BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT Tmt. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 76 / 1998 WEDNESDAY THE 22nd DAY OF SEPTEMBER 2010. 1. R. Jayakumar, (died) 2. Lakshmi, W/o. Late Jayakumar, 3. Raghuraj, S/o Late Jayakumar 4. Supriya, D/o. R. Jayakumar All are residing at New No.23/1, Old No.20/2, Kangeyanallur Road, Gandhi Nagar, Vellore 632 006. … Complainants. - Vs – T. Sivakumar, Contractor, Vairam Constructions, Vellore – 632 006. … Opposite party. . . . . . This petition coming on for final hearing before us on 25.8.2010, in the presence of Thiru.M. Kulothugan, Advocate for the complainant and Thiru. R. Mahalingam, Advocate for the opposite party, and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The 1st complainant had purchased the schedule mentioned property as a vacant site under the registered sale deed dt. 2.9.96. The complainant thereafter had entered into an agreement with opposite party on 17.3.97 for construction of a house in the said vacant house site as per the approved plan dt. 6.3.97. The opposite party had also received a sum of Rs.20,000/- on 17.3.97, Rs.30,000/- on 11.6.97, Rs.20,000/- on 30.7.97 and several amounts on various dates totaling a sum of Rs.1,21,000/- as on 15.11.97. The opposite party had also given the estimate and the mode of construction with specifications to the 1st complainant. After completing the ground floor, as per the approved plan, and estimate the opposite party had also given utility certificate on 3.1.98 and handed over the building on the same day, without completing the final works to the complainant on the condition to carryout and complete the final works within a week. The complainants had also occupied the house after performing the house warming ceremony on 1.2.98. The opposite party had handed over the building without completing the final works the opposite party had agreed to do under the aforesaid agreement. Even after repeated demands and requests the opposite party failed to carry out the final works and also failed to inspect the building. The opposite party had not fixed the door, windows, electric wiring and pipe line for septic tank inspite of repeated demands and requests and hence the complainant had to spend the amount to the tune of Rs.50,000/- over and above the agreement as per the terms of the contract. Immediately after the occupation of the house the complainants found cracks in the walls and floors and in the ceiling. Major cracks were also found in the Toilet and the same is in danger of falling down at any moment. The 1st complainant and his family members are living under the constant fear of collapse in the house. The constructions made by the opposite party is not as per the specifications and the terms of the agreement agreed by the opposite party under the said agreement. The construction was not only sub-standard but also built in utter disregard for the safety of the occupants as there is an imminent thirst of damage not only to the structure of the building but also to the 1st complainant and his family members. Since the opposite party failed to comply with the demands of the complainant and also failed to give any reply. Therefore the opposite party is to be directed to pay the sum of Rs.4,00,000/- towards the cost of construction and mental agony and shock and deficiency of service on the part of the opposite party along with the cost of this proceedings. 2. The averments in the counter filed by the opposite party is as follows : The opposite party does not admit any of the averments contained in the complaint, save those are specifically admitted hereunder and the complainant is put to strict proof of the same. The complainant is not a consumer as per the provisions of the Consumer Protection Act as he entered into with the opposite party a contract for construction of a house and if there is any claim for breach of contract, the complainant has to approach only the Civil Court and hence this Forum has no jurisdiction to entertain the complaint on this score alone the complaint is liable to be dismissed in limine. It is true that he entered into an agreement with the complainant to construct a house in the vacant site belonging to the complainant on 17.3.97 and he completed the building as per the conditions and specifications put forward in the said agreement. As per the agreement the opposite party had to construct the building at the rate of Rs.295/- per sq. ft for the total area of the buildings at 450 sq. ft. Thus the amount payable by the complainant, for the construction of 450 sq ft. at the rate of Rs.295 comes to Rs.1,32,750/-. But the opposite party had put up a building with 480 sq. ft as per the request of the complainant and the cost of the building thus came to Rs.1,41,600/-. There is a clause in the agreement that if the owner of the building wants to put up any additional work, the additional cost has to be paid by the house owner to the contractor. Because of the said clause the opposite party put up an additional construction of 30 sq. ft, in excess of the agreement. The complainant paid only a total sum of Rs.1,21,000/- and hence there is a balance of Rs.20,600/- due from the complainant to the opposite party. The further clause in the agreement is that the septic tank, well, stair-case and compound walls are to be put up by the house owner himself i.e. the complainant and not by the opposite party. The building has to be handed over only after payment of the full amount before white washing. But the complainant had failed to pay the balance amount though the opposite party had completed the construction and the complainant had also occupied the building. 