BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.45/2010

Dated this the 15^th day of March 2016.

Davoulath Bee, wife of Andonisamy

No.25, Yanam Venkadachalam Pillai Street          

Pondicherry – 1.           

                                      ….     Complainant

Vs.

Kumaran, son of Sampathkumar

No.5, Narayani Illam, III Cross Street

Brindavanam, Pondicherry – 13

….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR DHANALAKSHMI, B.A., B.L.,

Member

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru. M. Vaikunth, Advocate

FOR THE OPPOSITE PARTY        : Thiru. R. Thiroumavalavan, Advocate

O R  D  E  R

(By Thiru.A. ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite party to pay to the complainant a sum of Rs.2,47,880/- being the refund amount for the incomplete work;
2. Direct the opposite party to pay to the complainant a sum of Rs.7,994.75 being the electrical items provided by the complainant;
3. Direct the opposite party to pay to the complainant a compensation of Rs.5,00,000/-;
4. Direct the opposite party to pay to the complainant a sum of Rs.5,70,660/- towards deficiency of service and negligence in duty;
5. Direct the opposite party to pay to the complainant a sum of Rs.6,73,465.25 towards compensation for mental agony and sufferings of the complainant;
6. Direct the opposite party to pay to the complainant unliquidated damages and for costs.

            2.  The case of the complainant is as follows:

          The complainant engaged the Opposite Party for thumb-all work (Maelevellai) for her house situated at No.41, Vth Cross, Dr. Radha Krishnan Nagar Ext., Moolakulam, Puducherry.  and had entered into an agreement on 30.04.2008.  The tentative cost of the said work arrived at Rs.5,40,000/- inclusive of labour charge and material costs. The complainant has given a sum of Rs.4,30,000/- by way of six instalments on 05.05.2008, 12.05.2008, 14.06.2008, 21.06.2008, 12.07.2008 and 29.08.2008 and the opposite party should complete the said work within three months from the date of agreement. 

3. The following are the agreed thumb-all works:

In the ground floor, to lay tiles in the entire floor.  To lay tiles (5 feet height) in the toilets and tiles (3 feet height) in the bathrooms of Rs.30/- per square feet and to do all the plumbing works;  To paint distemper (double coating) in all the walls of the ground floor and to paint the gate entrance (vaasal kaal) and the windows found in the said floor (double coating);  To do electrical works of kundan make and to do all the maintenance works of the grill windows;  To lay the kitchen stand along with the silver sink.  To lay three wash basins and to alteration work in the first room of the ground portion.

            4. In the first Floor,  To lay tiles in the entire floor.  To lay tiles (5 feet height) in the toilets and tiles (3 feet height) in the bathrooms of Rs.30/- per square feet and to do all the plumbing works; To white wash after patti work and to paint double coating of distemper paint.  To paint the windows double coating and to paint the outer walls of the said portion with snowcem paint with double coating;  To install switches, to put lay flooring with cement on the sunnambu jalli;  To lay tapper tiles and to plaster the walls with cement of the front portion with designs;  To plaster the compound wall in the three sides with cement of 120 ft. height and to install a sump in the said area;  The furniture has to be provided by the owner and fittings, paintings on some doors and to lay push doors. 

