IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 27th day of October, 2018
Filed on 13. 03. 2014
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
in
CC/No.79/2014
Between
Complainant:- Opposite party:-
Sri.Suresh.V.Nair Sri. Vinod Chandran
S/o P.K. Vasudevan Nair(Late), S/o Mohanachandran ,
Nandanam, Mathru ka Nagar Chempamparambil
Chepla Junction, Avalookkunnu Ward,
Uliyakkovil. P.O Alappuzha
Kollam – 691 021 (By Adv. E. Rafeek)
( From Sukruthalayam, CMC-25,
Cherthala)
(By Adv. R. Rajendra Prasad)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case is based on a consumer complainant filed under section 12 of the Consumer Protection Act, 1986 against the opposite party building contractor alleging deficiency in service.
2. The averments in the complaint as stands amended in short, are as follows:-
The opposite party is a building contractor. On 15.07.2011 the complainant entered into an agreement with the opposite party for the construction of a two stored building having 900 sq.ft in his property within 9 months from the date of agreement at the rate of 1,100 per sq.ft. After 3 months of the agreement the complainant made some changes in the construction plan increasing the plinth area of the building to 1,400 sq.ft by adding one hall, one bedroom, one kitchen and one bathroom on the 1st floor and both the complainant and opposite party orally agreed to construct the building at the same rate of Rs.1,100/- per sq.ft. and a total sum of Rs.15,40,000/- was agreed to be paid to the opposite party by the complainant and the proposed construction house building consisting of Rs.1,400/- sq.ft was agreed to be completed by 1 ½ years from the date of original agreement.
3. On 18.07.2011 the complainant paid Rs.1,03,000/- to the opposite party as advance towards cost of consideration. But the opposite party started the construction only after 3 months of the said agreement. However by 17-01-2012 the complainant paid a total sum of Rs.8,39,000/- to the opposite party. As per the terms of the subsequent oral agreement the construction of the house building has to be completed on or before 14-01-2013. The complainant has been working and residing at Kollam and he paid altogether 12,99,000/- and the balance amount out of the agreed amount was only Rs.2,41,000/-. But the opposite party failed to finish the work within time. The opposite party requested the complainant to purchase the tiles of his own choice and that he agreed to deduct the price of tiles from the contractual amount. Accordingly the complainant purchased tiles worth Rs.63,272/-. The complainant is entitled to realize and recover the said sum of Rs.63,272/- from the opposite party.
4. According to the complainant the opposite party has violated the terms of the said agreement in constructing the building. Though the opposite party was duty bound to construct an external stair case. But he failed to construct the staircase. The complainant was forced to construct steel rails for the external staircase by spending Rs.40,000/- and the complainant is entitled to realize and recover the said amount from the opposite party. The opposite party used low quality wood instead of Anjily wood and acacia wood for the doors and windows. As a result, the main door of the hall at the 1st floor got bent and now it is not possible to lock the said door. The opposite party has not constructed sunshade for the main door and a window at the 1st floor as per the terms of the agreement. The opposite party has not pointed the tiles nor has he effected acid wash of the tiles. The complainant demanded the opposite party to cure all the defects and complete the construction without any further delay. There upon the opposite party demand a sum of Rs.3,64,313/- more to carry out all such activities. By the time the complainant paid a total sum of Rs.19,04,313/- instead of the agreed amount of Rs.15,40,000/- but the opposite party has not cured the defects in the construction nor he completed the construction work till date inspite of the repeated demand of the complainant. Though the agreed period for completing the construction is 1 ½ years, the opposite party has not finished the construction of the building even after the expiry of 3 years nor has he cured defects pointed out by the complainant hence there is gross deficiency in service on the part of the opposite party. The complainant is entitled to get back Rs.3,64,313/- which he paid in excess of the agreed rate apart from Rs.40,000/- which he paid for the construction of the steel rails for the stair case and Rs.63,272/- which he paid for the tiles. Moreover the complainant is entitled to get an amount of Rs.1,00,000/- as compensation for mental agony and hardships. Hence the complaint.