3. The complainant himself had put up a construction for 60 sq ft. for toilet, bath-room and septic tank. The cracks were found only in that 60 sq. ft. building put up by the complainant. The building constructed by the opposite party at 480 sq. ft was according to the specifications found in the agreement and there was absolutely no crack occurred in the same. It is an utter false hood to say that the opposite party had handed over the building without completing the final works. It is further false to say that the opposite party had not fixed the doors, windows, electric wirings and pipe line for septic tank. The allegation that immediately after the occupation of the house, the complainant found cracks in the walls and floors and in the ceiling is an absolute falsehood. There was absolutely no deficiency of service on the part of the opposite party and he handed over the building only after completing the construction as per the specifications found in the agreement. It is false to state that the complainant had to rebuild the entire house and the cost of construction came to Rs.3,00,000/- and the opposite party has to pay the said amount of Rs.3,00,000/- to the complainant and Rs.1,00,000/- for mental agony, totaling Rs.4,00,000/-. It is true that the complainant issued a lawyer’s notice with false averments dt.16.6.98 and no 15.6.98. The opposite party had given a reply only on 24.7.98 since he was laid up with viral fever for about a month after receipt of the notice from the complainant. Hence, this petition is liable to be dismissed. 4. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party? b) Whether the complainants are entitled to the reliefs asked for?. 5. Ex.A1 to Ex.A9 were marked on the side of the complainants and no documents were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. Ex.C1 to Ex.C39 were marked on the side of the complainants. 6. POINT NO. a): - It is admitted case of the parties that the 1st complainant had entered into an agreement Ex.A2, with the opposite party on 17.3.97 for the construction of the house in vacant site of the 1st complainant as per the approved plan Ex.A4, dt. 6.3.97. As per the said agreement the opposite party have to construct the building at the rate of Rs.295/- per sq ft for the total area of the building at 450 sq ft. The opposite party also given the estimate of the mode of construction with the specification Ex.A3, to the 1st complainant. The opposite party had received a several amounts on various dates a sum of Rs.1,21,000/- as on 15.11.97. After completion of the building the opposite party had given utility certificate Ex.A6, to the complainant on 3.1.98. The complainants had also occupied the house after performing the house warming ceremony on 1.2.98. 7. The complainant contended that after the occupation of the house the complainants found cracks in the walls and floors and in the ceiling. Major cracks were also found in the Toilet and the same is in danger of falling down at any moment. The construction was not only sub-standard but also built in utter disregard for the safety of the occupants. Even after the repeated request the opposite party failed to carry out the cracks in the buildings staircase, toilet and septic tank inspite of repeated requests the complainant failed to rectify the cracks in the building. Therefore there is deficiency in service on the part of the opposite party and the complainant suffered heavy loss and also mental agony and shock. 8. The opposite party contented that the complainant paid only a total sum of Rs.1,21,000/- and the complainant had failed to pay the balance amount of Rs.20,600/-. Though the opposite party had completed the construction and the complainants had also occupied the building. The allegations that immediately after the occupation of the house the complainants found cracks in the walls and floors and in the ceiling is an absolute falsehood. It is further contended that the complainants himself had put up a construction for 60 sq ft. for toilet, bathroom and septic tank. The cracks were found only in that 60 sq ft building put up by the complainant. Therefore there was absolutely no deficiency in service on the part of the opposite party. 