DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 20th day of May 2016
Present : Smt.Shiny.P.R. President
: Smt.Suma.K.P. Member Date of filing: 06/03/2013
: Sri.V.P.Ananatha Narayanan, Member
(C.C.No.49/2013)
Ahammed Ali Muhammed
S/o.Muhammed,
Gulistan Mukkattil,
Varode Post,
Ottapalam – 679 102 - Complainant
(By Adv.U.Muhammed Musthafa)
V/s
T.A.Shameer,
S/o.Aboobaker,
Surumi Manzil,
Kanniyampuram, Ottapalam Taluk
(ABZA Builders,
Engineers & Contractors, City Plaza,
RS Road, Ottapalam – 679 101) - Opposite party
(By Adv.P.N.Balagopalan)
O R D E R
By Smt.Shiny.P.R. President.
Brief facts of complaint.
Complainant and opposite party entered into an agreement for the construction of house and the rate fixed as Rs.1000/- per square feet. Complainant had paid a total sum of Rs.57 lakhs to the opposite party. 12 months time was fixed to complete the work. Complainant submits that over and above this amount, as requested by the opposite party, he purchased materials for an amount of Rs.3 lakhs against the terms of the agreement. According to him, opposite party did not complete the work and in order to complete the work a further amount of Rs.1.5 lakh more is needed. The complainant further submits that for obtaining the occupancy certificate from the Municipality, when the building was measured, it was found that the plinth area is only 4522 sq.ft. As per agreement he has to pay only 45,22,000/- to opposite party. But after deducting Rs.1.5 lakh required for the completion of the work he has to pay only Rs.43,72,000/- to opposite party. According to him the opposite party has obtained total amount of Rs.60 lakhs and after deducting Rs.43,72,000/- the opposite party has to return Rs.16,28,000/-to the complainant. Complainant further submits that by the use of low quality material for the construction of the house and due to delay in completing the work, the complainant suffered mental agony and so he has further claimed an amount of Rs.3 lakhs as compensation.
The complainant sent a lawyer notice on 13-2-2013 to the opposite party and opposite party replied the same stating untenable contentions. Complainant submits that there was no oral karar to pay Rs.1200/- per sq.ft as stated in the reply notice. Due to the deficiency of service on the part of the opposite party, the complainant had suffered a lot of mental agony apart from the financial loss. The complainant is entitled to get a total sum of Rs.19,28,000/-. Hence complainant prays for an order directing the opposite party to pay a sum of Rs.19,28,000/- as compensation and cost of this proceedings to complainant.
Complaint was admitted and notice was issued to opposite party. After receiving the notice, opposite party appeared before the Forum and filed version contending the following:
Opposite party admitted the karar and contended that house was not constructed as per the approved plan but as per the revised plan. There was a total deviation from the original plan. The opposite party constructed the house according to the desire and advice of the complainant. As per the approved plan, the total area of the proposed house was only 2,253 sq.ft. But the area of the present house comes to about 4,750 sq.ft. Though 12 months time was fixed to complete the work, as per the approved plan, the time limit has no force, in view of the fact that there was total deviation from the approved plan and a bigger house was constructed. Opposite party further contented that though Rs.1,000/- was fixed per sq.ft as per the karar, it was subsequently enhanced to Rs.1,200/- as per an oral agreement and the house was constructed accordingly. The entire materials, plumbing and electrification works were changed by the complainant after the work was started. Complainant has constructed a posh residential RCC building with ground floor, first floor and 2nd floor and the total area comes to 4,745 sq.ft. According to opposite party he has done additional earth work costing Rs.1,40,000/- and several other additional works for Rs.14 lakhs. A posh house as desired by the complainant was constructed by the opposite party using high quality materials against the terms of the agreement. As per the terms of the agreement for electrification, single phase wiring with V-guard wires, anchor switches, hylem sheets and wooden boxes were to be used. 3 phase wiring was done. Metal boxes are used instead wooden boxes. In the agreement putty and painting work is not included but that was done as an additional work. Hence there is no deficiency of service on the part of the opposite party. Complaint is liable to be dismissed with cost.
