DOF.14.05.2009
DOO.14.09.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan : President
Smt.K.P.Preethakumari : Member
Smt.M.D.Jessy : Member
Dated this, the 14th day of September 2011
CC.113/2009
Mrs.Bhanumathi Ragunath,
“Surabhi”.Jawahar Road,
P.O.Mwelechovva,
Opp.Dharma Samajam,
Kannur Complainant
(Rep. by Adv.K.K.Balaram)
K.Shivakumar,
Proprietor of M/s.Peak Builders,
Consultants and constructor,
Near Korjan School,
P.O.Kakkad,
Kannur Dist.
(Rep. by Adv.V.Jayakrishnan) Opposite party
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to return the amount of `4,50,000 and to pay an amount of `1,00,000 for mental agony and amount of `1,50,000 as loss caused due to shifting of the venue of marriage; an amount of `1,00,000 as damages caused by the opposite party in the room in ground floor, and amount of `20,000 to the complainant as traveling fair from Noida to Kannur.
The case of the complainant in brief is as follows: The complainant approached Sri.K.Shivakumar/Opposite party for the purpose of construction of up stair portion of her house ‘Surabhi’ at Melechovva. On the basis of discussion agreement was made in a plain paper for the work to be undertaken. Specification and terms are also agreed upon. The total consideration agreed to at the rate of 700 per sq.ft for a total area of 1460 sq.feet. The prevailing rate at that time was only `600 but higher rate was fixed for smooth functioning of the construction. So estimated cost comes to `10,22,000 including all materials and labour charges. The complainant handed over two cheques to the opposite party one for an amount of `1,40,000 and the other for `60,000 as advance. The Complainant also issued another cheque for
`1, 00,000 as per the demand of complainant. The complainant was constrained to leave for Noida on the first week of the May 2007. In the month of October 2007, the opposite party informed the complainant that 90% of the works are completed and demanded an amount of 5 lakh as payment for the completed work. The amount was sent believing him. When she came back on January 2008 she could see that even 50% of the construction had not been completed and the opposite party had no explanation for it. Opposite party demanded another 2 lakh but complainant reluctant to give the amount whereas she asked the opposite party to complete the work within one month i.e. the first week of the February 2008. In the meantime, the marriage of the niece of the complainant was fixed in the month of March 2008. Opposite party promised to complete the work within time. Complainant had issued a cheque for an amount of `30,000 on 6.1.2008 and two other cheques for the amount of `50,000 had also been given through the account of complainant’s account. But opposite party did not complete the construction work as promised. So that the complainant and her family were constrained to arrange the marriage ceremonies of her Niece outside her house in an auditorium. This again caused a loss of
`1, 50,000 to the complainant. The problem of construction made the complainant much worried and physical condition deteriorated and forced to leave for Noida with her husband for treatment. Before leaving, complainant met the opposite party and asked again to complete the work and also given two cheques for an amount of `70,000 and `30,000 to opposite party in the month of April 2008. Another cheque for an amount of `1, 00,000 was again issued in the first week of May 2008. Altogether an amount of
`10, 85,000 were given to opposite party. Complainant came back again on February 2009 but opposite party has not completed the work. Even the work alleged to have been completed is done in a shabby manner by using substandard materials and unskilled labourers. Since the complainant has decided to accommodate her Niece in the up stair portion, she wanted to have separate staircase from outside with complete facilities of kitchen, work area, 3rd bath room and show case in the central hall. Even after repeated request opposite party had not carried out the work. Construction of septic tank, painting, laying of roof tiles etc. has not been done. Complainant issued a letter dt. 24.2.09. He did not give a satisfactory answer. Complainant had to come all the way from Noida only to get the work done by the opposite party. She stayed here almost six months but he did not complete the work. Now he is denying his liability to execute the remaining work and is demanding additional amount to complete the work. He has even threatened that he would withdraw the contractual obligation if the complainant is not paying the amount. It is an illegal demand. Opposite party has already misappropriated without completing the work, an amount of `4, 50,000 from the complainant over and above the actual entitlement. Hence this complaint