9. The 1st complainant stated in the proof affidavit that the complainant have to rebuild the entire house and the opposite party is liable to pay the entire cost of the building and the cost of the construction more than Rs.3,00,000/- due to escalation of the price of the materials, to prove the above contention, the complainant has not produced any document before this Forum. 10. The opposite party contended that the complainant himself had put up a construction for 60 sq ft. for toilet, bath room and septic tank. The cracks were found only in that 60 sq. ft building put up by the complainant. The building constructed by the opposite party at 480 sq. ft. was according to the specifications found in the agreement and there was absolutely no crack occurred in the same to prove the above contention of the opposite party had also not filed any documents before this Forum. 11. Thiru.T.M.Sivakumar, Advocate was appointed as Commissioner by this Forum on 24.3.99 to inspect the conditions of the building of the complainant and submitted the commission report. The said commissioner inspect the building on 8.5.99 at 10.00 a.m. before the both parties and Thiru. A. R. Thiruvangadam, Licensed Surveyor on 8.5.99 at 10.00 before the both parties. Thereafter the Commissioner submitted a commission report Ex.C1 and plan estimation for the cost of the construction of the repair issued by the licensed surveyor Ex.C2 and Ex.C3 to Ex.C38 photos and negatives of the conditions of the building. The Commissioner has stated in his Ex.C1 Commissioner Report that at the time of inspected the building along with the licensed surveyor and the photographer, they found the big cracks in wall near the door, ceiling, Almera of the reception hall the wall of the Puja rooms cracks in the open terrace. The Commissioner was also examined as CW1 before this Forum and he stated in his evidence that is as follows: 8.5.99 md;W jhDk; muR gjpt[ bgw;w A.R. jpUBtA;flk;, kw;Wk; g[ifg;glk; epg[zh; Bjte;jpud; MfpBahh; kDjhuhpd; fl;olj;ij nUjug;gpdh; Kd;dpiyapy; ghh;itapl;lbghGJ Bkw;g[w EiHt[thapy; fl;lg;gl;l me;j tP;;l;od; thrw;go fjit xl;o, bghpa tphpry; fhzg;gl;ljhft[k;, mij noj;Jtpl;L fl;l Btz;Lbkd epymsit mYtyh; brhd;djhft[k;, tPl;oy; g{rg;gl;Ls;s Bkw;Tiu Rth;fspy; tphpry; fhzg;gl;ljhft[k;, tuBtw;giw Bkw;Tiu Rth;fspy; g{r;R rhpahf ny;iy vd;Wk;, nlJgf;fk; Rtw;wpy; nuz;L mykhhpfs; fl;lg;gl;Ls;sJ vd;Wk;, mjpYk; ePz;l tphpry; fhzg;gl;ljhft[k;, mjid mLj;j gLf;if miw me;j Rtw;wpYk; Bkw;TiuapYk; Vuhskhd tphpry;fs; fhzg;gl;ljhft[k;, mjw;F mLj;J czt[ miwa[s;sJ vdt[k;, czt[ miwapy; tYJgf;fkk; g{i$ miw fl;lg;gltpy;iy vd;Wk;, Bkw;go miwfspd; Rth;f;s g[{r;R rhpahf ny;iy vdt[k;, tPl;od; btspgf;fk; Fspay; miw kw;Wk; fHptiw fl;lg;gl;Ls;sJ vd;Wk;, me;j Rtw;wpYk; kpf bghpa tphpry; cs;sJ vd;Wk;, m!;jpthuk; ny;yhky; brA;fy; itj;J fl;lg;gl;Ls;sJ vd;Wk;, mJt[k; ghJfhg;g[ ny;yhj epiyapy; noe;J tpHf;Toa epiyapy; cs;sJ vd;Wk;, mtw;iw mg;goBa rhpbra;aKoahJ vd;W epymsitahsh; brhy;ypajhft[k;, Bkw;go ghjpg;g[fis rhpbra;a U}.36,000/- bryt[ MFk; vdt[k;, Bkw;go ghjpf;fg;gl;l nlj;jij g[ifglA;fs;;, kw;Wk; epHw;glA;fs;; Ex.C3 to Ex.C38 vLf;fgl;ljhft[k; Twpa[s;shh;. 12. In this connection the learned counsel for the complainant relying upon the following Judgment of Honble State Consumer Disputes Redressal Commission, Calcutta 1998 (1) CPR 1997 M/s. Migma Private Ltd., & Anr. Versus Sri Salil Kumar Ghosh & Ors. Wherein the Hon’ble State Commission, Calcutta is held that …. The ruling cited by the learned counsel for the complainant is squarely applicable to the facts and circumstances of this case. 13. From Perusal of Ex.C2 plan, and estimation for the repair of the building issued by the licensed surveyor Tr. A.R.Thiruvengadam, it is seen that the said licensed surveyor had visited the complainant’s building along with the Commissioner Thiru. T.M.Sivakumar, Advocate on 8.5.99 and submitted in his report it is stated as follows: v!;oBkl; 1. gpd; gf;fk; ky miw Fspay; miw flfhy; ny;yhky; fl;lg;gl;oUf;fpwJ. bghpa tphpry; 84 r.m X Rs.300 = U}.25200 tpl;oUf;fpwJ. mij noj;Jtpl;L g[jpajhf 1 r.kP fl;l Btz;Lk;. mjd;gug;gst[ 84 r.mo. 2. Kd;gf;fk; D. vd;W FwpapUf;Fk; nlj;jpy; gofl;L tphpry; tpl;oUf;fpwJ. mij noj;Jtpl;L g[jpajhf gofl;L fl;l Btz;Lk;. 3-6 X 6.3 .. U}.7000 3. Mh;.rp.U}g;, My; gLf;ifmiwapy; mykhhp tphpry; tpl;oUf;fpwJ. Rtw;wpYk; TiuapYk; tphpry; tpl;oUf;fpwJ. mij bfhj;jptp;l;L g{R Btiy bra;aBtz;Lk;. .. U}.6100 ----------------------------------- (U}gha; Kg;gj;jpapuz;lhapuk; kl;Lk;) U}.32000 ----------------------------------- From the perusal of Ex.C3 to Ex.C38 photos along with negatives it is seen that the big cracks and small cracks were fond in the walls ceiling, Almera and other places of the building. 