SYNOPSIS
After
taking up the job of building a residence for their registered client
no.31329 cheriyath jyothi vide their project
“RP/PC-194/2011/RESIDENCE
FOR MR. CHERIYATH JYOTHI, KAYIPADI” and
carrying out the building of a part of the house, viz.
the foundation/ basement, in a sudden turn around in June 2012 the
opposite party with the acronym COSTFORD, handed over a letter to
the complainant saying that they are “no
more interested in proceeding with the building of the house”
and then cut him off completely.
There
was absolutely no reason whatsoever given for this drastic change of
mind
The
construction methodology followed by the opposite party is unique.
The basement already built will not be able to support a normally
constructed house and if the complainant has to go to another builder
he will first have to dig out the structure already built and then
start from scratch; the money and time spent on the construction till
date will all go waste over and above the expenditure for demolition
and clearing of the rubble. The complainant is a poor man and he
cannot afford to throw away his hard earned money because of a whim
of the opposite party.
This
house means a lot to the complainant - not as an end in itself, but
as the means to an end. That way it is a matter of his very
existence or, may be, even more than that. The complainant could not
have afforded to shelve the project under any circumstances.
It
was in an effort to wriggle out of this quagmire that the opposite
party had created and to make an effort to see that the nefarious
designs of the opposite party do not succeed that the petitioner
filed the complaint in the Hon'ble forum.
The
opposite party in their written version repeats that they are not
interested in going ahead with the construction. And this time is
alleging all sorts of misdemeanour, which has never been mentioned
earlier, on the part of this complainant, in a desperate attempt to
put a veneer of an excuse on their malicious
intentions.
This
complainants prayer to the Hon'ble forum is that the opposite party
COSTFORD may be ordered to honour their commitment and in all fair
play continue providing their consultancy service as per their
“Building
procedures and guidelines”
till the specific result, that is the construction of the residence
proper of this complainant, is achieved.
AFFIDAVIT
filed
by the complainant as per the directions of the Hon'ble Forum
amalgamating the various affidavits and replies he had filed from
time to time to counter the arguments and claims made by the opposite
party till date as and when they came up before the Hon'ble forum
during the course of the hearing till date.
1. The
complainant hereby denies all that has been made out by the opposite
party in the Hon'ble forum by means of statements made in person and
by the various documents filed by the opposite party from time to
time till date including the written version dated 29 December 2012
and the affidavit in lieu of chief examination dated August 12. 2013,
except what has been specifically accepted in what follows below.
A.
MAINTAINABILITY OF THE COMPLAINT
2.
a)
The impression the petitioner had from what had happened in the
Hon'ble forum is that the question of maintainability of the
complaint before the Hon'ble forum has been settled once and for all
and the matter of the complaint was found to be within the purview
of the Hon'ble forum as was obvious from the fact that the complaint
has been taken up for hearing.
b)
However the maintainability aspect finds a mention even in the latest
affidavit, the one in lieu of chief examination dated august 12.
2013, filed by the opposite party vide item no. 6 of the above
document.
c)
In the above regard, the petitioner begs to submit as follows: any
ambiguity that could have been plausible regarding the
maintainability of this complaint has been cleared by the ruling of
the National Commission quoted by the opposite party's counsel in
para 3. of their preliminary objection dated January 30, 2013 which
makes it obvious that a written agreement is not obligatory to
qualify for a petition to be made under section 12 of the consumer
protection act 1986 – corroborative and other supportive material
to prove the point will do. And this Complainant has enough such
material at his disposal to prove his point that way.
d)
In view of the above, the Opposite Party repeatedly harping on the
absence of a written agreement, this complainant feels, is completely
unwarranted.
e)
the complainant would like to use this opportunity to thank the
counsel of the opposite party for digging up the above ruling and
that way doing him a favour though inadvertently.
B. INDECIPHERABLE MATTER
3. a)
Para 4. of the written version filed by the opposite party says as
follows: “it
is submitted that on 07.06.2012 opposite party sent a letter to the
complainant stated that the final drawing after making the changes
proposed by the complainant.”
The very same statement is repeated in para 5. of their affidavit in
lieu of the examination in chief and it is occurring at a critical
point.
b)
The complainant with his extremely limited knowledge of the English
language cannot make head or tail out of it. He would appreciate it
if the opposite party could avoid using such complicated
legal/architectural jargon or else provide the malayalam translation
along with such statements.
The
complainant begs to be allowed to continue as follows:
C.
THE FACTS OF THE CASE
4. When
the complainant after he was into his sixties, decided due to extreme
compulsions, to build a small house, a dwelling unit for himself, he
approached the opposite party, the Centre of Science and Technology
for Rural Development (COSTFORD), in view of their reputation as a
padma shree Dr. Laurie Baker organization. Copy of the document
“Building procedures and guidelines” provided by their district
extension centre, Thiruvananthapuram – 695015 to the complainant
is produced herewith and marked EXHIBIT
P.1.
