State Consumer Disputes Redressal Commission
Mark D Almeda vs Sunil Kumar G. on 17 January, 2022
1 CC-No.25/2013
Date of Filing :14.02.2013
Date of Disposal :17.01.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 17th DAY OF JANUARY 2022
PRESENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
MrsM.DIVYASHREE : LADY MEMBER
CC-NO.25/2013
1. Mark D' Almeida
2. Suzan D' Almeida
8/1, Krishnamma Garden,
1st Cross, Anjanappa Block,
Benson Town,
Bengaluru-46.. ..Complainant/s
(By Sri.A.M.Iktear Uddin, Advocate)
VS
1.
Sunil Kumar.G
Abhi Constructions (Contractor),
# 109, SharadaNilaya,
3rd Cross, 4th Main,
Vinayaka Layout,
Vijayanagara,
Bengaluru-40. ..Opposite Party/s
(By Sri.B.Keshavamurthy, Advocate)
ORDER
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
1. This complaint is filed U/s 17 of the Consumer Protection Act, 1986 with a prayer against OP for immediate relief of 2 CC-No.25/2013 Rs.21,59,761/- which has to be refund to the excess amount paid in comparison to the works completed and to refund Rs.6 lakhs for demolishing and rebuilding the chajjas works paid to the subsequent contractors and in addition to such amount Rs.10 lakhs for all the harassment, mental trauma, delay and poor quality of his house.
2. The Complainants have stated that in early December 2010, they scheduled the meeting with the Architect Mr.Rajendra Maiya (ACE Technocrats, Udupi) for a site visit along with Mr.Sunilkumar/OP. Thereafter they met at their home to discuss in details to kick start their housing project process. There was a more than 100% assurance from OP and never given any hint of duping or living us in utter trauma which he finally caused. He gave him another Rs.5 lacks additional amount added to the mobilization, just to ensure that work progress should not be hampered for shortage of money. Though the initial work progress was slightly on a delayed path, it was attributed by OP of various factors. However, promised in the final stage to cover up. Personal bank account details were given for transfers of funds even before the RA bills. He failed to read or get a hint of the dubious mind of OP when repeated reminder to sign up the initial agreement papers, the award 3 CC-No.25/2013 letter and BOQ went unheard for several weeks and months. His wife was shattered to see the fate of the house progress although frequented to the site as often in grievous situation. A year passed and as much as 70% of the payments were done. It was only the concreting was in progress until the end of October 2011.Travelling 30 kms almost every alternate week days by bus/auto or asking daughters to miss the college to drive his wife to the site as weekends were off to the workers, took a great toll on his wife's health physically and mentally. OP kept on complaining that his wife takes unnecessary tension and often stated that she does not understand the construction works. His wife tried to express in so many words that work progress is too slow and quality of work in a poor state. Being so far away, he did not believe everything that she said. There were no supervisors at the site. Umpteen reminders to keep a qualified supervisor were just ignored. Most workers only take instructions but never worked that day or disappeared soon after his wife left the site. On 13.01.2011, he dashed to Bengaluru, visited the site and explained to OP, that he better complete the construction despite the initial delay. Mr.Rajendra Maiya (architect) was called to the site inspection on 09.02.2012 and explained that the pending works completion and set a 4 CC-No.25/2013 deadline to OP. List of tasks noted by OP and set the target delivery of the completed house by mid April 2012. OP started the harassment thereafter, demanding man/material on site urgently although civil works such as plastering the walls, plumbing pipe fixtures, drainage etc., were yet to finish:
painting works demanded immediately, granite selection, tiles purchased immediately and tiling works wanted to be started immediately while plastering still remained undone. He made his wife run helter-shelter to facilitate these materials, although her knowledge if Bengaluru was limited. Painter who started the works with Rs.1 lakh down payment complained that the walls are uneven and the works are done anyhow. His works are greatly disturbed by the granite and civil workers. Sooner, OP asks the painting works to stop the works as he realized the need to complete rest of the civil works first. Material remained only in stock. Carpenter took the wood they purchased, meant for wind/door glass frames in his workshop. Window grills were a mess. OP started the disappearing act. It was end April 2012, works not yet finished. May/June came and fabricator left the works. Roof tiles were half installed. House left abandoned again. Rains caused havoc. Neighbouring vacant compounds were all littered to the extent by his frustrated workers, owner 5 CC-No.25/2013 society to the contractor. Visible errors and deficiency in work pointed out. OP always brushed aside saying it will all be done at the end. His children lost interest to suggest anything and stopped going to the site. Hesomehow needed money to finish his works. He further advanced him with money with the hope that he would finish his works. It was again a big trap and a lie of OP to dupe him and disappeared soon after stating that he is attending marriage of his relative at Andhra Pradesh. He finally had to take leave to set an ultimatum to OP to complete the works by 31.07.2012 or should not enter the site again. On 30.07.2012, OP came with the truck and took away the scaffolding, pump, water pipes and all the tools meant to complete the works. Never informed nor notified them. He requested Architect to rush to Bengaluru for a scheduled meeting on 21.08.2012. OP absconded both the days of the meeting with an excuse of his car accident. He only said, whatever you all decide, is acceptable to him. On 24.08.2012, after due inspection by architect/engineer, detailed minutes were sent to OP. Although many works need to be demolished and redone, benefit works as claimed accounted, even to this OP cared nothing in response. He finally sent another friendly and humanistic reminder that it is his last chance to act clean 6 CC-No.25/2013 before he referred the matter legally. Ultimately a house/building supposedly a new construction was in a dilapidated condition due to non-supervision, poor quality of work and abandonment. On these backgrounds Complainants raised consumer complaint against OP that deficient service rendered with in-ordinate delay and finally abandoning site without any written notice or reasons, false promises to handover the house completion in weeks right from October 2011, failed to fulfil the contractual obligations, not attending the scheduled meetings, bills produced subsequent to 2nd bill were without the measured quantities, RA bill no.4 & 5 were prepared to release some funds on behest of completing the works. However on payments, OP abandoned the site and would not respond sometimes to the call, additional expenses incurred over 19 months calling from overseas calls, pointed defects were brushed aside, very poor quality and standards delivered on completed works, complete demolition of chajja works, loose and uneven tile fixings, causing extreme mental trauma and mental agony. He had to bear re-work, such as: cost of removal of the tiles, cost of procuring new tiles, cost of labour and time spent in finding new contractors, labour and fixing. Unfinished electrical works, wiring pulled up haphazardly and left without 7 CC-No.25/2013 any documentation, unfinished plumbing works and left in a messy conditions, wall skirting, windows and plastering were so uneven, carpentry works of windows and doors are left incomplete, debris and waste are thrown all around in neighbouring compound and not cleared despite clear instructions to maintain decorum by rules designated by the compound owner society, painting contractor/Swamy from Nerolac was hurried by the contractor while civil works were yet to complete. Payment receipt issued by the contractor after several reminders and requests. In such circumstances, he sought for damages amounting to Rs.27,59,761/- and demanding Rs.10 lakhs for all the harassment, mental trauma, delay and poor quality of his house.