5. The complainant had provided electrical items to the tune of Rs. 7,994.75.  The complainant stated that the opposite party had tactically entered into an agreement with a confused manner and purposely included the elevation work which is not at all required in the said building.  On enquiry, it is stated by the opposite party that the same has been inadvertently included in the agreement.  The opposite party done only wiring work and fittings not provided and electricity connection also not obtained.  Likewise, in the plumping work also, the opposite party has laid only pipes and not provided fittings.  In the kitchen tiles not provided.  The sump not closed with slabs and water connection also not provided.  Only one coating of paint was given by the Opposite Party that too by mixing more water on the paints.  The ground floor tiles were laid incompletely and not in a proper manner and as a s result, fungus were formed due to the gap existed between the wall corner and the place of laying of tiles and the said work remains meaningless and useless.  The complainant purchased tiles to a tune of Rs.70,660/- which the Opposite Party assured to reimburse at the time of settlement.  But the Opposite Party neither completed the said work nor had shown the accounts.  The Opposite Party had plastered the compound wall with cement and white washed the said walls incomplete.  The opposite party had inserted the duplicate wires along with the company branded wires.  As per agreement, the opposite party did not get the electricity connection by renewal.  No sink, wash basin and pipes were fixed and the kitchen stand is kept incomplete.  In the drainage work, water connections is wrongly done and no proper slope is given to the septic tank.  Moreover, the provision is done wrongly in a way that the western toilet cannot be fixed at all.  When the complainant asked the opposite party about the incompletion of work, he would say that he would complete the works very sooner, but failed to do so.   Moreover, he switched off the cell phone.  On 17.07.2008 the complainant met the opposite party and asked him to complete the work or refund the amount, at that time also, the opposite party assured to complete the works very soon.  Again on 25.07.2008 when the complainant and her brother met the opposite party, he had opted for settlement and refund of money for the incomplete work.  While so, on 30.07.2008 a complaint has been lodged by the Opposite Party against the complainant for threatening him.  The complainant stated that in order to overcome from the act of defaults, fraud, cheating and false assurance to settle the amounts, the opposite party had lodged the complainant.  In the police station, the opposite party undertook in writing that he would complete the complainant's house work within 45 days else, he would refund the amount and as a mark of the same, the key of his sister's house was given to the complainant's sister.  Since the opposite party has not acted upon as per his assurances, the complainant and her brother informed the fact to the said police on 15.09.2008 where in order to get rid of the situation temporarily, the opposite party asked the complainant to provide tiles for her said work so as to create an image as if the opposite party is not a defaulter.  Accordingly, the complainant purchased tiles for a sum of Rs.70,660/-, however, the opposite party did not commence the work.  Again the complainant and her brother complained before the said police who warned the opposite party and directed him to settle the matter or finish the work in entirety which the opposite party accepted for the same.  On 08.11.2008 at 2.00 p.m. the opposite party took inventory of his work and photographed the same and handed over the keys to the complainant and asked one month's time for refund of money.  On 04.01.2009 when the complainant and her brother asked the opposite party the refund of money, he has stated that he had invested huge money in construction of other building and would refund the same within June 2009.  Even then, the opposite party had not fulfil his assurances and hence, the complainant issued a legal notice dated 08.07.2009 to the opposite party which was returned as "left".  The complainant later came to know that the opposite party absconded from the agreement mentioned address and living in the complaint mentioned address.  The complainant issued legal notice on 18.07.2009 to the Opposite party which was acknowledged by the opposite party on 21.07.2009 and had issued a reply notice on 10.08.2009 with imaginary, false and frivolous defences.  On 15.11.2009 the opposite party approached the complainant and stated that he had replied only as per law not otherwise and asked the complainant and her brother a further time of three months till January 2010 for settling the same.  The complainant stated that prior to issue of legal notice, with the help of a Registered Contractor namely K.P. Mourougane, son of K. Pandian, Pondicherry came to know that the total estimate for the thumb-all work would come to around Rs.2,90,725/- and the opposite party estimated it as Rs.5,40,000/- and had received a sum of Rs.4,30,000/-.    The above said acts of the opposite party clearly establishes the deficiency in service and negligence in his duty.  The complainant was made to suffer both monetarily, mentally and physically.   Hence, this complaint.

6.       The following are the averments narrated in the reply version filed by the opposite party:

          The opposite party denies all the allegations made out in the complaint, however, he admitted  the entering into an agreement for construction on 30.04.2008 for a sum of Rs.5,40,000/- to do the following works:

In the ground floor

To lay tiles in the entire floor. To lay tiles (5ft) in the toilets and tiles (3ft) in the Kitchen and to do all the plumbing works

Painting works

To paint distemper  (two coating) in the walls and the window and main entrance.

