DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 07th day of March 2018
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P, Member
: Sri.V.P.Anantha Narayanan, Member Date of filing: 30/08/2014
(C.C.No.129/2014)
U.Sudheep,
S/o Nandakumaran,
Greeshmam House,
Near Civil Lane Nagar,
Kallekkad,
Behind Civil Station,
Palakkad Taluk,
Palakkad District. - Complainant
(By Adv.John John)
Vs
Swaminathan,
S/o K.P.Velayudhan,
Kannathu House,
Panayoor,
Polpully,
Palakkad. - Opposite party
(Adv.A.Nijamudin)
O R D E R
By Smt. Shiny. P. R. President.
Brief facts of complaint.
On 19.11.2012 the complainant has entered into an agreement with the opposite party for the construction of a residential house for consideration of Rs.1,200/- (Rupees one thousand two hundred only) per square feet. Then opposite party started construction work and as work was in progress the complainant paid a total amount of Rs.34,10,000/- (Rupees Thirty Four lakhs ten thousand only) to the opposite party in different installments. In the month of March 2014, opposite party stopped the work before completing the total construction work assigned to him, without any reason. At that time the work such as plumbing works, laying of tiles and granite, painting, polishing of wooden articles, hand rail works, fixing of bathroom doors, finishing works etc. were pending. The complainant had already fixed the date of house warming ceremony and had arranged all things for the same. On inspection made by the complainant with the help of an expert, it was found that all the works done by the opposite party is of poor quality. When the complainant made an assessment of the amount spent by the opposite party for the work so far completed by him, with the help of the expert, an amount of Rs.24,30,000/- (Rupees Twenty Four Thousand lakhs thirty thousand only) is required for the work done by the opposite party. Complainant submitted that due to poor workman ship, negligence and carelessness, several defects were happened in the construction work. They are,
- Other than front door and 2 up stair balcony doors all other doors and windows are made of M.D.F
- Cement plastering is getting detached due to poor workmanship including deficiency in proper caring and usage of the quality cement and other materials
- Switches, plugs and control board including ELCB are not of the make as agreed and the same are not fixed properly.
- Wiring cables are not ISI marked
- Main control board and ELCB not fixed properly
- Compound wall is not strong due to poor workmanship and the usage of low quality cement and other materials
- bends are there all over the window rods
- measurements of steps in stair case differs from each other
- doors and windows are not capable of being closed properly
- cracks formed all over there in wooden articles fixed by the opposite party and in the construction work
- Cement plastering not done behind the stair case
- Difference in the colour of tiles in bedrooms and bathrooms
- Painting work not finished
- Edges of bathroom doors sides not finished
- Damaged tiles used
Complainant further submitted that the following additional expenditures are incurred for the completion of the construction.
Materials Cost
1. Tiles - Rs.1, 22,850/-
2. Granite - Rs. 63,500/-
3. Paint - Rs. 12,635/-
4. Sanitary and pump fittings - Rs. 42,120/-
5. Handrails - Rs. 6,500/-
6. Gate - Rs. 6,000/-
7. Door fittings - Rs. 24,465/-
8. Cement and M Sand - Rs. 17,450/-
9. Bathroom doors - Rs. 15,480/-
Labour Charges
1. Masson - Rs.16,000/-
2. Painter - Rs. 1,800/-
3. Carpenter - Rs. 9,000/-
4. Electrician and plumper - Rs. 8,400/-
5. Tile laying charge - Rs. 1,400/-
6. Granite laying charge - Rs.15,300/-
Complainant further alleged that the opposite party constructed the house deviating from the approved plan and according to his whims and fancies, due to the said reason, in the rainy season, water from the roof tiles will flow to the compound of others situated nearby. Since the opposite party stopped the work half way it has caused both mental pain and financial loss to the complainant. The reputation of the complainant was also affected badly in the locality as the construction work was stopped half way.
