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. 69/2003 Filed on 18.02.2003

Dated : 30.11.2010

Complainants:

1. C.J. John, residing at T.C 12/1084, Barton Hill Road, Thiruvananthapuram.

    

2. Teena P.J, T.C 12/1084, Barton Hill Road, Thiruvananthapuram.

(By adv. S. Reghukumar)

Opposite parties :

1. M/s Septagon Constructions having office at Padmasree, ARA No. 53, Kowdiar P.O, Thiruvananthapuram represented by its Managing Partner, Sri. Ashraf Khan.

    

2. Ashraf Khan, Managing Partner, Padmasree, ARA No. 53, Kowdiar P.O, Thiruvananthapuram.

(By adv. S.I. Shah)

This O.P having been taken as heard on 31.08.2010, the Forum on 30.11.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainants with the intention to construct a residential building approached Mr. Reji John Varghese who prepared the plan with a plinth area 1593 sq.ft., that the said plan was approved by the statutory authorities and complainant obtained necessary sanction to construct the building vide permit No. 188/2001 dated 03.01.2002, that thereafter 2^nd complainant applied for housing loan from Catholic Syrian Bank, that bank sanctioned an amount of Rs. 7.5 lakhs, that complainant entrusted the construction of the residential building to opposite parties, that 1^st opposite party is M/s Septagon Constructions and 2^nd opposite party is its Managing Partner, that 2^nd opposite party along with his assistants measured the plot and evaluated quantity of earth work to be done and the details of the foundation and basement work. 2^nd opposite party produced a draft of agreement for construction which was approved by the complainants and an agreement was executed on 02.04.2002, that cost of construction was agreed to at Rs. 6,84,990/-, that as per the said agreement, the building was agreed to be constructed and delivered within 6 months and the date of completion agreed was on 01.10.2002, that as per the provisions of the agreement the total amount was agreed to be paid in 5 instalments depending upon the stages of construction. Accordingly complainant paid Rs. 50,000/-on 28.03.2002, Rs. 1,50,000/- on 13.06.2002, Rs. 50,000/- on 12.07.2002, Rs. 1,50,000/- on 07.09.2002 and Rs. 50,000/- on 27.09.2002, that opposite parties failed to construct the building as per the approved plan and further the construction lagged behind in every respect, that construction was not commensurate with the payments made, that as per the mode of payment the complainants were liable to pay only Rs. 3,50,000/- at the stage of super structure and plastering, whereas complainants had paid Rs. 4,50,000/- much in excess, that the said payment was made in order to effect the completion of the building at the earliest, that after getting the extra payments opposite parties stopped the construction work and demanded further payment. The failure to construct the building as per the provisions of the agreement constitute deficiency in service and unfair trade practice. Further on inspection by Mr. Reji John Varghese it was found that there was substantial deviation from the approved plan, that there was defects in the construction also, that deviations in the approved plan was done arbitrarily by the opposite parties in order to get undue monitory benefits. Hence this complaint to direct opposite parties to refund Rs. 1,00,000/- collected in excess and to pay Rs. 2,00,000/- towards compensation along with costs of the proceedings.

Opposite parties filed statement contending interalia that an agreement was drawn out in pursuance of mutual task and on verification of the approved plan, that no prior site inspection was done as averred in the complaint, that the mode of payment stated in para 8 of the complaint is true, that averments in paras 11 to 16 of the complaint are denied in toto, that opposite party is having great repute and goodwill among its customers, that agreement was drawn on 02.04.2002, total cost has to be calculated in accordance with the work and plinth area, that the plinth area may change on actual construction in accordance with the necessary variations, that it was also agreed into between the parties that alterations, change or additions in the construction can be made, that the plot was sloping with an average level difference of 3 feet and hence the design had to be changed with the complainant's consent and knowledge, that the wooden frames of doors and windows were not supplied by the complainant in time despite repeated requests. This caused delay. Further there was delay in selection of tiles and plumbing materials on the part of the complainant, that opposite parties have almost completed the construction work and the present attempt is to avoid due payment by hook or crook. There is no wilful latches or negligence on the part of the opposite parties in carrying out the work. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the opposite party has collected excess amount contrary to the provisions of the agreement dated 02.04.2002?

