O R D E R
By Sri. C.T. Sabu, President :
The case of the complainants is that they had entered in to an agreement with the opposite party on 24/04/2009 to construct a house in the property owned and possessed by them. The property is situated in Chowannur Village Resurvey 291/2 having an extent of 6.750 cent. As per the approved plan 1550 sq.ft., and Rs.1,000/- per sq.ft. Completion of the construction shall be finished before 24/01/2010 as per the agreement.
2) Complainant seriously alleges that the construction was very substandard using low quality materials. First complainant was abroad most of the time and the second complainant was paying the money as per the agreement. Though, he has constructed the home with an area of 1550 sq.ft. he has charged a sum of Rs.16,10,000/-. In fact he is entitle to charge only 15,50,000/-; Rs.60,000/- was charged excess without any entitlement. This excess amount needs to be returned by the opposite party. Complainant alleges that the opposite party could not finish the construction even in the month of May 2010. Therefore they had to spent Rs.9,000/- towards house rent. Opposite party bound to repay the same.
3) Thereafter opposite party has taken Rs.2,60,000/- (Rupees Two lakh sixty thousand only) on 22/05/2010 assuring that all remaining works such as polish works of windows, doors, show cases and stair case will be finished. At the time of taking the money opposite party was clever enough to write on the back side of the Agreement that the entire work has been completed and handed over by the first party to the second party with utmost satisfaction which was totally against facts. Because of the non - completion of the above works complainants have to do the work with the modern wood industries spending Rs.67,000/-. On a detailed examination of the works undertaken by the opposite party the following defects have been noted.
1. Works of Hand Rails not yet completed and the tiles laid under it need to be
replaced.
2. Replacement of tiles of bathroom wall, and plastering of air holes are
necessary.
3. Water tank, plumbing pipes and Motor set & fittings are necessary.
4. Foundation and Basement rectification are necessary.
5. Water proofing on roof area is necessary.
6. Repair of electric switches and pipes are also necessary.
7. Rain water tank needs to be installed and to rectify the bends on the walls.
8. Compensation for mental agony.
4) Complainant seriously alleges that the materials used for the construction are non-standard and low quality items as conveyed by the supervisor of the opposite party whose name is Mr. Satyan. He was later removed from the Supervisor ship by the opposite party for the reasons best known to himself. Acts of the opposite party are alleged to be deficiency in service as well as unfair trade practices. Aggrieved by their acts, complainants have sent a notice on 21/08/2010 which was replied contenting untenable grounds.
5) Complainants are entitled to get the following amount and even after repeated requests opposite party has not complied and hence this complaint. Therefore complaint may be allowed directing the opposite party to pay the amount as mentioned.
1. Excess amount charged under excess sq.ft. 60,000/-
2. Polish works for window, doors, showcases and stair cases 67,000/-
3. Expenses for completion of hand rails and tiles replacement 24,000/-
4. For plastering Air holes and replacement of tiles in Hall and on
Bathroom wall. 35,000/-
5. Cost of Water Tank 4,300/-
6. Plumbing Pipes 4,201/-
7. Motor Set & Fittings 5,644/-
8. Foundation & Basement Rectification 10,000/-
9. Roof water proofing (70 m2) 42,000/-
10. Replacing pipes and switch button 25,000/-
11. Rain water Harvesting installation 1,50,000/-
12. Compensation for Mental Agony 50,000/-
4,77,645/-
It is prayed that the amount of Rs.4,77,645/- may be ordered with 12% interest from 30/05/2010 along with costs.
6) Admitted the case, ordered notice to opposite party. Opposite party appeared before the Commission and filed version through counsel. In the version opposite party had denied everything except the agreement which he is not fully agreeing to. According to opposite party true facts are as follows.
1. As per the agreement he has constructed a two storeyed building having a plinth area of 1640 sq.ft.
2. A sum of Rs.16,40,000/- needs to be given by the complainant for this work and for additional works done Rs.3,17,634/- and a total of Rs.19,57,634/- was there to be given by the complainants. Out of this only an amount of Rs.16,10,000/- was given by the complainants.
3. Opposite party has no liability to pay any amount to the complainants.
4. Only as per the instructions and guidance only the selection of tiles and other materials are done.
5. And there is no deficiency in service on the part of opposite party.
6. Complainants are not entitled to any amount and this complaint may be dismissed with cost.
7) Then the case posted for evidence. The points for consideration are the following.
a) Is there any deficiency in service from the side of opposite
party?
b) If yes, costs and reliefs ?