Then the complainant sent a lawyer notice to the opposite party calling upon him to pay a total amount of Rs.16,50,000/- to the complainant. The opposite party replied for the same stating false and baseless contentions. Hence the complaint. Complainant prays for an order directing opposite party to pay a total amount of Rs.16,50,000/- to complainant with 12% interest per annum till its realization.
Complaint was admitted and notice was issued to opposite party. After receiving the notice opposite party entered appearance and filed version contending the following:-
Opposite party admitted that on 19.11.2012 the complainant and opposite party had entered in to an agreement to construct a residential house for a consideration of Rs.1,200/- per square feet and an amount of Rs.2,50,000/- was received as advance form the complainant. Opposite party contended that after completing the foundation work the complainant made to wait this opposite party for some more months to resume the work since the complainant was not having sufficient fund to continue the work and he was waiting for bank loan. After one year the complainant availed bank loan and again insisted this opposite party to continue the work on the same rate as noted in the agreement and that too with assigning more square feet work at the rate noted in the agreement. This opposite party was not ready for the same and at last the complainant have agreed and allowed to continue the work at Rs.1,600/- per square feet with additional facilities according to the whims and fancies of the complainant in selecting the granite, closet, wash basin tiles etc. Over and above the 1000 litre capacity cement tank as per the complainant’s request another PVC tank was also provided and he was also entrusted the opposite party to take steps to correct the old plan and also entrusted to do all the works at municipality in order to get the number of the house. But after completion he has refused to include all the additional works at the new agreed rate of Rs.1,600/- per square feet. Apart from original agreement laying of the foundation and compound wall and connected works only this opposite party has spent more than Rs.5,00,000/-. Again over and above the stipulation in the agreement as per the oral request of the complainant the car porch was extended to another 12 feet length and 5 feet width and laid a balcony also on the roof of it and the charupadi was made of granite and about 16 feet length with steel pipe. Though the specification of 4 set of windows are 5x5 as per his oral request it was changed to 6x6 and all are made teakwood. Instead of PVC bath room doors ALCO doors worth Rs.8,000/- each was fitted. The tiles laid costs Rs.65/- as per square feet and all electrical fittings are ISI quality and closet rating Rs.8,000/- and water taps each costing Rs.800/- are used. The granite used in the stair case costs more than Rs.250/- per square feet. The complainant requested this opposite party to lay granite on the stair case, sit out, charupadi and made this opposite party to wait for some more time to finish the work in order to enable him to purchase the granite by him. Only in the above circumstances plumbing work, laying of tiles and granite, painting and polishing of wooden articles, fixing of bathroom doors and finishing works etc were kept pending. Only due to the act of the complainant in making available the granite it was not able to complete the work within time and only in the above circumstances the house warming ceremony was delayed. There were no latches on the part of his opposite party in completing the construction work in stipulated time. All the completed works are without any defects and it is according to the oral directions given by the complainant himself and his father. This opposite party has not deviated from the terms and conditions of the agreement dated 19.11.2012 and there is no poor workmanship, negligence, carelessness and defects in the construction work. As per the conditions specified in the agreement and also as per the oral request of the complainant this opposite party done all the finishing work and has spent nearly Rs. 32,40,000/- to finish the house of the complainant. Only the planks in the doors are made of 21 MM water proof MDF and windows are not made of MDF. This opposite party has used the workmanship of very experienced workers and cement and other materials of high standard quality are used for construction work. The switch, Plugs, ELCB, cable are all of ISI standard and are selected by the complainant himself and paid by this opposite party. Since the specifications of windows are changed there is bending in two widow rods only. Even a layman knows that when fresh doors and windows are fitted with the passage of time there occur some difficulties in closing properly which has to be cured later. Cracks will form in wooden articles when it is made of veppu. Only two days before