IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,ALAPPUZHA
Tuesday the 25th day of August, 2020.
Filed on 17-08-2016
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.263/2016
between
Complainant:- Opposite party:-
Sri.Balamitran Sri.Madhu P
S/o Narayanan Builder, M& B Constructions
Puthenpurakkal Veettil Devaswom Parambil Veettil
Thottappally P.O. Ambalappuzha P.O.
Purakkad Village Komana Muriyil
Alappuzha Ambalappuzha Village
(By Adv.K.N.Azhakesan) (By Adv.A.Francis)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act.1986.
Complainant’s case in brief is as follows:-
On 10.09.2012 complainant and opposite party entered into an agreement to construct a house in the property of the complainant. The rate fixed was Rs.1500/- per sq.feet and the period of completion was 200 days. The specification of the building materials to be used are mentioned in the agreement. Opposite party had received an amount of Rs.28,80,000/- on various dates and it is endorsed on the reverse of page one of the agreement. Besides that plumping and electrical materials worth Rs.3,64,681/- was purchased by the complainant and entrusted with the opposite party.
The work was not completed within 200 days and the key was handed over on 14.11.2014. Contrary to the agreement building was constructed using low quality materials. Only the front door was constructed using teak wood. Cracks developed in the walls and a type of liquid was oozing from the same. The plaster from the walls fell down and the floor tile used was not having quality. Low quality paint was used and it became faded within a short period. The roof of master bedroom in the ground floor came down slightly. The auto stop of the water tank was not functioning within weeks. For constructing additional parapet opposite party collected an amount of Rs.14,400/-. It was informed that the total area of the building was 1953 sq.feet.
Since the construction was completed using substandard materials complainant sustained heavy loss and thereby there was deficiency in service from the part of opposite party. An amount of Rs.18,00,000/- is required for renovating the building. Complainant sustained mental agony and is claiming an amount Rs.5,00,000/- as compensation. A lawyers notice was issued demanding the same and inspite of receipt of the same on 04.06.2016 there was no reply. Hence the complaint is filed for realizing an amount of Rs.18,00,000/- for renovating the building and for realizing an amount of Rs.2,00,000/- as compensation.
Opposite party filed version mainly contenting as follows:-
Complainant is an A class contractor and his son-in-law Manoj is an architect. The building was constructed under the direction and supervision of complainant and his son-in-law. Building materials were purchased with the involvement of the complainant and his son-in-law. Amount was not given as regular instalments as mentioned in the agreement. The contention that complainant purchased plumping and electric materials worth Rs.1,35,640/- is false. Since they were present at the time of purchase of building materials their names were incorporated in most of the bills. The averment that Rs.29,48,954/- was received by the opposite party is false. Since the advance amount was not given as promised there was delay in construction. However the construction was completed and the key was handed over on 11.04.2014 and not on 14.11.2014. Wood was purchased from the sawmill of a relative of the complainant as per the specifications. The allegation regarding crack in the walls and regarding the painting is false. Floor tiles were selected by the complainant and his son-in-law. Work was completed as per the specifications in the agreement. Additional work worth Rs.80,000/- was done and an amount of Rs.20,000/- was spent for constructing compound wall. Measurement was done by the complainant and his son-in-law. Opposite party has not received the entire amount and there was no deficiency in service. The averment that Rs.18,00,000/- is required for renovation is not correct. This complaint was filed only to delay the payment and hence it may be dismissed with cost.
On the above pleadings following points were raised for consideration:-
- Whether the complainant is entitled to realize an amount of Rs.18,00,000/- from the opposite party for renovating the building?
- Whether the complainant is entitled to realize an amount of Rs.2,00,000/- from the opposite party as compensation for mental agony?
- Reliefs and costs?
Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A12 on the side of the complainant and the oral evidence of RW1 from the side of the opposite party. Ext.C1 and C2 commission reports were marked as court Exhibits.
Point No.1 and 2
For the sake of convenience these points are considered together. PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A12.
