State Consumer Disputes Redressal Commission
Neeraj Prabha vs Ajay Sharma on 23 July, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.1045 of 2015
Date of institution : 16.09.2015
Reserved on : 10.07.2024
Date of decision : 23.07.2024
Neeraj Prabha aged 58 years wife of Chander Shekhar at present
resident of Old Mai Bhagwati Girls School, Hariana, Tehsil and District
Hoshiarpur.
.....Appellant/Opposite Party
Versus
Ajay Sharma son of Manohar Lal, resident of Ward No.6, village and
post office Purhiran, Tehsil and District Hoshiarpur.
....Respondent/Opposite Party
First Appeal under Section 15 of the
Consumer Protection Act, 1986 against the
order dated 17.08.2015 passed by the District
Consumer Disputes Redressal Commission,
Hoshiarpur in CC/189/2014
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued by:-
For the appellant : Sh. Manjot Singh, Advocate
For respondent : Sh. Jasraj Singh, Advocate
KIRAN SIBAL, MEMBER
The present appeal has been remanded back by the Hon'ble National Commission, vide order dated 23.11.2023, passed in Revision Petition No.1766 of 2017, whereby the order dated 20.01.2017 passed by this Commission regarding dismissal of this appeal on the ground that matter in hand cannot be adjudicated in summary jurisdiction on count of complex issues involved in it, has been set aside FA No.1045 of 2015 2 and direction has been issued to decide the present appeal afresh on merits after giving an opportunity of hearing to both the sides. Accordingly, the appeal was restored at its original number and opportunities were afforded to the appellant/complainant as well as to the respondent/OP to defend the case.
2. This appeal has been filed by the appellant/complainant against the impugned order dated 17.08.2015 passed by District Consumer Disputes Redressal Commission, Hoshiarpur (in short, "the District Commission"), whereby the complaint filed by complainant against opposite party (in short 'OP'), under Section 12 of the Consumer Protection Act, 1986, was dismissed being devoid of any merit-able substance.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
4. Brief facts for the disposal of the appeal are that the complainant owned a plot measuring 0-15 marlas with dimensions of 40'-10''x100' in the revenue estate of village Kakkon, Tehsil and District Hoshiarpur consisting of area 30'x10' of each shops. She was to construct her residential house over her plot. She availed the services of the OP to construct the ground floor of the house, vide agreement dated 10.05.2013. The terms and conditions of the agreement were incorporated thereunder except the area of shops. There was another agreement dated 17.09.2013 for construction of the first floor and mumty etc, which were to be completed by the OP in all respects including paints, all wood works, door, railings, grill, sanitary fittings, FA No.1045 of 2015 3 kitchen boxes, kitchen slabs, wall hanging boxes of kitchen, marble centre table 3'x'3 kitchen, down sealing in lobby and drawing room, electric fittings, ply board almirahs in bed rooms, marble flooring, POP etc. The construction of the house was to be completed in all respects including earth filling by 25.11.2013. The rate was settled at Rs.1200/- sq. ft of slab area. The complainant paid Rs.51,00,000/- to OP from time to time for the construction of the house. Nothing was mentioned regarding the constructions over the area of the shops in the contracts dated 10.05.2013 and 17.09.2013, but it was orally agreed to construct one shop and in the area of second shop, only covered entrance was to be constructed. The said construction of the shop and covered entrance was to be made at the rate of Rs.500/- per sq. ft. The OP did not raise the construction as per the terms and conditions agreed upon between the parties and even did not complete the same, as agreed in the contract by 25.11.2013 and is still incomplete. The constructions raised by OP is not as per specifications mentioned in agreements dated 10.05.2013 and 17.09.2013. The OP agreed to lay green marble flooring with concrete, but in place of the same, ceramic tiles have been fitted. No doors have been fixed nor wire gauge frames have been fixed. Even the sanitary fitting, electric fittings, grills, shutters of shop, kitchen boxes, kitchen slabs, marble table 3'x3' in kitchen, wall hanging boxes of kitchen, almirahs in bedrooms, POP, paint work etc are still to be done. The boundary wall was to be 9'' but in place of the same, only 41/2'' wall was raised on the north side. The septic tanks were to be constructed by OP, but he constructed the same outside the plot and in the passage with its height more than the level of the street. The FA No.1045 of 2015 4 complainant has paid a huge amount of Rs.51,00,000/- to OP and she incurred expenses of Rs.12,500/- for earth filling. The amount of Rs.2800/- as security for PSPCL for release of electric connection was also paid by her. The ground floor covered area is about 2538 sq. ft and of first floor is about 1726 sq. ft, covered area of mumty is about 315 sq. ft. The OP raised only to 41/2 walls for one shop. The lintel of the covered entrance has been paid to the adjoining owner. The work done by the OP valued Rs.37,86,000/- as per report of building expert, but complainant paid Rs.51,00,000/- to OP. The OP received the excess amount of Rs.13,14,000/- from complainant and refused to complete the work or to refund the excess amount. Alleging deficiency in service on the part of the OP, the complainant filed consumer complaint before the District Commission and sought directions against the OP to refund Rs.13,14,000/- paid in excess along with interest @ 12% per annum and further to pay Rs.6,50,000/- as damages.