the opening of the house the complainant arranged granite and due to his urgency plastering was not able to be carried out behind the stair case. Only due to the selection of tiles in bedrooms and bathrooms by the complainant himself the colour variation occurred. As per the terms of agreement only white painting was done and this opposite party has not used any damaged tiles since all the tiles were selected by the complainant himself. Since the roof lies in a slop motion due to heavy rain and wind there is possibility of water flowing to distant areas and as on now the rain water has not affected the neighbours. This opposite party has not stopped the work half way. Opposite party submitted that only after the completion of the work this opposite party has entrusted the key. In the material column shown except granite all other items are purchased by this opposite party and paid by this opposite party and if anything was purchased by the complainant and fitted after entrusting the key this opposite party is not answerable for the same for the sole reason that he has entrusted the key after completing the work as per the terms of the agreement and also oral request. The claim for the return of the amount of Rs.9,80,000/- is without any basis and he is not entitled to get any such amount. But on the contrary complainant is liable to pay an amount of Rs. 3,97,600/- being the balance amount due from the complainant to the opposite party. As on the date of completion and entrustment of key to the complainant he has paid only an amount of Rs.28,58,700/- to this opposite party and he kept a balance of Rs.16,300/-. Opposite party further submitted that by a clerical mistake and oversight, in the reply notice it was noted that including the advance amount the opposite party has received a total amount of Rs.34,10,000/- is incorrect. Hence the complaint is to be dismissed with compensatory cost of Rs 10,00,000 plus the balance amount of Rs.3,97,600/- to this opposite party with 12% interest and cost of proceedings.
In the mean time opposite party filed IA 277/16 for amending the version. Complainant filed counter. After hearing the matter we allowed the application and opposite party amended the version.
Both parties filed their respective chief affidavits. Complainant was cross examined as PW1 and Exts. A1 to A6 series were marked. Opposite party was cross examined as DW1. Expert commissioner inspected the property as per orders in IA 321 B/14 and IA 302/15. Opposite party filed objection to both commission reports. Commission reports were marked as Exts. C1 and C2 and commissioner was examined as CW1.
The following issues that arise for consideration are.
- Whether there is any negligence or deficiency in service on the part of opposite party?
- If so, what are the relief and cost?
Issues 1&2
Both parties heard. We have perused the documents filed before the forum. Opposite party admitted Ext.A1 agreement dated 19.11.2012. From the Ext A1 it is seen that time fixed for completion of the construction was 1 ½ years. Complainant submitted that he had paid an amount of Rs 34,10,000/- to the opposite party for the construction. But the opposite party denied this allegation stating that as on the date of completion and entrustment of key to the complainant he has paid only an amount of Rs. 28,58,700/- to this opposite party and still Rs.16,300/- has to be paid. Complainant did not adduce any evidence before the Forum to prove that he had paid an amount of Rs 34,10,000/- to the opposite party for the construction of his residential house.
One of the allegations of the complainant is that opposite party stopped the work half way and at that time the work such as plumbing works, laying of tiles and granite, painting, polishing of wooden articles, hand rail works, fixing of bathroom doors, finishing works etc. were pending. While cross examination complainant deposed that 2014 amÀ¨n ^ÀWnjnwKv hÀ¡v Hgn¨p _m¡n FÃm ]WnIfpw {]Xn sNbvXp X¶n«mWp t]mbXv. sabv  BWp Xmakw XpS§nbXv. From this it is clear that all the works other than finishing work were completed by the opposite party. Therefore the above allegation of the complainant cannot be taken into consideration. Expert commissioner inspected the property and filed Ex. C1 and C2 report. As per Ext.C1 commission report it is seen that total plinth area of the construction is 2112 sq ft and structure plastering, flooring, doors & windows fitting, white cement painting, electrification, plumbing etc were completed. He also reported that the contractor has constructed the structural work properly and no crack or leaks etc were found. But he reported some defects in the construction of building. They are the following:-
- Plastering not finished properly. The drawing room, kitchen and bed rooms
are the main portions where the plastering developed loose surfaces, which
on touching itself fall. This is due to the inferior quality M sand used.
