State Consumer Disputes Redressal Commission
Prasanna Sasi, Ayodhya Ayikadu vs Ajith K.G., Muringa Thekkathil, on 30 April, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/617 (Arisen out of Order Dated 30/07/2010 in Case No. CC/07/174 of District Alappuzha) 1. PRASANNA SASI AYODHYA AYIKADU,CHEPPAD.P.O ALAPPUZHA KERALA ...........Appellant(s) Versus 1. AJITH.K.G MURINGA THEKKATTIL,KANDALLOR NORTH,PATTOLI MARKET.P.O,MUTHUKULAM, ALAPPUZHA KERALA ...........Respondent(s) BEFORE: Smt.A.RADHA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO. 617/11
JUDGMENT DATED : 30.4.12
PRESENT:
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
SMT. A. RADHA : MEMBER
Prasanna Sasi, Ayodhya Ayikadu,
Cheppad P.O., Alappuzha District. : APPELLANT
(By Adv. G.S. Kalkura)
Vs
Ajith K.G., Muringa Thekkathil,
Kandalloor North, Pattoli Market P.O.,
Muthukulam, Alappuzha District. : RESPONDENT
(By Adv. P.J. Koshy)
JUDGMENT
SMT. A. RADHA : MEMBER This appeal is preferred by the opposite party against the order in OP No. 174/07 in the file of CDRF, Alappuzha. The Forum below directed the opposite party to pay a sum of Rs.1,20,000/- and also to return excess amount of Rs.26,000/- collected and a further payment of Rs.20,500/- spent for Truss work along with compensation and cost of Rs.5,000/- and 1,000/- respectively, failing which the complainant will be entitled interest at 14% till realization.
2. The brief facts of the case are that the complainant entered into an agreement with the opposite party on 12.12.04 for constructing a residential building for an estimated cost of Rs.11,75,000/- on condition to complete the work within 10 months. It is the very case of the complainant that the quality of the work was poor and on the house warming day the leakage was found out. The defect could be rectified only after providing truss work over the building which came to Rs.40,000/-. The allegation of the complainant was also that the opposite party collected excess amount of Rs.60,360/- for 2465 sq.ft. as against the measurement of 2345 sq.ft. The opposite party had not carried out the work to the satisfaction of the complainant. Alleging deficiency in service this complaint is filed.
3. The opposite party filed version contending that the building construction started on an agreement between the complainant and opposite party and the complainant did not settle the accounts. The payment for the extra work was not done. The plinth area could be measured after the completion of the work only and an amount of Rs.60,360/- for excess plinth area was to be paid by the complainant. Further the complainant retrieved from the agreement to supply the material like wood and flooring materials. The plan and estimate charges amounting to Rs.6,175/- was also due to the opposite parties along with the balance of Rs.64,795/. The complainant paid only Rs.11,75,000/- whereas the agreement was to measure the building after the completion of work and settle the accounts. The final measurement was 2,465 sq.ft @ 503 per sq.ft. the total amount will come to Rs.12,39,895/-. The extra work done by opposite party was not paid by the complainant. The defect mentioned in the terrace was due to the installation of water tank by unskilled labourers entrusted by the complainant himself. The complaint was filed in order to avoid the payment of balance amount due to the opposite party.
4. The evidence consisted of proof affidavit of both parties. PW1 and PW2 examined and marked Ext. A1. No oral evidence adduced by the opposite party. Commission report was marked as C1.
5. The Forum below came to the conclusion that the complainant incurred exorbitant amount to complete the remaining work and allowed the complaint in favour of the complainant.