Later on in the actual building process, the procedures and guideline
vide EXHIBIT P1 were being followed to the letter.
5. The
opposite party's professed cost effective approach and technology
suited the complainant. He decided to entrust the job of building
his house in a rural area in Thiruvananthapuram to the opposite party
and registered himself with the opposite party as a client vide
Para B. 3. of EXHIBIT P 1 paying a registration fee of Rs.1000/- in
February 2011. Copy of the receipt for the payment made is produced
herewith as proof and marked EXHIBIT
P.2.
Copy of a ledger account page of the opposite party showing the
client registration number as and other details are produced herewith
and marked EXHIBIT
P.3
.
6. After
mutual agreement, the complainant hired the consultancy services of
the opposite party for a new construction vide
Para D. 1. of EXHIBIT P 1. which covers design, cost estimation and
site supervision at the service charge of 5.5% of the basic
construction cost as estimated by the company to be paid in
installments.
7.
The
opposite party took up the job of constructing a house for the
petitioner and started a project “RP/PC-194/2011/RESIDENCE FOR MR.
CHERIYATH JYOTHI, KAYIPADI” .
8.
The
complainant had no previous experience in building construction in
any capacity and was dependant solely on the opposite party for
advice from the very beginning. He used to put forward his view
points and make suggestions but it was always made crystal clear to
the opposite party verbally as well as in writing that the the final
decision was always with them, the experts in the field.
9.
The
liaison had in deed started from the very beginning. The opposite
party's architect obliged by visiting the plots the complainant had
shortlisted and advising him on their suitability. The first couple
of plots that suited the complainant were later rejected on the
advice of the architect and the plot of land on which the
construction is being made was purchased after the architect OK'd
it.
10. During
the designing stage that followed, over and above the documents and
information related to the project required vide
para C. 2. of Exhibit P1, the complainant had provided the opposite
party rough sketches he had made of the site plan and floor plan of
the house he would want to live in, as a better means of conveying
his requirements. Copies of a couple of such sketches are produced
herewith and marked EXHIBIT
P.4.
The complainant was glad to note that preliminary design was
prepared fully incorporating his ideas vide
the above sketches. A copy of the preliminary design by the company
is produced herewith and marked EXHIBIT
P.5.
11. At
the time of the review of this preliminary design as per Para C. 1.
of EXHIBIT P.1, the complainant suggested that, as an economy
measure, we forgo the carport, the estimated cost of which came to
around one lakh rupees. This as well as the complainants' specific
request that the rear yard be made equal to or more than 2 meters to
suit his specific needs was also accepted and the final drawing for
submission to the local body were made incorporating these changes.
12. As
per the schedule of payments vide
Para
D. 1. d. of EXHIBIT P1, the client was to pay the opposite party one
percent of the total cost on completion of the plan submission stage.
This complainant dutifully paid them an amount of Rs.8000/- ( Rupees
eight thousand only ) on plan submission on 20.4.2011, eight thousand
rupees being the one percent of the total cost of the complainant's
house building project as estimated by the opposite party then. The
copy of the receipt for the above amount by the opposite party is
produced herewith and marked EXHIBIT
P.6.
13. Based
on the drawings provided by the opposite party the complainant
obtained the sanction of the local body vide permit No.29/2011-12
dated 26.4.2011 of the Karakulam Grama Panchayath. This very plan
was followed till the opposite party made a fresh design to
regularise the mistake they have made in the siting of the building.
Copy of the plan prepared by the opposite party approved by the local
body is produced herewith and marked EXHIBIT
P.7.
Copy of the permit issued by the panchayath is produced herewith and
marked EXHIBIT
P.8.
14. A
comparison of EXHIBIT P.6 and EXHIBIT P.7 will make it evident that
the only change from the preliminary design that has been brought in
in the final approved plan is that the car port has been taken off
and the depth of the rear yard has been increased from the 1.5 meters
to 2 meters as per the complainant's request.
15. The
building construction itself started with the the
basement/foundation stage in August 2011 after the complainant
procured the materials required as per the directions of the
opposite party. Materials were obtained in bulk in view of the
requirements in the later stages of the building construction.
a)
For instance the petitioner, upon the advise of the opposite party
had purchased a truck load of bricks, six thousand in number from the
opposite party's contractor during the basement stage itself. Copy of
the original receipt for payment of Rs. 39000/- ( rupees thirty nine
thousand only ) to the opposite party's contractor as the cost of the
above lot of bricks is produced herewith and marked EXHIBIT
P.9.
b)
The basement job required only less than three hundred bricks costing
Rs.1950/- and the remaining 5600 brick costing Rs. 37,050/- were to
be used up in the further stages of the construction.
c)
The ABOVE BRICKS ARE CUSTOM MADE in Tamil Nadu as per specifications
of the opposite party for use in their construction methodology.
