State Consumer Disputes Redressal Commission
Viju V., vs M/S Noble Constructors, on 28 September, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/195 (Arisen out of Order Dated 24/02/2012 in Case No. Complaint Case No. CC/09/17 of District Thiruvananthapuram) 1. VIJU.V VASANTHI NIVAS,KOONTHALLOR,CHIRAYINKEEZH TRIVANDRUM KERALA ...........Appellant(s) Versus 1. NOBLE CONSTRUCTIONS PROPRITOR,SUBHASH CHANDRAN,ATTINGAL TRIVANDRUM KERALA ...........Respondent(s) BEFORE: SMT.A.RADHA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.195/12
JUDGMENT DATED :28.09.12
PRESENT:
SMT. A. RADHA : MEMBER
Viju V., Vasanthi Nivas,
Koonthalloor, Chirayinkil,
Thiruvananthapuram. : APPELLANT
(By Adv.S. Reghukumar)
Vs
1. M/s Noble Constructors,
Represented by its Proprietor,
P. Subhash Chandran,
Attingal,
Thiruvananthapuram - 695 101
2. P. Subhash Chandran, : RESPONDENTS
Noble Constructors,
Attingal,
Thiruvananthapuram - 695 101
JUDGMENT
SMT.A.RADHA : MEMBER Being aggrieved and dissatisfied by the order of the CDRF, Thiruvananthapuram in CC No.17/09, the complainant/appellant came in this appeal for enhancement.
2. The brief facts of the case are that the complainant entered into an agreement to construct a residential building with the opposite parties which was executed on 4.12.06. The total amount fixed was Rs.17,16,000/- and the construction had to complete between 11.12.06 to 11.08.07. As per the agreement the 1st instalment of 40% of Rs.4,86,400/-, the second instalment of 30% which comes to Rs.5,86,000/- and the 3rd instalment of 25% ie Rs.4,53,750/- and the balance of 5% had to be paid after the completion of the construction of the building. The work could not be completed within the stipulated time and the agreement was extended and a supplementary agreement was executed on 24.06.07 wherein the contracted value enhanced from Rs.17,16,000/- to 18,15,000/- and the completion date was fixed as 31.12.07. A penalty clause was drawn in the agreement that the delay in completion of the construction of building beyond 31.12.2007, an amount of Rs.566/-per day has to be paid to the complainant by the opposite party. The final instalment of Rs.90,500/- has to be paid as 5% of the total contracted value. It is the case of the complainant that the opposite parties could complete the construction only upto the first floor lintel level as on 15.12.07. It is also his allegation that the work was substandard and the complainant was forced to pay the amount before the completion of the work. The complainant had to arrange another contractor for wood work of cupboards and during the construction period many materials for construction had to be purchased by the complainant himself. The balance work remained to be completed as per the agreement required another amount of Rs.11,50,000/-. The complainant and his wife availed a loan for Rs.20 lakhs/- and he was under pressure to remit the repayment. Due to the delay in the completion of the building, the complainant and his wife could not claim the income tax deduction for 2 years. The complainant also incurred house rent for one and half year @4,500/-p.m. The complainant also incurred interest for Rs.20,00,000/- for another six months also. The complaint is filed for Rs.18,67,344/- on various heads.
3. In the version filed by the opposite parties contended that the proposed building which comes around 2400 sq.ft. had to be constructed @ Rs.750/-per sq.ft. while the average cost of construction per.sq.ft. at that time was Rs.1300/-. It is also stated that the complainant had a habit of making alteration in the prescribed original plan. The additional work and re-construction involved more expenses towards cost. The opposite parties contended that the delay caused was by doing additional works, additional earth works etc. which involved escalation of expenses to Rs.1,50,000/-. The construction done was perfect and the allegation was merely to avoid the balance payment by the complainant. The attempt of the complainant was only to tarnish the good reputation of the opposite parties as builders. The Ops incurred Rs. 4,00,000/- towards extra work in between 15.12.2007. The opposite party was ready to finish the work provided the complainant makes payment for the works actually done including the over and above works finished in the building. The demand for Rs.11,50,000/- as additional cost of remaining construction is devoid of any merit and there is no deficiency on the part of the opposite parties and no relief can be claimed and the complaint is to be dismissed.
4. Both parties filed revision petition before this Commission and the revision petition filed by the complainant was allowed. The petitioner/complainant was allowed to complete the construction work and accepted both Commission reports Exts.C1 and C2. The main question that is to be decided was to what extent of loss, if any, sustained, by the complainant on account of delay in completing the construction. Consequent to the revision order the complainant completed the construction as on 27.01.10. The total cost incurred for completion of work including the material cost and labour cost during 2009 to 2010 was Rs.14,65,589/- The date of completion of building construction as per agreement was on 31.12.2007.
5. On appreciation of the oral evidence as well as the documents the Forum came to the conclusion that the complainant was eligible for an amount of Rs.4,74,250/- with 9% interest from the date of complaint and also Rs.84,750/- towards the escalation charge due to the delay in construction work. Further the Forum ordered to pay a compensation of Rs.1,00,000/- and Rs.5,000/- as cost to the complainant. As per the order the complainant was ordered to adjust the expenses incurred by the opposite party for the additional work which was estimated by the commissioner for Rs.44,723/-. This order is under challenge by the complainant.
