IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the   6^th Day of  March  2020

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

       Sri.Stanly Harold, B.A.LLB, Member

                                            CC No.162/13

Jayan                                                                    :         Complainant

S/o Mahadevan

Saraswathi Nilayam, Kadappakkada Nagar

Kadappakkada P.O, Kollam

Now residing  at

Sapthami, Kadappakkada Nagar

Kadappakkada P.O, Kollam East village, Kollam.

[By Adv.S.Sureshkumar]

V/s

1. Sussan Thomas                                           :         Opposite parties

         Amulya(Jeevan Builders), Aradhana Nagar

       Behind Sanker’s Hospital

        Kollam-1.

2. Thomas Mathew

        Amulya (Jeevan Builders), Aradhana Nagar

       Behind Sanker’s Hospital

       Kollam-1.

       [By Adv.S.Riyas]

         FAIR   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

            This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.

The averments in the complaint in short are as follows:-

          The complainant is a Higher Secondary School Teacher.  He entered into an agreement with the 1^st opposite party on 23.04.12 for the construction of a residential building with a total plinth area of 1410 sq.ft .  The agreed construction cost is Rs.19,59,900/-.  At the time of entering into the agreement the 1^st opposite party introduced the 2^nd opposite party as her husband and made the complainant to believe that the 2^nd opposite party is having ample experience in the construction of residential building and that he will look after the step by step construction of the building as per stipulation containing in the agreement.  The 2^nd opposite party claimed that he is  a government employee and hence he cannot be  a party to the contract.  The opposite parties claimed to be civil engineers and also agreed to construct the building within 6 months starting from the date of  agreement.  But in gross violation of the terms  of the agreement the opposite parties have taken more than 1 year for completing construction of the work and the work done was in a very shabby manner with lot of defects which made the house unfit for a peaceful living.  The dream house of the complaint were handed over to him which are having the following major defects.

1. The ceiling of the 1^st floor shows leaking at various parts during rain.
2. The doors and windows in the 1^st  floor are fixed in such a manner as it become wet during rain.
3. The closet in the 1^st floor bathroom is not properly fixed and the dimension of the bathroom is uneven.
4. The waste water from the 1^st floor bathroom flows to the ground floor bathroom though the seawage pipe.
5. Fan points are provided without hooks.
6. Floor, tiles are not fixed properly and tiles in the staircase are fixed without sufficient strength.
7. The steps at the main entrance are in different width.
8. In contravention to the 12 clause in the contract the kitchen slab is fixed by using 6 pieces of lesser value instead of granite slab as agreed.
9. Shower tap and health faucet are not fixed in the ground floor bathroom.
10. Kitchen cabinet was not made as agreed in clause 27 of the agreement.
11. The open terrace in the 1^st floor is constructed in contradiction to the approved plan and hence the corporation has raised objection for issuing house number.
12. The carpentry works are not completed.
13. The exhaust fan in the bathroom are fixed irrationally.
14. The small window fixed in the bathroom is fixed with a lower height than it is expected and it affects privacy.
15. The kitchen slab in the 1^st floor kitchen is fixed at a height which makes of difficult for a five feet women to handle the cooking.
16. The plastering at various places are not finished.

There are clear deficiency in service due to the gross violation of the terms of the agreement between the complainant  and the opposite parties and the complainant is entitled to compensate  for the deficiency in service due to the imperfection of the house .  As a result the professional negligence of the opposite parties which has caused much inconvenience, mental agony and irreparable injury to the complainant.  The complainant limits his claim of compensation  to the tune of Rs.3,00,000/- for clearing all the defects caused due to the irrational construction of the building in addition to the payment of Rs.2,00,000/- as  compensation for the mental agony and hardships occasioned due to the acts of the opposite parties.  Hence the complaint.

