D.O.F. 23.12.2005 D.O.O. 06.01.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan : President K.P.Preethakumari : Member Smt.M.D.Jessy : Member Dated this the 6th day of January, 2011 C.C.No.327/2005 V.P. Praveen, S/o. K. Janardhanan, Rajendra Nagar Housing Colony, : Complainant P.O. Pallikkunnu, Kannur District. (Rep. by Adv. Haridas Thaikkandy) V.V. Krishanan Maistry, Building Contractor, : Opposite party Near Erumakkudi, South Bazar, Kannur District (Rep. by Adv. K. Gopakumar) O R D E R Sri. K. Gopalan, President This is a complaint filed under Section 12 of Consumer Protection Act for an order directing opposite parties to pay an amount of ` 1,35,000 with interest at the rate of 18% along with cost of the proceedings. The case of the complainant is that he had he had entrusted the opposite party, the construction of concrete slab roof of first floor of his newly constructed house in Re.Sy. 15/2 of Puzhathi amsom, desom as per an oral agreement. The conditions agreed were, that all the materials for the work has to be supplied by the complainant and that opposite party has to engage efficient labourers under his supervision for all the mansory and concrete work of the roof for a valid consideration including supervisory charges, service charges and labour charges. Eventhough the complainant had paid all the labour charges and supervision charges on weekly basis and also paid other contractual consideration to the opposite party, he dragged the construction work for about 8 months and completed the concrete work on the main slab of first floor of the house building on 06.10.2005. Over and above the contractual consideration paid by the complainant, the opposite party has also extracted an additional amount of ` 35,000 as a hand loan by pretending financial problem, with a promise that it will be returned within 2 months, with an ulterior motive to assure the entrustment of further finishing work of the building. But on 20.10.2005, when the opposite party removed the support of machine slab the complainant noticed the following defects such as the concrete roof got several patches of seepage of water in many places, along the concrete slab, there are dripping of water inside the room, iron rod and metals were seen overhanging outside the concrete slab and other materials were seen in unfinished manner and there are several developing crevices in the concrete slab. But when the defects were brought to the notice of the opposite party he did not suggest any remedial measures, but tried to evade from the responsibility with some excuses and threatened that he will not permit the complainant to continue the work with any other person. The complainant estimated the value of rectification work as ` 50,000 with the help of a civil engineer. The opposite party alone is responsible for the damages and defective work and had dragged for 8 months and thus the complainant suffered mental agony, financial loss and damages and because of this the complainant issued a lawyer notice, but the opposite party issued a reply stating untenable contentions. Hence the complaint. In pursuance to the notice issued by the Forum, the opposite party appeared and filed his version. The opposite party admits that he had agreed to supply labourers for the work of the newly constructed residential building of the complainant as per an oral agreement. The complainant engaged a qualified engineer by name Soman and Sreejith and all the work of the building was completed under their supervision. So the opposite party has no role in the work except to supply labourer force as and when directed by the complainant. The opposite party denied the allegation that he had supervised masionary and concrete work of the roof for a valid consideration including supervisory charges and service charges. He further denied that he had extracted an additional amount of ` 35,000 and the opposite party has no liability for the delay of the work also. If any defects caused, that might have caused due to the lack of effective supervision and opposite party is not responsible for the same and the same was not brought into the notice of opposite party. The opposite party has not threatened the complainant and not prevented the complainant from continuing the work and has no knowledge about the inspection of a civil engineer. The complaint is filed to counter blast the payment of ` 21,059 which stands as a long overdue towards labour charge. The opposite party has filed a suit for recovery of the said amount as O.S.134/06 before AMC, Kannur. The subject matter involved in both the cases are one and the same and hence the complaint is not maintainable. The complainant has to sue against the engineers employed in supervision work. There is no deficiency of service on the party of the opposite party and hence the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. 1. Whether there is any deficiency of service on the part of opposite party? 2. Whether the complainant is entitled to any relief? 3. Relief and cost. The evidence in the above case consists of the oral testimony of PW1, DW1 and Exts. A1 to A5. Ext.C1, C1(a) and B1 to B2 are marked. The complainants case is that due to the deficient service of opposite party during construction of his house, the concrete roof got several patches of seepage of water, dripping of water inside the room along with some other defects and hence he had suffered so much of financial, mental and physical hardship and the opposite party has to compensate for the same. In order to prove his case he was examined as PW1 and produced documents such as lawyer notice, acknowledgement card, reply notice, bill dated 06.09.2006, deposition of the opposite party before AMC, Kannur and report filed by the Commissioner and the expert. In order to disprove the case the opposite party was also examined as DW1 and produced documents such as expert’s report and Commission report filed before the AMC in O.S.134/06. The opposite party admits that he had agreed to supply labourers for the work of newly constructed residential building of the complainant. But he contended that the complainant had engaged qualified engineers by name Soman and Sreejith for supervision work and hence the opposite party has no role in the work of the building except to supply labourer as and