IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 23rd day of July, 2020
Filed on 12.12.2013
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt.C.K.Lekhamma. LLB(Member)
In
CC/No.382/2013
Between
Complainant:- Opposite party:-
Sri.P.J Babu Sri. A.S.Varghese
S/o Jayadevan S/o Souri
Jaya Nivas Anthireparambil
South Aryad, Pathirapally.P.O
Avalukkunnu.P.O South Aryad,
Alappuzha Alappuzha
(Adv. V.Deepak) (Adv.K.Divakara Paniker)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint u/s 12 of the Consumer Protection Act. 1986
1. Petition averments briefly stated are as follows:-
Complainant entrusted opposite party to construct his building as per an agreement and amount was fixed as Rs.7,00,000/-. Opposite party collected the entire amount on different occasions but committed fault in completing the construction within time. Complainant sustained difficulties by the act of the opposite party. It was agreed to put gravel in the pit from soil was taken but contrary to that opposite party filled the pit with waste materials. There was water logging during rainy season in the said pit.
Opposite party constructed the house with old and low quality materials. Floor tiles were broken. The door frames and window frames were constructed using old materials. Stair case was constructed as an additional work for which extra amount was paid. Wiring and Plumbing materials were purchased by the complainant for which he is having bills.
There was slight deviation from the approved plan and the varantha was constructed without the permission of the complainant for which he has claimed more amounts. Though these matters were informed to the opposite party, there was no action from him. There was deficiency in service from the side of the opposite party. Complainant is claiming an amount of Rs.1,00,000/- for using low quality materials, Rs.50000/- for constructions and Rs. 50,000/- as compensation for the mental agony.
2. Opposite party filed a version mainly contenting as follows:-
There was no agreement to construct the house for Rs. 7,00,000/- and the agreement was to construct the house for Rs.1000/ per Sq.ft. From the documents produced by the complainant it can be seen that the area of the house was 717 sq.ft and so opposite party is entitled for Rs. 7,17,000/-. The construction was completed within 2 months and 20 days and thereafter complainant started residing in the house after house warming.
It was agreed to collect sand from the property for construction and to fill the pit with waste materials. High quality wooden materials were used for construction. Wiring and Plumbing materials were not included in the agreement. There was deviation from the approved plan and additional constructions worth Rs. 1,30,330/- were done.
Opposite party had completed the construction using good quality materials as per approved plan. There was complete satisfaction by the complainant in the work done by him. Out of the total amount of Rs.8,47,330/- after deducting nine instalments an amount of Rs.1,87,330/- was due to the opposite party. A cheque dated 25/7/2013 for Rs.1,10,000/- was issued for the remaining amount. It was also agreed to pay Rs. 77,330/- within four month. The cheque was issued assuring that there will balance in the account to honour the cheque. The cheque was dishonoured and a complaint was filed as CC.262/13 before the CJM Court, Alappuzha u/s 138 of the NI Act. This complaint was filed to take revenge for filing the complaint. Hence it is prayed that the complaint may be dismissed with cost.
3. On the above pleadings following points were raised for trial:-
1. Whether the complainant is entitled to realize an amount of
Rs. 1,50,000/- as compensation for constructing the house
with low quality materials?
2. Whether the complainant is entitled to get Rs. 50,000/- for
reconstructing the house?
3. Whether the complainant is entitled to get Rs.50,000/- for
mental agony ?
4. Reliefs and costs?
4. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3 on the side of the complainant and the oral evidence of RW1 and Ext.B1 to B4 on the side of the opposite party. Two commissioners were examined as CW1 and CW2 and the Commission Reports were marked as Ext. C1 and Ext.C2.
5. Point No.1 to 3:-
For the sake of convenience these points are considered together.