2. Whether there is deficiency in service on the part of the opposite parties in the construction of the building?

3. Whether the complainant is entitled to get compensation and costs?

In support of the complaint, 1^st complainant has filed affidavit and marked Exts. P1 to P3. Commission report has been marked as Ext. C1. Opposite party has not filed affidavit or any documents.

Points (i) to (iii):- Admittedly, an agreement was executed on 02.04.2002 between the complainants and opposite parties for construction of the building as per approved plan and opposite parties received Rs. 4.5 lakhs upto 27.09.2002 in connection with the provisions of the agreement executed between complainant and opposite parties. It has been the case of the complainant that as per the agreement the total construction cost was agreed at Rs. 6,84,990/- and the building was agreed to be constructed and delivered within 6 months from 02.04.2002 i.e; according to complainant the date of completion of the construction agreed was on 01.10.2002. Further complainant supplied the wooden frame for the doors and windows on 18.03.2002. It has been the case of the complainant that opposite parties failed to construct the building as per the approved plan. Further the construction lagged though payments were made well in advance. It has also been the case of the complainant that after getting extra payment of Rs. 1,00,000/- from the complainants opposite parties stopped the construction work and demanded further payment. Ext. P1 is the copy of the agreement dated 02.04.2002. On perusal of the agreement it is seen that specifications are scheduled, details of materials are provided, mode of payment is mentioned. There is no point in dispute that opposite parties have received 4.5 lakhs as averred in the complaint. Ext. P2 is the copy of the letter dated 27.11.2002 addressed to 2^nd opposite party in regard to the completion of construction of residential building. In the said letter it is seen informed the opposite parties that even after the lapse of 8 months from the date of agreement, works only up to the plastering of the walls were completed. It is informed the opposite parties as per Ext. P2 that as per the agreement after completing the plastering work, Rs. 3,50,000/- has to be paid. Herein complainant has already paid Rs. 4,50,000/-. There is no dispute on that aspect. It is further seen stated in Ext. P2 that from 01.10.2002 onwards no works were carried out till date even after repeated requests to complete the work, that complainant had suffered a lot due to delay in the construction work and opposite parties were requested to complete the works as per the agreement within one month and claimed their payments as per the agreement. Ext. P3 is the copy of the advocate notice dated 19.12.2002 addressed to 2^nd opposite party. To ascertain the construction works this Forum deputed an expert commission who filed report which has been marked as Ext. C1. As per Ext. C1 as regards the present stage of construction, foundation and basement, superstructures, doors and windows, (supplied by the owner), roof, plastering walls (95% completed), and ceiling (plastering to RCC works) completed. Flooring-plain cement concrete laid, Floor finish- not done, water supply and sanitary works-not done, electrical works-not done except piping. As regards finishing, white washing using white cement, plastic emulsion paint to walls with putty finish, walls outside with Apex paint, lacker polish to teakwood, doors and windows, finishing to stairs, compound wall etc. are not done. It is reported by the commissioner that there are deviations in construction as per the approved plan. The deviations include (1) the floor level of sit out, drawing and front bed room adjacent to drawing room are 45 cm lower than the floor level of dining and other portions. (2) As per the approved plan the basement height is 45 cm whereas the basement height at front sit out portion it is 80 cm from the adjacent ground level. (3) The sit out has been extended up to the end of the drawing room instead of a shortened one shown in plan. (4) Position of door of front bed room has been shifted from dining room to the drawing room adjacent to wall between the bed room porch. (5) Entrance to the staircase has been shifted from the position shown in the plan to the other side adjacent door of near bed room. (6) Because of the level difference of floors of front bed room and floor of stair case room the bathroom provided under the staircase slab is 45 cm above the floor level of bed room. (7) Roof level of sitout and porch are 1.35 meter below the roof level of drawing room. (8) Work area has been extended upto wall end of kitchen. (9) Store has been discarded. Commissioner has reported the consequences of deviations also. According to him some other deviations are having