16. In
June 2011 the complainant shifted his residence to a shack on the
same plot where the house was being constructed. This was in order to
ensure that the labourers are paid regularly on a daily basis and the
material supply is uninterrupted as per the stipulations of the
opposite party vide
para
D. 1. f. of EXHIBIT
P.1 .
17. The
bill for the basement work, copy of which is produced herewith and
marked EXHIBIT
P.10,
was presented to the complainant on October 08, 2011.
a)
The complainant on the spot paid the dues to the contractor over and
above what was already paid as daily wages to the labourers.
b)
The bill of another contractor involved in part of the basement job
has never been cleared. The problem there was that this contractor
was to have refunded to the complainant the additional amount he was
made to pay in advance.
c)
The complainant then kept himself busy planning and preparing for the
next stages of
the more
critical aspects of the building process.
18. “COSTFORD
is
committed to providing quality client care and appreciates any
suggestions for improving its services in delivering cost-effective
and environmentally sensitive buildings”
says
Para F. of Exhibit P1 and on completion of the basement work this
complainant dutifully sent a detailed feed back. Copy of this
feedback vide
letter no. clo2011/bld/00 dated October 19, 2011 addressed to the
opposite party is produced herewith and marked EXHIBIT
P.11.
The main issues raised by the complainant therein were:
a)
that this complainant would like the co-ordinator COSTFORD to have a
look into the bill EXHIBIT
P.10
( approved by the associate co-ordinator ) and ensure that the rates
applied are the correct ones and see that the client is not being
taxed too heavily in future. This was in view of the fact that as far
as the contract rates for various types of works undertaken during
the basement stage were concerned, the goal posts were shifted a bit
too frequently to suit the convenience of the opposite party's
contractor.
b)
That more attention be paid by the senior engineers of the opposite
party to what is happening on ground as this complainant felt that
the work supervision part can do with some improvement - he had
quoted specific instances to prove his point. And,
c)
Last but not least, he had, vide part III of the above letter
suggested that the opposite party keep their cool. This was in view
of an effort on the part of their associate-coordinator to bully this
client during one of his rare visits to the work site for the
specific purpose of signing the contractor's bill.
19. The
complainant is a student of science and can make out when an
elementary physical principle is being flouted. A typical instance is
described below:
a)
The excavation for the basement was not done exactly where it was
meant to be. The result was that the brick belt, and there by, the
walls inside the building if located at the centre of the rubble
work, the internal diamensions of the rooms would have
increased/decreased by a fraction, say for example from 300 cms it
would have become 290 cms or may be 310 cms. This type of an error
was not very surprising.
b)
The problem was that rather than accepting the not very significant
change in the diamensions of the room, in an effort to correct this
minor error, the supervisor on ground decided to move the belt and
thereby the walls to the brink of the rubble work.
c)
Unlike the part of the basement meant to support the outer four walls
of the building, where the rock pieces were stacked carefully to get
as smooth and regular an edge as possible on the outer side and were
pointed, in the part of the basement meant to support the inner walls
of the building the rubble work built in wet earth in the typical
COSTFORD fashion, was an irregular structure and was not prepared for
taking the weight of the building on the edge.
d)
With the complainant's very limited knowledge of basic physics and
his extremely dull intellect he thought it was possible that under
the above circumstances if built on the edge of the rubble work the
walls which will have to support the whole weight of the roof over
and above the weight of the walls themselves might become unstable.
e)
The complainant also noted that what was being done was in
contradiction of the line diagram prepared by the opposite party's
experts. Copy of the line diagram is produced herewith and marked
EXHIBIT
P.12.
f)
All of this was happening when the brick belt itself was yet to be
made. What was required was just move the markers towards the center.
g)
It was when the petitioner found that the supervisor on the spot was
not able to comprehend what was being said that the complainant
contacted the office of the opposite party and mailed pictures to
them in an effort to get a second opinion on the matter from the
senior engineers. That way the final decision was, as always, left to
the experts of the opposite party and they concurred and duly ordered
the change.
20. This
complainant felt that, unlike the designing stage, the actual
construction stage, was erratic. It was a pity that the detailed
plan and diagrams made by the professionals were not being translated
on to the structure being built on ground.
a)
The crux of the problem the complainant feels was that due care and
attention were not being paid by the senior member of the supervising
staff in charge of overseeing the work going on ground.
b)
If the information available to this complainant is right, the actual
reason could be that the opposite party, a professed “NPO” had
recently ventured into commercial constructions on a large scale and
as such do not have time for a small construction like the one the
petitioner was building whose budget is peanuts compared to that of
the commercial structures.
b)
Whichever way it is deficiencies had crept in in the construction of
the basement stage as evidenced by what followed.