PW1 is the complainant in this case. He filed an affidavit and marked Ext.A1 copy of plan. Ext.A2 copy of quotation dated 4/2/2013 and Ext.A3 bills dated 25/4/2013. RW1 is the opposite party in this case. He filed an affidavit in tune with the version and marked Ext.B1 copy of notice dated 11/10/2013, Ext.B2 reply notice dated 24/10/2013, Ext.B3 copy of Judgment dated. 28/1/2017 of Chief Judicial Magistrate Court, Alappuzha, in CC.262/13 and Ext.B4 Judgment dated 20/12/2013 in OS.940/13 of Additional Munsiff Court, Alappuzha.
CW1 is the commissioner in this case. He inspected the premises and prepared Ext.C1report. CW2 is the Expert Engineer in this case. He inspected the premises on 29/10/2016 and prepared Ext.C2 report.
The case of PW1 the complainant in this case is that on 4/2/2013 he entered into an agreement with RW1 opposite party for the construction of his house. It was agreed to construct a house having an area of 700sqft. at a rate of Rs.1000/ per sqft. Construction was completed and he paid an amount of Rs. 6,60,000/- out of the total amount. For additional work done it was agreed that additional payment will be paid. Construction was to be completed within four months. Construction was completed and PW1 started residing in the house after house warming. However it was noticed that the building was constructed with low quality materials. The pit which was formed while soil was taken was filled with waste materials which caused water logging. According to PW1 there was deficiency in service and hence he has filed the complaint for realizing amount on various heads. Per contra RW1 the opposite party contented that construction was completed with good quality materials within time and house was handed over. There is no deficiency in service. When completed building had a total area of 714 sqft. and complainant had paid only Rs. 6,60,000/-. After constructing the additional work, total amount of Rs. 8,47,330/- was due to him. Out of the same he had received an amount Rs.6,60,000/- as installments and the balance amount to be paid was Rs. 1,87,330/-. For discharging the liability PW1 issued a cheque for Rs.1,10,000/- and the balance amount was to be paid as four installments within one year. The cheque which was presented for collection returned dishonoured due to want of sufficient balance. After issuing lawyers notice a complaint was filed before the learned Chief Judicial Magistrate Court, Alappuzha as CC.262/13. After trial complainant was convicted. Complainant has also filed a case before the Munsiff Court, Alappuzha as OS.940/13 with false allegations and it was dismissed as not pressed. It was also contended that foundation was for single story building where as complainant constructed one more story before the same without proper foundation and it was a reason for damage. It was also contended that complainant leased away ground floor to strangers and their use without proper care also caused damage to the house. Hence according to RW1 since he filed a complaint before learned Chief Judicial Magistrate Court, Alappuzha for dishonor of cheque issued by PW1 this complaint was filed to take revenge. Evidence of PW1 will show that there was an allegation against the construction. The main contention of PW1 is that soil was taken for construction and a pit was formed. Since it was filled up with waste materials there is water logging. However on a perusal of Ext.A2 quotation it is seen that there was no agreement to fill up the pit. Further the evidence of CW2 Expert Engineer shows that there was water logging in that area known as Poomthoppu and there will be air gaps when the soil settles. Another allegation is that the floor tiles of hall and bedroom were found broken. CW2 the Expert Engineer stated that about seventeen tiles were found broken. On a perusal of Ext.A2 quotation it is seen that there was no agreement to put tiles in the bed room. So it can be seen that even if the tiles are broken RW1 cannot be found responsible for the same. Further it has come out in evidence that one Mohan was residing in the house and according to CW2 misuse may cause damage to tiles.
Cross examination of CW1 shows that his report cannot be relied upon. First of all Exts.C1 report is prepared without giving notice to the opposite party. The cross examination reveals that some of the damages were his guess work and others were told to him by the complainant. Though PW1 has got a case that the building was constructed with low quality materials, CW2 the Expert engineer deposed that the construction was good considering the low rate of Rs.1000/per sqft. CW2 is an Expert engineer who has retired from Public Work Department of Kerala. Hence the evidence of CW1 and CW2 is not helpful to the complainant to prove that there was damage to the building. PW1 has produced Ext.A3 bills of M/s Velimparambil Traders to show that he had purchased plumbing materials for Rs. 25,445/-. On perusal of Ext.A2 quotation it can be seen that complainant had to purchase plumbing and electric materials and it was not included in the agreement. So production of Ext.A3 bills will not help the complainant. Ext.A2 is dated 4/2/2013 and it has come out in evidence that construction was completed by April and so there was no delay. There is an allegation that construction was done with low quality materials. However PW1 admitted that he was residing nearby and was watching the constructions. No prudent man will allow the construction with low quality materials. So the contention of PW1 that the building was constructed with low quality materials cannot be swallowed without a pinch of salt.