PW2 is an expert commissioner in this case. On 16.03.2017 he inspected the premises and prepared Ext.C1 report. Thereafter on 02.08.2017 he again visited the property and prepared an additional report and it is marked as Ext.C2.
RW1 is the opposite party in this case. He filed an affidavit in tune with the version.
PW1, complainant in this case and RW1, the opposite party in this case entered into Ext.A1 agreement on 10.09.2012 by which opposite party had agreed to construct a house in the property belonging to PW1 situated at Ambalappuzha. As per the terms and conditions of the agreement the rate fixed was Rs.1,500/- per sq.feet and it was agreed that the construction work will be completed within 200 days. Specifications regarding foundation and basement, super structure, wood work, lintel, stair case, plastering, plumping etc. are mentioned in Ext.A1 agreement in detail. Mode of payment is also given. The constructions started but could not be completed within 200 days. However on completion of construction the key was handed over to the complainant. Ext.A2 reveals that on 12.08.2014 Purakkad Grama Panchayath accepted building tax for the new house on 12.08.2014. Now the case of the complainant is that there are several defects in the construction. There were cracks in the plastering and liquid was oozing out from the cracks. The painting was not up to the standard as agreed in Ext.A1. Hence he filed the complaint for realizing an amount of Rs.18,00,000/- for renovation and Rs.2,00,000/- as compensation for mental agony. Per contra RW1 opposite party contented that the construction was done in accordance with the direction of the complainant. It was pointed out that the complainant himself is a licensed contractor and his son-in-law is an engineer. Since there was supervision of the complainant during the work there was no occasion for any defect in the construction.
PW2 who is a retired engineer was appointed as commissioner to prepare a report after examining the building. Accordingly on 16.03.2017 he inspected the house after giving notice to both parties and prepared Ext.C1 report. Thereafter the same commissioner visited the property again after giving notice to both sides and prepared Ext.C2 report. As per Ext.C1 report the building was not up to the standard. Cement mortar and paint were falling down from the walls. As per Ext.C1 report an amount of Rs.1,10,566/- was required for renovation. As per Ext.C2 report PW2 has reported that one door frame in the first floor has to be replaced for which an amount Rs.9000/- is required. Hence according to him an amount of Rs.1,19,556/- is required to renovate the house.
As per Ext.A1 agreement it is seen that amount are advanced to the opposite party periodically and the same is endorsed on the reverse of the first page of agreement. RW1 has received Rs.28,80,000/- in total which is revealed from Ext.A1 agreement. According to learned counsel appearing for PW1 materials worth about Rs.3,00,000/- was purchased by the complainant and supplied to RW1 for the purpose of construction. To prove the same he has produced Ext.A7 to A12 bills of various shops. It is seen that the bills are with respect of marbles, electrical items, plumping materials etc. However the contention that building materials were purchased by PW1 and supplied to RW1 appears to be not correct. First of all it is to be noted that as per Ext.A1 agreement the rate fixed for construction is Rs.1,500/- per sq.feet. No where it is stated that the materials will be purchased by PW1 and supplied to RW1 for the construction. If that was the condition there was no necessity to include even the name of manufacturer of materials. For example under the head of electrification it is mention that the PVC should be of Balco and the copper conductors should be Havells. Similarly under the head of kitchen the company name is shown as Nirali, Prince or any ISI branded and fittings of CERA. It is true that Ext.A7 to A12 bills are in the name of complainant. But there is a reason for the same. PW1 admitted that at the time of purchase of building materials he along with son-in-law were present and even he admitted that the bills were in his name since they were present. Further he also admitted that building materials were purchased from the shop as directed by his son-in-law Manoj. So it can be seen that the contention that materials purchased as per Ext.A7 to A12 bills were by PW1 and it was supplied to RW1 cannot be believed. During cross examination PW1 admitted that he was staying in a building about 400 feet away from where the proposed construction was going on. If that is so it is quiet impossible that RW1 will use materials which are substandard for the construction.
