Kerala

Thiruvananthapuram

CC/14/314

Padmam R Nair - Complainant(s)

Versus

Suresh Babu B - Opp.Party(s)

17 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD THIRUVANANTHAPURAM

 

PRESENT

 

                                       SRI.P.V.JAYARAJAN        : PRESIDENT

 SMT.PREETHA.G.NAIR   : MEMBER

                                      SRI.VIJU.V.R                  : MEMBER

CC.NO.314/2014 (Filed on : 07.08.2014)

ORDER DATED : 17.06.2022

 

COMPLAINANTS 1 & 2

 

1. Padmam R Nair &

2. V.Radhakrishnan Nair,

"Sreepadmam",

TC 52/1749 (1), Studio Road,

Industrial Estate.P.O

Thiruvannathapuram - 695019

 

                                                                    VS

OPPOSITE PARTY

 

Sri.Suresh Babu.B

"Kailsam",

Thennur- Kurumi Road,

Vellayani, Nemom.P.O

Thiruvananthapuram – 695020

 

(Adv.S.S.Dileep Raj)

ORDER

SRI. VIJU  V.R.     : MEMBER

1.       The complainants 1 & 2 have presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986. The brief facts of the case is that the first complainant entered into an agreement dated 24.12.2012 with the opposite party for constructing a building in her property. The building has to be completed in all respects and should be handed over to the complainants 1 & 2 within six months. But the contractor has failed to do so even after 19 months. The complainants 1 & 2 choosed 15^th September 2013 for performing housewarming ceremony but the opposite party has not completed the construction work within the period.  The opposite party has not completed the work till this moment. The complainants 1 & 2 moved into their new house on 31^st October 2013. But the complainants 1 & 2 were shocked to found innumerable cracks all over the walls, concrete roof/ ceiling, parapet, terrace walls etc. All the existing cracks keep enlarging, fresh cracks erupted all over the building. The complainants 1 & 2 saw rain water seeping through some of the cracks during the rainy season which would badly affect the stability of the structure and spoiling its appearance, costly electrical and electronical items, interior fittings as well as the modular kitchen. All these matters were informed to the opposite party. But the opposite party remained unconcerned. The woods in many of the doors are either bulged out or cracked from the frame indicating usage of poor quality wood and bad workmanship. Some of the doors does not closed properly, leaving a wide gap between the door and the frame. Wooden window frames too have broken at many places. Drawings of the electrical fittings and plumbing works have not been provided to the complainants 1 & 2 by the opposite party. The opposite party had taken away a lot of soil dug out while constructing rain water harvesting tank. The complainants 1 & 2 told opposite party that they need these soil to fill the low lying area to prevent water flooding during monsoons. The opposite party insisted that the available earth is sufficient enough to level up the low lying area and if the complainants 1 & 2 fall short of soil later, the opposite party will take its responsibility and to make it up and he would do so at his own cost and supervision. But he had not fulfilled his assurance so far. During the rainy period the lower lying area get flooded and created nuisance for the complainants 1 & 2. The opposite party has not completed the work and the incompleted work includes painting in some areas, removing stains and paint drops from some areas, repair of washbasin, water outlet, hand showers in bathrooms, mismatching paint in the sit out wall etc. The front gate has been spoiled with stains and the pipeline connection into and from the rainwater harvesting tank has not been explained to the complainants 1 & 2. All the above problems had been shown to the opposite party. But he had not taken any action to rectify the complaints. The act of opposite party amounts to deficiency in service and unfair trade practice. Hence this complaint.

          The opposite party entered appearance and filed version. Opposite party averred that the complaint is not maintainable either in law or on facts. The complainant is not a consumer as he has availed the service of the opposite party for personal service which is specifically excluded by the definition of service in the Consumer Protection Act. The opposite party has admitted the agreement executed between him and the first complainant. The allegation is that the house has to be completed in all respects and handed over to the complainant within six months for living is not disputed. In fact the said period of six months has to be completed from the date of initial payment made by the complainants 1 & 2. The complainants 1 & 2 choose 15^th September 2013 for the purpose of housewarming ceremony relying on the assurance given by the opposite party with the left over work as per contract would be carried out and completed in all respects and handed before their shifting on 31^st October 2013 is not correct. In fact the entire work as per agreement was completed prior to 15^th September 2013. So the assurance of completion of work well before their shifting on 31^st October 2013 does not even arise at all. After the construction work before handing over the same to the complainants 1 & 2, the complainants 1 & 2 were obliged to pay an amount of Rs.3,00,000/- to the opposite party which will also include the extra work done by the opposite party which may come to a tune of Rs.1,60,000/-. The extra works are done as per the directions of the complainants 1 & 2 which was not stipulated in the agreement. But the complainants 1 & 2 has not paid the remaining Rs.3,00,000/- to the opposite party. The allegation that the complainants 1 & 2 found innumerable cracks all over the walls, concrete roof/ ceiling, parapet, terrace walls etc and while the existing cracks keep enlarging, fresh cracks erupted and are still developing all over the walls are false. The complainants 1 & 2 moved into their said building on 31.10.2013 is false. The cracks of minor nature are expected to develop in all building which are constructed especially when the plastering is done using by M Sand mixed with river sand as per agreement. No such cracks of such magnitude had erupted in the building of complainants 1 & 2. The allegation that the rain water was seeping through some of these cracks during the recent rains and apprehension with water and / or moisture can find way through the countless cracks badly affecting or damaging the stability of this structure and supporting its appearance, exclusively electrical and electronic items, and interior fittings including the modular kitchen is false. There are no such major cracks in the building which would cause seepage of water. The root cause of these cracks are not of any consequences as the complainants 1 & 2 were very much acquainted with the quality of the materials used for the construction of the building and jointly supervising the entire construction of the same. The opposite party has promptly attended and rectified various trivial grievances raised by the complainants 1 & 2 . There are no such cracks in the building which would cause embarrassment to the complainants 1 & 2. The allegation with the wood in many of the doors is bulged out or crackled / crumbled / disjointed from the frame indicating usage of poor quality wood and bad workmanship is false The allegation is that some of the doors do not close properly leaving a wide gap between the door and the frame and that the wooden window frames to have broken at many places are false.