5. Opposite party resisted the case by filing a detailed written version raising the following contentions:-
The complaint is not maintainable. The opposite party on 29.04.2014 has filed civil suit initially on 29/4/2014 before the Vacation Court, Alappuzha, which is subsequently transferred to Munsiff Court, Cherthala and the said civil suit is pending as O.S.367/14. The averments in the complaint are false. However the opposite party would admit that he had entered in to a contract with the complainant to construct a house building at the property of the complainant. But according to the opposite party the complainant has made some changes in the construction of the building and also requested to construct the 1st floor by carrying out additional work of 536 sq.ft. at the rate of Rs.1,500/- sq.ft. The total amount for the additional construction amounts to Rs.8,04,000/- which was agreed by the complainant orally and there is no further agreement for any other additional work. There was no written agreement for the additional construction. Thereafter the complainant requested the opposite party for the construction of the stair case and also foundation for boundary wall and concrete works. The cost of the above additional works is estimated to Rs.2,24,450/- and the same was agreed to be paid by the complainant. No time limit was fixed for the completion of work after effecting additional changes. However after entering in to the agreement there was heavy rain and flood and therefore construction could be started only after three month. It is further contended that the complaint is not prompt in payment and this also led to the delay in completing the construction. The opposite party would admit that the complainant has purchased tiles worth Rs.72,000/-. But he repaid the value of tiles by 2 instalments. As per the agreement the wood to be used for doors and window is anjili and Aquasia. Though the opposite party requested to change the frame of the main door using Cheru teak, the complainant would not accepted which led to a slight bent to the door. The opposite party used cheruteak for frame of front door. The entire construction was completed and the only work pending was pointing of tiles in 2 rooms. The total cost of the construction was Rs.20,18,450/- but the opposite party received an amount of Rs.19,04,313/- only from the complainant and the remaining amount of Rs.1,14,137/- still in the hands of the complainant. The complaint lacks any merit and the same is to be dismissed.
6. In view of the above pleadings the following points arise for consideration are:-
(1) Whether the complaint is not maintainable?
(2) Whether the complaint is entitled to get back Rs.4,000/- he paid to opposite party for the construction of steel rails for the staircase and Rs.63,272 being the cost of tiles directly paid by him?
(3) Whether the complainant has paid any excess amount to the opposite party and if so whether he is entitled to get back the same from the opposite party?
(4) Whether there is no deficiency in service on side of the opposite party.
(5) Whether the complainant is entitled to get compensation as claimed.
(6) Reliefs and costs.
7. Evidence on the side of the complainant consists of the oral evidence of PW1 and PW2, Ext.A1 to A7 documents and Ext.C1 expert report.
Evidence on the side of the opposite party consists of the oral evidence of RW1 to RW3 and Ext.B1 to B6 documents.
8. Learned counsel for both sides have filed notes of arguments. Heard both sides.
Point No.1
9. The crux of the allegations in the complaint is that the opposite party after receiving excess amount from the complainant has not properly constructed the building in the property of the complainant in time as per written as well as subsequent oral agreement and hence complainant is entitled to get back the excess amount and compensation for the defective, incomplete and negligent construction of the house building. According to the complainant the opposite party has affected the construction of the building in utter violation of the terms of the said written as well as oral agreement that the opposite party has received more amount than actual amount due. Hence the complainant is entitled to get back the excess amount received along with compensation and cost of the proceedings. Opposite party resisted the case by raising many fold contentions. One of the main contentions of the opposite party is that he has filed civil suit which is now pending before the Munsiff Court, Cherthala as O.S.367/14 against the complainant herein, in respect of the construction of the said building hence a complaint under the C.P. Act is not maintainable. The learned council for the complainant by relying on section 3 of the Consumer Protection Act, 1986 has argued that provisions of the said act shall be in addition to and not interrogation of any other law for the time being in force. A close perusal of provisions under section 3 of the said Act would indicate that even if a civil suit has been filed by the opposite party seeking the amount due from the complainant the present complaint alleging deficiency in service can be filed before the C.D.R.F. The present complaint is not only seeking to refund of excess amount from the opposite party contractor but also seeking compensation for deficiency in service and negligence and inordinate delay alleged to have been committed by the opposite party who engaged in the construction of the building. Therefore the pendency of the civil suit seeking balance amount by the contractor is not a bar in filing a complaint under section 12 of the Consumer Protection Act alleging deficiency in service. It is further to be pointed out that the complaint filed before the CDRF is the earliest one being filed on 13/3/2014 and by fully knowing the filing of the complaint the opposite party has filed the civil suit on 29-4-2014 ie one and a half months of filing the present complaint so as to make a defence against the complaint already filed against him by the complainant.