Pursuant to the notice opposite party entered appearance and filed version denying the material allegations of the complainant. The brief contents of the version are as follows. Opposite party undertook the construction work of the first floor of the complainant’s house. There is no written agreement. The agreement mentioned in the complaint is not an agreement but only a quotation of work for the first floor proposed to be done. The work was agreed to be done as per the oral agreement. When the oral agreement was made as aforesaid the ground floor of the complainant’s house was in a bad shape. It had a leaking roof and the sunshades were damaged. The work area and car porch were to be demolished and reconstructed. Apart from that the damaged sunshades also were to be re-plastered. The additional works of fixing stainless steel hand rail also were agreed to be done by the opposite party on the request of the complainant. It was agreed the cost of `700 per sq. ft. for the total construction. It is incorrect to say that the total work agreed to be done is 1450 sq.ft. It is only the extent of work for the up stairs. The extent of work area and the car porch agreed to be done is 200 sq. ft. So the total extent of work agreed to be done and actually done is 1650 sq.ft. So the total amount agreed to be paid is `12,37,500. Complainant should also pay `25,0000 for fixing stainless hand rail and `20,000 towards cost for plastering of sunshade. She has also to pay `20,000 towards demolition work of slab and parapets. So the balance amount payable by the complainant is `2, 67,500. The payment effected already by the complainant is admitted by opposite party. It is only for up stair work. The so called agreement referred to is only a quotation for up stair portion only. It was agreed by the complainant that she would pay the balance if any at the completion stage. The work was being carried on under the supervision of complainant’s own brother Mr.Raghu and relatives at Kannur. They used to visit the work site and assessed the progress. First week of January 2008 opposite party has carried out 90% of the work. What kind of work was omitted to be done is not mentioned by the complainant. Actually laying of tiles on the roof was alone remained to be done. The amount of `30,000, `50,000 and `5000 were given to opposite party. The allegation in connection with the marriage is false.
The complainant had never demanded for separate stair case from outside with complete facilities of kitchen, work area, 3rd bath room and Showcase in the central hall. There were no such conditions. The allegations that painting work not completed, septic tank not constructed, finishing work of the floor and electrical wiring not completed etc. are false. The only remaining work, as per the instructions of the complainant was to lay tiles on the roof for which reapers were already constructed. For this work `50,000 is to be paid by the complainant. This complaint is filed to abstain from paying the huge balance. The allegation of misappropriation of `4.5 lakh is also incorrect. Opposite party has put forwarded the counter claim for an amount of `2,67,500 which the complainant is legally bound to pay. On the basis of calculation that total amount to be paid is `12,37,500 and the amount actually paid is `10,30,000. Hence prayed to dismiss the complaint with cost and allowing counter claim.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
party?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Whether the question of counter claim setup by the
opposite party deserves to be considered?
4. Relief and cost.
The evidence consists of the oral testimony of PW1, DW1 and Ext. A1 to A10 marked on the side of the complainant and Ext.C1 to C5 marked on the side of opposite party.
Issue Nos.1 to 4
Admittedly opposite party has undertaken the construction work of the upstairs portion of the existing house of the complainant. The allegation of the complainant is that the work was carried out on the basis of an agreement. The specification was laid down in the agreement. But opposite party did not complete the work as agreed upon. The consideration fixed was `700 per sq.ft. for a total area of 1460 sq.ft. The estimated cost of the work was `10,22,000. Complainant paid a total amount of `10, 85,000. The work done was only 1421.39 sq.ft. but opposite party calculated an area of 1460 sq. ft. He has received a sum of
`4, 50,000 over and above as per the agreement. 50% of the work has not been completed that too in a shabby manner by using substandard materials. Opposite party further alleges that it was clearly told to the opposite party that the marriage of her Niece was to be solemnized in March 2008 at her house. But he did not finish the work in time. So her family was constrained to arrange the marriage function in an auditorium and thereby caused much financial loss and sufferings. It was agreed to finish the work within 7 months.