According to PW1as per plan the plinth area was 1953 sq.feet and amount was paid at the rate of Rs.1,500/- per sq.feet. As per Ext.C1 report PW2 has stated that the total plinth area is 1847 sq.feet. Admittedly RW1 has collected an amount of Rs.28,80,000/- from the complainant. If the plinth area is 1847 sq.feet. as mentioned in Ext.C1 report the total amount payable to RW1 will be Rs.27,70,500/- (1847 sq.feet x 1500). As discussed earlier PW1 is claiming an amount Rs.18,00,000/- for renovation. Per contra RW1 contented that there is no defect in the construction. No other independent evidence is available except the testimony of PW2, the commissioner coupled with Ext.C1 and Ext.C2 report. Since no other independent evidence is available we are of the opinion that Ext.C1 report and Ext.C2 report can be considered. As per Ext.C1 report an amount of Rs.1,10,556/- is required for curing the defects. As per Ext.C2 report an amount of Rs.9,000/- more is required to change the door frame. Hence Rs.1,19,556/- is required for renovation. Though both parties had filed objection to the commission report there was no serious challenge when PW2 the commissioner was in the witness box. As stated earlier RW1 collected Rs.28,80,000/- from PW1 which is revealed from Ext.A1 agreement. Though the plinth area as per plan was 1953 sq.feet as per Ext.C1 report the plinth area is only 1847 sq.feet. So an amount of Rs.27,70,500/- is only due to RW1 for construction and he has collected Rs.1,09,500/- in excess than which he is entitled. As per Ext.C1 and C2 report an amount Rs.1,19,556/- is required for renovating the building. So the complainant is entitled to realize an amount of Rs.2,29,056/- from RW1 on account of excess payment and for renovating the building.
PW1 is claiming an amount of Rs.2,00,000/- as compensation for mental agony. It has come out in evidence that there was certain defects in the construction and water was oozing out from the cracks. Plaster and paint were falling down from the walls. Naturally the inmates of house will sustain mental agony due to the leakage of water and falling of plaster and paint. When a contract work is given to a contractor complainant is expecting good work and if there is defect in the construction naturally it can be considered as deficiency of service. Cement mortar was falling down from the wall because of poor construction. Obviously mental agony will occur to the complainant because he has spent huge amount for construction. Though the amount claimed is Rs.2,00,000/- we are limiting the same to Rs.50,000/-. These points are found accordingly.
Point No.3
In the result complaint is allowed in part.
- Complainant is allowed to realize an amount of Rs.2,29,056/- along with interest at the rate of 9% per annum from the date of petition that is on 12.08.2016 till realization from the opposite party.
- Complainant is allowed to realize an amount of Rs.50,000/- as compensation from the opposite party.
- Complainant is allowed to realize an amount of Rs.3,000/- as cost from the opposite party.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 25th day of August, 2020.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt.C.K.Lekhamma (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Balamithran(Witness)
PW2 - Commissioner (Witness)
Ext.A1 - Contract Agreement
Ext.A2 - Property tax dtd 14.08.2014
Ext.A3 - Numbering receipt dtd 14.08.2014
Ext.A4 - Copy of advocate notice
Ext.A5 - Postal receipt dtd 02.06.2016
Ext.A6 - Acknowledgement card
Ext.A7 - Bills from Taj Marbles, Punnapra dtd 16.10.2013, 4.12.2013
(2 Nos.)
Ext.A8 - Bills from S.Somanathan Nair & Bros, Kumarapuram (4Nos.)
Ext.A9 - Bills from Devi Enterprises, Kumarapuram (5 Nos)
Ext.A10 - Bill of Chennatt Electricals, Thoppumpadi dtd 28.09.2013
Ext.A11 - Bills from J.J Paints & Hardwares, Ambalappuzha (3 Nos)
Ext.A12 - Bill of Vee Ess Hardwares, Valanjavazhi dtd 09.11.2013
Ext.C1 - Commission Report
Ext.C2 - Additional Commission Report
-
Evidence of the opposite party:-
RW1 - Madhu P (Witness)
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
