State Consumer Disputes Redressal Commission
Arulappan vs Suresh Babu on 27 September, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/13/140 (Arisen out of Order Dated 30/05/2012 in Case No. CC/11/90 of District Wayanad) 1. ARULAPPAN DAS,THOTTAVILAYIL,SURABHI KAVALA,SULTHAN BATHERY TALUK WAYNAD KERALA ...........Appellant(s) Versus 1. SURESH BABU ACHUTHA KURUP,CHERIYOTTIRI HOUSE,GREEN VALLI HOUSING COLONY,PULPPALLY WAYNAD KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER SMT.A.RADHA MEMBER SMT.SANTHAMMA THOMAS MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.140/13
JUDGMENT DATED 27/09/2013
(Appeal filed against the order in CC No.90/2011 on the file of CDRF, Wayanad dated, 30/05/2012)
PRESENT:
SMT. A. RADHA : MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
APPELLANT:
Arulappan D/o. Das, Thottavilayil,
Surabhi Kavala, Mullankolly,
Sulthan Bathery Taluk.
(By Adv: Sri. P. Raj Mohan)
Vs
RESPONDENTS:
Suresh Babu S/o. Achuta Kurup,
Cheriyottiri House, Greenvally Housing Colony,
Pulpally, Wayanad District.
(By Adv: Sri. S. Reghu Kumar)
JUDGMENT
SMT. A. RADHA : MEMBER This appeal is preferred by the opposite party against the order passed in C.C. No.90/11 on the file of CDRF, Wayanad. The Forum Below directed the opposite party to pay Rs.84,000/- towards defective construction and cost of work abandoned by opposite party and Rs.10,000/- towards hardship and loss caused to the complainant.
2. It is the case of the complainant that he entrusted the construction work of the extension of the house with the opposite party on 15/03/2010 and supplied the entire materials as required by opposite party. The construction work of the opposite party was not upto the satisfaction of the complainant which resulted in the mediations with the opposite party and demanded to finish the work of the extended area as per the agreement. The allegation of the complainant is that opposite party is not a mason and also not qualified in the field of construction. He does not possess contractor licence. The opposite party used low quality materials as well as used the waste of raw materials for construction of house and courtyard. It is alleged that the terrace and adjacent walls broken, drainage work was unscientific and incomplete, exhaust fan not fixed and electrification were also not completed. The Tulsithara and Ammithara were not constructed but after reply notice the complainant constructed the Ammithara and Tulsithara. The complainant also lodged a complaint before the Pulpally Police on 18/09/2010 where the opposite party admitted the defects and offered rectification and return of excess money. The opposite party did not return the excess money nor rectified the defects. The act of the opposite party amounts to unfair trade practice and gross negligence. The complainant had a loss of Rs.1,49,456/- and also had to rectify the defects in the construction. The complaint is filed to get rectified defects in terrace and adjacent wall of the extended area of the complainant's house and also to pay Rs.1,49,456/- being the loss and damages. The complainant further prayed for payment of Rs.5,000/- towards compensation and Rs.1,000/- as cost of proceedings.
3. The opposite party filed version contending that the complainant is due to pay Rs.94,200/- towards the construction of the building which was not paid by the complainant. It is also stated that the opposite party filed suit O.S.85/11 before the Munsiff Court, Sulthan Bathery and he also denied that the construction work is defective. It is asserted in the version that he had 25 years expertise in constructing the buildings in different areas of Wayanad. The materials provided by the complainant were not of good quality. The loss and damages also disputed. The total cost of materials and labour charge was fixed as Rs.3,17,000/- whereas the opposite party received only Rs.2,00,000/-. The complainant was not co-operating with the opposite party for the completion of fitting Aluva oven, Exhaust fan etc. and that liability cannot be cast upon the opposite party. Further construction of staircase was entrusted to Deepa Industries at Pulpally for an amount of Rs.13,000/- out of which Rs.10,000/- was given in advance. The opposite party had left materials worth Rs.10,000/- and equipments valuing Rs.14,000/- in the premises of the complainant. Due to the adamant nature of the complainant the opposite party could not complete the work and the opposite party filed the suit before the Munsiff Court for Rs.94,200/-.
4. The complainant was examined as PW1 and documents were marked as Exbts. A1 to A8. The Commissioner Report is marked as C1.