Opposite parties No.1&2 filed a joint written version raising the following contentions.  The complaint is not maintainable  either in law or on facts.  However the opposite parties would admit that the complainant and 1^st opposite party had entered into an agreement for construction of the house building. But the allegation that at the time of entering into the agreement the 1^st opposite party introduced the 2^nd opposite party who is none other than her husband and an experienced contractor and he could not sign the agreement as he is a government employee.  The 2^nd opposite party used to carry his wife (1^st opposite party) who is a contractor to the work site and take her back from the work site as and when he gets time.   The 2^nd opposite party being a government employee would not get time to supervise the construction work carried out by the 1^st opposite party who herself used to complete the work within time.  The allegation in the complainant is that the 1^st opposite party has agreed to complete the construction work within 6 months if payment is made as agreed in the agreement.  But the complainant failed to effect payment as agreed from the very beginning and hence he was aware that the work would not be completed within the stipulated period.  The work was completed after making alteration and additions directed by the complainant and  hence the construction was different from the approved plan.  After completing the construction with alteration and additions the complainant has taken over the house building and conducted the housewarming ceremony and thereafter when the opposite party asked the balance amount the complainant felt annoyed and started to raise the allegation regarding the way of construction with a view to avoid payment  of the remaining amount and has also filed the present complaint with ulterior motive.  The defects pointed out in paragraph 3 of the complaint is incorrect and has been stated solely for the purpose of filing the complaint.  There is no chance of leakage in the roof of the building as the roofing has been made by giving sufficient  slop to facilitate the flow of water.  The doors were fitted for constructing sufficient shade as a protection from rain water.  The closet have been  fitted properly under the instruction of the complainant.  The opposite parties have also denied all other defects and would claim that the 1^st opposite party who is having sufficient experience in the construction of the building has caused to construct the  house building of the complainant and therefore there is no deficiency in service on the part of the opposite parties in constructing the house building.  The complainant is having no cause of action against the opposite party and the cause of action alleged is only imaginary and artificial.  The complainant is not entitled to get any of the reliefs sought for.  The 2^nd opposite party is not necessary party to the complainant and he has been impleaded as 2^nd opposite party deliberately with a view to harass him.  The opposite parties have also raised a counter claim for  Rs.5,23,225/- along with interest as the complainant has caused alteration and additions in the construction.  In order  to avoid payment of the above amount the complainant has filed the claim with ulterior motive.  The opposite parties has also stated the details of counter claim in their version and further prays to dismiss the complaint with their costs and also prays to allow the counter claim with interest and costs.

In view of the above pleading the points that arise for consideration are:-

1. Whether there is deficiency in service on the part of the opposite parties as alleged?
2. Whether the counter claim raised by the opposite parties is maintainable?
3. Whether the complainant is entitled to get the relief sought for?
4. Relief and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&2, Ext.P1 to P5 series.  Evidence on the side of the opposite party consists of the oral evidence of DW1&2 and Ext.D1&D2.  Ext.C1,C1(a) & C1(b) Commission report and expert report along with Mahazar has also been marked in evidence.

Point No.2

          The following are the admitted rather undisputed facts in this case.  The complainant intended to construct a house building for which he executed an agreement with the 1^st opposite party.  A copy of the said agreement is marked as Ext.P1.  The agreement has been executed on 23.04.12 by which the 1^st opposite party agreed to construct a house building consisting of 1410 sq.ft for which Rs.19,59,900/-.  The 2^nd opposite party is the husband of the 1^st opposite party who is a government employee, who also assisted the 1^st opposite party to construct the house building.  The  1^st opposite party has agreed and declared in Ext.P1 agreement that she will complete the construction work and handed over the building to the owner within 6 months.  But the building has been  handed over to the complainant only after one year of starting construction, that the opposite parties have made some alternations and additions in constructing the building.  The opposite party has made a counter claim of  Rs.5,23,225/-  out of  Rs.3,53,225/- is due on account of additional construction work and alterations made from the original plan and agreement.  The opposite party had also spend extra amount by way using costly materials in the construction work on the basis of the assurance made by the complainant and his wife that difference in price will be paid by the complainant for using quality materials as against materials of cheaper quality specified in Ext.A1 contract.  The 1^st opposite party has also spend a total sum of  Rs.2,33,831/- towards fixing bathroom tiles and floor tiles  even as per report of the expert commissioner.  The opposite party is entitled to get the sum for the complainant.  The complainant has denied the above counter claim.  It is well settled that counter claim raised by the opposite party in a consumer complaint is not maintainable at all.  Therefore the Forum not inclined to consider the counter claim.  The same is only to be dismissed as not maintainable.  The point answered accordingly.