5. Upon notice, OP appeared and filed written reply, wherein he raised certain preliminary objections, which are not required to be reproduced here for the sake of brevity. On merits, OP stated that the contract dated 10.05.2013 was for construction of ground floor and the contract dated 17.09.2013 was for construction of first floor and mumty without any time fixed for completing the work of first floor in contract dated 17.09.2013. The OP started construction on 10.05.2013 and constructed three bed rooms, drawing room, dining room, kitchen, lobby and puja room. The entire area i.e. 40'10"X100' was enclosed by boundary wall and two gates were kept opening in the boundary wall FA No.1045 of 2015 5 abutting of streets touching two sides of the kothi. The earth was filled in the kothi for raising its level near about 5 feet above from the surroundings level. On the first floor, the complainant got constructed kitchen, one bed room, hall balcony, toilet and one dressing room. The entire construction was raised as per the specification provided in the agreement. The OP further stated that a staircase was constructed by the OP as per the site plan but later on the complainant got that staircase dismantled and assured the OP that extra amount would be paid for the said work. Some additional works i.e. installation of submersible, spreading the soil on both side of the kothi, dismantling of already existing staircase and re-erecting the same, laying lintel at a height of 12 feet instead of 11 feet, construction of two more windows in the bed room etc. was also done by the OP at his own expenses, which were not part of the original agreement. The charges of OP for setting up covered area of two floors and mumty at the rate of 1200/- per sq. feet came to be Rs.57,08,400/- and the cost of construction of two shops covering 600 sq feet area has not been paid yet to the OP by the complainant. The complainant was liable to pay Rs.1,84,514/- on account of extra work done by the OP. The OP specifically pleaded that he completed the work as per contract and rightly charged the contract amount therefore. Whatever work is left was only because of the hindrance created by the complainant and the same was not willful on the part of the OP. The OP is still ready and willing to perform his part of the contract. The septic tank was constructed in the passage as per the directions of the complainant. The complainant do not want to pay the remaining amount to OP, therefore she procured false reports, FA No.1045 of 2015 6 filed false complaints before the police as well as the present complaint. After denying the other averments made in the complaint, OP prayed for dismissal of the complaint.
6. The parties led their evidence in support of their respective contentions and the District Commission after going through the record and hearing learned counsel for the parties, dismissed the complaint, vide impugned order as above. Aggrieved with the same this appeal has been filed by the appellant/complainant.
7. We have heard learned counsel for the parties and have gone through the written arguments and record of the case.
8. Learned counsel for the appellant vehemently contended that the District Commission has totally misread the documents and evidence in dismissing the complaint of the appellant/complainant. The District Commission has failed to consider the report of the Local Commissioner duly appointed by it during the pendency of the complaint. The Local Commissioner has already approved the case of the appellant and reported that construction work was incomplete. The respondent/OP was required to complete the construction work of the ground floor by 25.11.2013 but respondent/OP has not completed the construction work despite the fact that the payment has been made to him. Rather the respondent/OP with ulterior motive has sent a legal notice for recovery of amount for extra work alleged to be done by him. The learned counsel further argued that the report of the Local Commissioner is totally in consonance with the report of the expert evidence led by the appellant/complainant, which clearly shows that the FA No.1045 of 2015 7 construction of the house is incomplete and even basic facilities are missing. The learned counsel further argued on the similar lines as stated in the complaint and prayed for acceptance of the present appeal by setting aside the impugned order.