8) Both parties appeared before the Commission and filed proof affidavits, documents, argument notes and the oral evidence was also tendered. The matter was heard in detail. Complainants produced eight documents which are marked as Exts. P1 to P8 and the opposite party produced nine documents which are marked as Exts. R1 to R9. An Expert Commissioner was appointed. His report is marked as Ext. C1. He was examined and his deposition is CW1. Complainant and opposite party have been examined. Their depositions are marked as PW1 & RW1. Ext. P1 is the Agreement dtd. 24/04/2009; Ext. P2 is the copy of Reply Notice dtd. 03/01/2011 against Lawyer Notice dtd. 21/12/2010; Ext. P3 is the Lawyer Notice dtd. 21/12/2010; Ext. P4 is the Plan; Ext. P5 is the Receipt of Pipe items purchased; Ext. P6 is the Receipt of Water tank cost; Ext. P7 is the Retail Invoice dtd.23/01/10 and Ext. P8 is the copy of Receipt from Modern Wood Industries. Ext. R1 is the copy of Agreement; Ext. R2 is the copy of Estimate; Ext. R3 is the Materials cost & labours; Ext. R4 is the Notice to Complainant dtd. 03/10/2009; Ext. R5 is the Lawyer Notice to opposite party dtd. 21/08/10; Ext. R6 is the copy of Reply Notice dtd. 02/09/10; Ext. R7 is the copy of Notice dtd. 21/12/2010 to complainant; Ext. P8 is the Postal Receipt and Ext. R9 is the Reply lawyer Notice to opposite party dtd. 03/01/11 against notice dtd. 21/12/10. The matter was heard in detail.
9) Appreciation of Evidence :
On examination of proof affidavits, documents, depositions, Expert Commission Report, Evidence, argument notes and the points raised during the final hearing we the Commission is very well convinced that there is lapses on the opposite party. Ext. C1 the report of the Expert Commissioner has to be believed. He being a qualified Civil Engineer and also adorn a very responsible position as Professor and Head of the Department of Civil Engineering, MES College of Engineering, Kuttipuram his finding carries weight in the absence of serious objections against his report. As reported total area of the building is 1550 sq. ft., whereas the area as per plan is 1548.8 sq.ft. There is a difference of 2.2 sq.ft. Polishing on doors, windows, showcases, Sopanam have been done. Handrail work has also been completed. The following works are either not completed or to be rectified.
- Construction of handrail as per the design requires Rs.24,000/-.
- There are level differences in the laying tiles. Floor tiles in the master bedroom and other rooms. There are humming sounds over the tiles when walk through. There are minor cracks in wall tiles in bedroom and bathrooms (about 14 Nos.) These works may involve a cost of Rs.35,000/-.
- A) The air holes of building are not plastered property.
B) Rainwater harvesting works have not been done.
C) Plastering of walls are also not done.
D) The uneven plastered surfaces will have to be plastered again to avoid unevenness, vertically and horizontally.
These works will costs Rs.1.50 lakhs.
- There are slight cracks on the basement. There is wetting on underside of the concrete slab because of improper concreting of the terrace of the building. Water pipes of main halls, bathrooms are leaking slightly. Switch buttons are of not standard quality
The expenses for
- Foundation and basement rectification - 10,000/-
- Cost of terrace concrete water proofing 70 m2 area - 42,000/-
- Replacing pipes 4 switch buttons - 25,000/-
-
Total cost of 3+4+5+c comes about -Rs.2,82,000/-
10) Though objection was filed against the appointment of Expert Commissioner no steps were taken by the opposite party to disprove the Expert Commissioner report. The opportunity for cross examining the CW1 – Expert Commissioner was also turned down by not appearing on the date of examination. We find no contradictions in the depositions of PW1, RW1 and CW1. In the absence of any contra evidence to prove that the opposite party has constructed the house as per plan within the prescribed period. We have no other alternative but to rely up on the report of the Expert Commissioner and we find that there is deficiency in service and the same is successfully proved by the complainant. In the case of quantum of loss certain item like rain water harvesting cannot be allowed. Without mentioning each items we take a practical assessment reducing the cost of such items amounting to one lakh rupees and the complainant is entitled to get an amount less the above amount.
11) Relief and cost :
Having found deficiency in service on the part of opposite party, we direct the opposite party to pay Rs.2,00,000/- (Rupees Two lakh only) to compensate the loss including the loss towards excess amount charged Rs.3,000/- (Rupees Three thousand only) is granted towards costs to the complainant. This order needs to be complied within 30 days from the receipt of this order. Complaint allowed accordingly.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 30th day of June 2021.
Sd/- Sd/-
Sreeja S. C. T. Sabu
Member President
Appendix
Complainants’ Exhibits :
Ext. P1 Agreement dtd. 24/04/2009
Ext. P2 copy of Reply Notice dtd. 03/01/2011
Ext. P3 Lawyer Notice dtd. 21/12/2010
Ext. P4 Plan
Ext. P5 Receipt of Pipe items purchased
Ext. P6 Receipt of Water tank cost
Ext. P7 Retail Invoice dtd.23/01/10
Ext. P8 copy of Receipt from Modern Wood Industries
Complainants’ Witnesses :
PW 1 Latha Unnikrishnan
Commissioner’s Witness
CW 1 P.K. Abdul Latheef
Ext. C1 Expert Commission Report
Opposite Party’s Exhibits :
Ext. R1 copy of Agreement
Ext. R2 copy of Estimate
Ext. R3 Materials cost & labours
Ext. R4 Notice to Complainant dtd. 03/10/2009
Ext. R5 Lawyer Notice to opposite party dtd. 21/08/10
Ext. R6 copy of Reply Notice dtd. 02/09/10
Ext. R7 copy of Notice dtd. 21/12/2010 to complainant
Ext. P8 Postal Receipt
Ext. R9 Reply lawyer Notice to opposite party dtd. 03/01/11
Opposite Party’s Witnesses :
RW 1 Subash
Id/-
President