- Front teak wood doors are not closing properly
- The other doors are of country wood not approved quality.
- Balance plastering on the underside of sit out slab and plat form
- Electrification materials used are not of approved make
- The bath room are also not finished properly, flush tank not working and water supply is not having enough pressure.
Relying upon the Ext C1 report we are of the view that there were some defects in the construction of the residential house of the complainant. So the opposite party has the liability to pay the cost of rectification to the complainant.
In Ext C2 commission report commissioner reported that the main electrical cables seen Havells Brand, but the sub cables do not bear any name. The sub cables are of inferior quality. The damaged plastering is to be removed and re plastered. The wooden items are to be replaced. Electrical and sanitary items are to be repaired. Commissioner opined that Rs.2,08,000/- is required for the rectification of these defects. While examination, commissioner deposed that Fsâ A`n{]mb¯n defects FÃmw rectification am{Xsa ]dbp¶pÅq. Fsâ 2 mw dnt¸mÀ«n wooden furniture are to be replaced Fs¶gpXnbn«pÅXv icnbÃ. AXp rectify sNbvXm aXn. Hence the opinion of the commissioner about the amount required for the rectification of the defects occurred is not correct. In Ext C1 report he reported that plastering, flooring, doors & window fittings, white cement painting, electrification, plumbing etc were completed. At the same time, commissioner suggested Rs.35,000/- for the balance carpentry work, masonry and plumbing work. But these pending works were not seen mentioned in the commission reports. Hence the suggestion of the commissioner for the payment of Rs.35,000/- cannot be taken into consideration. From these we are of the view that calculation made by the commissioner is not correct.
However, after perusing the commission reports and photographs produced by the commissioner we are of the view that opposite party committed gross negligence and deficiency in service in the construction of residential building. The plastering on the walls are seen very poor. The defects in the newly constructed residential building will definitely cause mental agony and financial loss to the complainant. The above acts of opposite party amount to deficiency in service. Therefore the opposite party has the liability to pay compensation to the complainant. Complainant submitted in his complaint that he had spent an amount of Rs.4,70,000/- to complete the balance construction work. No documentary evidences were adduced before the Forum to show that he had spent an additional amount of Rs.4,70,000/- for the completion of the construction work. Hence this amount as a whole cannot be allowed. Considering the defects in the construction of the residential building and expenses to be incurred for the rectification, we are of the view that an amount of Rs.1 lakh will be sufficient to meet the expenses of rectification.
Under the above circumstances we partly allow the complaint. Opposite party is directed to pay Rs.1,00,000/- (Rupees one lakh thousand only) for the rectification of the defects and Rs. 10,000/- (Rupees ten thousand only) as compensation for mental agony along with cost Rs. 5,000/- (Rupees five thousand only) to the complainant.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization
Pronounced in the open court on this the 07th of March 2018.
Sd/-
Shiny.P.R.
President
Sd/-
Suma.K.P
Member
Sd/-
V.P.Anantha Narayanan
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Original agreement executed by the complainant and opposite party
Ext.A2 - Photo copy of a lawyer notice dated.21.07.2014 sent by complainant’s
advocate to opposite party
Ext.A3 - Original Postal Receipt
Ext.A4 - Reply Notice dated.04.08.2014 sent by opposite party advocate to the
complainant
Ext.A5 - Transaction statement of SBI
Ext.A6 series - Receipts issued by the opposite party
Exhibits marked on the side of Opposite parties
Nil
Witness examined on the side of complainant
PW1 - Sudheep.U
Witness examined on the side of opposite party
DW1 - Swaminathan
Commission Report
C1 - Commission report dated.23.03.2015
C2 - Addendum Commission report dated. 17.02.2016 along with photographs
CW1 - A.M.Sehriff
Cost
Rs.5,000/-