when directed by the complainant. But according to the complainant he has to supply only materials for the work and the opposite party has to engage efficient labourers under his supervision for all masonry and concrete work of the roof for a valid consideration including supervisory charges, service charges and labourer charges. But the opposite party had filed a suit before the Munsiff Court having No. O.S. 134/06. This complaint was filed by the complainant on 23.12.2005, but it is seen that the other suit is filed only during 2006, ie, after this complaint. The suit before the file of AMC, Kannur was filed for realization of the balance amount of ` 21,059 from the complainant towards the remuneration of the employees for the work. The complainant has produced the deposition given by the opposite party in the above case as Ext.A5 in the page NO.4 of A5, it is seen that, the opposite party had deposed before the Additional Munsiff, Kannur in O.S.134/06 that “06.10.2005þ\mWv Rm³ construction ]qÀ¯n-bm-¡n-bXv”. This words of the opposite party shows that he had completed the construction work as contended by the complainant. He further deposed in page No.6 of A5 that “labour charge- sXmgn-em-fn-IÄ¡v Iqen sImSp¯ tijT _m¡n-bp-s-¦n am{Xta Rm³ FSp-¡m-dp-f-fq. Rm³ work tF-sä-Sp-¯m sXmgn-em-fn-Isf Ab¨p sImSp-¡p-I-b-ÃmsX Rm³ At§m«v t]mIm-dn-Ã. wits adds. Site- t]mIm-dpv. sXmgn-em-fn-IÄ sN¿p¶ {]hr¯n Rm³ {i²n-¡m-dp-v. AXn-te-¡p-ff {]Xn-^-e-am-bn-«mWv labours-\v sImSp¯ tijT an¨T hcp¶ XpI.” He further deposed that “{]Xn-bp-am-bp-m-¡nb [mcW {]Im-cT squarefeet-\v 14 cq] ground floor-\pT st floor-\v square-\v main top-\v Xmtg¡v 18 cq]-bp-T, main top-\v 25 cq]-bp-am-bn-cp-¶p. hy-h-Ø-IÄ Rm³ {]Xn¡v Fgp-Xn-s¡m-Sp-¯n-cp¶p’’ From this it is very clear that the opposite party had agreed with the complainant to complete that work after receiving the supervision charge and service charge. If the opposite party had agreed only to supply the labourers for work, what is the need of making a oral contract for doing work. If he had supplied the workers only and how the complainant was able to keep balance amount towards the labour charge to the opposite party. The usual practice is giving labour charge to the labourers for the work done by them. If the opposite party had received the amount from the complainant towards labour charge, it is sure that the complainant had entrusted the work to opposite party as per his contention and hence it is very clear that the opposite party had acted as a supervisor at the time of construction work of the complainant. Moreover, there is no evidence before us to prove that supervision work was done by some engineers appointed by the complainant. The complainant further contended that the opposite party had dragged the work for 8 months. But the opposite party contended that the delay was caused due to the non supply of materials. But the complainant keep mum with respect to this allegation. So we hold that there is no merit in the allegation. The complainant again contended that the opposite party had abstracted ` 35,000 from the complainant as hand loan and not returned the amount. But there is no document before us to prove this and hence we discard this contention as such. The complainant contended that due to the deficient supervision of the opposite party, there caused so many defects to the concrete work of the first floor of his house such as, the concrete roof got several patches of seepage of water in many places, there are dripping of water inside the room along the concrete slab, iron rod and metals were seen overhanging outside the concrete slab and other materials were seen in an unfinished manner and developing crevices in the concrete slab. For proving this the complainant has produced Ext.C1 and C1(a) as the expert’s report. As per this report, the building has the following defects ie unfilled spaces are seen under the sloped roof slab over right side bed rooms and balcony slab, sleepage of water about 8 to 9 points, and steel reinforcement were seems exposed under the slab. According to expert, this was caused due to the poor mixing, poor laying and lack of supervision. The opposite party has produced Ext.B1 and B2 report and as per this report only ` 4500 is enough for curing the defects. But it is seen that this report was prepared by the expert after the rectification work and was prepared according to the statement issued by the opposite party. But where as C1and C1(a) was prepared before rectification work. The complainant has produced Ext.A4 to show that he has incurred ` 45,678 for rectification. But the document is not proved by the complainant by examining the person who had issued the same. So the only document before us to determine the quantum is C1(a) report. As per this report the expert opined that about ` 40,000 is required for rectification. But the expert has not detailed the cost of each rectification work separately. So we assess ` 30,000 as the value of rectification and hence the complainant is entitled to get this amount ` 30,000 from the opposite party as value of rectified defects. The complainant is also entitled to get ` 1,500 as cost of this proceedings and ` 2,000 as compensation for his mental and physical sufferings and order passed accordingly. In the result the complaint is allowed directing the opposite party to pay ` 30,000 (Rupees Thirty Thousand only) as the value for rectified defect along with ` 2,000 (Rupees Two Thousand only) as compensation and ` 1,500 (Rupees One Thousand Five Hundred only) as cost of the proceedings within 30 days from the date of receipt of this order, failing which the complainant is at liberty to execute the order as per the provision of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Office copy of the lawyer notice dated 26.11.2005. A2. Acknowledgement Card dated 28.11.2005. A3. Reply notice dated 01.12.2005. A4. Bill dated 06.09.2006 from R&D Engineers. A5. Affidavit in O.S.No.134/2006 before the Munsiff Court. Exhibits for the opposite parties B1. Inspection report by Er. Abdul Rasheed A.C. B2. Commission report submitted by Anila d., Advocate. Exhibits for the Court C1. Commission report C1(a). Inspection report Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. V.V.Krishnan /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