3. This complaint is contested by OP contenting that Complainant at the instance of M/s.ACE Technocrats Pvt. Ltd., (hereinafter called ACETPL for short) having office at Udupi and also in Bengaluru City, work was entrusted to the OP and accordingly entered in to Agreement of Works Contract and in which it is described the Complainants as employer and OP as contractor. The Complainants are not a consumer and OP is not a service provider. The dispute between the parties is purely a civil contract that has to be judged through full-fledged trial and it 8 CC-No.25/2013 cannot be adjusted summarily. The contract work was entrusted to OP and estimated for tendered items for a sum of Rs.49,10,131/- which is admittedly excluding the non-tendered items. The Complainants, OP and ACEPTL have entered in to agreement of Works Contract.Though the agreement was entered into 01.03.2011 the drawings was supplied to OP only on 10.03.2011. When the frequent changes in drawings, selection, it is impossible to any person to construct the house and also to handle the Complainants due to their terrible attitude towards the work force. OP has committed to his work, but the Complainants are not consistent and not taking any decision for each and arguing among themselves for changes and every communication be sent to the Complainant no.1 who was staying at overseas and by the time he gives his consent, it was consuming considerable time. The Complainant no.2 and her daughters even during construction used to take photographs and were sending to her husband through email- and he used to call from there itself and was requesting for modification. Drawings of Ground floor, First floor, Elevation, Doors, Windows, Electrical, Front railing, Bolsters have been changed many times. Even for changes in drawings the Complainants has taken weeks together and use to send the 9 CC-No.25/2013 finalized drawings to the OP at later stages. By the time OP had proceeded with the construction or otherwise has to wait till finalization without any work to the labour. At the initial drawing there was no stairs for the terrace, even after suggestions the Complainants they have categorically refused to plan stairs for terrace. But after moulding the Complainants have requested for the stairs/way to reach terrace. The OP was forced to make necessary changes to reach the terrace and making use of fine cut machine for cutting the terrace mould and replaced with sloping roof by modifying with the toilet. The Complainants after construction have requested to provide the niche for the bedrooms, hall, bookshelf and the bar area of concrete retaining wall of 8'' thick and bath tub. The OP has issued as many as 5 bills/RA bills, which were duly certified/approved by the said ACEPTL. The summary details of the RA bills no.1 to 5 which is inclusive of tendered items and non-tendered items amounting to Rs.49,27,380.23. The agreed amount for tendered item was as per the letter of award for Rs.49,10,131.53 and it was agreed for other work actual with contractor margin of 20% and for all wood work actual plus 25% thereon. The OP has completed all most all about 95% of the work and it was remaining about 5% of work by the time he 10 CC-No.25/2013 was forced to stop the work. The Complainants have not produced the latest photographs and have produced the old photographs which were under construction before finishing of construction.
4. The Complainants even after repeated demands have failed to release the amount. On 31.07.2012 the Complainants have threatened OP with filthy and abusive words and warned not to enter the site. OP was forced to stop proceeding further. The OP has forwarded the said final bill through ACETPL for Rs.48,64,900/- towards the tendered items and Rs.8,96,238/- towards the non-tendered items. Thus in all Rs.57,61,138/- were spent. Thus the Complainants are due of balance amount of Rs.10,86,642/- to the OP. The Complainants instead of releasing the said amount have foisted this complaint seeking for refund of Rs.21,59,761/- from them. The OP has morally supported Complainant no.2 and her children as if members of his family. The OP is in the field of construction since more than two decade without any blemish. In fact he has cleared all the dues to electrician, plumber, carpenter, mason and other agencies with a fond hope that the Complainants will release the balance payment. But the Complainants have taken U turn and made all sorts of baseless allegations in the complaint 11 CC-No.25/2013 alleging that there was in-ordinate delay, abandoning to site, breach of agreement, cheating, defective and unfinished works are totally false baseless and the calculation made as damages is as per the convenient of the Complainants and for which there is no basis. OP has not rendered neither any deficiency in servicenor negligence as alleged by the Complainant. Requested for dismissal of the complaint.
5. In view of rival contentions of respective parties, this Commission held an enquiry by receiving affidavit evidence of Complainants and OP and they got documents Ex-C1 to C24 and Ex-R1 to R3 got marked respectively. After closure of enquiry, this Commission heard the learned counsel on record for the parties to the complaint and now we have to examine, whether the Complainants could able to establish deficient services rendered by OP as alleged in their complaint and if so ? Are entitle for award as prayed ?
6. The Complainants no.1 & 2 are husband and wife. It has come in the enquiry that Complainant no.1 is far away from Bengaluru city. In fact they have stated he is 4000 kms away, he worked in the Banking IT industry for over 2 decades and as on the date of complaint, was working for e-Governance project overseas. They have entrusted house construction works to the 12 CC-No.25/2013 builder/Sunil Kumar.G of Abhi Constructions to build the residential house on plot no.82 at Swiss town, Devanahalli. According to OP the said works was entrusted to him at the instance of architect consultant M/s.ACE Technocrats Pvt Ltd., namely ACETPL having its office at Udupi and also at Bengaluru city. OP has raised initial objections that they have entered in to agreement 'Works Contract' and in which Complainants are described as employer and he as contractor. In other words, the Complainants are not consumers and he is not service provider as defined under the provisions of CPA 1986. If we examine Ex- C4/Articles of Agreement of Works Contract, could see on the recommendation of ACEPTL the Complainants have entrusted the construction works to OP which cannot be construed that the Complainants are employers and the OP as contractor in the context of construction works entrusted by the Complainant to OP. It is therefore, this Commission is of the view that the Complainants are consumers and the OP is a service provider, as per CPA 1986. Accordingly recorded finding on this vital point that, the Commission has power to entertain this complaint raised u/s.17 of CPA 1986 and this complaint could be entertained under consumer laws.
