IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 30th day of May, 2017.
Filed 21/10/2014
Present
1. Smt. Elizabeth George, President
2. Sri. Antony Xavier, Member
3. Smt. Jasmine.D. (Member) in
C.C.No.270/2014
between
Complainant:- Opposite Parties:-
Dr. H.V Shyam Sunder Jaya Prasad.C
Ward No.8, Sai Sadhanam, Sauhrida bhavan,
Pullikunnu, Mankombu PO, Ayaparambu PO,
Alappuzha Dist. Haripad, Alappuzha-690514
(By Adv. P.N. Shylaja) (By Adv. C.Ajith Sanker)
O R D E R
SMT ELIZABETH GEORGE ( PRESIDENT)
The case of the complainant is as follows:-
On 21/4/2012 complainant and opposite party entered into an agreement for the construction of a residential building of the complainant. As per the agreement the opposite party has agreed to construct a house for the complainant for a sum of Rs.24,00,000/- within 12 months ie by April 2013. Though the opposite party has received a sum of Rs.22,50,000/- before April 2013, the work was not completed due to the lapses on the part of the opposite party. Hence on 22/4/2013, the opposite party has admitted in writing that the work cannot be completed by April due to the lapses on his part and that he will complete the construction as per the agreement before 30th June, 2013. Even after 30th June, the work was not completed and he went on demanding additional amount. The complainant who has spent a major portion of his earnings for the construction had no other option, but was compelled to pay the additional amounts demanded by the opposite party. The opposite party has demanded Rs.75,000/- as additional amount for the staircase room. Even after collecting a sum of Rs. 27,00,000/- from the complainant, the opposite party has not completed the construction and went on demanding further amount. When the complainant refused to pay further amount, the opposite party locked the front door of the house under construction and kept the key with him. Hence the complainant made a complaint before the Sub Inspector of Police, on 19/2/2014 for getting back the key. On 20/2/2013, the complainant was called to the Police Station. The Sub Inspector, after hearing the facts, advised the complainant to approach the civil court for appropriate reliefs and went out. But the complainant was called by the ASI of Police and in front of other civil police officers, complainant was compelled to sign an agreement stating that complainant has to pay Rs.1,35,000/- to the opposite party and on receiving the said amount, the opposite party will hand over the remaining keys to the complainant. The opposite party who has agreed to complete the construction for a total sum of Rs.24,00,000/- has not even completed the construction as per the agreement. This has resulted in serious hardship and monetary loss to the complainant. The failure to complete the construction within the agreed time limit due to lapses on the part of the opposite party has also resulted in great disadvantage and loss to the petitioner. The complainant and his family is living in a shed nearby the house under construction. They could not shift their residence and the consultation room in time due to the delay in completing the construction. The complainant is a doctor by profession and he was consulting patients in the nearby shed. There is provision for consulting room also in the house under construction. The delay in completing the construction has also adversely affected the professional work of the complainant. The construction was entrusted believing the assurance of the opposite party to complete the work within the stipulated time. So many works were not done by the opposite party as agreed. Due to poor quality of concrete roofing work done by the opposite party there is leakage in the hall. Alleging deficiency in service on the part of the opposite party the complaint is filed.
2. Version of the opposite party filed is as follows:
An agreement was executed with the complainant on 12/4/12 and as per agreement complainant had to give Rs.1475/- per sq.ft and also willing to pay extra amount for extra work. Due to the fluctuation in the climate of Kuttanadu area opposite party extended the work agreement till June 30, 2013. Complainant agreed to give 25% in excess of sq.ft charge for the extra work done by the opposite party. As per the agreement he has finished the ground floor construction and the complainant paid only Rs.22,50,000/- within the time limit. Complainant failed to give the additional amount for the extra work done by the opposite party. The opposite party had done all the works stated in the agreement. Complainant signed in a document before the police agreeing to pay Rs.1,50,000/- to the opposite party. There is no deficiency in service on the part of the opposite party.
3. Complainant was examined as PW1. The documents produced were marked as Ext.A1 to A4. An Advocate Commissioner was appointed, the commission report produced is marked as Ext.C1. Advocate Commissioner was examined as CW1. The opposite party was examined as RW1. Police Officer is examined as RW2. The documents produced by the opposite party were marked as Ext.B1 to B3.
4. Points for considerations are:
1) Whether there is any deficiency in service on the part of opposite party?
2) If so the reliefs and costs?