On the other hand opposite party contended that there is no written agreement. Ext.A1 was not enforceable and it was only a quotation of work. The work was fixed upon oral agreement and mutual understanding for construction of the up stair portion of the existing house. He had done many additional works and incurred huge amount. This complaint is filed as attempt to evade the payment of this. He was undertaken a total work of 1650 sq. ft and entitled to get `12, 37,500. In addition to this he has done additional work of fixing stainless steel hand rail costing `25,000 plastering of sunshade cost `15,000 and spent an amount of `20,000 for demolition of slab and parapet. Complainant paid only `10, 30,000 instead of `12, 97,500 and `2,67,500 remains to be paid. He also put forward a counter claim.
The complainant filed affidavit evidence in tune with the pleadings. She has stated that it is upon an agreement she has entrusted the work to opposite party to construct the 1st floor having 1460 sq.ft. for an expense of `700 per sq.ft. It was then estimated `10, 00,000 as the total cost. Ext.A1 is the alleged agreement. Opposite party contended that Ext.A1 is not at all an agreement enforceable by law since it is only a quotation. It does not contain the essential elements of a contract. First of all the agreement is not written in a stamp paper. The actual work was carried out on the basis of oral agreement and understanding.
Ext.A1 alleged to be an agreement produced by complainant is in a plane paper. It has written, complaint shall make payment as per the schedule appended with the said agreement. But payment of schedule seen kept blank. Condition is also not written in Ext.A1. It contains 19 items under the caption items of work. The paper in which these items are printed under the caption items of work also starts with the sentence agreement. It contains the signature of both parties. There is no witness. But it contains the signature of both parties which has not been challenged. The content of the entire mater in Ext.A1 is a printed one. But it can be seen that there is a hand written sentence in ink that “The period of construction is seven months”. No signature put supporting this sentence. It cannot be assumed when and whom the sentence is written. Ext.A1 cannot be considered as a contract since it is not enforceable by law as it lacks essential elements of a contract. An agreement which is not enforceable by law cannot be considered a contract. But the document Ext.A1 being contained the items of work and signature with supporting sentence that starts with the word agreement, gives clear indication that it was a reflection bone out of an understanding, with an oral agreement. Opposite party has admitted that the entire works have been carried out on the basis of oral agreement. Hence the items of work mentioned in Ext.A1 has one way or the other has link with the understanding between the parties, though it cannot be taken into account as a part of specific condition stipulated as binding and enforceable by law.
Complainant alleges that it was agreed to complete the work within 7 months. Ext.A1 the alleged agreement whether legally enforceable or not is a document containing printed contents. But it is seen a sentence handwritten in ink as mentioned above that the period of work is 7 months. It is a separate sentence added. When and by whom, it was written cannot be determined with the available evidence. Complainant has not given any explanation to this. In cross examination PW1, the complainant stated“CuIm
c-y-T ssI sImv Fgp-Xn-b-Xm-Wv. _m¡n-sb-ÃmT printed BWv. B Hand writing approve sNbvX-Xmbn opposite party sign sNbvXn-«nÔ. Opposite party has contended that it has written subsequently. Whether it is right or wrong it cannot be treated as a condition on the mere reason that it is seen in Ext.A1. Because Ext.A1 itself cannot be treated as a legally enforceable agreement on the one hand and the condition of 7 months is seen added by handwritten admittedly by complainant which had not been accepted by opposite party putting signature of approval. Whatever maybe the limitations of Ext.A1 there are clear indication understanding between the parties in connection with the construction of upstairs portion of the complainant’s house. The pleadings in the version that “For the sunshade plastering which also was done as per the agreement the complaint has to pay `15,000 also indicates that there is agreement with the complainant. When it is admitted so it creates an impression that it has been treated Ext.A1 as an agreement between parties though not consist of the essential elements of a contract. It gives a basic guide line for the beginning and thus cannot be ignored totally, whatever may be the limitations.