21. At
a later stage the petitioner realised that the rear yard did not have
the minimum of 2 ( two ) meters depth it was supposed to have as per
the approved plan. In January 2012, the complainant brought this fact
to the notice of the opposite party vide his letter no.clo2012/bld/00
dated january 21, 2012 copy of which is produced herewith and marked
EXHIBIT
P.13.
. As per the request of the complainant a senior engineer of the
opposite party inspected the structure and accepted that the rear
yard which as per the approved plan was to be of 2 mtrs was on ground
only 1.80 cms deep. This was in spite of the fact that:
a)
the above change was brought about on a specific request from the
client to increase the rear yard from 1.5 meters in the preliminary
design to a depth equal to or more than 2 (two) meters.
b)
there were no compulsions whatsoever for the opposite party to do
this; the front yard where the minimum required was 3 ( three )
meters only, a depth of 4.5 meters was freely available all through
the length of the building and the opposite party could easily have
pushed the building in the opposite direction and increased the depth
to far more than two meters without doing any damage whatsoever.
22. Added
to this is the fact that by making the rear yard only 1.80 meters the
opposite party has opened up a whole Pandora's box of conundrums
regarding the legality of the building being constructed.
a)
The building permit issued to this complainant on 26 April 2011 by
the Karakulam Panchayath was based on the municipal building rules .
b)
Copy of a letter from the Karakulam Panchayath which unambigously
states that the building rules relevant to karakulam panchayath are
the kerala panchayath building rules 2011 (KPBR 2011) is produced
herewith and marked EXHIBIT
P.14.
KPBR 2011 came into force on 14.02.2011.
c)
As far as this complainants information goes, the only pertinent
change in the two rules that was relevant to this complainant's
building was in the case of the depth of the rear yard; as per the
Kerala Panchayath Building rules 2011 this has to be minimum 2 meters
while in the case of the municipalities act 1.5 meters will do.
d)
With the rear yard less than 2 mtrs as on ground it contravenes Rule
27. (4) of KPBR 2011 where it is said that the rear yard must be of 2
meters.
e)
Rule 22. (1) of KPBR 2011 says that the granting of the permit by the
secretary does not relieve the owner of the building of the
responsibility for carrying out the work in accordance of the
requirement of these rules.
f)
The approved plan with the 2 mtrs rear yard would have passed muster
even under the KPBR 2011 as well.
g)
The building permit though issued under the earlier rules is valid
as it is. But with the rear yard less than two meters the building
will not comply with the approved plan and the authorities can coolly
wash their hands off. The complainant thus will be at the mercy of
the local body.
h)
This complainant is afraid that the rear yard becomes a critical
factor in the above context. He is a poor man who has put all the
eggs in this one basket. Also the neighbour on that side had already
bullied this complainant on the matter of the boundary and wanted to
forcibly stop the opposite party's men working on the shack that they
were building then and he cannot afford to run risks.
23. The
opposite party vide their letter No.PC/RP-194/2011 of 29.02.2012 not
only,
a)
accepted that the rear yard falls short of the 2 meters vide the
approved plan, but also,
b)
reassured this complainant that there will not be any problem in
getting the final approval of the building, and very confidently
c)
sent an estimate and abstract for the remaining works to be
completed, material list and timber list.
Copy
of the opposite party's letter No.PC/RP-194/2011 of 29.02.2012 along
with enclosures is produced herewith and marked EXHIBIT
P.15
.
24. Relieved
by their assurance that “ there
will not be any problem in getting final approval on completion of
the building”
this client of theirs thanked the opposite party vide his letter
No.clo2012/bld/04 of April 07, 2012 copy of which produced herewith
and marked EXHIBIT
P.16
.
a)
The request of their client vide para B of the above letter to
modify the original plan as per the situation on ground and get it
approved by the panchayath before proceeding further was taken in the
right spirit by the opposite party.
b)
A new drawing was made and was sent to the complainant for
concurrence vide
the opposite party's letter no. nil dated 18.4.2012. Copy of the
letter along with the new design is produced herewith and marked
EXHIBIT
P.17
.
