BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 192/2003 Filed on 30.09.2003 Dated : 15.01.2010 Complainant:
N. Chandran Nair, T.C 55/241, Baby Bhavan, Kaimanam, Pappanamcode, Thiruvananthapuram. (By adv. D. Mohanan) Opposite party:
T. Rajendran, Engineer and Contractor, Chadayappar New Street, Neyyoor P.O, K.K. District, Tamil Nadu.
(By adv. K. Sreekumaran Nair)
This O.P having been taken as heard on 30.11.2009, the Forum on 15.01.2010 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant entered into a contract with opposite party for construction of a new dwelling house in accordance with the specifications, terms and conditions stipulated in the agreement dated 08.05.2002 and 02.09.2002 as per the approved plan, that the agreement was for the construction of ground floor for a total consideration of Rs. 1,00,000/-, that the said construction was completed in the month of December 2002 and opposite party had received the payments as per the terms of the contract. It is submitted by the complainant that subsequent to the completion of the said house it was noticed that the quality of work done by opposite party was not at all satisfactory due to various defects which were developed subsequently, that the work was not carried out in accordance with the specifications stipulated in the agreement, that doors and windows provided in the house are seen damaged due to inferior quality of wood, that there appeared cracks in the roofing, flooring and parapet wall of the house and that cement was not used in correct proportion. Opposite party had done the work quite contrary to the specifications in the agreement as well as to the confidence reposed on him. A notice was sent to the opposite party on 20.02.2003 for rectification of the damage and defects noted in flooring, roofing and parapet walls and to replace all the damaged windows and doors with good quality material and in the alternative to pay a sum of Rs. 50,000/- being compensation and damages. Opposite party sent reply notice stating untenable contentions and making counter claim of Rs. 17,000/- for additional work stated to have been done at the instance of the complainant. It is submitted by the complainant that complainant did not make any demand for additional work and never agreed for payment of additional amount to the opposite party. Hence this complaint to direct opposite party to rectify damage and defects and in the alternative to pay compensation of Rs. 50,000/-. Opposite party filed version contending that a formal agreement was executed on 08.05.2002 for the construction of ground floor and the work was satisfactorily completed, that as the complainant was satisfied in the said construction, he had entrusted the work for construction of the first floor as per agreement dated 02.09.2002, that the agreement was to construct approximately 300 sq. feet of ground floor for a total amount of Rs. 1,00,000/- only, that the same amount was fixed for the same area in the first floor also, that as the work was in progress the complainant demanded additional alteration and additions in the approved plan for which he had orally agreed additional payment. Additional works included additional lofts fan in number two in each floors, costing Rs. 4,000/- only, additional flooring of red oxide work costing to Rs. 3,000/-, cost of painting including labour charges about Rs. 8,000/- and plumbing works for Rs. 2,500/-. Opposite party has used only good quality of work in the construction. Complainant has not made any complaint regarding the materials and quality of work at the time of construction. The curing and watering of the construction was not included in the agreement as the complainant has voluntarily agreed to take the responsibility. The air cracks alleged to have been developed may be due to non-curing by the complainant. Hence opposite party prayed for dismissal of the complaint. The points that would arise for consideration are:- Whether there is deficiency in service on the part of opposite party in regard to the construction work? Whether the complainant is entitled to get the building rectified? Whether the complainant is entitled to get compensation? Whether the complainant is entitled to get cost?