10. Yet another argument of the learned counsel for the opposite party is that as there is novation of contract, the contractor is not bound by the terms of original (Ext.A1) contract and hence the complaint filed on the basis of Ext.A1, contract is not maintainable. It is further contended in the beginning of page No.4 that the complainant has admitted that opposite party constructed 1415 sq.ft building based on an agreement, but no such agreement has been produced. Hence according to the learned counsel for the complainant it is to be considered that the construction was made only on the basis of an oral agreement and therefore the complaint filed on the basis of Ext.A1 agreement which is no more in existence is not maintainable. It is to be pointed out that the opposite party has no such version in his written version wherein he would admit that after 3 months of executing Ext.A1 agreement both himself and the complainant agreed for additional construction of 500 sq.ft consisting of one bedroom, one hall, one kitchen and a bathroom at the 1st floor. He has no contention in the written version that A1agreement was thoroughly changed and substituted by a new oral agreement. Even according to the opposite party there is no change for the constructions of ground floor even after the subsequent oral agreement for additional construction.
11. It is true that by virtue of 62 of the Indian Contract Act if there is novation of contract, the original contract need not be performed. It is well settled that by virtue of S. 62 of the Indian Contract Act the parties to a contract must agree to substitute a new contract for the original contract or to reseind or alter the original contract then only novation of contract took place and in such event the original contract need not be performed. In other words if according to the term of the renewed contract, the right under the original contract has been exsistinguished and new rights referable to the new contract has been created then only there is novation of contract. In short in order to attract the effect of novation of contract there must be a substantial change in the new agreement which has to go to root of the original agreement then only the subsequent agreement can be considered in law as a new agreement. But in this case the complainant directed the opposite party to extent the area of construction on the 1st floor on the same terms and conditions. According to PW1, he requested the opposite party to extend the area of construction on the first floor at the same rate for which the opposite party agreed and also received consideration in token of the agreed construction on the first floor. In the circumstances we are of the view that the above addition in the original agreement admittedly by oral terms is not having the effect of novation stated under section 62 of the Indian Contract Act since the extension of area of construction on the 1st floor would not go to the root of original agreement and there is absolutely to materials to hold that the parties intended to resind or exsistinguish the original agreement.
It is further to be pointed out that the original agreement (A1) itself there is provision for staircase to the 1st floor and one room at the first floor. It is clear from the available materials that only the area of the 1st floor has been extended by mutual agreement. In the circumstances it is clear that the additional rooms, hall, kitchen and toilet etc agreed to be constructed at the first floor as agreed subsequently will not be the construction of a new floor but only extending the area of the 1st floor and the same would not make any novation of contract especially when there is provision under Article 9 of Ext.A1 agreement to carry out any alteration or addition in the agreed work. Hence Ext.A1 agreement has not became void or unenforceable in toto since the rights and liabilities of parties has not varied substantially except the liability to pay more amount and right of the opposite party to get the same from the complainant according to the rate fixed. In the light of the terms and conditions of No.4 enumerated under article 9 of A1 agreement if any alteration or addition such work will be charged extra and should be paid while making construction itself. The above terms and conditions would clearly indicate that there is provision in Ext.A1 agreement itself to make any alteration or addition to the work stated in Ext.A1 agreement by virtue of this condition it cannot be said that there is novation of contract merely by subsequent agreement to enlarge the area of construction on the 1st floor of the building.
12. It is further to be pointed out that present complaint is not only based on the original A1 agreement but also based on subsequently agreed terms. The complaint cannot be treated as one filed merely based on A1 agreement as argued by the learned counsel for the opposite party.
In view of the reasons stated above we find no merit in the above contentions of the opposite party and the present complaint is perfectly maintainable. The point answered accordingly.
Point No.2 and 4
13. For avoiding repetition of discussion of materials these 3 points are considered together. The specific case of the complainant is that the opposite party has constructed the building not as per the terms of the agreement entered into between himself and the opposite party but in utter violation of the terms of A1 agreement and additional oral agreement and hence there is deficiency in service on the side of the opposite party. The further allegation of the complainant is that the opposite party has received more amount than the actual amount due to him even before completing the construction work. Hence according to the complainant he is entitled to get back the amount received in excess apart from compensation and cost of the proceedings. Complaint also claims back the amount paid towards the construction cost of steel hard rail to the staircase, and the price of the titles purchased directly by him. To substantiate the above claims and allegations, the complainant relies on the oral evidence of PW1 and PW2 Ext.A1 to A7 documents and Ext.1 expert report and the admissions of RW1 and RW2 when they were in the witness box.