Both parties filed their respective chief affidavits. Ext.A1 to A19 were marked from the side of the complainant. Exts.B1 to B17 were marked from the side of the opposite party. B16 marked subject to proof. Complainant was cross examined as PW 1 and one witness was examined as PW2 from the side of complainant. Opposite party was cross examined as DW1 and witnesses were examined as DW2 and DW3. As per order in IA.171/13 expert commissioner was appointed and commissioner inspected the property and filed report which was marked as Ext C1. Then Opposite party filed IA.289/13 to remit the commission report as many of the points stated in the work memo was not noted by the commissioner. Forum allowed the application and commissioner visited the property and filed report which was marked as Ext C2. Both parties filed their objection to commission reports.
The following issues are considered
1.Whether there is any deficiency in service on the part of opposite party?
2.If so, what is the relief?
Issues 1& 2.
We have perused the documents filed and oral evidences adduced by both parties. Both parties admitted Ext A1 Karar. But opposite party contended that there was a total deviation from the original plan and after the plan was revised there was an oral agreement between them to enhance the rate per sq.ft from Rs.1,000/- to Rs.1,200/-. In order to prove this contention opposite party examined his supervisor as DW2 and he deposed that he witnessed the oral agreement between the complainant and opposite party and the rate of construction was increased from Rs 1,000/- to Rs 1,200/-. But the deposition of DW2 cannot be taken into consideration because he is the supervisor, interested person of opposite party. No other independent witness was examined or no documentary evidences were adduced by the opposite party to prove his case. Hence we are of the view that opposite party is not entitled to get increased rate of Rs.1200/- per sq.ft for the construction of the house.
Next allegation of the complainant is that he purchased materials worth Rs.3 lakhs against the terms of the agreement. No documentary evidences are adduced by the complainant to prove his case. PW2 deposed that he had purchased material for and on behalf opposite party. He was the employee of the opposite party at that time. He has done the painting work in the house of the complainant as per the instructions of the opposite party and he had received cheque and money from the complainant for and on behalf of opposite party. Hence there is no merit in this allegation of the complainant.
Complainant submitted that only 4522 sq.ft was constructed by the opposite party. But as per Ext C1 commission report plinth area of construction is 4745 sq.ft. In Ext C2 commissioner reported that construction is completed as per the revised plan and the nature of construction is superior and based on present day cost, the rate will be around 1200/sq.ft. All wooden items except 8 door shutters and 32 window shutters are found fixed. Commissioner also reported that Rs.4,29,500/- were incurred for extra work by the opposite party in addition to the work mentioned in the agreement and Rs.1,74,000/- more needed for the balance work. As per the commission report, it is seen that net amount payable to the opposite party by the complainant for the construction is Rs.50,00,500/-. But as per the endorsement in Ext.A1 agreement opposite party has received Rs.53,00,000/-from the complainant. Under this circumstance we are of the opinion that opposite party has the liability to pay the balance amount of Rs 2,99,500 to the complainant. Even though commissioner opined in his report that nature of the construction is superior and based on present day cost the rate will be around Rs.1200/sq.ft, as there is no evidence to show that the rate of construction was enhanced to Rs.1200/- per sq.ft , we are not in a position to consider the increased rate of Rs.1200/-.
Complainant further submitted that by the use of low quality material for the construction of the house and due to delay in completing the work, the complainant suffered mental agony and so the opposite party has the liability to pay compensation to him. But on perusal of Ext C1 and C2 commission report it is revealed that nature of the construction is superior. It is true that as per Ext A1 agreement the time to complete the construction of the house was fixed to 12 months. But after that agreement the plan was revised for the construction of present posh house having the area of 4745 sq.ft. Even a layman can very well knows that this type of posh house cannot be completed within 12 months. Hence compensation for the delay cannot be granted. In the above circumstances we are not in a position to attribute deficiency in service on the part of opposite party. However, opposite party is liable to pay the amount of Rs.2,99,500/- to the complainant.
In the result complaint is partly allowed. Opposite party is directed to pay Rs.2,99,500/- (Rupees Two lakhs ninety nine thousand and five hundred only) together with interest @ 9% per annum from the date of complaint till the date of order and Rs.5,000/- (Rupees Five thousand only) as cost of proceedings.
Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.
Pronounced in the open court on this the 20th day of May 2016.
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 – Agreement executed between the complainant and the opposite party
dated 20/12/2010 with endorsements regarding payment of amounts.
