By: Sri. Mohandasan K., President
The complaint in short is as follows: -
1. The complainant entrusted his housing construction work to the opposite party and as per the terms of agreement the opposite party agreed to start the construction work on 23/05/2018 and assured to complete the work within 4 months. The complainant and opposite party entered in to an agreement on 23/06/2018. As per the terms of agreement the complainant was liable to pay the cost within 4 installments. But the opposite party collected money from the complainant intermittently and the complainant paid the money since he considered the smooth improvement in the work. As per the agreement the opposite party had undertaken 913 sq ft works. But there was endorsement in the agreement to undertake additional work if required and it was agreed to pay Rs.1,60,000/- towards the additional work. The opposite party received the additional amount as agreed but no work completed. The complainant submitted that the opposite party did not complete the plumbing and electrical works, putty applying work, painting work, not installed two closets and washbasin, not installed fiber doors to the bath rooms, not removed debris from courtyard, not installed stainless steel railings, main door were not polished or painted, there was excessive gap wherein the main door fitted, no floor tiles were laid in living room and bed room, no putty applied or painting was done at the sit out, there was space wherein smoothness work was not done, ceiling smooth work was not done, granite was not laid bay windows and hall and also bed rooms, no fire wood shed works, electrical fittings were not done. The complainant incurred Rs.4,34,444/- for the said works and the opposite party is liable to pay the same to the complainant.
2. The opposite party had done work worth Rs.40,025/- in addition to the work agreed by the contract. The complainant had issued notice to the opposite party since he protracted the work and the complainant constrained to avail the service of a different contractor and the work was completed through him. The complainant was highly required to finish the construction work since his son was getting married to a near date. Thereafter when the complainant contacted the opposite party, then the opposite party said that he had completed 1016 sq ft work of the complainant which is a false statement. While discussing the issues, the opposite party destroyed the articles like table and chairs in the house of complainant.
3. The complainant approached one Engineer called Mr. Afsal K.T and he took measurement of the new construction work and found as 916 sq ft and the approximate cost for the construction of the same estimated as Rs.13,41,201/-. In effect though the opposite party collected Rs.16,60,000/-, the work stands in complete. The complainant submit that he spends an amount of Rs.4,34,444/- in addition to the payment made to the opposite party for completing the work. Hence the complainant demand to refund the excess amount collected from the complainant in addition to the amount spent by the complainant i.e., .4,34,444/- rupees. The complainant alleges deficiency in service and unfair trade practice against the opposite party and claims refund of Rs.4,79,269/-. Complainant further claims Rs.10,00,000/- on account of inconveniences and hardship caused to the complainant due to the act of opposite party.
4. The complainant further submits that as part of the transporting building materials the gate column was collapsed and it was not reconstructed by the opposite party which the opposite party was liable to do. The parties were agreed to calculate the expenses after construction work, but the opposite party did not incorporate many of works as agreed in the agreement and dishonored by the opposite party stating false hood. As per terms of agreement the opposite party had agreed to install all the articles at the choice of complainant. But the opposite party subsequently denied the same and prepared an agreement at his own whims and fancies. Hence the complainant prays for the refund of Rs.84,850/- which is received by the opposite party in excess against agreed amount and also to pay Rs.4,34,444/-, the amount spent by the complainant to finish the work and also for the interest from 25/09/2018 at the rate of 18% per annum. The complainant also prays for compensation of Rs.10,00,000/- and the cost of Rs.50,000/-.
5. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party denied the entire averments and allegations in the complaint. The opposite party specifically denied the entire averments in the complaint. The contention of the opposite party is that the work of the complainant was undertaken by the opposite party at the instance of his neighbor, who is none other than the brother of complainant’s wife Mr. Monahan. The opposite party started to construct the work of the complainant duly utilizing the quality materials and within agreed time stipulation. The agreement between the complainant and opposite party was to demolish the front portion of the house of complainant by retaining the back portion to construct living room, bed room, two bathrooms, store room, car porch and log room as per the plan given by the complainant. The complainant prepared an agreement and in which the opposite party signed. The opposite party had requested the complainant to shift from the house during the construction period but the complainant though agreed did not shifted from the house stating difficulties to his leg and so the opposite party at his own cost constructed a temporary facility and the complainant was residing there in during the period of construction work.