14. Following are the undisputed rather admitted facts in this case. The opposite party is a building contractor. The complainant entered in to Ext.A1 agreement dated 15.07.2011 with the opposite party for the construction of the 2 storied building at the property of the complainant. As per the terms of the A1 agreement the complainant has to constructed the house building consisting of 900 sq.ft. at the rate of 1100 per sq.ft. and the cost of construction has to be paid to the opposite party according to the progress of construction. It is also an admitted fact that the construction of the residential building has to be carried out as per the plan and specifications and attached to Ext.A1 agreement, that the construction of 900 sq.ft. would include the external stir case and one bed room at the 1st floor and that the agreed total construction cost as per A1 agreement was Rs.9,90,000/- out of which Rs.1,03,000/- was paid by the complainant to the opposite party on which date, Ext.A1 agreement was signed. It is also an admitted fact that after 3 months of A1 agreement, the complainant has decided to extent the area of construction in the 1st floor and both the complainant and opposite party entered in an oral agreement to increase and extent the total plinth area of the building to the extent of 1400 sq.ft by adding one additional bedroom, Hall, kitchen and also bathroom on the first floor.
15. According to the complainant both the parties orally agreed to construct the excess plinth area to the extent of 500 sq.ft at the agreed rate of Rs.1100/- per sq.feet and as the plinth area of the building has been increased the period of construction agreed in the original written agreement (A1) was also extended to 18 months. But the above two aspects has not been admitted by the opposite party.
16. One of the major allegations in the complaint is that as directed by the opposite party, the complainant had purchased tiles by spending Rs.67,272/- and at the time of purchasing the tiles the opposite party made the complaint to believe that the price of the tiles will be adjusted in actual amount due to him and by believing the above representation he purchases tiles worth Rs.67,272/- but the opposite party has not adjusted the same towards the amount due to him and hence the complainant is entitled to recover the same from the opposite party. The specific contentions of the opposite party in this regard is that though the tiles has been purchases by the complainant by spending his own money the opposite party returned its price on 2 occasions by depositing Rs.45,000/- on 12/2/2013 and by depositing Rs.27,000/- on 1-10-13 by way of NEFT transactions to the account of the complainant. However PW1 denied the above claim made by the opposite party and has further deposed that the above 2 amount transferred to his bank account are the repayment of cash borrowed from by him by the opposite party. It is seen from Ext.B6 Bank statement that Rs.45,000/- was transferred to the bank account of the complainant on 12/2/13 and Rs.27,000/- was transferred on 1-10-13. Ext.A3 series are cash memo obtained while effecting purchase of tiles where in the date shown in both the cash memo is 19.02.2013. The total amount of tiles purchased as per Ext.A3 series memos is Rs.63,272/- only. Even accordingly to the complainant the cost of tiles is Rs.63,272/- only. But if the version of opposite party and the evidence of PW1, he paid Rs.72,000/-. But he has no case that he paid more than the value of tiles. If the version that the opposite party has paid Rs.72,000/- in two instalment to the complainant is believed he had returned Rs.8,728/- in excess of the actual price as shown in P3 series invoices. However the opposite party has no such case in his written version. In the circumstances the amount of Rs.45,000/- and 27,000/- seen transferred by NEFT to the account of the complainant may not be the repayment of the cost of titles as alleged by the opposite party. Therefore we are inclined to accept the evidence tended by PW1 that the amount deposited by opposite party on two occasions to his account is towards the repayment of the loan. Hence complainant is entitled to recover the price of tiles from the opposite party as claimed in the complaint.
