State Consumer Disputes Redressal Commission
1. K.Anand, S/O Of Kannan, 2. ... vs S.S.Kalyanasundaram, on 22 July, 2011
F BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY FRIDAY, the 22nd day of July, 2011 First Appeal No.31/2008 1. K.Anand, S/o of Kannan, 2. M.Jayashree, W/o Anand, Both are residing at No.3-A, Plot No.42, Kaveri Nagar Villianur, Puducherry. .. Appellants Vs, S.S.Kalyanasundaram, No.3, Second Cross Street, Krishna Nagar, Puducherry. . Respondent (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.50 of 2006, dated 16.05.2008) Consumer Complaint No.50 of 2006 1. K.Anand, S/o of Kannan, 2. M.Jayashree, W/o Anand, Both are residing at No.3-A, Plot No.42, Kaveri Nagar Villianur, Puducherry. .. Complainants Vs, S.S.Kalyanasundaram, No.3, Second Cross Street, Krishna Nagar, Puducherry. Opposite Party BEFORE: HONBLE JUSTICE THIRU J.A.K.SAMPATHKUMAR PRESIDENT THIRU K.ELUMALAI, MEMBER
FOR THE APPELLANTS:
Thiru S.Vimal, Advocate, Puducherry.
FOR THE RESPONDENT:
Thiru V.Venkatesan Advocate, Puducherry.
O R D E R (By Honble Justice President) The appeal is filed by the complainant/appellant against the partial dismissal of the complaint in C.C.No.50/2006, dated 16.08.2008 by the District Forum, Puducherry.
2. The case of the complainant is enumerated hereunder:
There is an written agreement dated 01.02.2005 between the complainant and the opposite party , the contractor, for construction of a building for Rs.7,14,000/- over the land of the complainant. The schedule of payment has been specified in the agreement. The construction of the building shall be completed within five months from the date of the agreement.
3. The complainant paid Rs.7,25,000/- including over payment of Rs.11,000/-. The opposite party did not complete the building within the stipulated dates.
4. Since the complainant was residing in the rental building, to avoid payment of rent, the complainants were constrained to occupy the incomplete house in the first week of October, 2005.
5. The incomplete works are as follows:
i) Fixing of exterior faces of walls with agreed coats of snowcem.
ii) Painting with synthetic enamel paint of approved brand and manufacturers to give an even shade to the front and rear grill.
iii) Providing and fixing front and rear grill gate.
iv) Front elevation with jolly.
v) Overhead design work for hall.
vi) Finishing of the main door with proper polish/enamel.
vii) Cement floors at the ground floor.
6. Further the construction work is defective in the following manner:
i) Improper advice on the designing and construction of building
ii) Sagging of marble flooring at the ground floor to a few centimeters from the original position
iii) Marble tiles on the floor is unevenly laid resulting in cracks.
iv) Several cracks on walls
v) Cracks on walls caused damage to the tiles.
vi) Painting on the inner walls of the building is of uneven coats.
vii) The grill on the rear side is not fixed properly posing threat of robbers and decoits.
viii) Plumbing and electrical works are also of sub-standard quality.
ix) The sunshades retain waters causing dampness in the wall frames resulting to damage.
7. The complainant assess the damages caused to the building, deficiency in service , mental and physical agony, incomplete work, litigation expenses and excess payment in the following manner:
a) The excess amount refundable Rs. 11,000/-
b) Expenses incurred due to delay of work Rs. 12,400/-
c) The deficient and defective work Rs.3,50,000/-
d) Incomplete work Rs.1,00,000/-
e) Physical and mental agony Rs. 5,00,000/-
f) Litigation expenses Rs. 5,000/-
8. Hence, the complaint.
9. The objection of the opposite party are referred hereunder:
As per the original plan, front grill gate in front of the main gate has to be fixed and not any grill in the rear side of the building. The cost of the front grill as per the plan is Rs.15,000/-. The complainant altered the plan and directed the opposite party to fix a big size grill on the rear side. Therefore, a large size of grill on he rear side fixed at a cost of Rs.40,000/- necessitated the complainant to pay a sum of Rs.25,000/- towards the balance cost incurred by the opposite party.