Point No.1&3

          According to the complainant the opposite parties have constructed the house building by violating the terms and condition in P1 agreement.  The 1^st violation alleged by the complainant is that the opposite parties have  taken more than 1 year for completing the construction work instead of 6 months.  But the opposite parties alleges 2 reasons the delay.  The first reason is the delay in payment of installment of construction cost by the complainant and the second reason is that the complainant insisted to construct one additional kitchen on the 1^st floor against the approved plan. Ext.P5 series are the receipts and bank account statement showing the disbursement of installment of the construction cost which would indicate that the construction cost was paid in 15 installments which is against  the statement schedule attached to Ext.P1 statement wherein it is stated that payment has to be effected in 6 stages according to the progress of the construction work.  As there is delay in effecting payment the allegation that there is delay in completing the construction work is having no force at all.

According to the complainant the electrical works as per agreement has not been carried out by the opposite parties while handing over the building to the complainant.  The forum has deputed one Advocate Commissioner along with technical expert (PW2) to inspect the disputed building as per order in IA 54/14.  They verified  the building after giving notice to both sides prepared Ext.C1, C1(a),C1(b) and C2 Mahazar and report of the commissioner and C1(b) report of the expert noting the defects and imperfection in the construction. 

One of the major allegations of the complainant in his complaint is that the opposite parties have constructed the building in  a most shabby manner causing several defects and dream house of the complainant were handed over to him having several defects which are mentioned in the complaint as item No. i to xvi.  Hence  according to the complaint there is clear deficiency in service and unfair trade practice on the part of the complainant due to the imperfection of the house building handed over to him.  According to the complainant due to the imperfection of the house building constructed by the opposite party in violation of the terms of the agreement, he has sustained much inconvenience, mental agony, irreparable injury apart from financial loss and therefore he is entitled to get Rs.3,00,000/- as compensation for clearing the defects and also Rs.2,00,000/- for the mental agony and hardship caused him by the opposite parties in this regard.  To substantiate the above claim the complainant would rely on the oral evidence of PW1&2 and Ext.P2, C1 Mahazar,C1(a),C1(b) report of the Commission and Expert.  PW1 who is none other than the complainant has sworn in paragraph 3 of the proof affidavit regarding the defects and imperfection of the house building constructed by the opposite parties.  It is brought out during cross examination of PW1 that he has handed over plan, estimate and permission obtained from the corporation along with  agreement to the opposite party.  PW2 is the technical expert/Civil engineer and approved valuer who inspected the disputed building along with the commissioner Advocate . The evidence of PW2 would indicate that  he has inspected the house building and prepared C1(a) report which   would indicate that after giving registered notice to the complainant and the opposite parties 1&2, PW2 along with Commission advocate has visited the disputed house building and noted the following defects.

          There are leak marks near the entrance of the 1^st floor steps,  fan hook point and east and west portion of the room.  The expert and commissioner has also noted leak mark on the north western  corner of south east bedroom and south west bedroom.  The advocate commissioner and the expert have confirmed the leaking by storing water as instructed by PW2 and has also taken photograph of the leakage portion.  The said photograph has also appended to the expert report.