6. The learned counsel for the appellant/complainant submitted that the Lower Forum ignored the order passed by this Commission in revision petition. As per the order in the revision petition the complainant was permitted to complete the construction as per the rate in the year 2009 - 2010. Due to the failure to complete the construction by the opposite parties it took more than 2 years to complete the work and during that time the escalation in the rate of material and the labour cost was calculated to the tune of 11,50,000/. It is also pointed out that it is well settled law that where there is a specific term in a contract the parties are bound by the terms of the contract. In this case the opposite party is liable to pay an amount of Rs.566/- till the completion of construction of the building. The Forum below ignored the terms and conditions of the agreement. The Forum below came to the conclusion based on the paid total amount of Rs.17,24,250/- and fixed the value of the balance constructed portion as Rs.12,50,000/- and the balance amount to be paid to the complainant as Rs.4,74,250/-. The counsel also pointed out that the Forum erred in fixing up the value by Rs.12,50,000/- of the constructed portion and no reason is stated for fixing up the value of the building and it is only on assumption. Further the contracted amount already enhanced by the agreement was Rs.18,15,000/- instead of Rs.17,16,000/-. The other point raised by the counsel for the appellant is that as per the commission report an amount of Rs.11 to 12 lakhs was assessed for the completion of the construction. The appellant had already incurred Rs.14,65,589/- for the balance construction of the building and produced all the relevant bills. The Counsel also brought to our attention to the agreement (Ext.P1) that no additional agreement executed between the parties for any additional work and this clause was specifically mentioned in the agreement (Ext.P1). In this case this was not done and the demand of the opposite parties claiming additional work for an amount of Rs. 4 lakhs is absolutely against the terms and conditions and deserves no consideration. The balance work was carried out by the appellant and the expenses incurred were calculated and produced all the bills. It is also argued that the complainant had to suffer mental agony and had incurred expenses towards rent due to the delay in the construction of the building which was not considered by the Forum below. Further the complaint was filed in January 2009 and the work completed in January 2010. The complainant claimed @Rs.566/- per day for delay in completion as per agreement till the date of filing the complaint and prayed for further more till the completion date of the construction of the building.
7. The respondent was absent. On going through the records and on hearing the counsel for the appellant/complainant this Commission find that the complainant has a definite case for not getting his house constructed in time who availed loan for construction of the building. It is not in dispute regarding the enhancement amount from Rs.17,16,000/- to Rs.18,15,000/- and the period was also extended to 31.12.07. It is also not disputed that the work was not completed. The certificate of stage completion for the 1st floor lintel was handed over on 15.12.07 to the complainant. From that itself it is clear that the construction had yet to be completed. The complainant and the respondent came up in revision before this Commission and this Commission allowed the complainant to complete the work. As per the Commission report, the future construction work estimated around Rs.12,00,000/-. The complainant paid an amount of Rs.17,24,250/- in 3 instalments to the opposite parties and the balance work to be completed estimated to Rs.12,00,000/- as per the commission report. The 5% of the balance amount is left with the complainant and the total estimate of the building was for Rs.18,16,000/- adding the amount of estimated cost as per the Commission report it will come to Rs.30,15,000/-. An amount of Rs.90,750/- was left with the complainant himself. The complainant produced bills for an amount of Rs.14,65,589/-. No valuation was carried out to the already constructed building by the Commissioner. It is also noticed that at the time of construction the rate per sq.ft was @736 per sq.ft.where as at that time rate per sq.ft was Rs.1200/- based on the version (not disputed). The estimated cost arrived at by the Commissioner was Rs.12 lakhs. This Commission limit the expenses to Rs.10 lakhs. On the ground that the estimated budget for the building was for a total amount of Rs.18,16,000/- and an exorbitant amount is not justifiable. So in this case, the additional expense to be calculated is limited to Rs.10,00,000/-. Now coming to the terms and conditions for delay in construction as per the agreement an amount of Rs.566/-per day is to be paid to the complainant till the completion of the construction. The complainant sought for Rs.2,17,344/- as on the filing date towards penalty amount from the date of default. Even though the complainant is urging that the work has completed on 30.01.10 that prayer cannot be allowed on the ground that the Commission cannot go beyond the prayer and the amount is to be limited to the extent of prayer. The complainant prayed for rent @ 4,500/- p.m and it is allowed for 12 months which comes to Rs.52,000/-. An amount of Rs.5,000/- towards cost is also allowed. No separate compensation is allowed as the penalty charges for the delay in construction is considered. As per the Commission report the additional work was done by the opposite party estimated to an amount of Rs.44,723/-, though there is no representation on the part of opposite parties it is fair to award the amount with 6% which is to be adjusted by the respondent.
In the result, the appeal is allowed with a modification of award. The respondent/opposite party is directed to pay an amount of (Rs.10,00,000 + 2,17,344 + Rs.52,000 + 5,000/-) Rs.12,74,344/- (Rupees Twelve Lakhs seventy four thousand three hundred and forty four only) within 3 months on receipt of this order failing which the respondent/opposite party is liable to pay 6% interest till realization. The respondent/opposite party shall pay the aforesaid amount after adjusting the amount of Rs.44,723/- with 6% interest from 1.1.2008 till 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
Da
[ SMT.A.RADHA] PRESIDING MEMBER