Kitchen

To lay kitchen platform along with sinks, to lay tiles (5ft) in the toilets and tiles (3ft) in the bathrooms and to do all the plumbing works.

Painting works

To white wash after patti work, paint distemper ( two coating ) in the walls and the window and main entrance.

Electrical works

To do entire electrical works and to fix switches.

Kitchen

To lay kitchen platform along with sink

Outside work

To lay taper tiles and to plaster the walls with cement of the front portion

Compound wall

To plaster to the extent of 120feet.

Wood works

Materials to be supplied by the owner and the labour charges to be borne by the builder.

Electrical accessories up to Rs.7, 999.75 provided.

The Opposite Party has done the following works.

Ground floor

Front bed room altered and made into office room; iron grill alteration work has been fully done; municipal water connection and tank water connection fully completed (except motor to be fixed); electrical wiring fully done (kundan electrical accessories used); electrical board box along with necessary switches fixed; sump work completed along with top slap and water connection fixed; compound wall (120 feet*5feet) plastered on both sides; for the entire ground floor distemper painting (two coatings) done including the door frames and window frames.

First floor

Two grill gates fixed (3*7); ventilator grill fixed; wiring for the entire floor done; the electrical accessories given by your client was fixed; two coating of paint (distemper ) done for the entire floor

Second floor

Sunnambu jalli work and cement flooring done; water head tank plastered and slap fixed

Outer work

On the entire back side of the building from the ground floor to the second floor plastering work done; front elevation plastered and tiles fixed.

The opposite party states that during the above work period the complainant was fully present and further states that till the above work the opposite party has received from the complainant a sum of Rs.4,30,000/-.

          7.  Under the above circumstances, the complainant and her brother stated that the opposite party has received excess money for the work done and requested to complete the entire work and receive the balance amount for which the opposite party totally refused and asked the complainant to pay a part of the balance amount of Rs.1,10,000/- to do further work.  The Opposite party stated that the complainant and her brother behaved very arrogantly and used filthy language and brought some rowdy elements and threatened the opposite party with dire consequence and asked to do the entire balance work without payment.  On 30.7.2009 at about 7.00 a.m. the complainant, her brother and some persons came to the house of the Opposite Party in his absence and abused the family members, and hence, the father of the opposite party lodged complaint before the Lawspet Outpost Police Station.  The police advised them for a compromise and that the complainant would purchase tiles on her own and as already agreed, she would supply the wood materials and the carpentry charges would be borne by the opposite party.   The opposite party laid tiles in the entire ground floor, upto 5 feet in the bathroom and 3 feet in the kitchen and on the kitchen platform.  Similarly, he had laid tiles in the entire first floor upto 5 feet in the bath room and 3 feet in the kitchen and on the kitchen platform.  The opposite party has nearly finished 90% of the works and the balance works such as to engage carpenters to do the wood work and to bare the charges; to paint the outer of the building with second coating; to fix the bathroom fittings and to fix the sink in the kitchen.  The complainant had not supplied wood materials to complete the wood works.  The opposite party has done extra work of providing an attached bathroom in the first floor apart from the agreement done and the cost of the work done is Rs.16,000/-.  The complainant used trumpt painting instead of snowcem for the outer wall which caused extra amount of Rs.4000/- to the Opposite Party.  On 8.11.2008 the complainant for performing rituals to the building to the key of the buildings and never returned it till date.  Hence, there is no deficiency in service on the part of the opposite party and prayed for dismissal of the complaint with exemplary costs.

8.       On the side of the complainant, the complainant herself was examined as CW1 and Exs.C1 to C14 were marked.  On the side of the opposite party, the OP was examined as RW1 and Ex.R1 alone marked.  One Thiru G. Sankar, Junior Engineer, PWD, Pondicherry has been examined as CW.2 and marked Exs.X1 and X2.