          It is brought out in evidence through PW2 expert who accompanied the commissioner that while he was inspecting the house building constructed by the opposite parties he found water leakage because of lack of  supervision and workmanship.  He has further added that hoSv \nÀ½n-¨-t¸mÄ aXn-bmb Sunshade IÄ      Øm]n-¡m-¯-Xp-sIm-­mWv ag-¡m-e¯v P\-ep-I-fnepw hmXn-ep-I-fnepw \\hv kw`-hn-¨-Xv.  Bath room Ifn closet IÄ icn-bmb coXn-bn fix sNbvXn-«n-Ã.  aXn-bmb coXn-bn  plumbing sN¿m-¯-Xp-sIm-­mWv apI-fn-es¯ bathroom D]-tbm-Kn-¨-t¸mÄ Xmgs¯ bathroom  shÅw hogp-¶-Xv. hoSnsâ fan hook Ifpw floor tiles Dpw icn-bmb coXn-bn Aà Øm]n-¨n-cn-¡p-¶-Xv.  ap³h-is¯ door steps  c­pw c­-f-hn BWv Øm]n-¨n-cn-¡p-¶-Xv. kitchen slab, single slab \v ]Icw piece piece Bbn-«p-Å-XmWv fit sNbvX-Xv. apIÄ`m-Ks¯ plastering icn-bmb coXn-bn Aà sNbvX-Xv. Approved plan  AÃmsX Hcp projected balcony Dpw AXnsâ grill Dpw Øm]n-¨n-«p-­v. aXn-bmb coXn-bn Labour work Dpw supervision Dpw quality Dpw   CÃm¯ km[-\-§Ä D]-tbm-Kn-¨-Xn-\m-emWv construction  A]m-IX D­m-b-Xv.   

          Though PW2 has been cross examined in length nothing materials has been brought out to disbelieve the above version  regarding the defects noted in C1(a) Commission report.  The main contention of the opposite  party is that the defects noted by the commissioner and expert are only  minor defects which can be cured easily.     

In view of the materials available on record we find no merit in the above contention.  The leakage found on the roof is a very serious defects.  If the roof is properly constructed there will not  be any chance of leakage.  In the circumstance we are inclined to hold that there is deficiency in service on the part of the opposite party No.1 who  is the contractor who constructed the building.  It is also clear from the available materials that as the opposite parties have constructed the dream house of the complainant with major defects such as leakage in the roof the complainant has sustained mental agony apart from financial loss.  Therefore the complainant is entitled to get compensation for undoing the defects and also for the mental agony.  Unfortunately there is no material before the forum to calculate the amount which is required for undoing the  major defects noted by the commission and expert in C1(a) & C1(b) reports.  However in view of the defects brought out in evidence we are of the view that Rs.2,00,000/- is sufficient for undoing  the defects and Rs.1,00,000/- is sufficient compensation for the mental agony sustained to the complainant on account of the defective construction of the house building by the opposite party.  The complainant is also entitled to get costs of the proceedings.  The points answered accordingly.

Point No.4

In the result the complaint stands allowed in the following terms.

          Opposite party No.1&2 are directed to pay Rs.2,00,000/- as compensation for the defective construction of the building and Rs.1,00,000/- as compensation for the mental agony and Rs.10,000/- as costs of the proceedings.

          The opposite parties are directed to comply with the above directions within 45 days from the date of getting  a copy of this order failing which the complainant is entitled to realize Rs.3,00,000/- with interest @ 9% p.a from the date of complaint till realization  along with costs Rs.10,000/- from opposite party No.1&2 jointly and severally and also from their assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 6^th   day of  March   2020.    

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

                                                                                     Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           M.Jayan

PW2                :           Ravindra Nadhan Nair

Documents marked for the  complainant

Ext.P1              :           Copy of agreement

Ext.P2             :           Copy of notice

Ext.P3              :           Postal receipt

Ext.P4              :           Acknowledgement card

Ext.P5 series   :           Receipts

Witnesses Examined for the opposite party:-

DW1               :           Thomas Mathew

DW2               :           Susan Thomas

Documents marked for opposite party:-

Ext.D1                        :           Cash bills

Ext.D2                        :           Cash Bill

Ext.C1             :           Mahazar prepared by commissioner advocate

Ext.C1(a)        :           Commission report

Ext.C1(b)        :           Expert report

Ext.C2             :           Detailed estimate for the approved and good quality materials/labour

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

                                                                                  Stanly Harold:Sd/-

                                                                                  Forwarded/by Order

                                                                                Senior Superintendent