25. As
requested for by the opposite party vide para 2. of their above
letter this client sent a detailed letter dated 11.5.2012 to them
along with sketches to highlight the points, Copy of the above letter
is produced herewith and marked EXHIBIT
P.18
. Therein:
a)
This complainant gracefully accepted the major change made, that of
making the roof partly sloping and partly terrace - earlier plan was
for a sloping roof for the whole building. A copy of this new design
is part of EXHIBIT P.17 .
b)
However in view of the lie of the land the complainant made a
suggestion that the terraced part be made in the front of the
building on the western side where one can get a beautiful view of
the landscape and a fantastic view of the night sky, while at the
back on the eastern side as planned in EXHIBIT P.17, the overhanging
rubber trees behind and the sloping roof in front would have made it
a very dreary affair.
b)
It was obvious that the design was made by some one who had not seen
the locale, this in spite of the claim vide
para A.2. of EXHIBIT P.1 that “ ….
natural
factors such as wind direction, orientation, vegetation, slope etc.
are given prime importance …...... while designing and constructing
buildings.”
c)
Copy of the design where in the modifications suggested by the
complainant has been incorporated is produced herewith and marked
EXHIBIT
P.19
.
26. In
view of what went on later, this complainant feels it pertinent to
point out that up to this juncture there were no complaints or even
adverse comments by the opposite party about this client of theirs on
any matter pertaining to the house building or any thing else. All
was well as far as this complainant was concerned for:
a)
the problem of the error in the siting of the building was being
settled amicably and
b)
the estimates for completion of the remaining work has already been
prepared by the opposite party and that way progress was being made
in that direction as well.
27. However
in spite of the above when in June 2012 the complainant reached the
opposite party's office with the intention of collecting the papers
including the new drawing for applying to the local body for a
revised permit under Rule 19. (1) of KPBR 2011, in a sudden turn
around, he was handed over a letter dated 07.06.12 of the opposite
party in single A4 sheet of paper copy of which is produced herewith
and marked EXHIBIT
P.20
.
a)
Every word of the first para of the above letter EXHIBIT P.19 is a
fabricated lie. There was no documentary proof for whatever has been
claimed to have happened and no other documents were handed over to
the complainant. This complainant feels that there is no way the
opposite party can substantiate the story of the “panchayath
secretary informing” them vide EXHIBIT P.20 and believes that is
just another of the opposite party's tricks.
b)
The opposite party continued in the second para as follows: “in
this connection we wish to inform you that we are not interested in
proceeding further, with the proposed building construction.”
c)
There was no reason whatsoever mentioned for this sudden turn around.
d)
The complainant was cut off completely following this. There was no
reply to the complainants letter No.2012/pp/00 dated June 07, 2012
copy of which is produced herewith and marked EXHIBIT
P.21
.
28. The
complainant gave notice to the opposite party vide his No.2012/pp/01
dated June 08, 2012 copy of which is produced herewith and marked
EXHIBIT
P.22
of his intention of taking legal action on the matter. And in the
absence of any positive response from the opposite party this
complainant approached the Hon'ble District Consumer Disputes
Redressal Forum, Thiruvananthapuram with CC No. 349 of 2012.
29. The
way the opposite party carried on in the Hon'ble Forum since, this
petitioner feels is an eye opener.
a)
Delaying tactics were used to stall the proceedings and the hearing
was adjourned twice to allow the opposite party to file a reply.
b)
At the time of the second postponement on December 15, 2012, the
opposite party in person informed the Hon'ble forum that they were
ready to make an out of court settlement.
c)
This complainant took the words of the opposite party at its face
value and duly made a detailed proposal for out of court settlement
vide his letter no.clo2012.bld/12-0 dt. December 17, 2012 copy of
which is produced herewith and marked EXHIBIT
P.23
wherein he opened all his cards.
d)
Ultimately the opposite party's reply was received by this
complainant after more than three months of his filing the complaint.
e)
The compromise plan turned out to be another of the dirty tricks
played on this complainant by the opposite party and was never even
mentioned again.
f)
However the information provided by this complainant in the
compromise formula in EXHIBIT P.23 was used by the opposite party in
the reply filed to serve their ulterior ends.
30. This
complainant is literally trapped in the shack into which he had
shifted in June 2011 believing the words of the opposite party that
within less than six months the house could be completed and that he
can shift over to a proper house in no time ( vide
Para 16. supra).
a)
It
is a fact that from the 4 x 3 meter single room of June 2011 it has
evolved into a 5 x 4 meter double room structure with running water
and electricity
b)
but
that was solely due to the resourcefulness of this complainant.
c)
In
deed even the single room structure was left unfinished half way
through by the opposite party
d)
the
complainant had hired local labourers to complete the structure and
fix the asbestos / GI sheet roofing and from then on all the other
additions made to make the single brick walled constructions as
comfortable as possible.
e)
With
the opposite party whiling away time on the pretext of compromise
formulas and such dragging on with the consumer complaint for the
last fifteen months and even then refusing to complete the
construction for no rhyme or reason the complainant finds no
prospects of an end to his miserable existence in the shack in sight.