5. It is an admitted fact that the complainant and the opposite party had entered into an agreement for the purpose of constructing a residential building for the complainant. The said agreement is produced and marked as Ext.A1. As per the agreement the rate quoted for the construction is Rs.1475/- per sq.ft and the total amount is Rs.24,00,000/-. The duration of the work is 12 months from the date of agreement. It is also an admitted fact that the opposite party extended the agreement period upto June 30, 2013 and opposite party had received Rs.27,00,000/- from the complainant. According to the complainant even after receiving a sum of Rs. 27,00,000/- from him, the opposite party has not completed the construction and went on demanding further amount. According to the opposite party he has done some extra work in the building and he is entitled to get additional amount for the extra work done by him. On verifying Ext.A1 we came to see that under title “general conditions” it is stated that “work other than specified above will be treated as an extra work and will be charged as extra”. So the point to be considered is what are the extra work done by the opposite party and whether he was paid for that. As per Ext.A1s agreement the quoted rate is Rs.1475/- per sq.ft and the total amount agreed is Rs. 24,00,000/-. As per the agreement the work will be completed within 12 months from the date of agreement ie by April 2013, but it is extended to June 30 by the opposite party. The complainant had to pay Rs.24,00,000/- to the opposite party as per the rate quoted in the agreement. According to the opposite party he had done some extra work but complainant failed to pay amount for that. While cross examining the complainant he admitted that the opposite party had constructed a hall, sitout and a room, but the hall and room constructed according to his whims and fancies without the consent of the complainant. As per the agreement the complainant has to pay the last installment only before handing over the key to him. But opposite party has no case that he was ready to hand over the key to the complainant before June 30th. According to the opposite party he had to get additional amount for the extra work. What are the extra works done and howmuch amount fixed for the said extra work is not proved by the opposite party. At the same time the complainant admitted that opposite party had constructed a room, sitout and hall according to the whims and fancies of the opposite party. It is pertinent to notice that opposite party had admitted that he had received Rs.27,00,000/- from the complainant. Since the opposite party has no case that he was ready to hand over complainant the building before June 30th 2013, it is proved that opposite party has committed delay in handing over the building to the complainant. It is proved that having received major portion of the amount the opposite party has failed to complete construction within the specified period. During the cross examination of the opposite party deposed before the Forum that he had done only 80% of the work. According to the complainant the building constructed by the opposite party has so many defects. The Advocate Commissioner in Ext.C1 clearly stated that the newly constructed building has some defects and there is leakage in the car shed, sitout, drawing room and consulting room. While cross examine the Advocate Commissioner she was asked by the learned counsel opposite party that ‘Sn taÂ]Sn sI«n-S-¯nsâ ]Wn ]qÀWambpw XoÀ¡m-¯-Xp-sImv B `mK¯v IqSn shffw Cd-§n-b-Xm-sW¶v ]d-bp¶p.’ So it is clear that the opposite party himself admitted that the construction was not completed, and that caused leakage to the building. The opposite party did not take any initiative to prove that, any amount is due to him for the additional constructions he has effected in addition to the amount so far received from the complainant. The opposite party ought to have taken an expert commission to prove the same. The document signed by the complainant before the police cannot be taken as evidence for the claim raised by the opposite party without adducing any independent evidence in this regard.
From the above discussion we are of opinion that the opposite party failed to hand over the possession of the building within the period specified in the agreement and that caused much hardships, mental agony and inconvenience to the complainant. The failure on the part of the opposite party in hand over the building within the period of agreement to the complainant amounts to deficiency in service and it is to be compensated by the opposite party.
In the result complaint allowed. Opposite party is directed to pay Rs.50,000/-(Rupees Fifty Thousand) to the complainant towards compensation and Rs.5000/-(Rupees Five Thousand) towards costs of the proceedings.
The Order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in the open Forum on this the 30th day of May, 2017.
Sd/-Smt. Elizabeth George (President)
Sd/-Sri. Antony Xavier(Member)
Sd/-Smt. Jasmine.D (Member)
Appendix
Evidence of the complainant:
PW1 - Dr.H.V.Shyam Sunder (Witness)
Ext.A1 - Contract of Agreement
Ext.A2 - Copy of Judgement in the High Court of Kerala
WP© No.7743 of 2014(P) dtd 21/3/2014
Ext.A3 _ Letter issued by Kizhake Valliaveettil Stores dtd 22/3/14
Ext.A4 - Diary
Evidence of opposite party
RW1 - Jayaprasad. C(Witness)
RW2 - Eapen Joseph(Witness)
Ext.B1 - Copy of complaint and receipt dtd 20/2/14
Ext.B2 - Copy of agreement
Ext.B3 - Copy of complaint and receipt dtd 2/3/14
Court Exhibit
CW1 - Vimala Balakrishnan(Adv.Commissioner)
C1 - Commission Report dtd 27/11/14
//True copy//
By Order
Senior Superintendent.
To
Complainant/Opposite party/S.F