Though the house warming was done during April 2013 this complaint was filed only on 10/12/2013. Before filing a complaint no notice was issued to the opposite party complaining about the defects and asking to cure it. Admittedly Ext.A2 agreement was to construct the house at the rate of Rs.1000/per sqft. PW1 admitted that after construction the area increased to 715 sqft. Admittedly only an amount of Rs.6,60,000/- was paid to the opposite party. As per Ext.A2 agreement PW1 had to pay additional amount for additional constructions. According to RW1 the total amount was Rs. 8,47,330/- and after deducting the advance, PW1 had to pay Rs. 1,87,330/-. Out of the same the cheque was issued for Rs. 1,10,000/- and the balance amount was to be repaid as four instalments. The cheque issued by PW1 was dishonoured. Ext.B1 is the copy of notice informing the matter of dishonor and demanding the cheque amount. It is dated 11/10/2013. Ext.B2 reply notice was sent on 24/10/2013. Complaint was filed before this Forum on 10/12/2013. So it can be seen that the complaint was filed after issuance of notice informing the dishonor of cheque. Ext.B3 Judgment dated 28/1/2017 shows that PW1 was convicted in the cheque dishonor case(CC.262/13). Ext.B4 shows that complainant had filed a civil suit against opposite party and others and was dismissed as not pressed. It was contented that Ext.B4 suit was filed for prohibiting opposite party entering the property of the complainant demanding money. The above discussion reveals that complainant before this Commission was filed after issuance of notice informing the dishonor of cheque. The complaint filed by opposite party against the complainant entered in conviction and so it can be seen that the contention taken by opposite party that the complaint was filed as revenge cannot be ruled out.
The evidence on record shows that the construction was completed by materials which can be brought at the rate of Rs.1000/per sqft. Though there is an allegation that there was water logging the evidence of CW2 shows that in that area there is water logging. It has come out in evidence that complainant has constructed first floor above the constructions and obviously that will cause damage to the foundation. Though the construction was completed during April 2013 the complaint was filed only on 10th December 2013 and that also after getting Ext.B1 notice informing dishonor of cheque. It is a clear indication that complaint was filed as revenge. Admittedly only an amount of Rs. 6,60,000/- was paid to the opposite party and it can be seen that the cheque was issued for the payment of balance amount. On assessing the evidence as a whole it can be seen that complainant failed to prove that there is deficiency in service. Per contra evidence on record shows that the damage was caused due to construction without proper foundation and misuse of the house. In the said circumstances complainant is not entitled for any compensation and so this points are found against the complainant.
Point No. 4
In the result the complaint is dismissed with cost of Rs.5000/-.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Forum on this the 23rd day of July , 2020.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt. C.K.Lekhamma.(Member)
Appendix:-Evidence of the complainant:-
PW1 - P.J.Babu(Witness)
Ext.A1 - Copy of Plan
Ext.A2 - Copy of Quotation
Ext.A3 - Bills
Evidence of the opposite parties:-
RW1 - A.S.Varghese(witness)
Ext.B1 - Copy of Notice
Ext.B2 - Reply Notice
Ext.B3 - Copy of Judgment of CJM Court, Alappuzha
Ext.B4 - Copy of Judgment of Munsiff Court, Alappuzha
Ext.CW1 - Anilkumar.K.V(Witness)
Ext.CW2 - C.M.Joseph(Witness)
Ext.C1 - Commission Report
Ext.C2 - Expert Report.
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