9. On the other hand, the learned counsel for the respondent/OP has argued that the District Commission after appreciating the evidence and pleadings raised by the parties, has rightly dismissed the complaint filed by the appellant/complainant before it. There is no perversity and illegality in the impugned order. The learned counsel further argued that as per first work agreement dated 10.05.2013, the construction was to be completed by 25.11.2013 and thereafter, a second work agreement was executed between the parties on 17.09.2013 with no time limit. As such, the allegations of delay and non completion of construction in time are not tangible. It was on account of the appellant's own actions and conduct that the project could not be completed in time. The report of the local commissioner was strongly objected by the OP as he had wrongly added some components of the construction in the alleged incomplete construction. The learned counsel further reiterated his version on the similar lines as stated in the written reply and prayed for dismissal of the present appeal.
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
11. The factual matrix of the case is that the complainant availed the services of the OP to construct ground floor as well as first FA No.1045 of 2015 8 floor and two agreements were executed between the parties on 10.05.2013 and 17.09.2013, Ex. C-2 & C-3. As per agreement dated 10.05.2013 the construction was to be completed by 25.11.2013, whereas no time limit was set out in the second agreement dated 17.09.2013. It is not in dispute that an amount of Rs.51,00,000/- has been received by the respondent/OP from the appellant/complainant for the construction raised by the OP. The appellant/complainant alleged that the construction raised by the respondent/OP is not in accordance with the terms and conditions of the agreements and the same is incomplete. Alleging deficiency in service on the part of the respondent/OP the appellant/complainant filed a consumer complaint before the District Commission, which was dismissed vide impugned order as above. Aggrieved with the same the present appeal has been preferred by the appellant/complainant.
12. The moot question to be decided in the present appeal is to decide the extent of construction work done by the respondent/OP, which is being disputed by the appellant/complainant. The appellant/complainant by relying on the report of Vijay Bagga, Technical Expert, has alleged that only 65% of construction work is being done by the respondent/OP, whereas the respondent/OP by relying on the report of Nikhil Bajaj, Architect, has alleged that 80% of the construction work has been completed by him. To determine the said controversy we have perused the pleadings of the parties as well as evidence placed on record and impugned order passed by the District Commission. A perusal of report of Vijay Bagga, Technical Expert dated 05.08.2014 FA No.1045 of 2015 9 (Ex. C-4), shows that said expert was engaged by the appellant/complainant to give technical report and cost of construction till 05.08.2014. The opinion given by the said expert is reproduced as under:-
"Opinion:
House:-
Keeping in view above stated, I am of the opinion that only 65% work is completed and 35 % is remaining. As per agreement building is to be completed at Rs.1200/- per Sq. feet. The 65% of Rs.1200/- per Sq. feet is Rs.780/- per sq. feet.
Covered area of house at Ground Floor & First Floor = 4559 Sq. feet. Cost of construction @ 780/- per Sq. feet = Rs.35,56,020/- (say Rs.35,56,000/-) So in my opinion the present cost of construction is Rs.35,56,000/- (Rs. Thirty Five Lac Fifty Six Thousands only). SHOP There are two number of incomplete shops on the northern eastern side of house. These shops are incomplete. The following work of the shops are incomplete. 80% work is completed.
1. Flooring work
2. Rolling Shutter in one of the shop
3. P.O.P. work
4. Paining work.
Covered area of shop = 575 Sq. feet 80% of Rs.500/- is Rs.400/-
Cost of Construction @ Rs.400/- per Sq. feet = Rs.2,30,000/- So in my opinion the total cost of construction on both house and shops is Rs.37,86,000/-
The cost of construction as per agreement:
House 4559@ Rs.1200 Sq. feet = Rs.54,70,800/- Shop 570 @ Rs.500 Sq. feet = Rs.2,30,000/-
Total = Rs.57,55,800/-
Assessed cost of construction
House Rs.35,56,000/-
Shop Rs.2,30,000/-
Total Rs.37,86,000/-
So Remaining cost of construction is Rs.19,59,800/-"
As per above said report of technical expert, the assessed cost of construction of house and shop is Rs.37,86,000/-.FA No.1045 of 2015 10
13. On the other hand, the respondent/OP has relied upon the report of Ar. Nikhil Bajaj dated 09.12.2014, Ex. OP-4. A perusal of the same reveals that the said architect visited the house in question on 27.11.2014 as per the orders of District Commission to inspect the same and to give his report qua actual and factual position. The opinion given by the said architect is reproduced as under:-
"Opinion:
House:-
Keeping in view above stated, in my opinion 80% work is almost completed and 20% is remaining. As per agreement dated 10.05.2013 & 17.09.2013 building is to be completed at Rs.1200/-
per Sq. feet. The 80% of Rs.1200/- per Sq. feet is Rs. 960/- per sq. feet.