17. The next allegation in the amended complaint is that the opposite party has constructed the building in utter violation of the terms of the agreement. According to the complainant as per the agreement the opposite party is duty bound to construct the external staircase but the opposite party has not constructed the stir rails for the external staircase as agreed. On perusal of Ext.A1 agreement we find provision under article 2 to construct the external staircase. Even the opposite party has no case that the provision to construct external stair case has been avoided in the subsequent oral agreement. RW1 himself has admitted while facing cross examination that under article 2 the construction of external staircase has been specifically stipulated. In the light of article 2 of Ext.A1 and the above admission of RW1, it is clear that the opposite party is bound to construct the external staircase. Hence realisation of Rs.40,000/- for fixing hand rail to external staircase is against the agreement and hence the said amount is to be returned to the complainant.
18. Yet another grievances or allegation of the complainant is that the opposite party in utter violation of the terms of A1 agreement has used low quality wood other than Anjili and acacia for the construction of the house building and as a result the main door of a hall became bent. The PW1 has reiterated the allegation in para 3 of the proof affidavit. However during cross examination the learned counsel for the opposite party has suggested that the wood used is vemb and according to him vemb is a valuable wood. But according to the complainant vemb is not a hard wood. However there is no provision in Ext.A1 to use any wood other than Anjili and acacia wood. Even the opposite party has no case that the complainant has agreed to use the vemb wood for the construction of the building either in Ext.A1 or at any subsequent stage. It is clear from Ext.A1 agreement that the main door should be made by using anjili wood the shutter also should be made up by using anjili wood that the doors and window and shutters except to doors to the toilets shall be with acacia wood and the door of toilet would be made with fibre wood. However PW2 expert in C1 report has noted that the main door of both floor has been construct with anjili wood and all other doors and windows have been constructed with unidentified wood and at the time of inspection it was told that the name of wood used for such doors and windows are “vemb”. However he has noted that there is a bent on the main door of the first floor and it is difficult to put the door bolt properly. PW2 expert commissioner has also deposed to that effect. In the light of the above evidence it is clear that there is substantial defect in the construction of house building by the opposite party.
19. According to RW1 the wood for the construction of the house building has been purchased from the Santha Timbers, Ambalappuzha and the complainant was present and selected the wood. But the opposite party has no such contention in his written version and what is his contention regarding this aspect is stated in the pleadings in para 6 of his version which are as follows:-
“.....More over in the agreement it is proposed to use anjili and acacia for doors and windows and the opposite party requested to change the frame of main door using cheru teak, but the complainant did not pay heed to the request of the opposite party which led to a slight bent. The opposite party used strong wood like cheruteak which is stronger than anjily for the frame of front door (Main door).....”. It is clear from the above contentions in the written versions that he has instructed the complainant to use cheruteak instead of anjily which is strong wood than anjily for the front main door. But the complainant did not pay any heed to his instruction which has caused a slight bent. In the light of the above pleadings it is clear that the opposite party has used cheruteak for the main door of the ground floor only which is not in accordance with Ext.A1 agreement nor as per the terms of the subsequent oral agreement. The opposite party has also no case that the complainant has accepted the change of wood for the ground floor main door. In view of Ext.C1 expert report and the oral evidence of PW2 the wood used for the main doors frame in the ground floor and first floor using anjily wood. It is a fact that seasoned anjili wood is a hard wood and stronger than cheruteak. In view of the admission of the RW1 itself it is clear that he has not used anjili wood for the main door shutters. However it is clear that bent caused on the front door first floor is on account of the substantial change in the wood used for the door shutters. It is also brought out in evidence that all the door shutters were made by using the wood vemb instead of acacia wood prescribed in Ext.A1 agreement. Opposite party has no explanation either in proof affidavit or his written version why he changed the word for the door frame and door shutters. It is known to everybody that vemb (toon) is not a hard wood but it is a perishable wood having only lesser value than acacia wood and not being used in the construction of door or window shutters or frames. In view of the materials available on record it is clear that use of low quality wood for construction of main door, other doors and windows has caused bent to the front door and could not be locked properly which is definitely a major defect in the construction of house building and would very well come within the perview of deficiency in service.
20. Yet another allegation in the complaint is that the opposite party has not constructed sunshade above the main door and window of the first floor which is against the terms of Ext.A1 agreement. The opposite party in his written version would admit the non construction of sunshade at that portion and would explain that if sunshade is constructed there are a chance of affecting the ingress and egress through the staircase to the upstair. But that defect can be cured by making steel work. PW2 expert Commissioner has stated in his report that the opposite party has not constructed sunshade to the door adjacent to the stir case and that defect can be cured by making steel work. The expert commissioner has also made an estimate of Rs.3000/- for the said steel work. It is clear from the oral evidence of PW1 and PW2 and Ext.C1 report that non construction of sunshade or steel work at that portion is a defect in the building construction as there is a chance of entering the rain water to door and window. In the circumstances the complainant is entitled to recover Rs.3,000/- as suggested by the expert commissioner in C1 report to cure the defect. But the complainant has not prayed in the relief portion to award that amount.
