IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 28th day of February, 2017
Filed on 16.04.2014
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.107/2014
between
Complainant:- Opposite Party:-
Sri. Vinod Varghese Sri. P. Girikumar
Mannamthuruthil Kuravanparambil
Pacha – Chekkidikkad P.O. Pathirappally P.O.
Edathua – 689 573 Alappuzha
(By Adv. Priyadarsan Thampi)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant has engaged opposite party as a contractor to build up his residential house as per the agreement entered into between them. On 10.10.2012 the opposite party has received an amount of Rs.6 lakhs from the complainant as advance and started the construction. As per the agreement he has to construct the building for Rs,1,100/- per sq. ft. Since the opposite party committed delay in the construction, the materials used for the construction became defective. The opposite party further received Rs.6 lakhs on 16.8.2013 and Rs.1,56,500/- on 19.11.2013, Rs.1 lakh on 6.1.2014 and Rs.50,000/- on 21.1.2014. The total amount received by the complainant is Rs.15,56,500/-. The opposite party has to do so many works and the construction became incomplete. There occurred much delay from the part of the opposite party. Alleging deficiency in service on the part of the opposite party, the complaint is filed.
2. The version of the opposite party is as follows:-
The opposite party entered into an agreement with the complainant for the construction of the residential building of the complainant. The opposite party has not committed any delay in continuing the construction works. Complainant failed to pay the amount as per the agreement. The allegation that complainant has paid Rs.15,56,000/- to the opposite party is not correct and hence denied. Opposite party has completed the construction except the finishing works. As per the agreement, the complainant has to pay the balance amount of Rs.2,16,982/- to the opposite party. Since the complainant failed to pay the amount within the agreed, the opposite party has occurred loss of Rs.6 lakhs and he has to get that amount from the complainant.
3. The complainant was examined as PW1. The documents produced were marked as Exts.A1 to A5series. Opposite party was examined as RW1. From the side of the opposite party, 6 witnesses filed proof affidavits and complainant also filed 6 counter affidavits. Apart from that one witness was examined as RW2. Expert report filed marked as Ext.C1 and the expert commissioner was examined as CW1. The registered letter issued to the opposite party by the expert was returned with a remark no such person. The said envelop also produced and marked as Ext.C2.
4. The points for consideration are:-
- Whether there is any deficiency in service on the part of the opposite party?
- If so the reliefs and costs?
5. It is an admitted fact that the opposite party entered into an agreement with the complainant for the construction of the residential building of the complainant. The said agreement is produced and marked as Ext.A1. As per the Ext.A1 agreement, the opposite party has to complete the building within 9 months from the date of construction of the basement. The agreement was executed on 10.10.2012. It was agreed in the agreement that the opposite party has received Rs.6 lakhs from the complainant. On the back side of the agreement it is also noted that he has received 3 lakhs on 16.8.2013. Apart from that complainant has produced the cash receipts issued by the opposite party and it marked as Ext.A4 series. As per Ext.A4 series, the opposite party has received Rs.1,56,500/- on 9.11.2013, Rs.1 lakh on 6.1.2014, Rs.50,000/- on 21.1.2014. So it is clear from Ext.A1 and A4 series that the opposite party has received the total amount of Rs.12,06,500/- till 21.1.2014 from the complainant. While cross examining the complainant he deposed before the Forum that even though the construction of the building was not completed, he was continued to occupy the building from 19.8.2014 onwards. The complaint is filed on 16.4.2014 and an expert commissioner was appointed and he inspected the premises on 3.5.2014 and the report is filed and it marked as Ext.C1. In the report the expert commissioner noted so many defects in the construction of the building and also reported that opposite party has done only a part of the work. According to the expert commissioner in order to complete the construction work an amount of Rs.9,50,000/- is to be needed. While cross examining the expert commissioner to the question put by the learned counsel of the opposite party, “Commission ]cn-tim-[\ \S-¯p-t¼mÄ bmsXm-cp-hn[ _e-£-btam Ipd-hp-Itfm Dm-bn-cp-¶n-ÃtÃm?” He answered that, “\Ã construction BWv. ]t£, incomplete BWv.” While cross examining the PW1, he admitted that after filing the complaint, the opposite party has done some works and the total amount that he paid to the opposite party is Rs.15,56,500/- as per the agreement the total amount that he has to pay is Rs.16,88,500/-. At the same time he deposed before the Forum that there are so many cracks in the building and the bricks used in the building lost glazing and became damaged. From the above discussion, it is clear that the opposite party has failed to complete the construction work within the agreed period as per the agreement. The complainant has occupied the building in an incomplete stage of construction and that caused much mental agony to the complainant. Opposite party has completed the part of the work after the complainant occupying the building. As per the commission report there are some cracks over the roof plastering. In the argument note filed by the opposite party, he admitted that he is ready to do the remaining finishing works upon the payment of the balance amount as agreed between them.
6. On going through the facts and evidence adduced in the case, there is no material defects brought out in the construction of the building, but the main complaint is with respect to the inordinate delay in making the construction and also the mental agony and inconvenience caused to the complainant. The complainant was constrained to occupy the building before the completion of building, which has certainly caused inconvenience and mental agony to the complainant. But it is curious enough to notice that after occupying the unfinished building and also after the filing of the above case, the complainant has engaged the opposite party to do the remaining work. This conduct from the part of the complainant shows that complainant has no objection with respect to the workmanship of the opposite party and his complaint with respect to the delay caused in finishing the works by the above conduct, seems to be waived by the complainant. During the course of trial the complainant has agreed that as per the agreement executed with the opposite party an amount of Rs.1,32,000/- is due to the opposite party and opposite party also agreed that amount. Opposite party further agreed to complete the remaining work on payment of balance amount due to him as stated above.
In the circumstances stated above this Forum is of the considered opinion that it will be just and equitable to give following reliefs in this case:-
- The opposite party is directed to finish the remaining works and also rectify the defects of the building to the satisfaction of the complainant within one month from the date of receipt of this order on payment of balance amount of Rs.1,32,000/- (Rupees one lakh thirty two thousand only).
- The complainant is entitled to realize an amount of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the delay caused by the opposite party in finishing the construction and Rs.2,000/- (Rupees two thousand only) towards costs of this proceedings.
- If the opposite party is amenable to do the work as stated in ‘a’ relief the complainant is at liberty to deduct the amount of compensation and cost from the amount due to the opposite party.
Dictated to the Confidential Assistant transcribed by her corrected by me and
pronounced in open Forum on this the 28th day of February, 2017.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Vinod Varghese (Witness)
Ext.A1 - Agreement
Ext.A2 - Details of the construction
Ext.A3 - Copy of the plan
Ext.A4 series - Receipts (4 Nos.)
Ext.A5 series - Receipts of building materials (5 Nos.)
CW1 - G. Sahadevan (Court Witness)
Ext.C1 - Registered letter returned
Ext.C2 - Commission report
Evidence of the opposite party:-
RW1 - Girikumar. D. (Witness)
RW2 - Monichan (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