13 CC-No.25/2013
7. Ex-C5 is the 'letter of award in respect of Civil works' construction of proposed residential building on plot no.802, Swiss town, Survey no.231, Sadahalli village, wherein could see probable value of the contract is at Rs.49,10,131/- based on the blue prints submitted by ACE Technologies, Udupi, approved by BIAAPA. The scope of works shall include all civil and as contained in the bill of quantities of civil works tender specifications or any other items as decided by the Project Manager/Architects during the construction, and coordination of all other agencies involved in the construction works. This is purely an item rate contract and the payments shall be made for the works actually executed at site, measured and certified by the Project Manager/Architects. The Employer reserves the right to delete/modify/replace any of the items during the course of contract. Thus price fixed under Ex-C5 is subject to terms and conditions and mode of measurement, RA bills and payment certifications shall be submitted in two copies (1) one to the Consultant (2) one to the Employer, for advance information. Final bill shall be submitted within one month of project completion, failing which, the Employer shall make final bill on the Contractors behalf and finalize the account, and the same shall be final and binding on the OP/Contractor. The 14 CC-No.25/2013 retention money would be recovered from net bill payment at 5% of gross amount of contract value, valid till defects liability period, which will be twelve months from the date of virtual completion. Quoted rates shall remain valid for any amount of variation without any ceiling and no extra or revision of rates shall be considered. Further, due to increase/addition in scope of work, the contract value can vary to any extent without any limits and the contractor is not entitled for any claims on this account. The Contractor shall take approval prior to the execution of such items from the Project Manager. The contractor at his own cost shall arrange water required. The contractor shall take all steps to ensure that no hindrance/inconvenience is caused to the neighbours. Any discrepancy between any drawings, specifications, bill of quantities or other documents are to be brought to the notice of the Project Manager/Architect by the contractor before taking up that part of the work. Only after written clarifications on the work is to be executed. Thus with such important terms Ex-C5 was addressed to OP on 01.01.2011 and on 01.03.2011 as per Ex-C4/Articles of agreement of works contract arrived in between the Complainants and OP, wherein time shall be considered as the essence of this agreement and the OP agreed 15 CC-No.25/2013 to commence the work as stipulated in the letter of acceptance and as provided for in the said conditions and to complete the entire work within the specified period before 20.12.2011, finalized rates for civil works could be seen in Ex-C6.
8. The Complainants have produced Ex-C10 to C24/photographs taken at the spot to show the status of the house: Behind incomplete chajja, Cracked chajjas& horrible workmanship, Cracked Chajjas - ready to disintegrate at any moment, horrible workmanship & absolute non-supervision, Incomplete works 1st floor gallery - unplanned and poor quality works, chajjas are already disintegrated from wall and ready to fall, Incomplete works front entrance side - ripped open and falling chajjas, Incomplete works west side - horrible state of works, Slanted undulated chajjas - falling chajjas, Rubble/Debris left all over - despite reminders the rubble is thrown all around, Tiling work all loose and bad finish - the entire works to be redone, slope is done from left to right (40') without provision for drain water, Wall finishing quality - horrible plastering works and the cement mix used, Roof incomplete work and horrible workmanship, Beam and walls are ripped open and destroyed with poor quality works, Unqualified, unprofessional, worst than layman job quality, Uneven ledges and finishing, Wall 16 CC-No.25/2013 finishing quality and workmanship left unfinished, Internal wall plastering all cracked, Hall tiles are already loose and moving - tiling needs to be redone, No nani trap provisions in all bathrooms, No pipes laid for sump or rain water harvesting despite several reminders from him to plan before concreting, as a result they have to break the concrete/cement and redo all the works again, Side ledges cracked in the ground floor, mostly while ripping the scaffolding, without proper care, Beam side walls cracks are shown.