In support of the claim complainant has filed affidavit and Exts. P1 to P5 were marked. Complainant has been cross examined by the opposite party. Expert commissioner has been examined and cross examined and Ext. C1 was marked. In rebuttal opposite party has filed affidavit and opposite party has been cross examined. Points (i) to (iv):- Admittedly, an agreement was executed between complainant and opposite party on 08.05.2002 and on 02.09.2002. Ext. P1 is the agreement dated 08.05.2002 executed between complainant and opposite party for construction of a dwelling house. As per Ext. P1 cost of construction is Rs. 1,00,000/- as per the approved plan. The work specification in Ext. P1 are:-
Foundation : R.R. in CM 1:10 : 1'9” x 1'9”
Basement : R.R. in CM 1:10 : 1'3” x 1'6” including RCC Belt
of thickness 4” Superstructure : B.W in C.M 1:8 A runner concrete over doors
and windows, 3” thickness Doors and windows Wood work only for Doors and Windows Doors : 3'0” x 6'6” - 3 Nos. Windows : 4'9” x 4'6” - 1 No. Windows : 3'6” x 3'0” - 2 Nos By Malasian Vangal or Pincoda Wood. Roofing : R.C.C Roofing 1:2:4 at 9'6” Height Roof thickness 4” Electrical work : Ordinary electrical connections only Plumping work : One ordinary tap to Toilet One ordinary tap to kitchen sink
Flooring : Ordinary cement plastering C.M 1:4 over P.C.C 1:5:10 using 40 MM Metal Sun Shade : Sun shades over windows & Doors only. Parapet wall : Parapet wall 1'9”on the edge of the roof slab. Toilet : One toilet of Indian style Closet ordinary White washing : Only Janathacem coat on cement plastered walls, primer cost to doors and windows.
Payment details Payment of Rs. 50,000/- upto roof level. Payment of Rs. 25,000/- after roof level upto all plastering Payment of Rs. 15,000/- after plastering upto fittings of doors and windows. Payment of Rs. 10,000/- after finishing all works. Period of contract : 4 months from the first payment subject to the availability of raw-materials and natural hindrances.
On a perusal of Ext. P1 it is seen that opposite party received Rs. 35,000/- on 10.05.2002, Rs. 15,000/- on 15.05.2002, Rs. 25,000/- on 25.07.2002, Rs. 15,000/- on 19.08.2002 and Rs. 10,000/- on 12.09.2002. Ext. P2 is the agreement dated 02.09.2002 for construction of a dwelling house in Survey No. 29/9 of Nemom village. The cost of construction is Rs. 1,00,000/-. The specifications stated in Ext. P2 are:-
Superstructure : B.W. in C.M 1:8 A runner concrete over doors and
windows, 3” thickness Doors and Windows wood work only for Doors and windows Doors : 3'0” x 6'6” - 2 Nos. Windows : 4'9” x 4'6” - 1 No. Windows : 3'0” x 4'6” - 2 Nos. By Malasian Vangai or Pincode wood Roofing : R.C.C. Roofing 1:2:4 at 9'6” Height. Roof thickness 4”
Electrical Work : Ordinary electrical connections only Plumping work : Only one tap in bathroom One R.C.C Loft inside the shorter span of two room. Flooring : Ordinary cement plastering C.M 1:4 Sun Shade : Sun shades over windows & doors only Parapet wall : Parapet wall 1'9” on the edge of the roof slab of 4” thickness White washing : Only Janathacem coat on cement plastered walls, primer coat to Doors and Windows.