5. It is submitted by the counsel for the appellant that the agreement Exbt.A1 is for construction of certain additional work and the extension work of the complainant's house. As per the agreement the work, to be completed are of 22 items. It is admitted that the appellant received Rs.2,00,000/- out of the agreed amount of Rs.3,17,000/-. The balance amount of Rs.7,000/- for materials, Rs.30,000/- to be paid on 04/08/2010, Rs.80,000/- on 16/08/2010. A Commissioner was appointed and was provided with a work memo wherein he has stated that cracks developed through the construction joint of the roof slab. The cost of repair of adjacent wall cracks was showed as Rs.2,741/-. It is also mentioned in the Commission Report that the cost of repair of defects in bathrooms, steps etc. will cause Rs.4,800/-. So also the repair cost of defects in kitchen door will come to Rs.16,227/-. As per the work memo the courtyard construction will cost Rs.44,230/-. In the written version it is stated that the complainant did not co-operate with the appellant and funds were not provided in time. The appellant filed a suit O.S.85/11 before the Munsiff Court for an amount of Rs.94,200/-. Though the case was dismissed for non remittance of balance Court fee, it is submitted by the counsel for the appellant that the suit has restored to file. The appellant is having 25 years experience in construction work and no case is filed against him so far. The respondent filed this complaint in order to counterblast the suit filed by the appellant. Now coming to the commission report the commissioner estimated the expense for rectification to the tune of Rs.84,000/- which is not sustainable on the ground that the Commissioner inspected as per the work memo filed by the complainant. The report regarding the cracks in terrace are not attended by the appellant. There is nothing mentioned in the report to the quality of the material is sub standard. Further no examination regarding the quality of material was conducted by the commissioner. The A1 agreement is only for the construction of extension portion of the building. The Forum Below miserably failed and misconstrued the A1 agreement. The expert commission report cannot be taken as an evidence for allowing the complaint.
6. The counsel for the respondent relying on the A1 agreement submitted that evenafter accepting Rs.2,00,000/- and the further payments on the dates mentioned the appellant violated the conditions of agreement. It is pertinent to point out that no objection was filed against the commission report. The work memo was based on the Exbt.A6. At present the building was in uninhabitable condition. A commission was deputed from the Munsiff Court and the commission report is marked as Exbt.A7. Another commission was appointed by the Forum Below and the commission report is marked as C1. As per Exbt.A6 an amount of Rs.1,81,000/- is estimated. It is also mentioned in C1 that the balance work of rectification can be done for Rs.84,000/-. The opposite party had not mounted to box nor lead any evidence. As the complainant could not stay in the house as it is not in inhabitable condition the complaint is to be allowed in toto. Further adverse inference is to be taken as the appellant had not mounted to the box. The defective construction of the building amounts to deficiency in service and it is to be compensated appropriately. The Forum Below allowed a very reasonable amount.
7. Heard both sides in detail. It is clear from the documents that the appellant had not fulfilled the agreement and stopped the work for one or the other reason. We have to point out that the appellant received Rs.2,00,000/- and he had carried out certain works having defects which is clear from the commission report. The commissioner assessed the expense for the rectification work for an amount of Rs.84,000/-. It is pertinent to point out that the Forum Below ignored Exbt.A6 and A7 which is not proved and nothing has come out in evidence with regarding to the A6 and A7. Now coming to the commission report C1, the defects in the terrace does not come under the agreement executed between the parties on 03/08/2010. Hence the report filed by the commissioner under this head cannot be considered. Under item 6 to 14 the expenses estimated comes to Rs.4,800/- + 16,227/- and Rs.44,230/- (totaling Rs.65,257/-). The opposite party filed a suit O.S.85/11 before Munsiff Court and subsequent to that the complainant approached the Forum Below against the opposite party for deficiency in service. The allegation of the opposite party against the complainant is that the intentional omission and negative attitude was one of the main reasons that the opposite party could not complete the work. The appellant also asserted that he had left materials worth Rs.10,000/- and work equipment valuing Rs.14,000/- at the premises of the respondent. The counter claim of the appellant cannot be considered by us at this stage. Now coming to the expenses for rectification estimated by the commissioner comes to Rs.65,257/-. We have to consider that the respondent paid Rs.7,000/- towards materials, Rs.2,00,000/- as advance and assuming that the very next day of agreement an amount of Rs.30,000/- handed over for the agreed upon work, the total amount as per agreement is to pay Rs.3,17,000/- out of which the respondent is yet to pay Rs.1,10,000/- to the appellant. Considering the fact that the rectification of work comes to above Rs.65,000/-, the demand for Rs.1,49,456/- is not sustainable. Under the facts and circumstances of the case, we are of the view that nothing was brought out in evidence that the respondent paid the entire agreed amount. It is also not assessed expenses for the work already carried out by the appellant, the claim of the respondent is not liable to be entertained. It is true that the respondent had incurred some loss and damages which paved the way for mental agony and it is to be compensated.
In the result, appeal is allowed in part and we are directing the opposite party to pay Rs.25,000/- towards compensation for the mental agony caused by the appellant.
The order is to comply within 30 days on receipt of the copy of the order, the non compliance will entitle the respondent/complainant to realize @ 9% interest for the amount.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.140/13
JUDGMENT DATED 27/09/2013
sa
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER
[ SMT.A.RADHA] MEMBER
[ SMT.SANTHAMMA THOMAS] MEMBER