6. After hearing the counsel for the appellant and respondent and on going through the records we are of the view that as per the agreement (Ext. A1) the complainant paid Rs.11,75,000/-and an additional amount of Rs.26,000/- was also received by the opposite parties. The respondent/complainant admitted that the plinth area is 2345 sq.ft. whereas the commission report (Ext.C1) the plinth area was shown as 2488.47 sq.ft. It is the case of the complainant that the opposite party collected excess amount for 120 sq.ft. The commissioner's report stated that the plinth area is 2488 sq.ft. whereas the calculation of the measurement of plinth area by the opposite party is 2465 sq.ft. Further the complainant pleaded the case that the opposite party collected excess amount of Rs.60,360/- for 120 sq.ft. Hence we have to proceed on the assumption that the building has a plinth area of 2465 sq.ft. It is also in evidence that the railing of stair case, sit out and floor work were pending. As per the agreement the complainant agreed that the floor materials would be provided by him. The opposite party in the version contended that neither the floor materials nor the wood for the frames for doors and windows supplied by the complainant which were not put to proof and thus remained unchallenged. It is evident from Ext. A1 that an amount of Rs.16,000/- was received on 11.01.2006 against flooring material (cement & sand) by the opposite party. So also an amount of Rs.10,000/- was also received on 4.4.2006 by the opposite party. It is reported by the commissioner that the inspection of the commissioner was held in a summer season. He could not find any leakage spots. The commissioner pointed out some dampness marked in the car porch- three spots under car porch, under the roof of north east bedroom on first floor and on both inside and outside of east and west side walls. So, we can come to a conclusion that there were some leakage in the building and the complainant was compelled to conceal the leakage through truss work. The estimated cost of truss work as per the commissioner's report came to Rs.20,500/- according to the current market rate. It is also noted that rails along the staircase and terrace included in the construction of complete structure. It is also to be pointed out that the complainant constructed the hand rails at his own expense. It is also true that the complainant had done the truss work at his own expense which was due to the leakage in the newly constructed building.
7. Under the facts and circumstances of the case, we find that the truss work done by the respondent/complainant is to be compensated which comes to Rs.20,500/- at the market value. Though hand rails along the staircase includes in the structure it was completed by the complainant. The work of roof tiles is not included in the agreement and it is to be taken as an extra work. As per the terms and conditions of the Agreement clause 7 states that he flooring materials for all floors should be supplied by the owner. No case is pleaded or proved that the materials were supplied by the complainant but an amount of Rs.16,000/- paid on 11.01.2006 towards the flooring material(cement & sand) cost. The amount included under floor finishing, polishing etc. was out of the agreement and it is admitted in the version that the work was done by a labour contractor which was not disputed by complainant and opposite party is not liable for that expense as it was beyond the agreement. It is also to be presumed that an amount of Rs.10,000/- was received on 4/4/2006 towards materials. Though the respondent/complainant expended money for extra work, there is no documents to prove the case of the complainant to that effect and the work done by the complainant was mostly out of the agreement. Considering the fact that wood for the door and window frame were not provided by the complainant, the amount of Rs.10,000/- paid on 4/4/06 is to be presumed to be towards the materials. Hence the receipt of payment shown in the agreement regarding Rs.26,000/- was in lieu of the material provided by the opposite party.
8. The complainant is liable to pay for the excess 120sq.ft. @ Rs.503/- per sq.ft. which comes to Rs.60,360/- It is also very clear from the records that the appellant/opposite party had not done the work to the satisfaction of the complainant. Relying on the commission report the hand rails construction comes under the total structure, amounting to Rs.65,000/- and the cost of the truss work at market value comes to Rs.20,500/- were to be paid to the complainant. We also found that an amount of Rs.20,000/- towards compensation & cost for the deficiency in service and it is to be paid to the complainant. The appellant is entitled to Rs.60,360/- towards the excess plinth area only. As the appellant had not filed any case for recovery of money, he is not entitled for any other dues.
In the result, the appeal is partly allowed and appellant is entitled for Rs.60,360/- from the complainant. Further the appellant is directed to pay a lumpsum amount of Rs.65,000/-towards cost of railing work and cost of truss work Rs.20,500/- and compensation & cost of Rs.20,000/- to the complainant on receipt of this order, failing which interest @ 12% will carry from the date of this order.
Office is directed to send a copy of this order to the Lower Forum with the LCR.
A. RADHA : MEMBER S. CHANDRA MOHAN NAIR : MEMBER Da [ Smt.A.RADHA] PRESIDING MEMBER