31. The
decision to stop the promised construction came as a bolt from the
blue and there is no valid reason for this act of treachery on the
part of the opposite party except perhaps that they “heard a voice”
telling them to do so. In the context of the fact that this drastic
change came immediately after the meeting the opposite party had with
the panchayath secretary his complainant would want to put the
following in the knowledge of the Hon'ble forum.
a)
In view of the confusion about the building rules pertinent in the
case of this complainant's construction, in order to get the official
version directly this complainant had sent a request for information
under RTI act 2005 to the the public information officer and
secretary of karakulam panchayath. There was no response from
secretary during the stipulated period. In fact towards the end of
the stipulated thirty days the office supdt. of karakulam panchayath
had refused to hand over the information directly to him when this
complainant met her in her office and requested that the information
be handed over to him in person – the lady it appeared was amused
by this commoner's audacity!.
b)
This
complainant made an appeal to the first appellate authority the dy.
Secretary of panchayaths, Trivandrum on the matter. The deputy
director promptly ordered the secretary to provide the information to
this complainant within five days of the receipt of his orders. Copy
of the above order is produced herewith and marked EXHIBIT
P.24
. This time the requested information from the state pubic
information officer and secretary of karakulam panchayath did reach
the complainant and that within the stipulated five days.
c)
The petitioner wonders whether the above action had annoyed the
panchayath secretary a very powerful officer of the Kerala govt.
Incidentally the building permit EXHIBIT P.8, was issued to the
petitioner by the panchayath in April 2011 is under the Kerala
municipalities building rules act when, as the petitioner came to
realise later on, the above act had become irrelevant as far as the
Panchayaths were concerned.
d)
As
far as the petitioners information goes the opposite party COSTFORD,
a professed NPO, has ventured into commercial construction on a large
scale in the recent past - the new office building of Karakulam
Panchayath, a spacious multistory structure was constructed by
COSTFORD .
GROUNDS
I. The
opposite party referred to by the acronym COSTFORD essentially is a
building construction company. Though a professed NPO for all
advantages, COSTFORD, as far as the petitioner's information goes has
started taking up commercial constructions in the recent past.
II. The
rules and regulations of their functioning are as elaborated in
EXHIBIT P.1 their official document on this matter, a copy of which
was handed over to this complainant by their architect in person
during the initial stages itself. Later on in the actual building
process, the procedures and guideline vide EXHIBIT P1 were being
followed to the letter.
III. The
Complainant is the registered client No.31329 of the opposite party
( vide
EXHIBIT P.3 ).
a)
“client
means a person who uses the services or advice of a professional
person or organization” says the oxford learners dictionary of
current English.
b)
Client
registration was done on payment of the stipulated fee of Rs.1000/- (
rupees one thousand only ) ( vide
EXHIBIT P.2 ).
c)
“Any
person who hires or avails of any services for a consideration is a
consumer” – Rule 2. (d) ( ii) of CPA 1986.
d)
In
the context of the above and the opposite party's contention that the
complaint was NOT maintainable before the Hon'ble Forum for the
simple reason that there was no written agreement, which the Hon'ble
forum was kind enough to rule out since , this complainant begs to
submit as follows:
i)
As
the professionals in this field and as some one who claims that he
“has well experience in building construction field” ( vide
para
7. of the opposite party's affidavit dated august 12, 2013)
the opposite party was obliged to have told the complainant, their
registered client, what they thought was good for him and advised
him on the need for a written agreement; but this was never done.
This was never done.
ii)
If
the written agreement was a must as the opposite party claimed, there
was a deficiency in the service provided by the opposite party to
their client there as well and COSTFORD, the opposite party ought to
have made good any damages caused to the complainant by not advising
their client correctly.
iii)
Not
only that, at a later stage the opposite party was making an effort
to use the absence of a written agreement to sabotage the
complainant's rightful claims. This the complainant feels is an
indicator of the ethical standards of COSTFORD as it exists now.
e)
It
is another matter that the contention of maintainability of the
opposite party's counsel has been set aside and the Hon'ble forum in
their eminent wisdom has decided to proceed to settle the consumer
dispute on the basis of evidence brought to its notice by the
complainant and the opposite party.
This
complainant paid good money and registered himself as a client for
availing the services of COSTFORD for getting a house constructed.