10. More so, the complainant also undertook to pay extra amount for new grill. The total cost of the grill is Rs.50,000/-. On such undertaking, the opposite party paid a sum of Rs.20,000/- as advance towards the said fabrication work. The complainant never came forward to settle the amount. Under the circumstances, the United Fabrication Company removed the grill part by part and sold the same to the third party and they refused to return the advance amount to the opposite party. The opposite party sustained monetary loss at Rs.20,000/-
11. More so, no front elevation with jolly work entrusted to the opposite party as per the agreement. Apart from that, as per the specification, hall ceiling had been designed in the method of kuzavu kattuthal system. Further, the opposite party duly completed the main door with proper polish/enamel.
12. As per the agreement, only cement flooring to be done at the ground floor as marble tiles flooring is not suitable for clay soil ground. Under compulsion, the opposite party provided marble tile flooring at the ground floor. The marble flooring is an extra work. The opposite party incurred a sum of Rs.60,000/- towards purchase of marble tiles from M/s Kapoor Marbles, Puducherry and a sum of Rs.10,000/- towards polishing cost.
13. There was no excess payment made by the complainant.
In spite of repeated demands by the opposite party, the complainant refused to settle the expenditure incurred by him as extra work.
14. Instead of settling the dues of the opposite party, the complainant with an ulterior motive filed this false claim. Therefore, the complaint is liable to be dismissed.
15. The complainant examined one witness and marked seven exhibits to prove his case.
16. The opposite party examined one witness to prove his case.
17. The court witness was examined and marked one exhibit to arrive at a just decision of the case.
18. The District Forum after analyzing the evidence available on record, granted partial claim only in the following manner:
i) Rs.31,423/- towards incomplete work and rectification
ii) Rs.20,000/- towards deficiency in service and suffering
iii) The opposite party shall carry out the work as agreed by him towards the grill work and over-head design within two months.
iv) Rs.2,000/- towards cost of the proceedings.
19. Both the sides, at the time of arguments, reiterated their respective case in the same manner submitted before the District Forum.
20. The point for consideration is:
Whether the order of the District Forum in dismissing the partial claim is not in order?
21. ON THE POINT:
As per the agreement dated 01.02.2005, the opposite party had to construct a building at a cost of Rs.7,14,000/- over the land of the complainant. The complainant did not adhere to the schedule of payment. As per the agreement, the opposite party had to deliver the constructed building by 01.07.2005.
22. More so, the opposite party made extra over under the advise of the complainant. Though, as per the agreement, cement floor had to be laid in the ground floor, in pursuance of the direction/advise of the complainant, the opposite party laid marble flooring at his cost for which the complainant did not repaid the same.
23. It is also to be borne in mind that the complainant of his own will occupied the unfinished building on 05.10.2005 without discharging the dues to the opposite party.
24. The moot point for consideration at this stage is whether the building was in sound condition as on 05.10.2005 when the complainant occupied the building? It is the specific case of the complainant that the building had developed cracks on the walls due to construction of the building under dispute with sub-standard materials. However, the opposite party denied the allegations of the complainant.
25. So, we have find out whether there is any truth in the allegations of the complainant.
Admittedly, the complainant occupied the building under dispute on 05.10.2005. Similarly, on 21.10.2005, the complainant applied permission for construction of first floor over the ground floor under dispute. As requested, the complainant obtained as per Ex.C6 permission for construction of first floor over the ground floor under dispute. Ex.C6 reads as follows:
Application, dated 21.10.2005 for grant of permission to erect additional first floor to the existing ground floor residential building, situated at Re-Survey No.169/4, Plot No.42, 3rd Cross Street, Kaveri Nagar, Villianur, Villianur Revenue Village, Villianur Commune, Puducherry.
26. Permission granted by the concerned authority for construction of first floor over the ground floor under dispute would imply that the ground floor under dispute was in sound condition which could withstand the first floor over the same.
Otherwise, such permission would not have been granted. Such permission was granted on 07.02.2006.