6. Thereafter, the complainant prepared another agreement wherein added nearly work worth Rs.2,00,000/-. The opposite party discussed with Mr. Mohanan about the additional work and he suggested that if the opposite party can do the work, he should do it. The opposite party was compelled to do the work since the demolishing of house has been done and moreover it will cause inconvenience to the complainant at that stage of work. But during the progress of work the complainant pressurized to undertake additional work which were not part of the agreement and if it is opposed by the opposite party then the complainant started to quarrel with the opposite party. Then the opposite party contacted the children of the complainant who is working out of state i.e., son Mr.Biju and another son who is working aboard and all of them advised the opposite party to finish the work as demanded by the complainant and they agreed to pay the excess amount if any sustained to the opposite party. The opposite party submit that he sustained Rs.2,35,900/- in addition to the agreement amount. The complainant is liable to pay an amount of Rs.84,100/- to the opposite party.
7. The opposite party further submitted that the house of the complainant has got 2400 sq ft though as per the agreement the construction work is limited to 900 sq ft. But on measurement it was found 1022 sq ft. While progressing the new construction work, the complainant suggested new works to the old building area which was not at all part of the agreement.
8. The opposite party submitted that he had completed all the works agreed by the contract and also the works suggested by the complainant and his children. The opposite party demanded Rs.2,35,900/- for the additional works and also an amount of Rs.84,100/- towards the balance amount of agreement. But the complainant evaded the payment stating lay excuses. The complainant said that work is not with quality and also not completed as agreed and so he is not prepared to pay the amount. The complainant was not even prepared to attend the phone call of the opposite party. Then the opposite party approached at the residence of the complainant for Rs.3,20,000/- stating that he is liable to pay cost of sand, cement and iron purchased from the shop. But the complainant tried to manhandle the opposite party and subsequently filed a complaint before the Perinthalmanna Police. The police called the parties and enquired the matter and thereafter convincing the innocence of the opposite party admonished the complainant. The complainant detained the tools of the opposite party like Jaki, Span sheet, iron pipes, drum and like other machineries, all the articles are now with the complainant. In addition to that some balance materials like cement, Jelly (metal), M sand, paints, steel pipes worth Rs.15,110/- is with the complainant.
9. The opposite party undertook the work of the complainant believing the words of Mr. Mohanan and the children of the complainant and on completion of the work the additional expense was demanded from the complainant. But refused to issue the same and subsequently filed false complaint before the police and now for escaping from the liability, false complaint has been filed before this commission, hence the prayer of the opposite party is to dismiss the complaint with the cost of the opposite party.
10 The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A4. Ext. A1 is copy of agreement between complainant and opposite party dated 27/06/2018. Ext. A2 is copy of lawyer notice issued to the opposite party dated 13/12/2018. Ext. A3 is copy of estimate cum abstract of cost of completed residential building. Ext. A4 is copy of statement issued by the opposite party to the complainant. The commission report marked as Ext. C1. The opposite party did not file documents.
11. Heard complainant and opposite party, perused affidavit and documents.
The following points arise for consideration: -
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
12. Point No.1 and 2
The admitted case of parties is that there was an agreement between the complainant and opposite party to construct a portion of residential building of the complainant. Ext. A1 is the copy of agreement entered between the complainant and opposite party. As per the document Ext. A1 it is specifically described the terms and conditions of the work to be carried out by the opposite party. The agreement reveals that the opposite party has to complete the work within 4 months after commencing the work and the approximate extend of construction is 900 sq ft. It appears the parties agreed for Rs.1550 per square feet and the final assessment will be on the basis of measurement after completing the work. There are 18 conditions as per the agreement between the parties. In addition to that the complainant entrusted the opposite party some additional works for which the opposite party agreed to pay Rs.1,60,000/- also. There are 7 conditions in the agreement in respect of additional works. The parties agreed for the payment through 5 instilments considering the progress of work.
13 The complainant alleges the opposite party collected excess amount from the complainant. The submission of the complainant is that the opposite party received an amount of Rs.16,60,000/- from the complainant even before December 2018. Burt the opposite party has not completed the work. The complainant narrated what are the works pending as per the agreement. Since the opposite party failed to carry out the work as agreed, the complainant was compelled to spent Rs.4,34,444/- including labour cost. But the complainant admit that the opposite party had carried out a wok wroth Rs.40,025/-. The opposite party was duly demanded to complete the work as agreed but he failed to do so. Then the complainant availed service from another contractor and the work was completed. The opposite party meanwhile said to the complainant that he had completed nearly 1016 sq ft work and demanded further amount of Rs.2,13,500 as per Ext. A4. The verification of Ext. A4, it can be seen that the opposite party submitted a calculation statement considering the terms of agreement. According to Ext. A4 document he assessed cost of construction work for 1016 sq ft at a rate of Rs.1550 per square feet as total Rs.15,74,800/-. He further claimed cost for additional work Rs 1,60,000/- and RS.1,38,700/-. Hence according to the opposite party, it can be seen that the opposite party claimed balance amount Rs.2,73,500/- in addition to the amount Rs.16,60,000/- which is already received by the opposite party. So, the perusal of the documents shows that the opposite party carried out the work and claimed additional amount from the complainant.