Ext.A2 - Occupancy Certificate dated 25/01/2013 issued by the Ottapalam
Municipality in favour of Noushad ahammed Ali
Ext.A3 series – Copy of lawyer notice dated 13/02/2013 issued by
Adv.U.Muhammed Musthafa to the opposite party with postal
receipts and acknowledgement cards
Ext.A4 –Reply to lawyer notice dated 25/02/2013
Ext.A5 – Bill dtd.23/8/12 for a sum of Rs.4654/ issued by Narayana Agencies in
favour of complainant
Ext.A6 - Bill dtd.26/12/12 for a sum of Rs.4428/ issued by Narayana Agencies in
favour of complainant
Ext.A7 - Bill dtd.26/12/12 for a sum of Rs.1900/ issued by Narayana Agencies in
favour of complainant
Ext.A8 - Bill dtd.4/9/12 for a sum of Rs.40207/- issued by Subix Electrical Super
Market in favour of complainant
Ext.A9 - Bill dtd.24/11/12 for a sum of Rs.65300/ issued by Melco Electrical and
Home World in favour of complainant
Ext.A10 - Bill dtd.24/11/12 for a sum of Rs.9405/ issued by Melco Electrical and
Home World in favour of complainant
Ext.A11 - Bill dtd.16/11/12 for a sum of Rs.6465/ issued by Penco Marbles &
Granite in favour of complainant
Ext.A12 - Bill dtd.16/11/12 for a sum of Rs.1362/ issued by Ceramic Centre in
favour of complainant
Ext.A13 - Bill dtd.07/21/12 for a sum of Rs.14146/ issued by Ceramic Centre
in favour of complainant
Ext.A14 - Bill dtd.15/12/12 for a sum of Rs.2070/ issued by Ceramic Centre in
favour of complainant
Ext.A15 – Computer statement of Ledger extract of A/c No.30144827965
Ext.A16 – Cheque of SBI dated 20/12/2012 in the name of Balasubramanian for
Rs.30,000/-
Ext.A17 – Cheque of SBI dated 21/12/2012 in the name of Balasubramanian for
Rs.30,000/-
Ext.A18 – Cheque of SBI dated 12/01/2013 in the name of Balasubramanian for
Rs.10,000/-
Ext.A19 – Cheque of Canara Bank dated 27/12/2012 in the name of
Balasubramanian for Rs.10,000/-
Witness examined on the side of complainant
PW1 – Ahammed Ali Muhammed
PW2 – Balasubramanian.C
Witness examined on the side of opposite party
DW1 – Shameer.T.A
DW2 –Aboobaker.V.P
DW3 – Sanil Kumar
Exhibits marked on the side of complainant
Ext.B1 – Plan of complainants house prepared in computer
Ext.B2 series - Photos of complainant’s house alongwith CD
Ext.B3 - Bill dtd.24/11/12 issued by Melco Electrical and Home World
Ext.B4 - Bill dtd.16/11/12 issued by Penco Marbles & Granite
Ext.B5series – Bill dtd.09/08/12 issued by Ceramic Centre
Ext.B6 - Bill dtd.12/06/12 issued by National Hardware & Paints
Ext.B7 - Bill dtd.15/06/12 issued by National Hardware & Paints
Ext.B8 - Bill dtd.22/06/12 issued by National Hardware & Paints
Ext.B9 - Bill dtd.25/06/12 issued by National Hardware & Paints
Ext.B10 series - Bill dtd.17/07/12 issued by National Hardware & Paints
Ext.B11 - Bill dtd.13/08/12 issued by National Hardware & Paints
Ext.B12 Bill dtd.06/09/12 issued by National Hardware & Paints
Ext.B13 series - Bill dtd.28/09/12 issued by National Hardware & Paints
Ext.B14 series - Bill dtd.11/08/12 issued by Penco Marbles &Granite
Ext.B15 series - Bill dtd.08/12/12 issued by Penco Marbles &Granite
Ext.B16 series - Bill dtd.22/07/13 issued by PSN Electricals
Ext.B17 series - Bill dtd.27/08/10 Building Permit alongwith plan issued by
Ottapalm Muncipality to the complainant
Commissioner Report
C1 – A.M.Sheriff, Chartered Engineer
C2 – A.M.Sheriff, Chartered Engineer
Cost
Rs.5,000/- allowed as cost of the proceedings.