9.       Points for determination are:

1. Whether the complainant is the Consumer?
2. Whether the complainant is entitled for a sum of Rs.2,47,880/- being the refund amount to be paid to the complainant for the incomplete work by the opposite party?
3. Whether the opposite party attributed any deficiency in service?
4. To what relief the complainant is entitled for?

10. Point No.1:

The complainant has entered into an agreement with the Opposite Party for completion of pending works of her house situated at No.41, V Cross, Teachers' Colony, Moolakulam, Puducherry on 30.04.2008 for valid consideration of Rs.5,40,000/- vide Ex.C1. Hence the complainant is consumer for the opposite parties.

          11. Points No.2 and 3:

We have carefully perused the Complaint, reply version, documents on both sides, depositions of both parties and the opinion  given by the Expert.  The complainant submitted that she entered into agreement with the opposite party to complete the thumb-all works of her house on 30.04.2008 for Rs.5,40,000/- vide Ex.C1, and the said works to be completed within three months from the date of agreement.

12. The following are the thumb-all works to be carried out by the opposite party as per agreement Ex.C1.

In the ground floor, to lay tiles in the entire floor.  To lay tiles (5 feet height) in the toilets and tiles (3 feet height) in the bathrooms of Rs.30/- per square feet and to do all the plumbing works;  To paint distemper (double coating) in all the walls of the ground floor and to paint the gate entrance (vaasal kaal) and the windows found in the said floor (double coating);  To do electrical works of kundan make and to do all the maintenance works of the grill windows;  To lay the kitchen stand along with the silver sink.  To lay three wash basins and to alteration work in the first room of the ground portion.

            In the first Floor,  to lay tiles in the entire floor.  To lay tiles (5 feet height) in the toilets and tiles (3 feet height) in the bathrooms of Rs.30/- per square feet and to do all the plumbing works; To white wash after patti work and to paint double coating of distemper paint.  To paid the windows double coating and to paint the outer walls of the said portion with snowcem paint with double coating;  To install switches, to put lay flooring with cement on the sunnambu jalli;  To lay tapper tiles and to plaster the walls with cement of the front portion with designs;  To plaster the compound wall in the three sides with cement of 120 ft. height and to install a sump in the said area;  The furnither has to be provided by the owner and fittings, paintings on some doors and to lay push doors.

          13. Since the elevation was already completed and there is no need for elevation work, however, the opposite party included the same in the agreement and later, it was mutually deleted by the parties themselves.  The complainant further stated that the opposite party did not complete the entire work as agreed upon, however,  he had partly done all the works.  The opposite party received a sum of Rs.4,30,000/- out of the agreement amount of Rs.5,40,000/-.  The complainant further alleged that she engaged a private contractor one K.P. Mourugane, who estimated the thumb-all works as Rs.2,90,725/-.  It is the further allegation that the opposite party estimated the thumb-all works as Rs.5,40,000/- taking into advantage the innocence of the complainant.  Even then, he had not completed the work fully.  The complainant further stated that she had provided tiles and electrical fittings from her money apart from the agreed amount of Rs.5,40,000/-.  Hence, the act of opposite party leads to deficiency in service and thereby caused the complained to suffer monetarily, mentally and physically. 

          14. On the other hand, the opposite party submitted that according to the agreed contract, he had done the following works:

In the ground floor, front bed room altered and made into office room; iron grill alteration work has been fully done; municipal water connection and tank water connection fully completed (except motor to be fixed); electrical wiring fully done (kundan electrical accessories used); electrical board box along with necessary switches fixed; sump work completed along with top slap and water connection fixed; compound wall (120 feet*5feet) plastered on both sides; for the entire ground floor distemper painting (two coatings) done including the door frames and window frames.

15. In the first floor, two grill gates fixed (3*7); ventilator grill fixed; wiring for the entire floor done; the electrical accessories given by your client was fixed; two coating of paint (distemper ) done for the entire floor

In the second floor(open terrace), Sunnambu jalli work and cement flooring done; water head tank plastered and slap fixed

Apart from the above, on the entire back side of the building from the ground floor to the second floor plastering work done; front elevation plastered and tiles fixed. 