21. Yet another allegation of the complainant is that the opposite party has not done acid wash of the tiles to make the tiles clean. The opposite party would argue that there is no such stipulation in Ext. A1 agreement but he would fairly admit that he has not carried out the pointing work of the tiles in 2 rooms as the complainant wanted to have house warming urgently. However PW2 in his C1 report has calculated Rs.4000/-as expenses for carrying out the pointing work of the tiles not completing pointing work of the entire tiles laid is also a lapse in the work of the contractor which amounts to deficiency in service. But the complainant has not prayed to grant this amount also in the relief portion.
22. Yet another allegation of the complainant is that the opposite party has received Rs.3,60,713/- in excess of the total agreed amount of construction and hence the complainant is entitled to realise the same from the opposite party. According to the complainant the opposite party has constructed a total plinth area of 1436 sq.ft and the rate per sq.feet agreed as per Ext.A1 agreement is Rs.1100/-. Therefore the opposite party is entitled to get 1436 X 1100 = Rs.15,79,600/- only. But the opposite party has admittedly received Rs.19,40,313/-. Hence the opposite party according to the complainant has to return the excess amount of Rs.3,60,713/- to him. To substantiate the above claim the complainant relies on the oral evidence of PW1,PW2 Ext.A1,A7 and Ext.C1 report. The opposite party has denied the above claim and raised a counter claim.
23. It is an admitted case that the opposite party has constructed a building having the plinth area of 1436 sq.ft. and also would admit that the opposite party has received Rs.19,40,313/- from the complainant towards the said construction. The learned counsel for the complainant would argue that the above claim of the opposite party is actually and factually incorrect and would not coincide with his written version and the admission of RW1 we find force in the above argument. The contention fo opposite party in this regard in his written version is that the complainant has agreed to pay Rs.1,500/- per sq.ft. for the additional construction of 536 sq.ft. But the complainant denied having agreed to pay any enhanced rate to the additional construction. Even if the version that the complainant agreed to pay Rs.1,500/- per sq.ft. for the additional construction the calculation of the opposite party is arithmetically wrong and the same would be 536 x 1500 = 8,04,000/- and the total amount due will be 9,90,000 + 8,04,000= 17,94,000/- but the opposite party claims Rs.20,18,450/-. There is a substantial difference between 20,18,450 and 17,94,000/- which is Rs.2,24,450/. 24. It is true that the opposite party would claim Rs.2,24,450/- towards electrification and plumping work. But he has no contention in his written version to that effect Article 6 of Ext.A1 would clearly indicate that there are ample provision for Electrification and plumbing work. Even according to opposite party the complainant has not suggested any additional Electrification or plumbing work.
25. The opposite party in para 10 of his proof affidavit dated 4-8-2017 has sworn that as per the renewed agreement he agreed to construct more rooms at as additional construction and agreed rate was Rs.1,500/- per sq.ft. for the additional construction complainant denied the same. Opposite party relies on the oral evidence of RW1 and 2 and Ext.B4 final bill issued by him to substantiate the enhanced rate of Rs.1500/- for the additional construction. It is true that RW1 has deposed that the agreed rate for the additional construction was Rs.1500/- and the same is stated in Ext.B4 final bill but in the light of the oral evidence of PW1 admission of RW1 and the calculation stated in Ext.A7 document the final bill (B4) is not reliable and convincing. Furthermore Ext.B4 is a self serving document. The insurance and receipt of the same has been denied by the complainant.
26. The oral evidence of PW1 and the admissions of the opposite party when he was in the witness box as RW1 and Ext. A7 document would substantiate the case of the complainant. RW1 has admitted that along with Ext,A7 e-mail he has attached a bill stating the calculation 1436 x 1100 which would clearly indicate that the rate for the entire 1436 sq.ft will be at the rate of Rs.1100/- only if that be so the entire cost of construction of 1436 sq.ft will be 1436 x 1100 = 15,79,600/- as claimed by the complainant.
