BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Thursday the 28th day of August, 2008
C.D.No. 13/05
Between:
Jyothi Kumari, D/o. Late. J. Israel,
Plot No.75, (H.NO. 87-667) Christian , Gaffor Nagar, Siva Ramalayam Road,
Kurnool (died)
2. J. Saramma, W/o. Late J. Israel,
H.No. 87-667-A, (plot No.75) Gaffor Nagar, Kurnool (died) Represented by their Lrs 3 and 4th complainants.
3. J. Lazarus S/o. Late J. Israel , Pensioner
H.No.87-667-B, Plot No.75, Gafoor Nagar, Kurnool.
4. J. Karunakar S/o.Late J .Israel, Lecturer,in
D.K. Government Junior College for Girls, Nellore. … Complainants
Versus
Model Constructions , Shop No. 2
Abdulla Khan Estate,
Kurnool,
Represented by its Managing Partners.
- B.V.Ramana,
H.No.49-1/88-C1, Near Jagruthi School, Near Palakottalu, Maddur Nagar,
Kurnool.
2. Syed Salim Basha,
H.No41/89, Besides St. Josteph English Medium School, Kothapeta, Kurnool.
… Opposite parties
This complaint is coming on this day for orders in the presence of Sri. P. Siva Sudharshan, Advocate, for the complainant, and Sri. M. Venkoba Rao, Advocate, for the opposite parties and upon perusing the material papers on record, the Forum made the following
ORDER
(As per Sri. K.V.H.Prasad, President)
C.D.No.13/2005
1. This case of the complainant is filed U/S. 11 and 12 of C.P. Act seeking direction on the opposite parties for completion of house construction work as per conditions of agreement or to refund the amount received from complainant with interest , Rs.50,000/- towards mental agony and cost of this case alleging the agreement dated 22-7-2003 of the opposite parties agreeing to construct the house of the complainant for Rs.3,75,000/- within a period of four months and receiving Rs.20,000/- towards approval of plan and demolition of existing building and Rs.1,25,000/- , Rs.50,000/-, Rs.75,000/- , Rs.25,000/-, Rs.25,000/- and Rs.40,000/- on 8-8-2003 , 4-10-2003, 17-10-2003 , 25-11-2003, 1-12-2003 , and 13-3-2004 vide receipts Nos. 64, 70, 72, 75, 77, and 86 respectively thereafter and the opposite parties not finishing the construction even after the expiry of agreed time of four months and on the other hand stopped the construction work from July 2004 onwards and not caring for completion of work worth Rs.90,000/- inspite of several request and not responding to the legal notice properly and the said deficient and negligent conduct of the opposite parties as cause of action for this case.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant, the opposite parties caused their appearance and contested the case denying of its liability and filling its counter ( written version) .
3. The counter ( written version) of the opposite parties besides questioning the maintainability of this case on facts and proper cause of action and requiring the strict proof of complaint averments denying the truth therein allege non furnishment by complainant of necessary particulars of work non completed and rushing to the forum hastily. In reference to the copy of the detailed cum abstract estimate work it states the work in serial Nos. 1 and 6 as already completed , partly completed work at serial No.10 and work at serial No.2,3 and 7 as not covered under agreement and the work at serial No.4,5,8, 8A, and 9 worth Rs.22,960/- pertaining to labour and wood work as pending and the remaining work as could be completed in Rs.6,000/- and 11,000/- and so the value of pending work as over estimated by the complainant and the value of work completed as of Rs. 3,29,459/- and the extra work worth Rs.24,019/- was done at the promise of the complainant to bear said expenditure and the cause for non completion of work within stipulated time of four months is the late payment made by the complainant as completion of work is subject to payment of the entire amount and so alleged mental agony as imaginary and the due from complainant as Rs.13,478/- as complainant paid 3,40,000/- only out of Rs. 3,53,478/- and the filling of this case at the instance of one Saibaba when the opposite party demanded complainant for clearance of due amount and not allowing the progress of work and so seeking dismissal of complaint with a direction to complainant to pay the opposite party Rs.13,478/- .