Complainant alleged that the total amount of consideration payable was agreed at the rate of `700 per sq.ft. for an area of 1460 sq.. There is no dispute with regard to rate of amount `700 but opposite party contended the total area agreed tobe done is 1450 s.ft. Opposite party also contended that total amount agreed to be paid is `12,37,500 for 1650 sq.ft. including 200 sq.ft. the extent of the work done for the work area of ground floor and car porch. If that be so 1450 + 200 X 700 = 11, 55,000 and not
12, 37,500. Opposite party has also contended that apart from the above amount he is also entitled for the following amount.
`25,000 for fixing stainless hand rail
`15,000 for sunshade plastering
`20,000 for slab and parapet – demolition work
ie. `60,000 as total
If the above three items if accepted as contended by opposite party the total amount come to 11,55,000 + 60,000 = 12,15,000 and not 12,97,500. Complainant paid an amount of 10, 85,000. So the balance amount remains to be paid shall be 12, 15,000 –
10, 85,000 = 1,30,000
On going through the report Ext.C1 it can be seen reported that the work area is grilled at the western and northern sides but the grills are not seen painted, no water connection given to the work area, floors re tiled with vitrified tiles. It is also shown that the central hall has no showcase space and the northern bedroom has no cupboard space. No outer staircase portion is provided for the upstairs as pointed out by the complainant, the floor of the work area is seen demolished and left open.
The expert report, submitted by K.P.Mohandas, Civil Engineer, MIE, Phazhassi, Quarters, in his report stated as follows:
The total plinth area of the recent construction on the first floor of the house is 1422.58 sq.ft. As per agreed rate of `700 per sq.ft. the total amount comes to `9,95,806 Showcase on the wall in the central hall, septic tank and stair case with wooden handrails on outside for access from ground to the first floor of the house were not done.
Since the opposite party could not be present at the time of the inspection of commissioners and expert he filed petition to remit the report C1 for the purpose for reporting about the additional works done by the opposite party in the ground floor at work area, car porch plastering of sunshades, fixation of stainless hand rail and construction of roof of stair case etc. and to assess the cost. Report was remitted and partiers were allowed to submit memo to commissioner.
The same expert Sri.K.P.Mohandas Civil Engineer re-inspected the property and submitted his report, the brief of which is as follows: He has reported that some work have seen done on the sunshade is seen re-plastered. Stainless handrail is fixed in sit out. Another slab is seen constructed above the existing roof of the stair case.
The second report of the commissioner shows opposite party has done certain work apart from Ext.A1. Some demolition and reconstruction done in the work area and car porch, re-plastering of sunshade fixing of stainless steel hand rail and the slab above the existing roof of the stair case etc. are pointed out by the expert as works carried out by the opposite party.
Though the revised report stated certain works have been carried out by opposite party which was not shown in the early report, opposite party filed petition to remit the report for assessing the cost of all additional works noticed by him. Petition was allowed and Sri.K.Sathyanathan was appointed as expert Commissioner. But on his inconvenience Sri.Ibrahimkutty was appointed as expert commissioner. His report Ext.C3 filed after inspecti9on.
Ext.C3 reported in detail with respect to additional work done on the damaged sunshade and the leaking roof, demolition and reconstruction at the car porch and work area in the ground floor and also estimated the cost of plastering sunshades and cost of fixing stainless steel hand rail.
