrication and Rs.60,000/- for kitchen furnishing and she is entitled to get Rs.70,000/- for not carried out those works by the opposite party. We find no merit in the above claim of the complainant as no such fabrication or furnishing works have been seen incorporated in Ext.A1 agreement. RW1 has also denied having included any such works as part of Ext.A1 agreement. Hence the complainant is not entitled to get back Rs.10,000+ 60,000 on the above 2 counts.
The next item of work not carried out by the opposite party according to the complainant is sit out roof work, stir case room construction and crack repair. The contention of the opposite party in this regard is that the above works are not envisaged in Ext.A1 agreement and hence those works are beyond the scope of Ext.A1 agreement and hence the opposite party has not carried out such works and that the opposite party has not received any amount for carrying out the said works. However the opposite party has a different case when the complainant was in the witness box was PW1. The learned counsel for opposite party has specifically put questions to PW1 during the cross examination that he had already carried out the roofing work the slab of the kitchen etc. A plain reading of Ext.A1 would indicate that it is a modern building. Hence all original works which are necessary to construct a modern building except fabrication and furnishing works are covered under Ext.A1 agreement. It is further to be pointed out that sit out is a part and parcel of a modern house and the same is included in the plan. Without constructing sit out roof the work according to the plan would not be completed. Stair room construction is also a part of the construction of the building but separate rate and amount is provided for the said work and the above work are also included in the total amount of Rs.24,68,650/-. The above works are also not stated under the extra work to be carried out at the expense of the complainant. In the circumstances there is no meaning in contenting that sit out roof, stir case room etc. are not included in Ext.A1 agreement. Without properly constructing kitchen, safety tank, sit out roof, stir case room etc the construction work of the modern building as per Ext.A1 agreement cannot said to be completed. It is also brought out in evidence that PW1 to PW3 and Ext.A2 series to A4 series documents that the complainant has carried out the remaining work of the building left by the opposite party. It is also brought out in evidence that the complainant has spent Rs.50,000/- for sit out roof work and Rs.1,00,000/- for the construction of stair room. In the circumstances the above amount spent by the complainant to carry out stair case room, sit out roof are entitled to get back from the opposite party.
Now regarding the crack repair work. It is true that the said item of work is not mentioned in Ext.A1 agreement. Nobody would anticipate a crack in a building the construction of which is yet to be started. Only after the construction of the building cracks in the walls will appear because of the defect in plastering etc. The opposite party is not expected to carried out the construction work in a defective manner. If at all any crack occurred in the wall it is the duty of the opposite party contractor to repair the crack developed in the wall of the newly constructed building. In the circumstances the complainant is entitled to get the expenses met by her to the tune of Rs.5,000/-on that count.
It is true that RW1 has deposed that the roof work of the sit out and car porch were asked to be modified by the son of the complainant and he was forced to reduce the height of the same by two months work by spending huge amount. But he was no such pleadings in the written version. The oral evidence of RW2 to RW4 and Ext.B1 to EXT.B4 documents also would not establish that the opposite party has carried out the entire construction work as per Ext. A1 agreement.
On evaluating the entire materials available on record it is clear that the opposite party has abandoned the certain major works mentioned in Ext.A1 agreement after receiving excess amount from the complainant and refused to carry out major works which are highly essential for starting occupation of the building. In view of the reasons stated above we come to the conclusion that the complainant is entitled to get back the amount under the following head. Amount of Rs.1,00,000/- included in the total amount of Rs.24,68,650/- for the non-construction of safety tank. Rs.50,000/- spent by the complainant for the construction of sit out roof and Rs.1,00,000/- spent by the complainant for the construction of stair case room and Rs.5,000/- spent by the complainant for crack repairing. The complainant is not entitled to get Rs.50,000/- spent by the complainant for constructing safety tank as the entire amount of Rs.1,00,000/- included in Ext.A1 is ordered to be returned. The complainant is also not entitled to get back Rs.10,000+60,000 claimed to have been spent by her for kitchen furnishing as those works would not form part of the original work.
