DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad 678001, Kerala

Dated this the 30^th day of April, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

C.C.No.22/2007

Shahul Hameed,

S/o.Musthafa,

Achipra, Beemanadu,

Mannarkkad,

Palakkad.

(Party in person) - Complainant

Vs

Sudarsan.B,

Archana,

Thachampara.P.O,

Palakad. - Opposite party

(By Adv.P.Sreeprakash)

O R D E R

By Smt.Preetha.G.Nair, Member

The complainant entered into an agreement with the opposite party regarding the construction of residential building on 24.06.2006. The complainant has paid Rs.3,25,000/- to opposite party within 4 months as per the agreement. But the works like the carpentry, wiring and plumbing were not done within the time stipulated as per the agreement. Further the complainant stated that the foundation, wall and concrete works were done deviating from the plan and that the materials used were substandard. The further allegation is regarding the demand for money for the works which are not completed. The complainant stated that the work done by the opposite party has deviated from the agreed plan. The deviation from the plan was done with an intention to save materials like cement, iron and sand. The complainant submitted that the roof was leaking and this was due to deficiency in service or defect in construction. Further the complainant stated that the opposite party has done work worth Rs.2,50,000/- only and the payment made was Rs.3,25,000/-. The complainant insisted to proceed with the work with standard materials and at that time the opposite party stopped the work.

Hence the complainant issued a lawyer notice to the opposite party dt.17.1.2007. The opposite party sent a reply notice stating false allegations. Hence complaint filed seeking a sum of Rs.75,000/- towards the excess amount collected by the opposite party and for a sum of Rs.25,000/- towards mental agony.

The opposite party filed version with the following contentions. The say of the complainant that payments were made by him as per the agreement is incorrect. Agreed carpentry, wiring and plumbing works were not done within the time stipulated as per the agreement is incorrect. Wall and concrete works were done deviating from the plan and that the materials used were substandard are all incorrect. The further allegation regarding demand for money for the works, which are not done, is also denied by the opposite party. The opposite party stated that there was no deviation from the agreed plan. The contention that slopping roof was provided in violation of the agreed plan and that the same was done with an intention to save materials like cement, iron and sand are incorrect. Further the opposite party stated that the leakage was not due to deficiency in service or defect in construction. The allegation that the opposite party has done work worth Rs.2,50,000/- against the payment of Rs.3,25,000/- is also against the facts. The opposite party sent a reply notice stating true and correct facts. Thereafter the opposite party stated that there was no defect or deficiency in service on the part of the opposite party and the work was stopped for non payment of the amount already due. The opposite party submitted that the complainant is bound to make payment as per the schedule attached with the agreement. The opposite party stated that the date of commencement of work is on 24.6.2006. As per the payment schedule on the date of commencement of work the complainant is bound to make a payment of Rs.1,50,000/-. By 24.12.2006 six months elapsed and as per the payment schedule a sum of Rs.6,75,000/- is payable by the complainant. Total payment of Rs.3,25,000/- is the amount due by the expiry of second month. The next payment of Rs.1,75,000/- is due by the end of October 2006. The complainant does not make this payment even before December 2006. Since the complainant failed to perform his part of the agreement he cannot claim damages for delay. The opposite party stated that a sum of Rs.1,75,000/- is spent by the opposite party from his own pocket as a matter of customer services and with a bonafide intention to avoid delay. Finally the opposite party submitted that in addition to the monetary loss caused due to the failure on the part of the complainant to make payment, the opposite party's reputation is also adversely affected due to the notice and propaganda made by the complainant.

Complainant filed proof affidavit along with documents. Exts.A1 to A6 marked. Opposite party also filed proof affidavit. An expert commissioner inspected the defective house two times and filed two reports. Marked Ext.C1 and C2. Commissioner was also examined. Matter was heard.

Issues to be considered are;

1. Whether there is any deficiency of service on the part of opposite party?

2. If so, what is the relief and cost?

Issues 1 and 2: The definite case of the complainant is that the opposite party has not completed the work as per the agreement and there was deviation from the agreement as well as defect in the construction of the work. The main allegation is regarding deviation from the agreement. As per the agreement, opposite party has to construct a flat roof. Instead he has constructed a sloping roof. Further opposite party has not completed the carpentry and plumbing work and there was some deviation in the corner portion of the main slab. Complainant also states that the materials used for construction are substandard. Opposite party has obtained an amount of Rs.3,25,000/- within 4 months. But the work completed is only for Rs.2,50,000/-. Hence an amount of Rs.75,000/- was collected in excess. According to the contention of the opposite party construction of sloping roof was done as per the specific oral request of the complainant. Further complainant was not prompt in making payments as per the agreement and therefore opposite party was constrained to stop further work. Receipt of an amount of Rs.3,25,000/- is admitted. That amount has to be paid at the expiry of second month. Opposite party denied the allegation of the complainant that carpentry, wiring and plumbing work were not done within the stipulated time.

We have gone through all the relevant documents on record. Commissioner has filed report stating that on examination sloping roof was found. This is a clear deviation from the agreement. The contention of the opposite party that it was as per the request of the complainant seems to be unbelievable. As per the plan itself complaint is intending to construct 1^st floor. If it is so, complainant will never insist for a sloping roof at the ground floor.

Further regarding payment received and corresponding work done as per the

agreement. It can be seen from Ext.C1 that electrification work was done in part and no plumbing work was started and carpentry work has not been completed. While cross examining the commissioner, commissioner stated that shutters to windows and doors will be fixed only at the finishing stage. Commissioner stated that the materials used for construction are as per the agreement itself. Other defects like leakage etc. can be rectified by plastering and plastering is done at the finishing stage.

On going through the commission report and deposition of commissioner we could find the following acts as deficiency of service viz, construction of sloping roof, not starting the initial works of plumbing and deviation in the corner portion of the main slab. Hence on the basis of the commission report we quantify compensation as Rs.40,000/-.

In the result, complaint allowed. Opposite party is directed to pay an amount of Rs.40,000/- (Rupees Forty thousand only)towards compensation and Rs.2,000/- (Rupees Two thousand only) as cost of proceedings to the complainant. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realisation.

Pronounced in the open court on this 30^th day of April, 2009

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Witness examined on the side of complainant

PW1 - Smt.Sujatha Vijayan

Witness examined on the side of opposite party

Nil

Exhibits marked on the side of complainant

Ext.A1 – Agreement between complainant and opposite party

Ext.A2 – Plan

Ext.A3 (Series) – Vouchers for payment of Rs.3,25,000/-

Ext.A4 (Series)– Copy of lawyer notice with postal receipt and acknowledgement

Ext.A5 – Reply notice

Ext.A6 – Report of Kerala Kaumudhi dt.30/8/07

Exhibits marked on the side of opposite party

Nil

Forum's exhibits

Ext.C1 – Commission report

Ext.C2 – Additional commission report

Costs (allowed)

Rs.2,000/- (Rupees Two thousand only) allowed as cost of the proceedings.