IV. a)
COSTFORD essentially a construction company had taken up a project
“RP/PC-194/2011/RESIDENCE FOR MR. CHERIYATH JYOTHI, KAYIPADI”.
b)
The above is a building project meant for constructing a residence
for this client of theirs. The project name appears in the designs
and many of the official communications made by the company to this
client like EXHIBITS P.5, P.16 and P.17.
c)
Every step in the project execution was being carried out strictly
according to the stipulations in EXHIBIT P.1.
i)
The
plan submission stage was completed in April 2011 and payment was
made immediately ( para 12. above, EXHIBIT P.6 ). The payment
demanded and given conforms to the schedule vide
Para
D. 1. d. of EXHIBIT P1.
ii)
The
actual building process on ground started with the
basement/foundation stage in august 2011. The complainant is
withholding the payment due in view of the snag in the siting of the
basement.
iii)
The
opposite party is lamenting about the non-payment of the bill for the
basement stage vide para 4. of their affidavit dated august 12,
2013. Obviously the opposite party has not disassociated themselves
from the construction already made.
iv)
The
ledger copy of the COSTFORD ( EXHIBIT P. 3 ) again follows the same
pattern of payment as made out in Para D. 1. d. of EXHIBIT P1,
though, out of the greed for money of this professed NPO, the rates
have been greatly exaggerated with retrospective effect.
d)
Thus
there is incontrovertible evidence to prove that the opposite party
had agreed to make available, for a consideration, their consultancy
services for constructing a residence for the complainant as per the
stipulations made in their official document “Building procedures
and guidelines” ( EXHIBIT P.1 ) and it is obvious to any unbiased
observer that the complainant had hired the consultancy services of
the opposite party vide
para D. 1. of EXHIBIT P.1 at a service charge of 5.5% of the total
estimated cost to be paid in seven installments.
V. a)
Incidentally the only situation that the founding fathers of
COSTFORD, ( which
organization I am afraid is passing through the most pathetic stage
in its evolution at present ),
had visualised of disassociating from an already commenced project
is “if
the client later insists on construction with technologies and
materials other than those normally followed by COSTFORD”.
vide
para C. 7. of EXHIBIT P.1
b)
The above clause also makes it clear that in such cases “COSTFORD
will not bear any loss incurred in this regard”. The
implication here is that in other cases COSTFORD will have to
compensate the client.
c)
Para C. 7. of EXHIBIT P.1 also implies that the commencement of the
project is only after mutual agreement. In other words a project has
commenced means that an agreement has been reached.
d)
As far as a Laurie Baker organization is concerned there is no
question of shelving an ongoing project on the pretext that there is
no written agreement. (
if at all a dead man can do it, Laurie Baker must be turning in his
grave watching the goings on in Mr. Sajan's academy .)
VI.
a)
The base/foundation alone is not an entity in itself but is an
integral part of the whole house that the opposite party COSTFORD had
agreed to construct.
b)
In deed a detailed estimate for the “remaining works to be
completed” ( Para 23 above and EXHIBIT P.15 ) has been made by the
opposite party.
c)
There was a problem with the siting of the building which was being
sorted out amicably, as elaborated in Paras 23, 24, 25 and 26 above.
d)
The opposite party COSTFORD obviously was committed to building the
whole house.
VII.
At this stage vide para VI. above, suddenly like a bolt from the blue
comes the letter of the opposite party dated 07.6.12 EXHIBIT
P.20.informing the complainant
“we
are not interested in proceeding further
with
the proposed building construction”
and
then cutting him off completely.
a)
There was no reason whatsoever given, not even a pretext of an
excuse, for the sudden turn around.
b)
It was a despicable act of treachery carried out with with malafide intentions
c)
Also, there is an element of criminal breach of trust involved.
d)
The opposite party probably was under an illusion that as there was
no written agreement they can do the dirty on this complainant and
coolly walk away.
VIII.
a)
There was no complaint or even a mention of this petitioner
misbehaving with any of the workers till the consumer complaint was
filed; and the ground realities are the exact opposite of what the
opposite party is trying to make out that way.
i)
The feedback by the Complainant after the basement work was over
vide
EXHIBIT
P.11
ends with a request to the opposite party to keep their cool. This
was in the context of the one and only untoward incident that took
place at the work site.
ii)
One of the engineers who was to have supervised the work, for once
landed up at the work site to make measurements in order to calculate
the amount due to the contractor, became wild and started shouting
at the complainant. The complainant kept his cool and probably
avoided a brawl. Incidentally another one of the engineers
accompanying the assistant co-ordinator COSTFORD probably aware of
such situations in the past and in view of what was to follow
withdrew immediately from the place as the gentleman started the
outburst and went and sat in their vehicle.
b.
The statement that this complainant used to “change the house plan
almost daily” is typical of the opposite party – a black lie ( as
elaborated in
Para 14 above
).
i)
The changes suggested by the complainant (like the one described
vide Para
11. )
were for plausible reason and even then the final decision whether
to incorporate the change or not was left to the experts, that is the
opposite party, whose services the Complainant had hired for the very
purpose. There was no compulsion whatsoever from the side of the
complainant. The concerned members of the opposite party's staff
never demurred on the matter for they had found the complainant's
suggestions sensible.
ii)
the relevant factor is how many designs and drawings the opposite
party had made throughout the duration of the project till date; and
that happens to be two designs and one drawing as elaborated in
Paras
10, 11, 13 and 14
above. The opposite party had to make a second drawing at a later
stage after they bungled the siting of the building. This new drawing
had to be modified because the person who made the drawing did not
take the lay of the land into consideration as elaborated in
Paras 24 and 25 above.
c)
Thus the allegation of this complainant being extremely rude to the
workers of the opposite party and changing the plan almost daily vide
para 6. of the affidavit in lieu of chief examination by the opposite
party dated august 12, 2013 are highly delayed afterthoughts brought
in at the last moment in an effort to give a semblance of an excuse
for the opposite party's nefarious designs.