          16. While the things being so, suddenly, the complainant and her brother stated that the opposite party has received excess money for the work done and requested to complete the entire work and receive the balance amount for which the opposite party totally refused and asked the complaining to pay a part of the balance amount of Rs.1,10,000/- to do further work.  This opposite party stated that the complainant purchased the tiles and he laid the same in the kitchen, its platform and in the entire first floor.  The Opposite party had requested several times to supply the wood material so that he could complete the wood work and finish the building.  It is further stated by the opposite party that he had completed 90% of the work and the balance works to be completed are 1. To engage carpenters to do the wood work and to bare the charges; 2. To paint the outer of the building with second coating, 3. To fix the bathroom fittings and to fix the sink in the kitchen.  The opposite party alleged that he had done extra works to a tune of Rs.20,000/-. 

17.  Heard both sides and records and evidence were carefully perused.  It is very clear from the available records i.e. Complaint, reply version, documents and depositions of both parties that the complainant and the opposite party had entered into a building construction contract agreement Ex C1 as per the terms and conditions of the contract agreement, the amount has to be paid in four instalments.   Accordingly, the complainant has paid a sum of Rs.4,30,000/- in six instalments.    The dispute arose only when the Opposite Party demanded part payment of Rs.40,000/- to do the other pending works, the complainant refused to give and asked the opposite party to finish all the pending works from out of the sum of Rs.4,30,000/- and get the balance amount.  In the meantime, the complainant engaged a private building contractor and got estimation for the Ex.C1 mentioned works who gave the estimation that all the agreement mentioned works will fetch a sum of Rs.2,90,725/-.  While so, the opposite party undertook to construct a house for the brother of the complainant at Krishna Nagar.    On perusal of records, there is no documentary evidence that the complainant agreed for extra payment for extra works.    In the cross-examination, the OP has stated that "It is true that I have not laid a silver sink and three wash basins as per agreement.  It  is true that as per the agreement, I have made the alteration work by removing the frame of entrance door that existed on the eastern side is to be transferred on the northern side"  Further, the opposite party has stated in the cross examination that " It is true that as per the agreement, I have not completed the pipe line connection in the sump work and hence, there is no water supply for the entire house." 

18. Coming to the next aspect of deficiency in service, this Forum carefully perused the evidence and the reports filed by the Expert CW2.   The CW2 Thiru G. Sankar, Junior Engineer, Public Works Department has stated in his reports Exs.X1 and X2.  Since during first visit, the CW2 has not given notice to both the parties and he himself inspected the building, he was directed to revisit again and file a fulfledged report.  Accordingly, the CW2 revisited the building and inspected in the presence of both the parties and found that following are the pending and incomplete works of the opposite party.

In the W/C of Ground Floor required base concrete and tile work have not been completed in the floor area of W/C.  Also, wall tile work have been done to a height of 3 ft instead of 5 ft as mentioned in the agreement and Indian W/C pan is not fitted.

          In the kitchen, Stainless Sink and wash basin were not fitted and painting work is not done properly. In the master bed room, Europen W/C is not fitted.  One coat of painting alone done by the opposite party.  The frames of the doors alone painted.  In the windows and grills, only primer coat done.

          In the first floor, Kitchen sink was not fitted and the kitchen platform is in unfinished stage.  In the W/C the tiles were fitted to a height of 3 ft. instead of 5 ft. as mentioned in the agreement.  The painting and wall putty was done partly in the Hall / Kitchen and in remaining rooms are not done properly. 

During examination before this Forum, the Expert / CW2 has stated that the deficiency can be found in 13 items out of 20 items and the price quoted in the agreement may be sufficient. 

          19. Hence, this Forum has come to the conclusion in the light of the Experts Reports that the Opposite Party was negligent in most of the works and the allegation that he has to do the wood work, painting and fittings of bathroom and sink cannot be taken into consideration. 