27 It is true that Ext.A7 was marked subject to objection / proof. But the opposite party when he was in the witness box as Rw1 would admit that it was sent by him to the complainant along with one attachment which is the final bill stating 1436 x 1100. Hence Ext.A7is considered as proved as argued by the learned counsel for the complainant.
28A. The version of the opposite party that the agreed rate for the additional construction on the first floor was Rs.1,500/- is not believable and acceptable for other reasons also. It is seen from the materials available on record that the additional work was agreed to be carried out within 3 months of executing Ext.A1 agreement. There is no chance of increasing the rate abnormally within the short span of 3 months. If the additional work was agreed to be carried out after one or 2 years of fixing the rate of original construction the abnormal increase of more than 36% in the construction cost.
28B. It is true that the opposite party has raised a counter claim of Rs.2,24,450/- towards the cost of construction of staircase foundation of boundary wall electrical modification and concrete work. It is well settled that there is no scope for considering counter claim in a complaint filed under section 12 of the C.P Act. However it is to be pointed out the admission of RW1 while facing cross examination that in Article 2 of Ext.A1 agreement there is a provision to construct an external staircase. Even according to the opposite party in the subsequent agreement the terms was to construct one hall, one additional room, one kitchen and a bathroom in the first floor and there was no agreement for the construction fo an external staircase in the revised oral agreement. As the opposite party has already filed a civil suit he can very well agitate these matters in the civil suit pending before the Munsiff Court, Cherthala.
29. In view of the above reasoning it is clear that the total cost of construction of 1436 sq.ft. building agreed by the parties was at the rate of 1100 per sq.ft hence the same will be 1436 x 1100 = 15,79,600/-. The opposite party admitted to have already received Rs.19,40,313/- if that be so the opposite party has received Rs.3,60,713/-. in excess of the amount is liable to be received from the complainant. Hence the complaint is entitled to get back Rs.3,60,713/-. The points answered accordingly.
Point No.5
The complainant claims compensation to the tune of Rs.1,00,000/- for the mental agony suffered by him due to the culpable delay and defective work and also for the deficiency in service on the part of the opposite party.
30. It is true that the original work was to construct building having only 900 sq.ft and the same was agreed to be constructed within 9 months from the date of A1 agreement. It is true that the area to be constructed was extended by 536 sq.ft and the period of construction was also been extended to 1 ½ years from the date of executing Ext.A1 agreement. However it is brought out in evidence that the complainant has carried out the work by taking 3 years. There is delay of 1 ½ years. It is true that the terms of A1 agreement has been extended by oral terms, the time specified in A1 agreement is not binding on the parties. But the opposite party is expected to carry out the construction work within the subsequently extended time or within a reasonable time. According to the complainant since the area of construction was extended time for the completion of work has also been extended and it was fixed as 18 months from the date of executing Ext.A1. It is true that the opposite party has denied the same. But we find no reason to disbelieve the claim of the complainant that 18 months was the agreed period of construction of the house building having extended area. The first reason alleged by the opposite party to counter the delay is that there was heavy rain and therefore he could start the original work after 3 months of A1 agreement only. There is no history in Kerala that heavy rain lasted for 3 months. Hence the above contention that the opposite party could not start the work due to heavy rain is not believable. If at all there was rain which may have lasted only for a few days or a few weeks. There is absolutely no reliable evidence to prove that the opposite party was prevented from starting the construction work for 3 months due heavy to rain.
31. Yet another contention of the opposite party regarding the delay of starting the construction is that opposite party could managed to obtain revised plan from the municipal authority only at a belated stage and hence construction could not be started. As Ext.B3 is the revised plan which would show that it was approved only on 4-11-13 but it is an admitted case that construction started after 3 months of executing Ext.A1 agreement. If the plan for ground floor and one room in the first floor was already obtained one need not wait for getting revised plan approved before making additional construction work at the 1st floor as there is no change in the original set out of the ground floor. In such case after completing the additional construction work without violating the municipal or panchayath rules a revised plan showing such addition or deletion in the original plan is to be submitted before the appropriate authority at the local body before getting the Muncipal or Panchayath number allotted to the building and on getting such a revised plan Enginer or building inspector used to visit and satisfy that there is no violation of Muncipal or Panchayath rule, they will regularise the additional construction and issue number to the building. But there is absolutely no evidence to prove that the alleged revised plan obtained before starting the original or additional construction nor there is any evidence to show that the revised plan submitted before starting the original or additional construction.