Covered area of house at ground floor, first floor and mumty = (2620 sq.feet + 1830 sq.feet+ 307 sq.feet) = 4757 Sq. feet. So, cost of construction @ 960 per sq. feet = 45,66,720/- Shops:
There are two shops on the north side of the house.
1. Stair inside one shop leading to first floor completed.
2.Civil work of shop has completed.
3. Putty work has done.
Covered area of shops = 600 Sq. feet So, on the basis of calculations and present construction stage of shops cost of construction of shops @ Rs.600/- per sq.feet = 3,60,000/-
So total cost of construction on this building till date comes out to be = Rs.49,26,720/- Say Rs.49,26,700/-."
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Conclusions:
After viewing each component of the mentioned house on the basis of my technical knowledge I have found that the construction work is of good quality in this building. Good elevation works has done. Material used in the building is as per mentioned in the agreement. Only final stages of the construction has leff."FA No.1045 of 2015 11
As per above said report of Ar. Nikhil Bajaj, the assessed cost of construction of house and shop is Rs.49,26,700/-. It has also been reported by the said architect under the heading 'Conclusions' that the construction work is of good quality; good elevation works has done and material used in the building is as per the agreement and only final stages of the construction has been left. It is pertinent to mention here that the complainant raised objections to the report given by Ar. Nikhil Bajaj and the OP raised objections to the report given by Vijay Bagga, therefore, the District Commission to eradicate controversy, vide order dated 27.01.2015, had appointed Sh. Ashutosh Sharma, Advocate as Local Commissioner to visit the site; inspect the premises and to report about the work completed as well as the work, which is yet to be done. Accordingly, the Local Commissioner has submitted his report dated 09.02.2015 about actual and factual position supported by some photographs. A perusal of said report of Local Commissioner reveals that only some construction work of the building in question is incomplete, the relevant part of the report is reproduced as under:-
"i) In ground floor there are only four jali doors are affixed one is for lobby entrance one is for drawing room and two in bedrooms as shown in the site map and except these doors no other wooden and jali door affixed in ground floor except frames without handle and bolt and wooden doors are yet to be affixed;
ii) There are no glass windows affixed in ground floor, first floor and mumty. On some windows grills are affixed and on some only frame of wood are affixed and same are to be polished;
iii) There is electricity wiring in all the rooms but there is no switches or boards, which are yet to be affixed;
iv) There is no sanitary fitting or taps or sinks, pot seat etc in bathrooms in ground floor and first floor except bath tub in one bathroom;
v) There is no railing on staircase;
FA No.1045 of 2015 12
vi) Wood work like ply board, cupboard in bed rooms
kitchens and lobby in first floor and ground floor are not affixed and there are no slabs in kitchens;
vii) There is no railing on parapet;
viii) There is only one shop without shutter and there is no electricity wiring in the shop;
ix) there is no pillar under projection; and
x) Main holes are not covered."
From the perusal of documents brought on record by the parties, we find that the rate of construction of ground floor as well as first floor was duly agreed between the parties @ 1200 per sq. feet of slab area, vide agreements Ex. C-2 & C-3. All the terms and conditions agreed to between the parties were incorporated in the said contracts/agreements except the area of shops. Since, the Local Commissioner has been appointed by the District Commission, who is considered to be a neutral person, therefore we deem it appropriate to rely on the report of the Local Commission at this stage especially when there is ambiguity in calculations as well as deficiencies pointed out by both the experts i.e. Sh. Vijay Bagga and Sh. Nikhil Bajaj. A close scrutiny of report of the Local Commissioner reveals that no major deficiency qua the construction of civil work or construction is pending.
However, the local commissioner has pointed that some construction work such as some wooden and jali doors has not been affixed in ground floor; except frames without handle and bolt and wooden doors are yet to be affixed; no glass windows affixed in ground floor, first floor and mumty; on some windows only frame of wood are affixed and same are to be polished; there is no switches or boards, no sanitary fitting or taps or sinks, pot seat etc in bathrooms in ground floor and first floor except bath tub in one bathroom; no railing on staircase; no wood work FA No.1045 of 2015 13 like ply board, cupboard in bed rooms kitchens and lobby in first floor and ground floor and no slabs in kitchens; no railing on parapet; no electricity wiring in the shop; no pillar under projection; and main holes are not covered. Though the Local Commission has not mentioned the extent/percentage of the construction work completed by the respondent/OP but the above said observation of the Local Commissioner leads us to draw an inference that major construction of the said house is almost completed barring the deficiencies as stated above. Therefore, it would be safe to assume and draw an inference that almost 80% of the construction work has been completed, which is also clearly evident from the photographs attached with the report of the Local Commissioner. The fact that the construction work is still to be completed has not been denied by the respondent/OP. Moreover, the respondent/OP has also filed a civil suit for Mandatory Injunction against the appellant/complainant to not to interfere in the completion of the building, which shows that the respondent/OP is also aggrieved by the act of the appellant/complainant.
