BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 21/2009 Dated : 15.12.2009 Complainant: Dr. C. Ajayakumar, S/o Chellappan residing at Anugraha, T.C 41/1954(1), Manacaud, Thiruvananthapuram.
(By adv. R. Ram Mohan) Opposite party:
Sunil Kumar, S/o Swayambaran, Proprietor, Nanda Constructions, Near KSRTC Bus Stand, Kilimanoor, Thiruvananthapuram residing at Charuvila Puthen Veedu, Kunnummel, Pazhayakunnummel Village, Kilimanoor, Thiruvananthapuram.
(By adv. N. Anilkumar)
This O.P having been heard on 26.11.2009, the Forum on 15.12.2009 delivered the following: ORDER SMT. S.K.SREELA : MEMBER Facts in this case, stated briefly, are that the complainant who is a Veterinary doctor by profession decided to construct a residential building in his 12 cents of property and prepared a plan through one Mr. Sumesh George. The opposite party approached the complainant and expressed his willingness to carry out the construction of the residential building with his own men and materials. The opposite party perused the plan, visited the site of the proposed building and offered to construct the same only if the complainant agrees to have some modifications in the plan. The opposite party offered to complete the construction for Rs. 8 lakhs. The opposite party made the complainant to believe that even if such modifications are made to the plan, the Panchayat authority would approve the construction provided the same would not violate any of the provisions in the Kerala Building Rules. Thus the said offer was accepted by the complainant and consequently an agreement was executed on 01.05.2007. At the time of the agreement, the opposite party promised and assured the complainant that the construction would be completed and the keys would be handed over on or before 01.11.2007, treating time as essence of contract. Though opposite party started the work in the month of May, he failed to carry out any work during the months of July, August, September and October and failed to complete construction on or before 01.11.2007. Thereafter the opposite party approached the complainant and requested for an extension of time. The complainant had permitted the opposite party to do so without prejudicing his right to claim damages for the delay in completing the work. Complainant effected payments to the opposite party promptly without committing any defaults even though the opposite party has thoroughly failed to carry out the construction as per the agreement and in accordance with the schedule of constructions. Opposite party did not employ competent and experienced labourers to carry out construction. Opposite party did not carry out any additional works other than those specifically stated in the agreement. On the other hand, he did not carry out all the works, though he had collected costs of such works in advance. Complainant many times contacted the opposite party to ascertain the reason for not completing the work as agreed. On such occasions, he had promised the complainant that he would restart the work very soon and complete the work as early as possible. Later on the complainant understood that the opposite party is deliberately deceiving and defrauding him by promising to complete the work and therefore the complainant terminated the agreement by issuing a notice dated 24.12.2008. The said notice was received by the opposite party and he issued a reply notice making false and untenable contentions. The acts and deeds of the opposite party is nothing but an unfair trade practice and there is deficiency of service on the part of the opposite party. Hence this complaint to realize Rs. 2.5 lakhs being the excess amount collected from the complainant by the opposite party along with such other reliefs. Inspite of service of notice, the opposite party never turned up to contest the case nor has filed any version. Hence opposite party was set exparte. From the contentions raised in the complaint, the issues to be considered are:- Whether the opposite party has violated the terms and conditions in the agreement? Whether there is any deficiency in service on the part of the opposite party? Reliefs and costs.
Points (i) to (iii):- The construction agreement executed by the opposite party has been marked as Ext. P1. The total cost as per it is Rs. 8,00,000/-. Accordingly, payment of Rs. 7,25,000/- by the complainant to the opposite party in 15 instalments is seen acknowledged by the opposite party on the reverse side of Ext. P1. At this juncture, the matter to be ascertained is, whether the opposite party has carried out work as agreed in Ext. P1. As per the pleadings in the complaint the following works are left over by the opposite party in violation of the terms and conditions of the agreement after collecting the amounts from the complainant in advance. Wood Work : Doors and windows not fixed, only door frames and window frames are fixed. Ground floor : Plastering not completed(Plastering of front side and interior partially completed), flooring not done, plumbing work not done, electric work not completed, painting not done, kitchen fittings and cupboard not fixed, woodwork not done. First floor : Flooring, plastering, painting, woodwork, electric work, plumbing works not done. Fittings : Plumbing,electric and other works not done An expert commissioner was appointed to ascertain the defects in the construction and accordingly Ext. C1 commission report has been filed by the expert commissioner. As per Ext. C1, the present stage of construction shows Foundation and basement completed Superstructure Ground and First Floor have been completed except a portion of parapet. Doors and Windows Only frames of doors and windows fitted. Frames of bathroom doors are not supplied. Roof, sunshade, Lintel etc. (RCC Work) All are done. Staircase Folded Staircase constructed. Flooring Not done Plastering Major portion in Ground Floor completed. First floor is completely not attended. Finishing Not done Water Supply & Sanitary Not done Electricity Pipes have been laid, boxes fitted about 30% complete. Almirah, showcase, kitchen shelves etc. Not done. The commissioner has further reported that though the building structure has been completed, major portion of the work remains to be done viz; a good portion of wall plastering, entire plastering to the RCC shutters to the doors and windows, flooring, painting, water supply, part of electrification, finishing items. The defects in construction noted by the commissioner are that the reinforcement of slanting sunshade is seen exposed, joints of brick works are weak which are due to improper curing and poor quality of mortar. The commissioner reports that, the total value of work so far done by the opposite party is Rs. 4,82,282/- out of the agreed amount of work of Rs. 8 lakhs. Furthermore, it is reported that though the value of the remaining work to be executed is found as Rs. 3,17,718/- an amount of Rs. 3,81,262/- would be required by the complainant to carry out the remaining items of work. Besides this a loss to the tune of Rs. 20,000/- has been assessed for the defective work and for the failure of the opposite party to follow the standard specifications and workmanship. The Ext. C1 report filed by the commissioner has not been challenged by the opposite party. In the above circumstance, there is no hesitation to hold that all the defects and other details pointed out by the commissioner in his report stand uncontroverted and unshaken. As per the agreement Ext. P1, the construction should have been completed by March 30th 2008. But the complainant has succeeded in establishing that no such completion has been done even on the date of filing of the complaint i.e; 27.01.2009. As per the order in I.A. No. 242/09, the complainant has been allowed to pursue the remaining construction of the building. The opposite party has failed to appear before the Forum despite proper service of this complaint for deficiency in service in construction under an agreement. In the absence of any counter against allegation of deficiency in service on his part for defects in construction work and complaint regarding remaining work to be done by the opposite party, we hereby allow the complaint. On the basis of the commission report and other available records on evidence, we find that the complainant is entitled for refund of Rs. 4,01,262/- from the opposite party along with a compensation of Rs. 10,000/- towards deficiency in service and unfair trade practice. The complainant is entitled for a cost of Rs. 4,000/- also. In the result, the complaint is allowed. The opposite party shall pay Rs. 4,01,262/- along with a compensation of Rs. 10,000/- and costs Rs. 4,000/- to the complainant within a period of 2 months from the date of the order failing which the entire amount shall carry interest @ 9%. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of December 2009.
S.K. SREELA : MEMBER
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
jb
C.C. No. 21/2009 APPENDIX
I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS : P1 - Agreement for building construction dated 01.05.2007 P2 - Copy of advocate notice dated 24.12.2008 issued to the opposite party. P3 - Postal receipts ( 2 Nos.) P4 - Acknowledgement cards ( 2 Nos.) P5 - Reply notice dated 12.01.2009 issued to the counsel for complainant. P6 - Photocopy of approved building plan.
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL
PRESIDENT
| 