32. The opposite party would further content that the non making payment by the complainant is another ground for the delay in the progress of construction work. But in view of the materials available on record the above contentions is having no merit. The payment schedule is shown in page 2 and 3 of Ext.A1 agreement which would indicate that the payment has to be made in 12 instalments, according to the progress of the construction starting from the date of signing A1 agreement till the completion of the building and the last instalment has to be paid immediately after the completion of the work. Here in this case it is proved that as on the date of executing A1 agreement the complainant has paid the 1st instalment and the opposite party received the same on 15-7-2014 on which date he signed on A1agreement. It is further to be pointed out even before completing the full construction work the opposite party has received more amount than the actual construction costs. In view of the materials discussed above the delay of 1½ year in completing the construction work cannot be attributed to the non payment of amount by the complainant or due to the delay of getting the revised plan approved and that the delay in completing the construction work is culpable and the opposite party alone is responsible for the same.
33. It is crystal clear that the culpable delay on the part of the opposite party in completing the construction of the building has caused mental agony apart from financial loss to the complainant. The learned counsel for the complainant has vehemently argued before the forum that there is inordinate delay in carrying out construction work that the opposite party has used low quality wood in construction of the house building and there are defects and lapses and imperfections in the construction work and the delayed construction, defective construction and incomplete construction of the building by the opposite party amounts to deficiency in service. We find force in the above argument. It is brought out in evidence that there are cracks, in the wall and roof of the newly constructed building. It is also brought out in evidence through PW2 and RW2 that the opposite party has used substandard materials including wood and hence there is leakage in the roof, crack in the wall defect in the door and floor. Inordinate delay in completing the construction work is also proved. All these facts has undoubtedly point towards the deficiency in service and has caused much mental agony to the complainant apart from the financial loss. Hence the complainant is entitled to get reasonable compensation from the opposite party contractor. In view of the facts and circumstances we are of the view that Rs.50,000/- will be reasonable compensation to be awarded. These two points answered accordingly.
Point No.6
In view of the findings under point No. 1 to 5 the complaint stands allowed, directing the opposite party to pay Rs.4,63,985 (3,60,713 + 40,000+ 63,272) along with interest at the rate of 6 % per annum from the date of complaint till the date of order.
The opposite party is also directed to pay Rs.50,000/- as compensation with interest at the rate of 6% per annum from the date of filing the complaint till the date of order.
The opposite party is also directed to pay Rs.10,000/- as costs of the proceedings to the complainant.
The opposite party is directed to pay Rs.5,13,985/- (4,63,985 + 50,000) and costs Rs.10,000/- within 30 days from the receipt of copy of the judgement failing which the complainant is entitled to recover Rs. 5,13,985/- along with interest at the rate of 9% per annum from the date of complaint till realisation along with costs Rs.10,000/- from the opposite party and his assets.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 27th day of October, 2018.
Sd/-Sri.E.M.MuhammedIbrahim (President):
Sd/-Smt. Sheela Jacob (Member):
Appendix:-
Evidence of the complainant:-
PW1 - Suresh V Nair (Witness)
PW2 - (Witness)
Ext.A1 - Agreement dtd. 15/07/2011
Ext.A2 - Bank Statement
Ext.A3 - Copy of Invoices (No.2)
Ext.A4 - letter 26-08-2015
Ext.A5 - Tax Invoice dtd. 4-10-2014
Ext.A6 - E-mail. Dtd. 22-10-2011
Ext.A7 - E-mail Print.
Ext.C1&Cw1 - Commission Report & Manoj.K (Witness)
Evidence of the opposite parties:-
RW1 - Vinod Chandran.M (Witness)
RW2 - Jacob Thambi (Witness)
RW3 - Jospeh Pradeep (Witness)
Ext.B1(Subject to Objection - Photographs
Ext.B2 - Copy of Building Plan
Ext.B3 - Copy of Building Plan
Ext.B4 - Copy of Final Bill. (Subject to Objection)
Ext.B5 - Copy of Recovery suit.
Ext.B6 - Bank Statement.
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