Since there are unavoidable limitations the expert commissioner was not able to find the exact cost of the items of additional work. He has approximately assessed the cost of additional work on damaged sunshade and leaking roof as `3000. The work carried on at the car porch and work area in ground floor has also been assessed. It is reported that new car porch slab at ground floor slab level over the existing cantilever slab had been constructed by providing two numbers of round pillars. However he has expressed the difficulty in assessing the actual quantity of work in absence of specification. The area of the construction is measured as 114.49 sq.ft. The cost of the construction of items mentioned in ‘b’ is estimated to `58073. The cost of re-plastering sunshades is worked out as `2500. Regarding cost of fixing stainless steel hand rail commissioner expert has pointed out that, for the construction of sit out, the agreement rate of `700 sq.ft. is to be fixed. Hence further amount for fitting stainless steel hand rail cannot be allowed. The cost f the construction of roof of staircase also calculated to `10,959. Thus Ext.C3 report and details of valuation seen worked out on the basis of Ext.A1 and as per the site condition and has cost a total amount of `11, 28,601.
Total analysis of the entire facts in the given situation it is not possible to get a better report and valuation, other than Ext.C3, whatever may be the limitations which cannot be avoided at all. So the amount of 1128601 worked out on the basis of Ext.A1 and as per the site condition is quite acceptable as the total cost of construction work done by the opposite party. Details of valuation of work done based on the agreement and as per the site condition submitted as Appendix 1 is given below:
Details of valuation of work done based on the agreement and as per the site condition
1st floor
Total plinth area of construction of the first floor as per Drawing | 144.06 m2 |
Deduct Area of Stair case portion | 9.70m2(-) |
Net Area | 134.36m2x10.76 =1445.71sq.ft |
Area of Stair case | 9.7m2 x 10.76 = 104.37 sq.ft |
Ground Floor (As per drawing No. II)
Work area | 12.85 m2 x 10.76 = 138.27 sq.ft |
Porch | 10.64m2 x 10.76 = 114.49 sq.ft |
Valuation of work Done
First floor Main | 1445.71 sq.ft. x 700/sq.ft = `10,11,997 |
Over stair case slab existing | 104.37 x allowing @15%of the agreed rate of 700 sq.ft. = `10959 |
Ground floor
Work Area portion | 138.27 sq.ft. allowing @ 60% of the Agreed rate of 700/sq.ft `58073 |
Porch | 114.49 sq.ft. allowing 50% of the Agreement Rate of 700/sq.ft `40072 |
It is also necessary to take into account the note together with Appendix I. He has specifically noted at three places damp and leakage of water due to penetration through laterite masonry wall. He estimates an amount of 10,000 required for rectifying the leakage. It is a reasonable estimation and when this amount is deducted i.e. 1120861 – 10,000 = 11,10,861.
None of the payment made by the complainant had not been challenged by the opposite party. The complainant paid the following payment
1 | Cheque | 1,40,000 | As advance |
2 | “ | 60,000 | As advance |
3 | In cash | 1,00,000 | |
4 | Through Account | 2,00,000 | As bank transfer |
5 | | 3,00,000 | As bank transfer |
6 | Cheque | 30,000 | 6.1.2008 |
7 | Cheque | 50,000 | Through the account of complainant’s husband |
8 | Cheque | 5,000 | “ |
9 | Cheque | 70,000 | In the month of April 2008 |
10 | Cheque | 30,000 | “ |
11 | Cheque | 1,00,000 | 1st week of May 2008 |
| Total | 10,85,000 | |
These items of payment have never been challenged by opposite party. Hence if the same is taken in to account the balance amount to be paid is 1110861 – 10,85,000 = `33,601. In other words as per Ext.C3 calculation and payment made by the complainant an amount of `33,601 is the balance amount to be paid to opposite party.
