National Consumer Disputes Redressal
Sam Mathew @ Binoy vs Abraham C. Kuruvila on 6 December, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2948 OF 2016 (Against the Order dated 20/08/2015 in Appeal No. 593/2012 of the State Commission Kerala) 1. SAM MATHEW @ BINOY S/O. N. MATHEW, REP. BY HIS POWER OF ATTORNEY HOLDER N. MATHEW, R/O. NEELLIMOOTTIL HOUSE, KADAPARA P.O., KUDUMPANAD, THIRUVALLA TALUK, DISTRICT-PATHANAMTHITTA KERALA ...........Petitioner(s) Versus 1. ABRAHAM C. KURUVILA REP BY HIS POWER OF ATTORNEY HOLDER GRACYAMMA, R/O. CHENNATTU HOUSE, OPP. SBT, KUMBANAD P.O. THIRUVALLA KERALA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Abraham Mathews, Advocate For the Respondent : Mr. Prasanth P., Advocate Dated : 06 Dec 2017 ORDER DR. S. M. KANTIKAR, MEMBER
1. The present revision petition is against the impugned order dated 20-08-2015 passed by the Kerala State Consumer Disputes Redressal Commission (in short the State Commission) in Appeal No.593 of 2012 whereby the State Commission partly allowed the appeal filed by the petitioner.
2. The complainant, Sam Mathew signed the agreement on 18-05-2007 with Abraham C. Kuruvilla of the OP builder for construction and renovation of residential villa of the complainant. The OP has agreed to complete the work for Rs.20,00,000/- within six months from the date of agreement. The total construction was 1850 sq.ft. but the OP constructed around 600 sq.ft. plinth area in addition to 1850 sq.ft. in violation of the agreement. The expert commissioner was appointed. He also expressed that construction was done in excess to what it was agreed. The complainant neither consented nor had any knowledge of extra construction. The OP received total amount of Rs.24,84,480/- from the complainant. Accordingly, the OP had received excess amount of Rs.3,24,150/- and failed to complete the work within the agreed period, also it was poor quality of work. Hence, for the alleged deficiency in service on the part of the OP the complainant filed a complaint before the District Forum.
3. On May 21, 2012, the District Forum decided the complaint as ex parte and directed OP to pay Rs.3,24,150/- with 10% interest per annum from the date of filing of the complaint, along with Rs.1,00,000/- towards compensation for delay and to cure defective works and a cost of Rs.5,000/-.
4. The District Forum order was challenged by the OP before the State Commission by the instant first appeal. The State Commission remanded back the matter to District Forum. The OP was allowed to file the written version. Before the District Forum the OP contended that the work and renovation took place as per the agreement. It was further contended that the OP had agreed to construct approximately plinth area of 1850 sq.ft. at the cost of Rs.20,00,000/- within period of six months from the date of commencement. During the construction work due to complainant's direction, several alterations and modifications were made in the construction which was beyond the specifications agreed between the parties. The construction material and the workmanship was of superior quality. The OP has constructed an additional plinth area of 600 sq.ft. and due to extra work it took more than six months to complete the work. The OP also constructed the compound wall partially. The OP admitted that he had received Rs.24,84,480/- from the complainant. To complete the remaining work some more amount was required which the complainant was avoiding to pay. Therefore, allegations of complainant were wrong and there was no deficiency in service.
5. On the basis of evidence and record the District Forum partly allowed the complaint and directed the OP to pay Rs.3,24,150/- with interest at the rate of 10% per annum to the complainant. Rs.1,00,000/- as compensation toward defective work and for the delay in construction and also awarded Rs.5,000/- as cost. Being aggrieved by the order of the District Forum the OP filed the First Appeal before the State Commission.
The State Commission allowed the appeal with the observation that there was no convincing evidence regarding the amount required to rectify the defects and there was no specific agreement between the parties as to the quality of work to be executed.
6. We have heard the learned counsel for both the parties. There is a delay of 272 days in filing the instant revision petition. The learned counsel for the petitioner brought our attention to the application for condonation of delay. The delay was due to complainant's ill health as he was suffering since November, 2014 and under observation for Coronary Artery Disease, Diabetes Mellitus, Type II, Systemic Hypertension and Autoimune Hemolytic Anemia. We have perused the medical certificate in this regard. The reasons for delay are justified, accordingly, the delay is condoned.
8. On merits, the learned counsel for the petitioner vehemently argued that there was deficiency in service committed by the OP. Despite excess payment the OP failed to complete the work and moreover the work was of low quality. The learned counsel for the OP submitted that at the instance of the complainant the extra work was done. There is no defect in the quality. The complainant's work was stopped because of non-payment of installments. Admittedly, the OP executed more work than originally agreed. The complainant had paid Rs.24,84,480/- i.e. excess to the agreed amount of Rs.20,00,000/- as per agreement. It is also pertinent to note that the OP has raised a counter claim of Rs.10,72,568/- for the excess work done by him but there is no provision under this Act to allow the counter claim. In the instant situation the OP can recover the claim by filing the civil suit, as the complainant stopped the further payment. Regarding poor quality, as alleged by the complainant, there were only minor defects which were cured by the OP. The complainant has not produced any convincing evidence regarding the required expenses to rectify those defects. Thus, there was no deficiency in service on the part of the OP. We have perused the Commissioner's report, which is also not convincing about the defects in the building, whether they are major defects and would need huge expenses.
9. Based on the discussion above, there is no merit in the instant revision petition. Accordingly, it is dismissed.
The parties to bear their own costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER