IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 24th day of September, 2021
Filed on 26.10.2019
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma.LLB(Member)
In
CC/No.275/2019
Between
Complainant:- Opposite parties:-
Sri.Abraham Mathew Sri. Mohanan
S/o Mathew S/oKunupillai
Puthenpurackal House Padinjare Kunnathu House
Edathua Village Pullampada Muri
Kuttanadu Taluk Pallippad .P.O
Alappuzha . Karthikappally, Alappuzha
(Rep by his wife and (Exparte)
Authority Letter Holder Smt. Beena)
(Adv. A.Pookunju)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
Brief facts of the complainant’s case are as follows:-
This complaint is filed through complainant’s wife, Power of Attorney Holder. The complainant is the owner of the property and the opposite party is a building contractor. The opposite party has signed and executed a construction contract with the complainant on 15/9/2018 for constructing a residential building in the land owned by the complainant in land Re–survey No.303/1-3-1 and 303/1-2-2, extent 05 cents in Village – Puliyoor, Taluk – Chengannoor, District – Alappuzha. The building as per contract is to be completed by the opposite party in every respect within seven months from the date of execution of the agreement. The total area of building to be constructed as per approved plan is 1860 Square Feet and the rate per Square feet is Rs.1650/-. So the total contracted price is Rs. 30,69,000/-. There is an agreement for giving high quality granite tiles, high quality ceramic tiles and high quality wooden doors and windows. The said amount has been paid and the opposite party has received Rs.30,00,000/- ie, 98% of the contract value in different dates and has signed and acknowledged the receipt of money at the backside of the agreement. But he has completed only 60% of the construction work. He has used poor quality materials.
2. The following work as per contract the opposite party is bound to complete but more than one year is already over, the opposite party has not completed the work. The opposite party quit the work in April 2019. The complainant met him several times and directly demanded him to complete the pending work. The opposite party intentionally delayed the work. The opposite party has taken away all his tools and materials and nothing is in the building site.
3. Details of pending work Approximate Value (Rs)
a) Hand rails at the side of steps - 30,000/-
b) Bathroom doors -4Nos - 20,000/-
c) Sopanam- wooden Construction
top and bottom - 40,000/-
d) Exhaust fans-Bathrooms and
Kitchen(5nos) - 05,000/-
e) Sun-shade for windows - 10,000/-
f) Kitchen cupboard-MDF - 40,000/-
g) Painting –Full house - 65,000/-
h) Fan and Tube – lights
(9 fans & 9 Tube lights) - 25,000/-
i) Front door glass fittings - 5,000/-
Total - 2,40,000/-
(Rupees Two lakhs forty thousand only)
4. As per the construction agreement granite flooring @ Rs.300/- per square feet of granite was agreed to install. But the contractor installed granite of lower quality worth Rs.100/- per sqft. Likewise ceramic tiles worth @Rs.180/- per Sqft was agreed to be installed as per contract. But the contractor has installed ceramic tiles worth Rs.60/- per Sqft. The original agreement was to hand over the key after completion of work. That too installing after bathroom and toilet facilities and also electrical fitting. But none of these are done by the contractor. Since he has violated the agreement and due to his compulsion, bath rooms and toilet facilities and also electric fittings etc were done by the complainant. Plumbing work was done separately by the complainant at complainant’s own cost. The wooden door, the wood used is not as per agreement. Lower quality woods have been used by the contractor work finishing is also not good, regarding doors.
5. Since the opposite party has received full contract price and he has not completed the work. The complainant is unable to use the building. The opposite party did not complete the building within the time schedule; the complainant and family are living in rented house. There is negligence, intentional delay, default and deficiencies of service and cheating on the part of the opposite party. The complainant suffered mental agony, harassment and time loss and money loss on account of the negligence of the opposite party. The complainant therefore prays for the following reliefs.
a) to recover Rs.12,00,000/-(Rupees Twelve lakh only) from the opposite party, towards dues of contract amount, compensation Rs.1,00,000/-(Rupees One lakh only) for harassment, delay and mental agony and litigation expenses from the opposite party.
6. In view of the above pleadings following points raised for consideration are:-
1. Whether the complainant is entitled to recover Rs.12,00,000/-(Twelve Lakh) from the opposite party towards due of contract amount?
2. Whether the complainant is entitled to get compensation for deficiency of service as well as mental agony?
3. Relief and cost?
7. The complainant was examined as PW1, Exts. A1 to A6 andExt.C1 were marked from his side. Opposite party remained exparte.
8. Points No.1 and 2:-
Ext.A1 dtd. 15/9/2008 is an agreement between the complainant and the opposite party with respect to the construction of building. In which specifically mentioned about the total area of building to be construct, materials to be used for the construction and its quality expenses or labour charges mode of payment etc.. and also stipulated 7 months time for completion of construction. Endorsement in Ext.A1 is the evidence of money transaction between the parties. As per Ext.A1 last page, the complainant has paid total amount of Rs.30,00,000/- (Rupees Thirty Lakh only) in different dates to the opposite party and he received the same and has signed and acknowledged the receipt of money. Ext.A2 is the copy of site plan and plan for the residential building under dispute. In Ext.A1 opposite party agreed that he is ready to construct the building as per the plan. Ext.A3 is the copy of sale deed proves that the said building is situating the land owned by the complainant Ext.A4 is the copy of tax receipt of above property. Ext.A5 is authorization given by the complainant infavour of his wife. Ext.A6 are the bills of materials purchased by the complainant for the building, according to the complainant which are outside the contract work. Ext.A6 are (5 in numbers) issued in the name of the complainant and on 28/6/2019, 22/7/2019, 16/8/2019 and 4/9/2019 respectively. The above bills in which 2 bills dated 28/6/2019 are in same invoice no. 13620 and the commodity and price are same one is original and other is duplicate. The total bills amounts are arrived at Rs.69,997.97/-.
9. Ext.C1 is the Commission Report dated 18/12/2019 filed by an expert appointed by this Commission. It is reported that the commissioner ascertained the matter after issued notice to both sides and both of them were presented at the site. It appears that nobody filed any objection to Ext.C1 report. The commissioner reported that up to the date of inspection ie, on 16/12/2019 only 90% of work has been completed and the total cost of construction work including extra work calculated on the basis of Ext.A1, as Rs.31,17,225/- (Rupees Thirty one lakh Seventeen thousand Two hundred and twenty five only). The expenses for remaining work to be done is calculated as Rs.1,81,350/-(Rupees One lakh eighty one thousand three hundred and fifty only). Page No. 4 of Ext.C1 mentioned the cost of materials Rs.76,987.97(Rupees Seventy six thousand nine hundred and eighty seven point nine seven only) purchased by the complainant himself and recovery for false work and its rectification expenses are shown. In page No. 5 of the Ext.C1 report found the Net amount due to opposite party is Rs.28,48,887/-(Rupees Twenty eight lakh forty eight thousand eight hundred and eighty seven only) we have already found as per Ext.A1 that the complainant has been already paid Rs.30,00,000/- (Rupees Thirty Lakh only) to the opposite party. So the opposite party has obtained excess amount of Rs.1,51,113/- (One lakh fifty one thousand one hundred and thirteen only) from the complainant.
10. On going through the proceedings the opposite party appeared and filed vakalath on 28/11/2019. Thereafter he abstained from the proceedings. Commissioner reported that at the time of inspection opposite party was present at the site. In the absence of contradictory evidence we have no hesitation to hold that the case of the complainant is believable and he is entitled to recover the excess amount received by the opposite party from him with interest thereof. As per Ext.C1 Report only 90% work has been completed. The said acts of opposite party amounts to deficiency of service by which complainant sustained mental agony. Therefore complainant is entitled to get compensation. Compensation is fixed as Rs.5000/-(Rupees Five thousand only). We are not ordering cost of the Proceedings since already ordered refund with interest and compensation.
11. Point No.3:-
In the result, we allow the complaint in part and direct that
1. The opposite party is liable to refund Rs.1,51,113/-(Rupees One lakh fifty one thousand one hundred and thirteen only) and also pay interest @ 8% per annum from the date of complaint till realization.
2. The opposite party is liable to pay Rs. 5000/- (Rupees Five thousand only) as compensation for deficiency of service and mental agony to the complainant.
The above order shall be complied within one month from the date of receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 24th day of September, 2021.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Abraham Mathew(witness)
Ext.A1 - Copy of Agreement dated 15/9/2018
Ext.A2 - Building Plan & site plan dated 7-9-2019.
Ext.A3 - Sale deed dated 18-9-2018
Ext.A4 - copy of Tax receipt dated 9/7/2019
Ext.A5 - Authority Letter dated.26-11-2019
Ext.A6 - Purchased Materials Bills.
Ext.C1 - Expert Report.
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