Payment Details: Payment of Rs. 50,000/- upto roof level Payment of Rs. 25,000/- after roof level Payment of Rs. 15,000/- after plastering Payment of Rs. 10,000/- after finishing all works. Period of contract: 3 months from the first payment subjects to the availability of raw materials and natural hindrances. On a perusal of Ext. P2 it is seen that opposite party received Rs. 35,000/- on 02.09.2002, Rs. 15,000/- on 05.02.2002, Rs. 25,000/- on 27.09.2002, Rs. 8,000/- on 27.11.2002 and Rs. 14,500/- on 03.12.2002. Ext. P3 is the permit given by Thiruvananthapuram Corporation dated 26.10.2002 with approved plan. Ext. P4 is the copy of advocate notice dated 20.02.2003 addressed to opposite party calling upon him to rectify the damage noted in the roofing, flooring and parapet walls and to replace all damaged doors and windows with quality and in the alternative to pay a sum of Rs. 50,000/- towards compensation and damages. Ext. P5 is the reply notice dated 25.03.2003 sent by the opposite party. It is the say of the opposite party that complainant demanded additional alterations and additions in the approved plan for which he has orally agreed additional payment of Rs. 17,500/-. But neither in Ext. P1 nor in Ext. P2 is it seen mentioned regarding the additional work and additional payment. According to complainant opposite parties are not entitled to any additional amount for additional work since complainant did not make any additional demand for doing any additional work. Ext. C1 is the commission report prepared by Expert commissioner. Commissioner has reported that one number of the vertical frame of the wood shutter in front door and one number of vertical frame in outer door shutter and kitchen in the ground floor has to replaced due to the usage of substandard quality of wood by the contractor. Commissioner has also pointed out that two numbers of vertical frame shutter and two numbers of window shutter in first floor has also to be replaced due to the usage of substandard wood by the contractor. To attend the above said defects an amount of Rs. 4,500/- is required. Commissioner further pointed out that minor cracks in the roofing and also in the red oxide flooring are seen during inspection for which an amount of Rs. 4,000/- is required. Complainant filed objection to commission report stating that commissioner has failed to furnish full details regarding cracks which are developed in the roofing, flooring and parapet wall owing to defective construction. That the compensation mentioned in the commission report is very low, that commissioner failed note the damage caused to ground floor. Commissioner has been examined and cross examined by the opposite parties. In his cross examination commissioner has deposed that “ground floor-ല് 3 വാതിലുകളിലെ frame-ല് damage ഉണ്ടായിരുന്നു. ഞാന് കണ്ട damages report-ല് പറഞ്ഞിട്ടുണ്ട്.” CW1 has further deposed that there is leakage in the roof which can be rectified by plastering. He further added that replastering of entire roof is not required. Even though complainant has filed objection to commission report nothing has been made out from the commissioner during cross examination by the complainant to shake veracity of the commission report. We have no hesitation to accept the commission report as such. Opposite party did not furnish any material to substantiate his contention that there was oral agreement between the complainant and opposite party for alteration of any work and for additional payment. Commissioner has specifically pointed out that substandard quality of wood shutter in front door and vertical frame in outer door shutter and cabin in ground floor. He has also emphasised the replacement of substandard wood used by the contractor, replacement of window shutter due to usage of substandard wood. Commission has estimated Rs. 4,500/- to cure the defects of vertical frame of wood shutter in front door and outer door and in windows. Commission also estimated a cost of Rs. 4,000/- for minor cracks in the roof and in red oxide flooring. In the light of the report of the expert commissioner and in the light of evidence available on records we are of the considered opinion that there is defect in the construction on the part of the opposite party. Since construction was completed in the year 2002 itself rectification of the said defects at this juncture will not serve the purpose of the complaint. Taking into consideration of the totality of the circumstances of the case we think justice will be well met if complainant is given a compensation of Rs. 15,000/-. There will be no order as to costs. In the result, complaint is partly allowed. Opposite party is directed to pay Rs. 15,000/- to the complainant. The said amount will carry interest at the rate of 12%, if not paid within two months from the date of receipt of this order. There will be no order as to costs. 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 Forum, this the 15th day of January 2010.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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O.P. No. 192/2003 APPENDIX
I COMPLAINANT'S WITNESS : PW1 - N. Chandran Nair II COMPLAINANT'S DOCUMENTS : P1 - Contract agreement dated 09.05.2002 P2 - Contract agreement dated 02.09.2002 P3 - Building Application P4 - Advocate notice dated 20.02.2003 P5 - Reply notice dated 25.03.2003
III OPPOSITE PARTY'S WITNESS : DW1 - Rajendran IV OPPOSITE PARTY'S DOCUMENTS : NIL V COURT EXHIBIT CW1 - M. Krishnan C1 - Commission Report
PRESIDENT
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