IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday, the 30th day of November, 2017
Filed on 28.05.2014.
Present
1) Smt. Elizabeth George (President)
2) Sri. Antony Xavier (Member)
3) Smt. Jasmine D (Member)
in
CC/No.141/2014
Between
Complainant: Opposite parties:
Sri. P.J.Thomas @ Thankachan Sri. Thomas Chacko (Boby)
Anupama House Building Contractor
Thirumala Ward Keerthanam
Mullackal, Alappuzha Thathampally.P.O
(By Adv.A Francis) Alappuzha
(By Adv. V.N. Karthikeyan)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant entered into an agreement with the opposite party for the construction his house. As per the agreement the opposite party has to construct the house within 11 months from the date of agreement at the rate of Rs. 1490/-per.sq.ft. The opposite party modified the agreement as Rs.1600/- per sq.ft. from 15-12-2013. Opposite party failed to complete the construction, hence complainant issued a legal notice on 22-2-2014. Even though the notice was served the opposite party did not restart the construction. The building constructed by the opposite party has so many defects also. The complainant has paid Rs. 49 lakhs to the opposite party. The opposite party received excess amount from the complainant. Alleging deficiency in service on the part of the opposite party the complaint is filed.
2. The version of the opposite party is as follows:-
Even though on 15-12-2013 agreement renewed due to the rise in price of building materials and labour charges at Rs. 1600/- per sq.ft., but the complainant did not give any payment as according to the said modified rate. On 25-10-2012 the opposite party was forced to stop the work as the complainant has to pay Rs. 13,85,000/- as against Rs. 10,00,000/- given by the complainant. After 4 months, the opposite party was called and asked to continue the work giving Rs. 10,00,000/- again on 3.3.2013. All that time the opposite party had informed the complainant that the work would not go beyond the cost of the balance amount. Every time the complainant demanded to alter the construction against the agreement. There is no deficiency in service and no delay in construction of the building and no negligence on the part of the opposite party. The commission report dated 5.7.2014 submitted before the Hon’ble Forum is not justified. The uncompleted construction is only due to the delay by the complainant. The Opposite party accepted 49 lakhs is true. But the opposite party had incurred additional expenses of Rs. 8,25,596/- by doing the work. There is no deficiency in service on the part of the opposite party.
3. The complainant was examined as PW1. Documents produced were marked as Exts.A1 to A4. Opposite party was examined as RW1. Two witness were examined as RW2 and RW3. The documents produced were marked as Ext.B1 to B3. Two witness were examined as CW1. The commission report is marked as Ext.C1. The other documents along with the commission report are marked as Exts. C2 to C8.
4. Points for consideration are:-
Whether there is any deficiency in service on the part of the opposite parties?
If so the reliefs and costs?
5. It is an admitted fact that complainant entered into an agreement with the opposite party for the construction of his residential building. As per the agreement with the opposite party, he has to construct the building of 3147.20 sq.ft @ Rs. 1490/- within 11 months. It is also an admitted fact that they renewed the agreement and the renewed rate is Rs. 1600/- per sq.ft. According to the complainant opposite party failed to complete the construction and also that the construction itself is defective. At the instance of the complainant an expert commissioner is appointed and the expert commissioner executed the work in the presence of both parties. The expert commission report is produced and marked as Ext.C1. In the Ext.C1 report the expert noted so many defects of the building and also reported that the opposite party has to complete a lot of remaining works. According to the expert in order to complete the remaining works an amount of Rs. 11,95,000/- is to be needed. The main contention raised by the opposite party in his version for the delay and breakage of work was that the complainant failed to pay the amount within the time schedule enumerated in the agreement and also that the complainant after progressing the work had deviated from the original plan and insisted to do additional work. Ignoring the terms of the agreement regarding the payment of amount, the opposite party has again continued to do the work by renewing the contract rate. Even though an expert commissioner was deputed for ascertaining the present situation of the construction the opposite party did not take any imitative to bring any evidence through an expert to prove their contention there was lot of additional work done by him beyond the agreement. Opposite party admitted that he has received Rs. 49,00,000/- from the complainant. Having received huge amount from the complainant opposite party left the work undone. Even though complainant sent legal notice(Ext.A2) demanding to complete the construction opposite party did not turn up. On going through the facts and evidence in this case it is clear that after receiving a huge amount from the complainant the opposite party has left the work undone which has incurred monetary loss to the complainant to finish the work and it is to be compensated by the opposite party. In the light of the above facts, this Forum is of opinion that there is defect and deficiency in service on the part of the opposite party and complainant is entitled to get compensation on account of financial loss and mental agony caused to him.
In the result, the complaint is allowed. The opposite party is directed to pay Rs. 50,000/-(Rupees Fifty thousand only) towards compensation to the complainant and the opposite party is further directed to pay Rs. 4000/- (Rupees Four thousand only) towards costs of this proceedings to the complainant. Failing which the compensation amount shall carry interest @8% per annum from the date of order till realization. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by him corrected by me and pronounced in open Forum on this the 30th day of November, 2017. Sd/-Smt.Elizabeth George (President) :
Sd/-Sri. Antony Xavier (Member) :
Sd/-Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - P.J.Joseph (witness)
Ext.A1 - Copy of Agreement (Subject to objection)
Ext.A2 - True copy of Advocate notice
Ext.A3 - Postal receipt
Ext.A4 - Postal acknowledgement
CW1 - Ciril Sebastain (Court Witness)
Ext.C1 - Commission report.
Ext.C2 - Notice dated 16.6.2014
Ext.C3 - Acknowledgement cards(2Nos)
Ext.C4&C5 - Details of remaining works and for the amount
Ext.C6 - Copy of the receipt
Ext.C7 - Calculation note
Ext.C8 - Photos
Evidence of the Opposite party:-
RW1 - Thomas Chacko(Witness)
RW2 - Ajayan.K.S(Witness)
RW3 - Mathew.A (Witness)
Ext.B1 - Copy of the agreement
Ext.B2 - Copy of Statement of account
Ext.B3 - Copy of the Memorandum of cheque returned.
// True Copy // By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- br/-
Compared by:-