Complainant has the case that the opposite party did not complete the work as agreed upon. According to opposite party the only remaining work, as per the instruction of the complainant, was to lay tiles on the roof. He also added that reapers were already constructed. Complainant on the other hand alleged that the separate stair case, kitchen, work area, 3rd bath room and show case in the central hall etc. were not constructed by the opposite party as agreed upon. On going through the Ext.A1 it can be seen that under the 19 items of work kitchen slab is seen as item No.11, septic tank as item number 17, stair case as item number 18, show case at wall in central hall as item No.11, etc. What does it really mean. These items found place in Ext.A1 cannot be considered as sleeping items. Ext.A1 contains printed contents. It starts with “THIS AGREEMENT’ in capital letters. This is supplied by opposite party. Opposite party contended that it is only a quotation. But the word quotation cannot be seen any where in the document. If the opposite party was fair, he could have print the word ‘quotation’ it self on the top. The word agreement is written of not without reason but to impress the party that he is signing an agreement but actually intended to elude from the legal obligation. Construction work is a profession for opposite party. He is well acquainted with the formalities of constituting agreements etc. which the complainant is not. The obligation of looking into the aspect of specification and complying of necessary formalities etc. morally lies with the opposite party since he is expected to do it as part of his profession. Interestingly Ext.A1 also contains the words ‘first party’ and ‘second party’. What is the need of 1st party and second party if it is a quotation. Hence Ext.A1 cannot be thrown away but creates obligation against opposite party to act in accordance with the spirit of the agreed items. The items in Ext.A1 if not seen carried out that is definitely an indication of non completion of work agreed upon. This is a case wherein a total of more than `10, 00,000 have been paid by complainant as and when opposite party demanded. Signature of both parties in Ext.A1 cannot be treated as merely a quotation ignoring meeting of the mind upon the points while signing the document. The pleading that Ext.A1 has been treated as “only quotation” is unfair and amiss. Opposite party has the liability to complete the items of work specifically written in Ext.A1.
Anyhow, opposite party has admitted that laying tiles on the roof remains to be done though he had contended that there was no condition to complete the other items of work as alleged by the complainant. While taking into account the balance work left to be done and the unjustifiable delay caused to complete the work it can be said that complainant has suffered much mental pain Close analysis of facts clearly reveals that opposite party has not taken interest to convince the quality of work to complainant at any stage of the work. None of the reports appreciated opposite party in the quality of work which he has done. Hence we are of opinion that opposite party does not deserve to get any balance amount towards the work which he has done.
Circumstances of the case clearly reveal that there is delay in completion of the work and also certain items remains to be completed. Hence we have no hesitation to say that there is deficiency in service on the part of opposite party.
Complainant alleges that the purpose of immediate construction was to perform the marriage of her niece and accommodate them on the first floor after marriage so that the aged complainant and her husband will get some help from them. It is also alleged that it is written in Ext.A1 that construction will be completed within 7 months.
It is true that the sentence “The period of construction is seven months” is written by hand in Ext.A1. All other contents except filled up points and signature are printed mattes. The hand written portion has not been supported by any signature. Opposite party contended that, that was an addition made afterwards. Any how the face of the document Ext.A1 does not permit to believe that the same is part of the document. The sentence seen as an addition especially on the reason that there s no printed column to be filled with such a sentence and it cannot also be considered as a correction since there is no signature to that effect. But that does not mean that opposite party can take his own time. Opposite party has the liability to complete the work within a reasonable time. On examination it can be seen that there is unjustifiable inordinate delay in completion of the construction work It cannot be ignored that even opposite party has admitted that some work has not been completed.
Secondly the marriage was taken place after one year of constitution Ext.A1. Ext.A1 constituted on 18.4.2007. The alleged marriage was solemnized in March 2008. Nothing has been produced before the forum to establish that this was a condition stipulated in the agreement. In Ext.A1 no mention has been seen regarding marriage. Complainant has also alleged that she had met a huge amount since the place of marriage shifted to Mangalore on account of non-completion of the building. Complainant has not produced any evidence neither regarding marriage nor regarding the expense. Complainant totally failed to substantiate the allegations she had made with respect to the marriage and its expenses and all. Hence those allegations are not sustainable. So also, regarding treatment and its connection with the construction work has not been established by adducing evidence.
