DATE OF FILING : 20/01/17

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the 28th day of December  2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

           SMT . ASAMOL P. MEMBER

CC NO.  15/2017

Between

Complainant       :  Dijo Mathew,

                                                                            Naduvathettu House,

                                                                            Kurinji P.O., Ramapuram, 

                                                                            Kottayam.

(By Adv: Babichen V.George)

And

Opposite Party                                          :  Vikraman Thampi M.P.,

                                                                        Building Contractor,

                                                                        Mailankal House,

                                                                        Karimkunnam P.O., 

                                                                        Nellappara, Idukki.

(By Adv: C.K.Vidyasagar)

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case  of the complainant is that,  

 

Complainant is a chartered accountant working in abroad and opposite party is a building contractor.  Complainant entrusted the  opposite party for his building extension work in the end of the year 2012.  The nature of the work  was to construct the car porch and sit out along with the first floor of the building.  The opposite party agreed for the whole construction for Rs.17 Lakhs and issued a quotation for this on 25/10/12.  As per the agreement complainant transferred Rs.5 Lakhs on 25/10/12 in the account of the opposite party as advance payment for construction.  Thereafter on 02/12/12, and on 09/12/12, the complainant transferred Rs.2 Lakhs  and 3 Lakhs respectively to the account of the opposite  party.

 

When the complainant was came on leave in the month of January 2013, he noticed  that most of  the wall  constructed by  the opposite party is uneven

 

                                                                                                                           (Cont....2)

-2-

and  he used low quality bricks having no strength and most of the work is pending.  He further noticed that the cement is used for the construction is very low quality and not in actual proportion.  More over the earth work of the car porch was not done properly.  On enquiry opposite party made the complainant believe that the work he was done was in its proper way.  But  dissatisfying with the work of the opposite party, complainant demanded him to withdraw from further work and the account of the opposite party settled for an amount of Rs.1,25,000/- for the work he was done there, the balance amount was returned by the opposite party to the complainant in 4 instalments. 

 

Thereafter the complainant engaged some other for further construction.  While so, in the year 2016 complainant noted cracks in the wall and floor of the car shed and day by day the crack developed.  Hence the complainant  contacted one building engineer and after inspection he opined that the front extension side of the car porch was falling down  gradually, it will affect the first floor of the building also.  At the time of filing the petition the condition of the house is worsend almost all the walls and pillars of the car porch and adjacent construction developed vide cracks and the condition of the building is very dangerous and may have fell down at any time.

 

Complainant further averred that these all happened due to the defect in the construction of the basement and pillars of the car porch by the opposite party.  Opposite party constructed this part of the building without having knowledge or technical know now  in this field and this caused much mental agony and damages to the complainant.  Hence alleging deficiency in service against the opposite party,  the complainant approached this Forum for getting the relief such as to direct the opposite party to pay the  expenses which will incurred to the complainant for curing the defect of the building and further direct the opposite party to pay Rs.10 Lakhs as compensation and Rs.10,000/- as cost.

 

Upon notices opposite party entered appearance and filed detailed reply version.  In his version opposite party contented that the agreement with the complainant was for the construction of 2 bed room in first floor and a car porch in ground floor.   One  Sony George,  a  close  friend  of  the  complainant 

 

                                                                                                                         (Cont....3)

-3-

introduced the opposite party to the complainant.  The plot for the construction of the car porch is situated 20 feet above the road level.   Opposite party filled ground for a  hight of 10 feet and levelled the plot from its slanding position.  For that alone opposite party given foundation footing of the car porch more than 6 feet depth and constructed pillar of the car porch from that depth.   Normally the foundation of car porch need 2 ½ or 3 feet depth.  This plot was retained by constructing supporting wall for a hight of 20 feets.  So many times the retaining walls fell down and more over  after 2012, a large quality rocks  was excavated from this area.  Opposite party further contented that, he constructed the building with due knowledge, scientifically and with proper supervision.  He denied all the rival allegation of the complainant.  Due to the instigation of one Sony Siriac, the complainant filed this petition against the opposite party,   since the opposite party and the said Sony Siriac were in enimical terms.  Opposite party further contented that, he used quality material and sufficient cement for the construction and he carried out the work with the advise and supervision of one Raghavan, Retired PWD Engineer.  Opposite party is not responsible with any damages which is caused due to the  erosion of retaining wall and the ground in the heavy rainy season.  Hence no deficiency in service can be attributable against the opposite party in this matter.