9. Ex-C25 & 26 are the bills obtained from Sri Maruthi Enterprises on 01.08.2012 and their quotation for exterior and interior different type of works dtd.22.08.2012, wherein could see item wise quotation towards MS grill work Rs.4,48,000/-, plumbing work Rs.1,82,000/-, electrical works Rs.2,07,000/-, painting works Rs.1,90,000/-, other works Rs.80,000/-. These two documents are produced by the Complainant to show that remaining works done through Sri Maruthi Enterprises by spending such amount after Op abandoned from the construction works.
10. Let us examine who are all examined before the Commission: for Complainants - Complainant no.1 & 2 are none other husband and wife and they reiterated their 17 CC-No.25/2013 complaint statements but they did not examine their architect Mr.RajendraMaiya (ACE Technocrats, Udupi), who recommended the OP to construct villa in the plot belonging to Complainants. In our view his evidence become vital to decide the facts in dispute and his non-examination certainly would fatal to the case. In other words his evidence would have through light not only to decide alleged deficiency of service on the part of Op but also to claim Rs.6 lakhs said to have been for demolishing and rebuilding chajja works said to have been paid to the subsequent contractor and to seek Rs.21,59,761/- refund of the excess amount paid in comparison to the works completed shown in the evidence. Mr.Sunilkumar/OP, admittedly are service provider or contractor as the case may be to build the house, gave his evidence that he has raised RA bills 1 to 5 amounting to Rs.49,27,380.23. The important aspect in these RA bills would be that they are send through ACEPTL architect. In other words bills are duly certified by the said architect, yet he has not been examined by the Complainants, is rightly pointed out by the Op not only in his evidence but also throughout the enquiry. Further to be noted herein that consumer complaint is raised on 14.02.2013, whereas these Complainants came with an application U/o 18 CC-No.25/2013 XXVI Rule 9 R/w Sec.151 dtd.25.06.2018 almost after lapse of 4+ years with a request to appoint Court Commissioner to inspect the premises and submit a report about quality of works carried on at the spot, which came to be dismissed by this Commission on 03.01.2019 with an observation that application is filed after 5 years and building is now completed. In the circumstances, by appointing Court Commissioner no useful purpose will be served to ascertain what was the condition of the building before and what improvement is made by the Complainant, is one aspect, but facts remained the Complainants have failed to examine their own architect, subsequent contractor who said to have been completed the residual works left by the Op. On the contrary Op examined one Siddappa S/o late Ganganna Kulkarni, the mason, who has stated that Complainant no.2 and her brother were interrupting during his construction works, though he was following the instructions of the Engineer and the Contractor. When, he has not responded to their demand against to the advice of the Engineer, both have threatened and abused him to stop doing the construction and also tried to push him from the site on 21.05.2012. In such situation without any alternative, he has left the site and the same was informed to the Contractor. He 19 CC-No.25/2013 has also stated that, Complainants were not allowing doing the works freely and it is impossible to tolerate them for a normal human being. However with due diligence was constructing the house. Further one Kumar S/o Late Govindappa, an electrician has deposed that, though he was not willing to work for the Complainant, however at the request of the OP, he has agreed and carried out electrical works as per the drawings and during the work the Complainant no.2 and their daughters were interfering and meddling with his works and insisting him to give additional point for guitar charging point, focus light in the hall for the photographs of God, additional points at balcony for fixing the lights which were brought from abroad and many more changes. Further he deposed that though he has completed the entire works they have paid only Rs.8,000/- and for an additional works value of Rs.15,000/- not paid. Op also examined one Vijayachar S/o Shankarachar, Carpenter who has stated, that he had bitter experience, though he has completed the entire works have not been paid Rs.23,000/-. These three witness examined for OP and they said to have been attended the works for OP, but the facts remain that, the Complainants failed to examine their own Architect, who not only certified RA bills and but recommended OP for 20 CC-No.25/2013 construction works and who admittedly the Project Manager supervising the construction works has to give his evidence to corroborate the case of the Complainants and to corroborate their claim made in the complaint against OP which is lacking from enquiry goes against the case of complainants.