14. As per report of the Local Commissioner the covered area of ground floor is 2596 Sq. feet, first floor is 1794 Sq. feet and of mumty is 302 sq. feet, total comes to 4692 sq. feet. As per agreements executed between the parties, Ex.C-2 & C-3, the rate of Rs.1200/- per sq. feet was fixed for construction of the covered area of ground floor, first floor and mumty. As discussed above, 80% of the total construction work has been completed, therefore, 80% of Rs.1200/- comes to Rs.960/-. Accordingly, the assessed cost of total construction work FA No.1045 of 2015 14 completed by the respondent/OP for ground floor+ first floor+ Mumty is 4692 x 960 = Rs.45,04,320/-.
15. Further, as per report of the Local Commissioner the covered area of shops is 570 Sq.feet but there is no agreement between the parties qua fixation of rate of construction of the said shops. In the absence of any agreement, we have no option but to adjudicate this point on the basis of pleadings of the parties, reports of the technical expert, report of architect as well as report of the Local Commissioner. The appellant/complainant has specifically deposed in his affidavit that the rate of construction of the said shops was fixed @ Rs.500/- per sq. feet, whereas the respondent/OP has denied the said version of the appellant/complainant in his affidavit and stated at para No.4 "It is wrong and denied that construction of these two shops was to be at the rate of Rs.500/- per sq. feet. The cost of construction was fixed at Rs.1200/- per sq. feet and not at the rate of Rs.500/- per sq. feet". However, the respondent/OP has further relied on the report of Sh. Nikhil Bajaj, Architect, who was engaged by him for submitting his report, wherein he has calculated the cost of construction of shops @ Rs.600/- per sq. feet, which is contrary to the version of the respondent/OP as stated in his affidavit. Accordingly, the version of respondent/OP is not acceptable and we deem it appropriate that the rate for construction of the shops be taken @ Rs.500/- per sq. feet and cost of construction of shops is to be calculated on the said rate. As discussed above 80% of the construction work has been completed. Therefore, 80% of Rs.500/- comes to Rs.400/-. Accordingly, the cost of covered area of shop is 570x400= 2,28,000/-. The total cost of FA No.1045 of 2015 15 construction work of Shops, ground floor, 1st floor and Mumty comes to Rs.45,04,320 + 2,28,000= 47,32,320/-. It is not denied by the respondent/OP that he has not received a sum of Rs.51,00,000/- from the appellant/complainant for the construction work of the building in question. Accordingly, the respondent/OP has received an amount of Rs.3,67,680/- in excess of total work completed by him i.e. Rs.51,00,000/- less Rs.47,32,320/-, for which the appellant/complainant is entitled to recover from the respondent/OP. The appellant/complainant is also entitled for adequate amount of compensation and litigation expenses. The District Commission has overlooked the said aspect while dismissing the complaint filed by the appellant/complainant. Accordingly, the impugned order is liable to be set aside.
16. So far as the allegations of the respondent/OP that he has done some extra construction work, is concerned, we observe that since the respondent/complainant has already filed a Civil Suit for Mandatory Injunction, Ex. OP-27, before the Civil Court at Hoshiarpur, against the appellant/complainant, wherein he has also raised his grievance qua extra construction work done by him at his own cost, therefore, we do not deem it appropriate to interfere qua the said issue, which is to be decided by the Civil Court. The respondent/OP can avail the remedy qua this grievance before the Civil Court.
17. Sequel to the our above discussion, the appeal is partly allowed with the following directions to the respondent/ OP:-
i) To refund the amount of Rs.3,67,680/- to the appellant/complainant along with interest @7% p.a. from the FA No.1045 of 2015 16 date of filing the consumer complaint i.e.16.09.2015 till its realization;
ii) To pay a composite amount of Rs.25,000/- to the appellant/complainant as compensation and litigation expenses.
18. The compliance of the order shall be made by the respondent/OP within a period of 60 days from the receipt of certified copy of this order.
19. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER July 23, 2024 (Dv)