          The drawing of the electrification of the building was given to the complainants 1 & 2. There is no drawing for the plumbing works. The allegation that the opposite party had taken away a lot of soil dug out while constructing the rainwater harvesting tank which was executed by another contractor is not correct. The allegation that the complainants 1 & 2 themselves have removed some stains from the front side area and also from windows and floors at their cost and that they are unable to complete the same in some areas because of the shabby and irresponsible way the painting has been carried out by the opposite party is false. Certain stains and cracks which normally occur during the painting works were all duly attended and cured by the opposite party. The allegation that the painting in the sit out was mismatching is not correct as the said colour was choosen by the complainants 1 & 2 thesmselves. The allegation with the repair and wash basin, water outlet, hand showers in bath rooms remains to be completed is false. The allegation regarding front gate, pipeline connection into and from the rain water harvesting tank has not been explained to the complainants 1 & 2 are false. The opposite party has received two notices send by the complainants 1 & 2. The complainants 1 & 2 have forced such notices to the opposite party with the intention of wriggling out of the liability to pay the balance amount to the opposite party. The complainants 1 & 2 have filed this complaint in anticipation of the legal proceedings which the opposite party proposed to initiate against the complainants 1 & 2 for the realization of the balance amount due from the complainants 1 & 2. There is no deficiency of service or unfair trade practice from the side of opposite party. Hence complaint may dismissed with compensatory cost to the opposite party.

Issues to be ascertained: Whether there is any deficiency in service or unfair trade practice from the side of opposite party? Whether the complainant is entitled to get the reliefs? Issues (i) & (ii):- Both these issues are considered together for the sake of convenience. The 2nd complainant has filed affidavit in-lieu of chief examination and was examined as PW1 & has produced 4 documents which were marked as Exts. P1to P4. PW1was cross examined by the opposite party. Opposite party has filed affidavit in-lieu of chief examination and was examined as DW1. DW1 was cross examined by 2nd complainant. The commission report was marked as Ext C1.Opposite party has filed objection to the Commission Report. The complainant as well as the opposite party filed argument notes.                          The main allegation in the complaint is that the opposite party has not completed the construction of the building as per the agreement. On going through the Ext P1 it can be seen that the construction shall be completed within six months from the date of initial advance payment. The complainant has not produced any evidence to prove the date of initial advance payment to OP. So it is not possible to say that the opposite party has not completed the construction of the building within six months.           The opposite party has took the contention that the complainant is liable to pay Rs 3,00,000/- to the opposite party, which includes Rs 1,60,000/- for the extra works done by him. But OP has not produced any documents to prove the same, hence the counter claim raised by the OP is discarded.               Even though OP has filed objection to the commission report, opposite party has deposed during cross-examination that “Commissioner സ്ഥലത്തു വന്നപ്പോൾ ഞാൻ ഉണ്ടായിരുന്നു . റിപ്പോർട്ട് പ്രകാരം ഉണ്ടായ defect rectify ചെയ്ത് തരാൻ ഞാൻ തയ്യാറായിരുന്നു .പക്ഷേ complainant സമ്മതിച്ചില്ല”. So it is admitted by opposite party that he is ready to rectify all the defects noted by the commissioner. This is a clear admission by the opposite party.             Hence we find that the complainant has succeeded in proving his case and we find that there is deficiency in service from the part of opposite party. Hence the opposite party is liable to compensate the complainant.                 In the result, the complaint is allowed. The opposite party is directed to rectify all the defects noted in Ext C1 at his own expenses or otherwise pay Rs 2,95,000/- (cost mentioned in the CR) to the complainant and also pay Rs. 15,000/- as compensation for the mental agony suffered by the complainant and pay Rs 2,500/- towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9% per annum from the date of order till realization.

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 Commission, this the 17th day of June 2022.

 

                                                                                          Sd/-        

P.V.JAYARAJAN   : PRESIDENT

 

 

                                                                                           Sd/-     

  PREETHA .G.NAIR: MEMBER

 

 

                                                                                              Sd/-  

VIJU.V.R     : MEMBER

 

 

 

 

 

 

 

Be/

 

APPENDIX

CC.NO.314/2014

List of witness for the complainant

PW1            - V.Radhakrishnan Nair

List of Exhibits for the complainant

Ext.P1         - copy of Agreement

Ext.P2         - Copy of letter dated 30/05/2014

Ext.P3         - Copy of letter dated 21/07/2014

Ext.P4         - Copy of bank statement

List of witness for the opposite party

DW1              - B.Suresh Babu

List of Exhibits for the opposite party         - NIL

Court Exhibit                

Ext.C1                  - Commission Report

 

 

 

 

                                                                                         Sd/-        

                                                                                    PRESIDENT

 

 

 

 

 

 

 

 

BEFORE THE DISTRICT

 CONSUMER DISPUTES

REDRESSAL COMMISSION

 

VAZHUTHACAUD

THIRUVANANTHAPURAM

 

 

 

CC.NO.314/2014

ORDER DATED : 17.06.2022