 

Evidence adduced by the complainant by way of proof affidavit and documents.  Complainant and commissioner were examined as PW1 and PW2 respectively.  Ext.P1 and Ext.P2, C1 commission report were marked.  Ext.P1 is the copy of quotation and Ext.P2 is the money transfer details.

 

From the defence side no oral or documentary evidence is adduced.

 

Heard both sides,

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

 

The Point:- We have heard the counsels for both the parties and had gone through  the  evidence  on  record.   It is an admitted fact that the  complainant

 

                                                                                                                           (Cont....4)

-4-

entrusted the  extension work of his building to the opposite party and for that opposite party  received an amount of Rs.10 Lakhs from the complainant.  But due to the irresponsible attitude and inferior quality of his work complainant demanded the opposite party to withdrawn from their work.  As per the agreement between the complainant and the opposite party account settled for Rs.1,25,000/- balances amount was returned to the complainant by opposite party by way of bank transfer.  Thereafter the condition of the building  is  worsend  crack developed almost all the walls including the pillars of the car porch and its floor.  One side of the car porch is fallen down to some extent and it caused the strength of the entire building.  The damages caused to the building is only due to the defective construction  of the basement and pillars of the car porch.  For assessing the damages and actual conditions of the building, the Forum appointed an expert in this field, by allowing the interim petition of the complainant in this regard.  The expert commissioner assured the damages of the building and filed a detailed report along with an estimate for renovating the building or curing the present defect.  Complainant and the expert commissioner were examined as PW1 and PW2 respectively.  No evidence is adduced from the part of the opposite party,  except the filing of a reply version.  No objection is filed for the commission report and none of the witness were cross examined even though sufficient time period was given to them.

 

The Expert commissioner ascertained the defects of the building in the presence of the complainant and the opposite party and filed a detailed report clearly stating that the present condition of the building along with its photographs.  This report was not challenged by the opposite party.  By a joint reading of the Commission report and pleadings in the complaint, it is seen that damages stated in the complaint are assessed by the commissioner and reported.  Since the report is not challenged by the opposite party, the Forum is not retracting the findings of the commission in this  matter.  Along with the commission report commissioner filed an  estimate and expecting  cost for curing the defect of the building.  In this report commissioner estimated Rs.4,30,000/- for reconstructing the defective parts of the building.  This fact also is not challenged by the opposite party.  Opposite party has miserably failed to produce  a scrap of evidence by way of a documents or by way of a deposition   to counter the allegation levelled against him by the complainant.

 

                                                                                                                           (Cont....5)

-5-

 

On the basis of above discussion, the Forum is of a considered view that the allegation against the opposite party are proved by the complainant with clear and cogent evidence and hence complaint allowed.  Opposite party is directed to pay Rs.4 Lakhs to the complainant as damages as estimated by the expert commissioner and also pay Rs.10,000/- as litigation cost to the complainant within 30 days from the date of receipt of copy of this order, failing which this amount shall carry 12% interest per annum from the date of default  till the realization. 

 

Pronounced in the Open Forum on this the 28th day of December, 2018.

 

                                                                                                     Sd/-

                                                                                      SRI. S. GOPAKUMAR (PRESIDENT)

                                                                                                            Sd/-                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

             SMT.ASAMOL P.  (MEMBER)

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1               - Dijo Mathew

PW2               - Paul Jacob

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1            -  The copy of quotation

Ext.P2            -  The money transfer details

Ext.C1          -  Commission Report

On the side of the Opposite Party :

Nil.

 

              Forwarded by Order,

 

 

                 SENIOR SUPERINTENDENT