Benny Joseph vs C.S.COMPANY

THE above two appeals arise from the order dated 7.7.1995 in OP No. 1141/93 of the District Consumer Disputes Redressal Forum, Kottayam. Appeal No. 1203/1995 is by the complainant in the above complaint and appeal No. 1282/1995 is by the Opposite Parties.

THE complainant''s case is as under. THE first Opposite Party is a firm of engineering contractors. It is represented by the managing partner, Jaganatha Prasad. THE second and third Opposite Parties are the other partners of the firm. First Opposite Party advertised that it is taking up construction of residential buildings at the rate of Rs. 165/- per square foot. THE complainant lured by the advertisement entered into an agreement on 20.7.1992 for constructions of a residential storeyed building at Athirampuzha. THE area was 1997.0 square feet. Thus the agreed cost of construction would come to Rs. 3,26,221/ 60. THE terms of payment were as follows: (1) 20% of the total cost after foundation excavation. (2) 10% of the total cost at lindel stage of ground floor. (3) 10% after completion of roof concreting of ground floor. (4) 10% at lindel stage of first floor. (5) 10% after roof slab concreting of first floor. (6) 10% during cement plastering and flooring. (7) 10% on completing of electrification and sanitary work. (8) 10% after fixing windows and shutters. (9) final 10% during completion of work.

The period of completion was agreed to be one year. The complainant paid the first instalment on 12.8.1992 Rs. 65,000/- in two instalments. But the Opposite Party completed the excavation for foundation only on 20.8.1992. The progress of the work was not satisfactory and even after six months the Opposite Party completed work only upto lindel level of the ground floor. The complainant promptly paid Rs. 32,621/- on 4.3.1993 itself. Some extra work on foundation was done by the Opposite Party for which they raised a bill for Rs. 8332.62 on 7.4.1993. The bill was not based on joint measurements and the complainant paid Rs. 5,000/- on ad hoc basis towards this bill on 4.5.1993. On being properly measured the cost was found to be Rs. 4740/- which was notified to the Opposite Parties through letter dated, 15.7.1993. Thus from 4.5.1993 there was an excess amount of Rs. 260/- outstanding with the Opposite Parties. After the receipt of the second instalment the Opposite Parties neglected the work. Repeated letters were issued requesting to carry out the work promptly but there was no improvement. The registered letter issued on 15.6.1993 was refused by the Opposite Parties. The period fixed for completion was running out by 20.7.1993. Hence on 19.7.1993 the complainants informed through letter that the opposite party need not continue the work and they stopped the work on 20.7.1993. When the work was stopped not even the roof slab of ground floor was done. Even though the Opposite Party had received by then Rs. 1,02,621/- they have done work only for Rs. 70,738.50. Thus Rs. 31,882.50 was the excess payment in the hands of the Opposite Parties on termination of the contract. The complainant claimed refund of this amount and compensation for losses consequent on the inordinate delay in completion.

The Opposite Parties filed version questioning the jurisdiction of the District Forum to entertain the matter. According to them dispute is one of breach of contract and hence Consumer Forum has no jurisdiction. The Opposite Party agreed to complete the construction in one year provided payment is prompt and whether favourable. The complainant gave Rs. 15,000/- on 22.7.92, and the foundation excavation was completed on 13.7.92. The next payment of Rs. 50,000/- was only on 12.8.1992. The Opposite Party completed the second stage on 30.8.1992 but payment for this was made only on 4.3.93. The complainant also fails to provide electric connection and water supply. The delayed payments, the onset of heavy monsoon etc. are the cause of delaying completion. For the work already done Rs. 36,530/- more is due to them. In the version this amount and another amount of Rs. 1,00,000/- as compensation is claimed.

THE District Forum appointed a Commissioner to assess the value of work completed by the Opposite Party. He found the cost of the work completed as Rs. 81,860/-. Basing on the evidence the District Forum found deficiency of service on the Opposite Parties and held that it has jurisdiction to decide the matter. It also found that there is an excess payment of Rs. 13,842.77 by the complainant. For non-completion and towards consequential losses Rs. 5000/- was awarded to the complainants. The District Forum also awarded cost of Rs. 500/- and also awarded 12% interest on the amount of Rs. 13,842.77 from 4.3.1993.

BEING aggrieved by the above order both the parties have come in appeal. In appeal No. 1203/95 the complainant as appellant prays for a direction to the Opposite Parties to pay Rs. 2,39,526.90 as compensation and Rs. 13,842.77as refund of the excess amount, which was his prayer in the complaint. He prays for setting aside the order of the District Forum and to allow the appeal or in the alternative remand the case for fresh disposal. In appeal No. 1282/95 the Opposite Parties as appellants question the legality of the impugned order and prays for an order setting aside the order and directing the complainant to pay a sum of Rs. 21,797/- to them.

THE two appeals were heard together. During the course of argument it was argued by the learned Counsel for the appellants in 1282/ 95 that the Commission report is on the face of it erroneous. THE total plinth area measured by the Commissioner in the presence of both the parties is shown as 193.906 square metres. No party questioned the measurement. If calculation made at Rs. 165/- per square foot the total cost of construction will be Rs. 1,24,418/- whereas they have received only Rs. 21,797/- from the complainant. We perused the records. THE complainant as PW 1 speaks in detail in terms of this case. No one is examined on the side of Opposite Party. THE Opposite Party filed an affidavit before us in Appeal No. 1203/95 bringing out that the affidavit filed by the Commissioner cannot be accepted as they did not get an opportunity to file objections to the same. We went through the Commission report. THE Commissioner has arving the area by Rs. 165/- per square foot for obvious reasons. THE agreed rate of Rs. 165 /- per square foot will be relevant only for completed constructions. Here whatever work was done was remained incomplete in many respects. THE Commissioner is an experienced engineer. THE rate for each item of work was found out from the PWD rates and the total cost calculated for the work actually executed. THE affidavit filed by the Commissioner shows that there was a typing error in that instead of 173.906 M2 it was typed as 193.906 M2. If this is accepted the finding arrived at by the District Forum cannot be assailed. We also do not find any ground to enhance the compensation awarded by the District Forum.

REGARDING the question of jurisdiction raised we find that the complainant is a Consumer as he has hired the services of the Opposite Party for consideration. In the result we confirm the order of the District Forum and direct the appellant in Appeal 1282/95 to pay to the respondent/complaint Rs. 13,842.77 with interest as 12% from 4.3.1993 and a sum of Rs. 5,000/- as compensation with cost of Rs. 500/- as ordered by the District Forum. It is seen from the records that a conditional stay was ordered directing the Opposite Party to deposit Rs. 7,500/-. If it has been complied with by the Opposite Party, the balance will be paid by the Opposite Party. Both the appeal stand dismissed however without costs. Appeals dismissed.