IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 7th day of August, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.110/10 (Filed on 02.08.2010)
Between:
1. R. Sasidharan,
Vrindavan House,
Elanthoor Village,
Kozhencherry Taluk.
Addl. 2. K.V. Vijayamma, W/o Sasidharan,
of --do-- --do—
Addl. 3. Aruna. S., S/o. Sasidharan,
of --do-- --do- … Complainants
(By Adv. N. Anilkumar)
And:
1. Thomas Abraham,
Proprietor,
Sheeba Constructions,
Nellikkala P.O., Kozhencherry,
Pathanamthitta Dist.
(By Adv. R. Sarachandra Kumar)
Addl. 2. Asha. S.,
Vrindavan House,
Elanthoor Village,
Kozhencherry Taluk.
O R D E R
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief is as follows: Complainant started the construction of his residential building at Elanthoor Village and completed the foundation and wall at 3 feet height. After that he entrusted the construction to opposite party on 18.11.2009. The opposite party has been running a construction establishment named Sheeba Constructions.
3. Complainant entered into an agreement with opposite party for the construction of the said building on the basis of a plan prepared by the complainant himself. Opposite party agreed to complete the building at a rate of ` 1,000 per sq. ft. and the work started. The agreement dated 18.11.2009 has entrusted to opposite party and complainant in possession of photocopy only. The opposite party received a total amount of ` 8,49,000 in different dates as shown below:
Date Amount
18.11.2009 1,50,000
11.01.2010 70,000
15.01.2010 2,00,000
22.01.2010 50,000
22.03.2010 50,000
17.04.2010 50,000
13.05.2010 1,00,000
26.05.2010 1,79,000
--------------------
8,49,000
=========
4. Though opposite party received ` 8,49,000, they failed to complete the residential building. The work done by opposite party is contrary to the plan and leakage in all rooms. Opposite party would not done the flooring. Complainant undertakes the work and completes the flooring. This causes financial loss to complainant. He has to spend ` 1,50,000 for removing the leakage in all rooms. As per agreement, opposite party ought to have finished the flooring by using vertified tiles and ordinary tiles. Opposite party received the amount for flooring but did not done it. Therefore, complainant had done it by spending ` 1,60,000. Hence this complaint for getting the said amount of ` 3,10,000 (` 1,50,000 + 1,60,000).
5. During the pendency of this complaint, complainant expired. After that, complainant’s legal heirs were impleaded as addl. 2nd and 3rd complainants and additional 2nd opposite party.
6. Opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts. According to opposite party original agreement dated 18.11.2009 is in the custody of complainant. The construction of the residential building was started by one contractor named Madhu.B. But he given up the work on 16.11.2009 due to the non-payment of wages promptly. The said Madhu cancelled the agreement. Opposite party has informed the inability to continue the said given up work, but complainant and his wife insisted and thereby opposite party decided to undertake the work. Since the construction of basement was already completed, opposite parties work is only further construction i.e. after the basement onwards at a rate of ` 1,000 per sq. ft.
7. According to opposite party, agreement amount is ` 12,13,000. Except plastering work of ` 2,10,000 opposite party has to get ` 10,21,050. But complainant given only ` 6,70,000 by various occasions. Each payment time, opposite party had signed the diary of the complainant. But complainant did not given the balance amount of ` 3,51,050. Opposite party had suffered a lot due to the non-payment of the said amount. Opposite party directly and by mediators demand the said amount, but complainant assured the payment by getting loan from the bank.
8. On 25.05.2010 complainant’s relative one Shibi meet the opposite party and informed that at present work is stopped and continue only after getting loan from bank. He also informed that on next day (26.05.2010) complainant would come to opposite party office for settlement and by payment. Accordingly the complainant and Shibi came to opposite party’s office and came to a settlement between the parties. As per settlement agreement cancelled. The payment of the settlement amount assured to transfer to opposite party next day. But till date complainant has not given any amount. After that opposite party realized that the Shibi is not the relative of complainant, but belong to member of Muslim Community.
9. Opposite party had completed 85% of work. During the period of construction work, complainant was daily present at site. But he would not complaint any defect. He has been supervising the work and given instruction. Therefore the allegation of not suitable for lodging and leakage in rooms are false. This complaint is only for not giving ` 3,51,050 to opposite party. Complainant had falsely complaint that opposite party has accepted the amount of flooring and allied work. Opposite party would not deviate from the agreement. There is no deficiency on the part of opposite party. Hence they canvassed for the dismissal of the complaint with their cost.
10. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
11. Evidence of the complaint consists of the oral deposition of PW1, PW2, PW3, CW1, CW2 and DW1 and marked Ext.A1 to A3, C1 & C1(a), C2 & C2(a) and B1. After closure of evidence, both parties were heard.
12. Point Nos.1 to 3:- In order to prove the complainant’s case, addl. 2nd complainant filed proof affidavit along with certain documents. She was examined as PW1 and the documents produced were marked as Exts.A1 to A3. Ext.A1 is the copy of agreement dated 18.11.2009. Ext.A2 is the receipt book signed by the opposite party. Ext.A3 is the copy of plan. Ext.C1, C1(a) are the mahazar and plan prepared by the expert commissioner. Ext.C2 and C2(a) are the report and mahazar of the advocate commissioner.
13. In order to prove the opposite parties contention, 1st opposite party filed proof affidavit along with one document. He was examined as DW1 and the document produced by him was marked as Ext.B1. Ext.B1 is the agreement of cancellation dated 26.05.2010.
14. On the basis of the contention and argument of the parties, we have perused the entire material on record. Complainant’s case is that, opposite party had entered into an agreement for construction of residential building and received ` 8,49,000. The work done by the opposite party is contrary to plan and leakage in all rooms. For rectifying the leakage complainant has to spend a huge amount. Though opposite party accepted the flooring charges but failed to do it and complainant spend another huge amount for flooring. For getting the said amount complainant filed this complaint.
15. According to opposite party, earlier a contractor completed the basement of the complainant’s residential building and given up the work. Opposite party undertake the work after that and completed 85% of the building. But complainant would not given the balance amount of ` 3,51,050. Though both parties entered into a settlement and cancelled the agreement, till date complainant has not given the said amount. Opposite party would not accept the amount of flooring and allied work. This complaint is filed only for not giving ` 3,51,050 to opposite party.
16. It is not disputed that complainant and opposite party entered into an agreement for the construction of residential building. Complainant’s allegation is that opposite party’s construction work contrary to Ext.A2 and received ` 1,60,000 as excess amount without any flooring work. According to opposite party, the agreement amount is ` 12,13,000 except plastering work of ` 2,10,000 and opposite party has to get ` 10,21,050. But complainant given only ` 6,70,000 therefore they has to get a balance amount of ` 3,56,050.
17. It is noted that both parties would not disclosed the total amount required for the construction of the building. The material on records do not revealed the said total amount. In these circumstances, we are not inclined to come to a conclusion that such and such amount required for the completion of work.
18. It is pertinent to note that as per Ext.B1, both parties entered into a settlement. As per settlement dated 26.05.2010, payment was given to opposite party and cancelled Ext.A1. The said fact was admitted by PW1 in her deposition which is as follows:- “ Agreement cancel sNbvX-Xn-\p-tijw asämcp agreement F-gp-Xn-bn-cp-¶p. AXmWv Ct¸mÄ Fs¶ ImWn-¨-Xv.” It is marked as Ext.B1.
19. Since Ext.B1 came into force, both parties are estopped from claiming any amount with regard to the payment in the construction of the residential building. Hence the complainant’s 1st claim of refunding the excess amount of ` 1,60,000 cannot be allowable. Though opposite party raised an allegation that complainant had deviated from Ext.B1 by not paying the assured amount etc., the same has not proved by adducing material.
20. Another contention of complainant is that due to the improper work of opposite party, leakage occurred in all rooms in the building and for rectifying the same ` 1,50,000 has to be required. On going through the evidence on record it is learned that the leakage is firstly seen after removing the wooden log of the concreted roof of the building. It is evident in PW3’s deposition which is as follows:- “X«v hmÀ¸nsâ ]e-I remove sN-bvX-tijw ag s]bvX-t¸mÄ Hcp point-þ \n¶pw shÅw leak BIp-¶p-m-bn-cp-¶p. ]n¶oSv aäv ]e `mK-§-fnepw leak D-mbn”.
21. Evidence on record shows that advocate commission and expert commissioner ascertained the construction work after the completion of plaster work. Even then they find leakage which shows that the leakage is heavy and cannot be rectified in an ordinary plastering. There may have occurred a patent defect in concreting the roof. Therefore we find that the concreting of the roofing done by opposite party is negligent. The present stage of leakage and its way for remedy is described in expert commissioner’s report which is as follows:- “sI«n-S-¯nsâ ]e `mK¯pw Imen¨ ImWp¶-Xn\p Ign-ªp. roof -\-¶mbn clean -sNbvXv grouting -\-S¯n water proof compart tNÀ¯v 1:3 F¶ A\p-]m-X-¯n-epÅ knsaâv tamt«mÀ D]-tbm-Kn¨v 9mm thickness-þ plaster -sNbvXv Imen¨ ]cn-l-cn-¡m-hp-¶-Xm-Wv. Bb-Xn\v 130-þ\v plaster -sN-¿p-¶-Xn-\v m2-þ\v 185/þ cq]m-sh¨v 24,050 cq] sNehv Xn«-s¸-Sp-¯p-¶p.
22. In the light of above expert commission’s report, we cannot find any reason to disbelieve the deposition of PW3. Available evidence on record shows that roofing work done by opposite party is negligent. It is a clear deficiency of service on the part of 1st opposite party. Therefore complaint is maintainable and partly allowable by either rectifying the leakage or to pay the cost as stated in Ext.C1 and C1(a) report. Considering the facts and circumstances of this case, no amount is allowable for compensation and cost.
23. In the result, complaint is partly allowed, thereby 1st opposite party is directed to rectify the leakage of complainant’s residential building as stated in Ext.C1 report or to pay ` 24,050 (Rupees Twenty four thousand and fifty only) to the complainant’s and addl. 2nd opposite party within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the said amount with 9% interest from this date till the realization of the whole amount.
Declared in the Open Forum on this the 7th day of August, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Vijayamma
PW2 : Jose. K.O
PW3 : O.M. John
Exhibits marked on the side of the complainant:
A1 : Copy of agreement dated 18.11.2009.
A2 : Receipt book signed by the opposite party.
A3 : Copy of plan.
Witness examined on the side of the opposite parties:
DW1 : Thomas Abraham
Exhibits marked on the side of the opposite parties:
B1 : Cancellation agreement dated 26.05.2010.
Court Witness:
CW1 : Manukumar. M
CW2 : P.R. Jayakumar
Court Exhibits:
C1 & C1(a) : Mahazar & Plan
C2 & C2(a) : Report & Mahazar.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) R. Sasidharan, Vrindavan House, Elanthoor Village,
Kozhencherry Taluk.
(2) Thomas Abraham, Proprietor, Sheeba Constructions,
Nellikkala P.O., Kozhencherry, Pathanamthitta Dist.
(3) Asha. S., Vrindavan House, Elanthoor Village,
Kozhencherry Taluk.
(4) The Stock File.