27. However, the complainant by his advocate notice, dated 02.03.2006 made several allegations commenting the soundness of the building. The allegations are referred hereunder:
There are still major works to be completed.
. Earth below the floor had not been properly watered, rammed, consolidated and dressed to enable it to settle down.
The walls have developed several cracks.
Sub-standard and material deviations have also been made in the construction which spoil the aesthetic appearance of the building besides reducing its utility.
28. To sum up, the allegations of the complainant is that the building is not in sound condition due to construction with sub-standard materials. If that be so, the complainant has no locus standi to apply permission for construction of first floor over the unsound condition of ground floor as the same was constructed with sub-standard materials.
29. The narration of events referred above would expose whether the allegations of the complainant about the soundness of the building resulting in getting permission for construction of first floor over the disputed ground floor as per Ex.C6 is true or the allegations of the complainant referred in Ex.C4 about the unsoundness of the building under dispute is true.
30. Since Ex.C6 has been issued by the statutory authority after following all formalities, it can easily be presumed that the building under dispute was in sound condition as on 05.10.2005 which enabled the complainant to apply permission for construction of first floor over the ground floor in sound condition under dispute.
31. Therefore, we are inclined to reject the allegation of the complainant that the building was not in sound condition while he was occupying the same on 05.10.2005.
32. It is also in evidence that the opposite party had done extra work for laying marble flooring for which the complainant not paid for the same, apart from other works requires repayment.
33. More so, the complaint is lacking with certain particulars in the following manner:
i) Concealment of facts with reference to extra work done by the opposite party .
ii) Concealment of facts with reference to non-payment for the extra work done by the opposite party
iii) The complainant not adhered to schedule of payment as per agreement.
iv) Soundness of the building as on 05.10.2005 concealed.
v) Delay in completion of the construction was due to non-payment by the complainant for the extra work done by the opposite party
vi) Delay in completion of the construction as per the agreement was due to the fault of the complainant in not paying the amount in time, i.e. Schedule of payment as per the agreement was not fulfilled by the complainant
34. For the above said reasons, we are of the considered view that the complaint is liable to be dismissed in limine.
35. However, the District Forum has taken a lenient view and dealt the case on hand and granted partial claim on the basis of the Commissioners Report Ex.X1.
36. Now, we have to see whether the District Forum has erred in allowing partial claim only in this regard.
37. The opposite party has not filed any appeal against the partial decree as he has no grievance in this regard, though he made a lengthy objection against the Commissioners Report.
38. Whereas the complainant has not made any detail objection against the Commissioners Report. He only made a bald objection in this regard, though the entire case rest on the Commissioners Report. In a way the complainant accepted the report of the Commissioner in good spirit. The bald objection to the Commissioners Report in this regard are as follows:
The complainants admit the contents of the report filed by the Engineer Commissioner excepting those that are specifically denied herein. The report as filed by the Commissioner needs to clarify on the method adopting in assessing the cost of completing the unfinished work as also the cost of re-working the deficient work. The complainants reserve their right to raise additional objections, if any, found at the time of enquiry on said report.
39. It is to be borne in mind that the complainant has not filed any additional objections to the Commissioners Report so far even after cross examining the Commissioner.
So, we are of the considered view that the Commissioners Report is binding on the complainant. The complainant has no locus standi to raise any new points in the appeal claiming additional relief by questioning the validity of the Commissioners Report.
40. In fact, the District Forum granted partial relief only after making a detailed investigation over the Commissioners Report. In such view of the fact, the complainant has no right to devalue the partial dismissal of the claim by the District Forum in this regard in the appeal stage.
41. So, we are of the considered view that the District Forum has not erred in granting partial claim in this regard and the same is to be confirmed and accordingly it is confirmed. Hence, we answer this point against the complainant.
42. In the result, the appeal is dismissed. The order of the District Forum in C.C.No.50/2006 dated 16.05.2008 is confirmed. The parties have to bear their costs Dated this the 22nd day of July, 2011 (J.A.K.SAMPATHKUMAR) PRESIDENT (K.ELUMALAI) MEMBER