utility and economic consequences , while the construction of rooms in different level is having adverse consequence in movement inside the house. The construction also involve additional investment. However on aesthetically it feels more attractive. Commissioner has opined that the deviations in construction plan resulted mixed consequences of advantages and disadvantages. While examining the present stage of construction, it is evaluated by the commission that it was in an advanced stage. Major activities involving maximum investments are over. Only some of the finishing items along with electrical, sanitary and water supply items are yet to attend and complete. For the sake of convenience and accuracy, the items of works remained to be executed evaluated at Rs. 2,15,000/-. As regards defects in construction, commissioner opines there is no major structural defects in the construction. However it remains that here and there some wetting are noticed. In the wall between car shed and bed, there is dampness. Dampness in the cross beam portion of sit out and car shed. Room level of car shed portion is 1.35 meter below the roof level of remaining portion of building. For rectification of defects commissioner has worked out a cost of Rs. 20,950/-. According to commissioner entire construction cost of the bathroom may be borne by the opposite parties since provision of attached bath room floor level 45 cm above the floor level of bed room floor level is a case of bad planning. Commissioner has worked out an amount of Rs. 7,000/- recommended to be disallowed for bad planning. There is no point in dispute that complainant remitted Rs. 4,50,000/- upto 27.09.2002 out of Rs. 6,84,990/- as per the agreement, thereby the balance amount as per agreement comes to Rs. 2,34,990/-. As per commission report the cost of works remains to be carried out would come to Rs. 2,15,000/-. This would show that opposite parties had executed work worth for more than the amount received from the complainant, that is he had done extra work to the tune of Rs. 19,990/- (i.e; the balance amount to be given as per the contract of Rs. 2,34,990/- by the complainant minus the total value of works remained to be done of Rs. 2,15,000/-). That means complainant has to give an amount of Rs. 19,990/- towards the work executed so far by the opposite parties. As per Ext. C1 report there are defects in the construction which required rectification and commissioner estimated rectification charges of defects at Rs. 20,950/-. Further commissioner had recommended Rs. 7,000/- to be disallowed for bad planning or bath room. Both of these would come to Rs. 27,950/-(Rs. 20,950/- + Rs. 7,000/-). As stated supra opposite party has to get Rs. 19,990/- towards the balance cost for the work so far executed whereas the rectification charges and amount to be disallowed for bad planning would constitute Rs. 27,950/-. If Rs. 19,990/- is adjusted against Rs. 27,950/- (the cost of rectification charges and bad planning) the complainant is entitled to get the balance of Rs. 7,960/-. It is to be noted that the construction works not completed within time as per the agreement. Further commissioner has pointed out defects in the construction works also. So the delay in completion of the construction works and defects in the construction would definitely amount to deficiency in service. Complainant would have definitely suffered from the action of the opposite parties for which he has to be compensated. Opposite party has not furnished any material to show that complainant has not paid the agreed amount in time. As such we cannot find fault with the complainant. In view of the above discussions and evidence available on record we are of the considered opinion that the payment of Rs. 7,960/- towards the net cost of rectification charges of defects and amount to be disallowed for bad planning, Rs. 20,000/- towards compensation for deficiency in service and Rs. 4,000/- towards costs would meet the ends of justice.

In the result, complaint is partly allowed. Opposite party shall pay an amount of Rs. 7,960/- towards the net cost of rectification charges of defects and Rs. 20,000/- towards compensation for deficiency in service and Rs. 4,000/- as costs, within 2 months from the date of receipt of this order failing which the entire amount will carry interest @ 9%.

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 30^th day of November 2010.

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 69/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of the agreement dated 02.04.2002

P2 - Copy of the letter dated 27.11.2002 addressed to 2^nd opposite

party.

P3 - Copy of advocate notice dated 19.12.2002 addressed to 2^nd

opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT

C1 - Commission Report.

PRESIDENT

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