It is also brought out in evidence that as the construction work of the house building was not completed and urgent works such as safety tank, sit out roofing, construction of stair room, crack repair etc are not done as per Ext.A1 agreement and hence the complainant could not start occupation even after paying the agreed cost of construction to the opposite party. In the circumstances it is crystal clear that there is deficiency in service on the part of the opposite party contractor. Hence the claim of the complainant that she had suffered much mental agony apart from financial loss is believable and acceptable. In view of the facts and circumstances we are of the view that the complainant is entitled to get compensation for the mental agony to the tune of Rs.50,000/-. The complainant is also entitled to get cost of the proceedings to the tune of Rs.10,000/-. The points answered accordingly.
Point No.5
The opposite party has raised a counter claim for Rs.2,00,000/-. According to the opposite party as per the terms of the agreement the complainant has to pay extra charge for the extra work carried out by him and the amount of Rs.2,00,000/- is due to him from the complainant on this count. It is further contented that roof work and additional water proofing to the building was made by the opposite party which resulted in huge financial burden to the opposite party. Furthermore, the opposite party has made improvements in the construction on several occasions as directed by the complainant. However the opposite party has not specified in his written statement what are the extra works carried out by him during the construction. The nature of roof work and additional water proofing and the amount spent on each count and also what are the improvements made in the construction during several occasions has directed by the complainant or her son etc are not pleaded in his written version. The evidence tendered by RW1 to RW4 are also not sufficient to prove the counter claim. Even if the opposite party has pleaded and adduced evidence to prove counter claim, the same cannot be allowed as it is well settled that counter claim raised by the opposite party is not maintainable in a consumer complaint tried before the Consumer Forum due to the simple reason that the opposite party is only a service provider and not a consumer of the owner of the house who authorized the opposite party to construct her house for valid consideration. On evaluating the entire materials available on record we come to the conclusion that the counter claim set up by the opposite party in his written version is not maintainable and the same is only to be dismissed. The point answered accordingly.
Point No.6
In view of my finding with regard to point No.1 to 4, the complainant is only to be allowed. In the result the complaint stands allowed in the following terms.
1. Opposite party is directed to pay Rs.2,55,000/- being the cost of works left him as per the terms of Ext.A1 contract and subsequently carried out by the complainant with interest at the rate of 6% per annum from the date of complaint till realisation.
2. The opposite party is also directed to pay Rs.50,000/- as compensation for the mental agony suffered by the complainant with interest at the rate of 6% per annum from the date of complaint till realisation.
3. The opposite party is also directed to pay Rs.10,000/- as cost of the proceedings.
4. Counter claim stands dismissed.
The opposite party is directed to comply with the above directions within 30 days from the date of receipt of the copy of this order, failing which the complainant is allowed to recover Rs.3,05,000/- with the interest of 9% per annum from the date of complaint till realisation with cost of Rs.10,000/- from the compliant and his assets by filing appropriate petition under Sec.25 of the Consumer Protection Act.
It is made clear that if the opposite party fails to comply with the above direction the complainant is at liberty to proceed against the opposite party under Sec.27 of the Consumer Protection Act simultaneously with execution petition under Sec.25.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 22th day of June, 2019.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sholy P.R (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Sulochana.S (Witness)
PW2 - Ajayan.K (Witness)
PW3 - Ajesh.S (Witness)
Ext.A1 - Agreement
Ext.A2 Series - Retail Invoice dtd 04.07.2016, 02.04.16,04.10.16
Ext.A3 - Receipts dtd 12.06.2015,04.07.2015
Ext.A4 - Receipts dtd 08.08.2017,08.08.2017, 08.07.2017, 04.08.2017, 03.08.2017
Evidence of the opposite parties:-
RW1 - Midhun.K.P (Witness)
RW2 - Prakash M.M(Witness)
RW3 - Krishnankutty (Witness)
RW4 - Prathapan (Witness)
Ext.B1 - Bills dtd 20.08.2015
Ext.B2 - Bill dtd 10.09.2015
Ext.B3 - Bill dtd 02.12.2015
Ext.B4 - Bill dtd 30.04.2015
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