14. But the Ext. C1 report submitted by the expert commissioner shows that the complainant spent Rs.4,34,144/- for completing the works. The commissioner also reported that the contractor spent Rs.45,025/- for additional work. The commissioner has reported the plinth area of modified portion has 913sqft. The commissioner further submitted detail statement of calculation on the basis of agreement and the work carried out as part of the agreement. According to him as per the agreement the contractor / opposite party is entitled for Rs.15,75,150/, - if all the works as per the agreement would have been completed. The cost of work done by the contractor as per agreement is Rs.13,41,201/-. Hence there is an additional payment to the contractor worth Rs.3,18,799/-. The complainant spent Rs.4,34,144/- for completion of work undone by the contractor. The amount payable if the work would have been done by the contractor was Rs.2,33,949/-. So, there is an additional expense for the complainant worth Rs. 2,00,195/-. Then, what has been calculated by the surveyor as net loss to the complainant is Rs.4,78,969/-. The commissioner further commented that there are cracks on the wall of living room and jointing of old bed room No.3 and 4. So there is lack of supervision by the contractor during construction of work and no proper covering and vibrator were used during concrete work of roof slab as per agreement, the work is under warranty for 5 years. He has stated that the work done by the contractor suffers lack of quality which is permanent in nature, unless RCC is reconstructed and plastering after scrubbing out the cracked wall. RCC re work may not possible liquated loss assessed apart from the loss of Rs.5,18,994/-. The opposite party field objection on commission report but there is no merit in the objection except the objection filed by the opposite party there is no document to show the contention of the opposite party to attract consideration. Though the opposite party contended that there is an amount of Rs.3,20,000/- due from the complainant to the opposite party, no document is produced by opposite party to realize the amount from the complainant. In the absence of any steps by the opposite party to realize the same we cannot uphold the contention of the opposite party regarding the due amount. So, we are inclined to accept the commission report regarding the loss sustained to the complainant.
15. The prayer of the complainant is that to direct the opposite party to refund Rs.84,850/- as the excess amount collected from the complainant and also an amount of Rs.4,34,444/- towards the expenses incurred by the complainant to complete the work as per the agreement along with 18% interest the complainant further claim for a compensation of Rs.10,00,000/- and cost of Rs.50,000/-. The complainant is liable to pay the exact amount to the opposite party as per the agreement and the opposite parties liable to fulfill the work as agreed through the agreement executed between the complainant and the opposite party. It is already found that the opposite party has not completed the work as per the agreement and the extend of the work is not as contended by the opposite party. But it is only up to 913sqft as per the report of the expert commissioner. So, the opposite party is liable to refund the excess amount collected from the complainant and also liable to pay the expenses incurred by the complainant for completing the work entrusted to the opposite party. The expert commissioner rightly assessed loss sustained to the complainant as Rs.4,78,969/-. Hence the opposite party is liable to pay Rs.4,78,969/- to the complainant towards the expenses incurred the complainant to complete the construction work and also towards the excess amount collected by the opposite party and thereby refundable amount. In addition to the above said amount the complainant has claimed Rs.10,00,000/- as compensation on account of unfair and defective service from the side of opposite party. We find the claim of the complainant is an exorbitant amount for which the complainant is not at all entitled. The commission consider Rs.1,00,000/- as reasonable amount towards the compensation on account of deficiency in service and unfair trade practice and thereby caused inconvenience and hardship to the complainant. The opposite party is also directed to pay Rs.10,000/- as cost of the proceedings.
In the light of above fact and circumstances the complaint stands allowed as follows: -
- The opposite party is directed to pay Rs.4,78,969/- to the complainant on account of loss sustained to the complainant on account of defective service and unfair trade practice from the side of opposite party.
- The opposite party is directed to pay Rs.1,00,000/- to the complainant as compensation due to inconvenience, hardship and mental agony sustained to the complainant on account of the deficiency in service from the part of opposite party.
- The opposite party is directed to pay Rs.10,000/- as cost of the proceedings.
The opposite parties directed to comply this order within one month from the date of receipt of copy of this order, failing which the opposite party is liable to pay interest at the rate of 9% per annum from the date of order till the date of payment.
Dated this 30th day of January, 2023.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A4
Ext.A1: Copy of agreement between complainant and opposite party dated 27/06/2018.
Ext.A2: Copy of lawyer notice issued to the opposite party dated 13/12/2018.
Ext A3: Copy of estimate cum abstract of cost of completed residential building.
Ext A4: Copy of statement issued by the opposite party to the complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Ext. C1: Expert Commissioner Report.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