IX. It
may be true that the opposite party “has well experience in
building construction” vide no. 7 of their affidavit dated august
12, 2013. however the ground realities are as elaborated by this
complainant in Paras
19, 20 and 21 above.
The
route cause could be:
a)
due care and attention were not being paid by the senior member of
the supervising staff in charge of overseeing the work going on
ground. This in itself can be attributed to the following:
b)
If the information available to this complainant is right, the
opposite party, a professed “NPO” had recently ventured into
commercial constructions on a large scale and as such do not have
time for a small construction like the one the petitioner was
building whose budget is peanuts compared to that of the commercial
structures.
X. There
is deficiency in the services provided:
in
the siting of the building.
and
in
abruptly terminating the services provided vide
EXHIBIT P.20
a)
In siting the building
i)
the opposite party failed in translating the approved plan made by
their own experts on to the structure they had built as elaborated
in
Para 21 above
and by so doing
ii)
the opposite party opened up a whole pandora's box of conundrums
regarding the legality of the building being constructed as
elaborated in Para
22 above.
b)
In the context of the opposite party's inventions on the matter of
the rear yard in Para 4. of their affidavit date december 29, 2012
the petitioner begs to submit as follows:
i)
According to KPBR 2011 “rear yard” by default means the utility
open space extending laterally along the rear side of the plot and
forming part of the plot.
ii)
As the owner of the house and would be resident of the house this
complainant is the one who decides which side is to be used as the
utility open space and there by the rear yard and this matter is not
within the purview of the opposite party or their counsel.
iii)
When the opposite party says that as per the approved plan the
northern side is to be used as the rear yard the opposite party is
telling a lie to suit his convenience.
iv)
The opposite party follows up the above lie ( it looks it is
habitual ! ) with another lie, that the complainant had instructed
them that no door openings should be made on the eastern side of the
building
v)
Incidentally another construction has already come up on the northern
side, and that is not kind courtesy the opposite party but in spite
of them.
vi)
So the default rear yard on the eastern side remains the rear yard
as far as the building under construction is concerned.
c)
Rule 27. (4) of KPBR2011 insists that the rear yard must be of 2
meters depth.
i)
The approved plan with the 2 mtrs rear yard would have passed muster
under the KPBR 2011
ii)
while the construction on ground made by the experienced builders
will not.
iii)
The error committed by the opposite party is compounded that way.
d)
The site supervision is the responsibility of the opposite party (
vide
para
D.1.a. of Exhibit P.1 )
Thus
there is deficiency in the service provided.
e)
The complainant had withheld the second installment of the service
charges as mentioned in para 3. of the written version by the
opposite party. This was in view of the deficiencies in the
services provided.
i)
All the same this fact cannot be held out as a reason for shirking
the responsibilities of the service provider.
ii)
Any person who hires or avails of any services for a consideration
which has only been promised
could be the consumer ( No. 2. (d) ( ii ) of CPA 1986.)
iii)
The opposite party therefore is bound to rectify the error and make
amends.
And
f
) In all fair-play the opposite party is bound to continue their
services till the specific result, the construction of the residence
proper of their client, is achieved.
XI. Under
normal circumstances no one would have wanted to have anything to do
any more with such a set up as the opposite party. However the
Complainant is literally trapped ( elaborated in Para
30 above
).
XII. The
complainant's main concern is getting the building constructed and
approved at the earliest and not monetary compensation, for there
are elements involved here that cannot be compensated in any way,
like, for example, time.
In
view of the above the complainant humbly prays for the following
RELIEFS
AND COMPENSATION.
The
Hon'ble District Consumer Disputes Redressal Forum,
Thiruvananthapuram may be pleased to order the opposite party,
COSTFORD to honour their commitment and in all fair play continue
providing their consultancy service as per their “Building
procedures and guidelines” till the specific result, that is the
construction of the residence proper of this client of theirs, is
achieved.
Failing
the above the opposite party may be ordered to pay the complainant
a consolidated sum of Rs.1,000,000/- ( Rupees one million only ) as
compensation for the material losses as well as the time and energy
wasted by the complainant on the above project till date.
(
c. jyothi )
Complainant