11. Learned Counsel for Op would submit that, the complaint itself bad for non-joinder of ACETL, which has no legal support or force, since it is the Complainants to implead who are all necessary parties and from whom they have to seek reliefs. In other words they are the dominus litus have to choose who their opponent is. However, it does not mean to opine that their complaint is bad for non-joinder of the Project Manager.
12. In order to seek refund of excess amount of Rs.21,59,761/- from OP except evidence of Complainant nos.1 & 2 nothing is placed, as already opined that evidence of Project Managercould have thrown light on this aspect, but is not examined. TheRA bills 1 to 5 having been duly certified by their own Project Manager, suffice to hold that Op has attended works amounting to Rs.57,61,138/-. The OP has admitted that Complainants have released Rs.46,74,496/- which is inclusive of advance amount. He has contended that Complainants are due an amount of Rs.10,86,642/- is again could not be 21 CC-No.25/2013 acceptable, since the Project Manager or Architect is not examined nor the Complainants or OP herein have obtain expert report in respect of construction of the works, from the alleged date of withdrawn from the site. In other words, in our view both have failed to act upon in right spirit for which both have to suffer.
13. The Complainants have sought Rs.6 lakhs towards demolishing and rebuilding the chajja works paid to the subsequent contractor which is again is not proved, since they failed to examine Sri Maruthi Enterprises or any representative of the said enterprises. It is therefore came only on the basis of Ex-C25 & C26 could not held that said amount was spent towards demolishing and rebuilding of chajja works. The Complainants subjected technical issue which has to be proved from cogent and satisfactory evidence with technical support only which is lacking in the whole case either to decide on the allegations of the Complainants or OP as the case may be. It is contended by the Op in terms of agreement dtd.01.03.2011 and letter of award - civil works dtd.01.01.2011, Complainants have estimated the probable value of cost of Rs.49,10,131/- towards tendered items and it was also agreed for other work namely non tendered works the rate shall be actual with contractor 22 CC-No.25/2013 margin of 20% and for the wood work actual plus 25% as per clause 12 of letter of award and construction to be completed within 9 months i.e. before 20.12.2011, subject to approval of drawings. However, the Complainants have stated in their complaint that on 31.07.2012 they have told the OP not to enter the site and it is further stated that meetings were called on 21.08.2012 and again friendly and humanistic reminder sent to clear before referred the matter legally. The tenure to complete the construction works on the part of the OP admittedly subject to approval of drawings. The Complainants have failed to place sanction or approval obtained from BBMP/BDA for the purpose of construction of house. The Complainants have communicated en-number of communication commencing from 22.07.2011 to 13.07.2012 regarding changes in drawings, door, windows, arch, elevation, selection of tiles etc., are produced and they modified/rebuilt necessary changes in the construction even after the finalized drawings, are to be read along with agreement dtd.01.03.2011 stated supra. It is found from enquiry that in the initial drawing there was no stairs to terrace. However, after moulding the complainants have requested for the stairs/way to reach terrace. Many more additions, changes, modifications could be seen from the enquiry in the construction which have 23 CC-No.25/2013 to be decide between the Complainants and Op with an intervention of their Project Manager, since in our view, he alone has to decide, since the Complainants and Op are miserably failed to place technical report on all these aspects as already stated above. Op being Contractor or service provider has placed Ex-R1 to R3, which would substantiate his objections is one aspect, but the facts remain that the Complainants having been approached the Consumer Commission have failed to establish their case as to how they are entitled for refund of excess amount and refund towards demolishing and rebuilding chajja works as prayed is another aspect and we hold both have failed.
14. In the above such conclusion, Commission has no option except to turn down the prayers sought by the Complainants. Accordingly recorded negative findings on the point in question on the proof of deficiency in service on the part of OP, as a result proceed to dismiss the complaint filed U/s.17 of CPA 1986 with no order as to cost.
15. Supply free copy of this order to both parties.
Lady Member Judicial Member *NS*