          20. Further, the complainant herself engaged a contractor who estimated the cost of the entire work to a tune of Rs.2,90,725/-.  But, this Forum can take into consideration of the estimation given by the Expert/CW2.  The Expert/CW2 has stated in his examination that "I found lot of defects in the work executed by the Opposite party.  I placed in my report Ex.X2 all the defects which has been committed by the Opposite Party.  When the work is completed on 2008, the price which has been quoted in the agreement may be self-sufficient.  If the work is being taken up in 2014 means, the price escalation may be varied three times of the current PSR value".  As per Ex.X2, the Expert/CW2 re-visited the warrant schedule mentioned property on 19.02.2014 and has submitted an estimation along with the report by stating that if the remaining works were carried out, it would cost a sum of Rs.2,56,800/-.  Hence, this Forum has come to the conclusion that if the remaining works which are incomplete in nature should be carried out by the complainant, she ought to have spend more amount now than the amount quoted by the CW2/Expert in his report Ex.X2 dated 20.02.2014  which the opposite party is liable to pay. 

21.  In view of the discussions made supra, the  complainant established the negligent act, deficiency in service in the performance of renovation of the complainant's house as per agreement Ex.C1 and inadequacy in the quality to be maintained in pursuance of the agreement and thereby caused loss and sufferings to the complainant.  To meet the ends of justice we are inclined to allow this complaint and the opposite party is liable for the defects and to pay the loss and injuries suffered by the complainant.

22. This Forum is directed the Opposite party to pay a sum of Rs.68,925/- being the cost of tiles paid by the complainant as per Ex.C2 and to return a sum of Rs.7994.75 being the cost of electrical fittings purchased by the complainant as the same would be part and parcel of the agreement and also as admitted by the opposite party that the above said amounts would be adjusted in the final payment.    

23. As per agreement, the complainant has paid Rs.4,30,000/- to the Opposite party out of Rs.5,40,000/- and the complainant is yet to pay a sum of Rs.1,10,000/- to the opposite party, if he completed all the works as agreed upon. The Expert/CW2 in his report dated 20.02.2014 if the alleged incomplete works carried out, it would comes to a tune of Rs.2,56,800/- and therefore, this Forum has arrived that if the balance amount of Rs.1,10,000/- to be paid by the complainant is deducted from rs.2,56,800/-, the opposite party is liable to pay the balance amount of Rs.1,46,800/- to the complainant.  Considering the strained relationship between the complainant and the opposite party, this Forum has directed the Opposite party to pay a sum of Rs.1,46,800/- to the complainant being the cost of incompleted works, to enable her to complete the work. 

22.     Point No.4:

          In view of the decision taken in Point Nos.2 and 3, this complaint is hereby allowed with the following directions:

1. The Opposite party is hereby directed to return a sum of Rs.68,925/- being the cost of tiles and Rs.7,994.75 being the cost of electrical items purchased by the complainant.
2. The Opposite party is also hereby directed to return a sum of Rs.1,46,800/- to the complainant being the cost for incomplete works.
3. To pay a sum of Rs. 25,000/- as compensation to the complainant for the negligent act.
4. To pay a sum of Rs.5,000/- as cost of the proceedings to the complainant.

               The Opposite Party is directed to comply the directions within two months from the date of the receipt of this order.

Dated this the 15^th day of March 2016.

1. ASOKAN)

PRESIDENT

(PVR DHANALAKSHMI)

                                                                                 MEMBER

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1                   22.02.2012           Davoulath Bee              

CW.2                   18.12.2013           G. Sankar, Junior Engineer, Public Works

Department, Puducherry.

OPPOSITE PARTY'S WITNESS: 

RW.1                   25.06.2012           Kumaran  

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   10.08.2009           Reply notice given by Counsel for

Opposite party to the Counsel for

complainant.

LIST OF COURT EXHIBITS:

1. ASOKAN)

        PRESIDENT

(PVR. DHANALAKSHMI)

                                                                                 MEMBER

(V.V. STEEPHEN)

MEMBER