In the light of the above analysis of the facts and circumstances with the available evidence oral and documentary it is found that there is deficiency in service on the part of opposite party. There is no scope for discussion upon the point of counter claim raised by the opposite party since there is no such provision under consumer protection Act. Moreover this is a case wherein deficiency in service against opposite party is already found. We are of opinion that complainant is entitled for an amount of
`1, 00,000 as compensation together with `1000 as cost of this proceeding. Thus issues 1 to 4 are answered in favour of complainant and order passed accordingly.Henc
In the result, the complaint is allowed directing opposite party to pay an amount of `1, 00,000(Rupees One lakh) as compensation together with a sum of `1000 (Rupees One thousand only) as cost of these proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant will be entitled for interest @12% from the date of this order ie.14/09/2011 to the date of realization. Complainant is at liberty to execute the order after the expiry of 30 days as per the provisions of consumer protection act.
Sd/- Sd/-
President Member
Dissenting order rendered by M.D.Jessy, Member
I do agree with the findings of learned President with regard to the total construction to the tune of `11, 28,601 by analyzing the commissioner’s report. Calculation made in page 17 of this order which actually work out to be 11,28,601 – 10,000 = `11,18,601 and the total amount paid by the complainant is total in `10,85,000. Even though the opposite party alleges that he received only `10, 30,000 from the complainant; he has not made any specific denial about the payments made by the complainant as stated in the complaint. The opposite party rather admitted in page No.4 of the version that “the payment effected already by the complainant is frankly admitted”. There after the averment that he received only `10, 30,000 from the complainant is not correct. He also not produced any calculation to work out this figure. Hence deducting the amount paid by the complainant to the actual cost it can work out `11, 18,601 – 10, 85,000 = `33,601. This amount is liable to be paid by the complainant to the opposite party for the cost of the work already done.
I also agree with the evaluation of evidence with regard to the deficiency of work done by the opposite party. But it is not correct to say that the period of seven months time written in the agreement for completion of the work is not genuine. Solely on the ground that it is hand written. From the beginning Ext.A1 itself the date is seen 18th April 2007 is inserted subsequently. The other writing is also seen in the same handwriting. Merely because the correction is not attested it cannot say that the period of operation of the agreement as stated in the agreement cannot be accepted. Opposite party being a person working in construction field purposefully omitted to include such a condition in the agreement. The clause incorporated regarding period of operation of the agreement is genuine and proper.
Issues.
The date of agreement is 18.4.2007 and the work would have been completed by the opposite party within 7 months. Evidently huge delay is caused for performing the work. Even the work is not completed. Considering the nature of additional work done by the opposite party and the fact that he is entitled to get `33,601 as found above. There is no reason for the finding that opposite party is liable to pay a compensation of 1 lakh to the complainant. No evidence was adduced by the complainant to prove the damage sustained to her due to the delay. Since the relation is strained opposite arty cannot be asked to complete the further work of the house. So I am of the opinion that complainant need not pay the above `33,601 to opposite party and that amount can adjusted towards compensation and complainant can complete the further work using the same.
In the result, complaint and counter claim petition filed by opposite party are liable to be dismissed.
Sd/- Member
Taking into account the majority opinion, the complaint allowed accepting the order of majority.
Sd/- President Sd/- Member
APPENDIX
Exhibits for the complainant
A1.Copy of the agreement executed by complainant and OP
A2.Building permit issued from Secretary, Elayavur Grama Pct.
A3.Site plan
A4.Possession certificate issued by VO. Elayavoor Village
A5 & 6.Bill and receipt issued by AE, Kerala Water Authority
A7. Letter dt.10.2.09 issued from Water Authority, Kannur.
A8.Land tax receipt issued from Elayavoor Village Officer.
A9 & 10. Receipt dt.8.12.07 and 24.3.09 issued by Secretary Elayavoor Panchayth
Exhibits for the opposite party: Nil
Exhibits for the Court
C1. to C5.Commission reports
Witness examined for the complainant
PW1.Complainant
Witness examined for the opposite party:
DW1. K.Sivakumar
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur.