14. From the perusal of the evidence of the Commissioner, the Commissioner’s Report Ex.C1, plan and estimation for the cost of the construction of the cracks in the building Ex.C2 issued by the licensed surveyor and Ex.C3 to Ex.C38 photos along with the negatives definitely proves that immediately after the delivery of possession to the complainant it was found that cracks have developed at various places of the buildings. Inspite of repeated requests the opposite party to rectify the defects of the construction. The opposite party did not comply the big and small cracks at various places of the building. Therefore even after receiving the legal notice dt.15,6,98 from the complainant the opposite party failed to comply with the demands of he complainant . Therefore it is clear that to prove the defects on the basis of the Commissioner Report Ex.C1 and plan estimation for the cost of the construction of the repair issued by the licensed surveyor Ex.C2 definitely proves that there was defects in the house resulting in deficiency in service on the part of the opposite party. 15. Hence, taking into account with regard to the contention of the complaint and the counter as well as proof affidavit of the both the parties, and from the documents Ex.A1 to Ex.A9 and Ex.C1 to Ex.C39, immediately after delivery of the possession of the building by the opposite party the complainant’s had found that big and small cracks in the various places of the building and even after the repeated requests and receipt of the legal notice Ex.A8, dt. 15.6.98 the opposite party failed to rectify the defects in the building, we have come to the conclusion that the construction of the building was not only substandard but also in building in utter disregard for the safety of the family members of the complainant and thereby the attitude of the opposite party herein amounts to deficiency in service on their part. Hence we answer this point (a) accordingly. 16. POINT NO. (b):- In view of our findings on point (a), that immediately after delivery of the possession of the building to the complainants, they found that big and small cracks at various places of the building and even after repeated request to rectify the defects of the construction the opposite party fails to comply the defects in the building. The Advocate Commissioner and the licensed surveyor duly inspected the building and submitted the Commissioner Report along with the estimate for the cost of the construction of the defects proves that due to defective construction cracks developed at various places of the building. Though the complainants have demanded Rs.3 lakhs for the construction in the building but the complainant’s has not produced the any documents regarding the above said estimation for the defects in the building. However Commissioner Report Ex.C1 and plan and estimate for the construction of the defects in the building Ex.C2 issued by the licensed surveyor reveals that on 2.7.99 the estimate for the construction of the defects in the building is Rs.32,000/- definitely the cost of the construction of the defects at various places of the building mentioned by the licensed surveyor is now more than the amount mentioned in the Commissioner Report Ex.C2 due to escalation of price of the materials. Therefore the complainant is entitled for a sum of Rs.1,00,000/- towards the cost of the construction of the repairs in the building and the complainants have also entitled for a sum of Rs.10,000/- as compensation for mental shock and agony and in view of the negligence and deficiency in service on the part of the opposite parties. Hence this point (b) is also accordingly. 17. In the result, this complaint is partly allowed. The opposite party is directed to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards the cost of the construction of the repairs in the building. The opposite party is also directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) as compensation for mental shock and agony and also to pay a sum of Rs.5000/- (Rupees Five thousand only) towards the cost of this complaint. The opposite party is also hereby directed to pay the above said amounts within one month from the date of receipt of copy of this order, failing which, the complainants are also entitled to interest on the above said sum @ 9% p.a. from the date of default till the date of payment. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 30th day of November 2010. MEMBER -1 MEMBER –II PRESIDENT. List of Documents: Complainants’ Exhibits: Ex.A1- 2.9.96 - X-copy of the Sale deed. Ex.A2- 17.3.97 - X-copy of Agreement. Ex.A3- -- - X-copy of estimation. Ex.A4- 6.3.97 - X-copy of approved plan. Ex.A5- 6.3.97 - X-copy of the Sanction Order. Ex.A6- 3.1.98 - X-copy of the Utility certificate. Ex.A7 - 1.2.98 - X-copy of the invitation card of housing warming ceremony. Ex.A8- 15.6.98 - C-copy of the lawyer notice. Ex.A9- 22.6.98 - Postal Ack. Card. Opposite party’s Exhibits: .. Nil .. Court’s Exhibits: Ex.C1- 2.8.99 - Advocate Commissioner Report. Ex.C2- 2.7.99 - Surveyor Report with plan. Ex.C3 to} Ex.C38 -} -- - Photos with negatives. Ex.C39- 9.5.99 -Cash receipt . MEMBER-I MEMBER-II PESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