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A16 and sworn affidavit of the complainant and its third parties namely P. Arun Bhaskar , Dr. Sardhar Singh , G.Rama Subba Reddy and the evidence of Dr.P.Chandra Sekhar , the opposite party side has taken reliance on documentary record in Ex.B1 to B14 and the sworn affidavit of the opposite parties 1 and 2 and their third parties namely M. Narasimha Rao, and K. Nagesh Babu .
5. Hence, the point for consideration is whether the complainant has made out any deficiency of the opposite parties and their liability to its claim .
6. The Ex.A1 is agreement dated 22-7-2003 entered in between the complainant No.1 and the opposite parties as to the construction of house by the opposite parties to the complainant as per specifications mentioned therein and as per plan enclosed there to for Rs.3,75,000/- to be made as per the payment schedule mentioned therein i.e., Rs.1,75,000/- each at the time of agreement , after the completion of basemet and after slab respectively. While such is so the averment of complaint allege in para No.1 the payments of Rs.1,25,000/-,Rs.50,000/-, 75,000/-, 25,000/- 25,000/ and 40,000/- on 8-8-2003 , 4-10-2003, 17-10-2003 , 25-11-2003, 1-12-2003 , and 13-3-2004 respectively under receipts Nos. 64, 70, 72, 75, 77, and 86 . The sworn affidavit of the complainant No.1 dated 1-4-2005 in its para No.2 reiterates the said fact. The Ex.A2 to A7 evidences acknowledgment of said payment by the opposite party No.2 for model constructions of the opposite parties. Nothing much to discredit the said aspect comes forth in the reply of complainant to the interrogatories of the opposite parties . Neither of the sworn affidavit averments of the opposite parties 1 and 2 dated 21-3-2005 nor their written version of the opposite parties deny the said fact envisaged in Ex.A2 to A7 . So as per the substantiated Ex.A2 to A7 total payment received by the opposite parties from the complainant totals to Rs.3,40,000/-. Hence if the construction work of house for complainant if was completed as per the terms and conditions and plan enclosed said agreement, the due from the complainant to the opposite parties would have been Rs.35,000/- .
7. The complaint and sworn affidavit of the complainant No.1 alleges the opposite parties has to still complete work worth Rs.90,000/- to the said building . The written version of the opposite parties deny said fact alleging vide details of para No.5 that the value of the work yet to be completed to a total of Rs.39,961/- alone. The Ex.A8 is the detailed cum abstract estimate prepared by P.Arun Bhaskar - a licensed architect as to the value of the work yet to be completed to the building of the complainant . It values the said work yet to be finished to the tune of Rs.90,000/-. The sworn affidavit dated 24-5-2005 of P.Arun Bhaskar confirms the said estimation mentioned in Ex.A8 and says of its preparation by him on 21-11-2004 after the inspection of said building at the instance of the complainant. The interrogatories of the opposite parties given to him more bothered for extracting the answers in reference to items mentioned in their estimates in Ex.B6 and B7 rather than the estimates concerned in Ex.A8 as the interrogatory Nos 3 and 5 only concerns to Ex.A8 and the others in reference to Ex.B6 and B7 . The interrogatory No.3 caused to P. Arun Bhaskar relates to serial No.1, 6 and 10 of Ex.A8 cogent question as to whether the said work completed or not and its visibility to naked eye . While the Ex.A8 shows therein work to be finished the reply of him says of their visibility to naked eye and the said works are yet to be completed . The said reply also answers to serial Nos. 1 to 31 items mentioned in Ex.B6 / A 16 as still to be finished. Further the Ex B6 cannot stand for comparison to EX.A8 as while the farmer is one prepared by opposite party No.2 himself as to work done , the Ex.A8 stands for unfinished work estimated by an independent agency.
8. The sworn affidavit of the K. Nagesh babu was introduced by the opposite parties on 22-10-2005 to say of his inspection on 17-7-2005 of a house under construction in housing board and drawing of the comparative plans of his observation in reference to the agreement plan and actual found therein . As this case was filed by the complainant is January , 2005 , the said visit of K. Nagesh babu and his observations at the matter in dispute appears to be one made pending juries of this case without any direction from this forum for doing so. Nor any cogent material appears on said record that the said observations were made after due notice to the complainant and in the presence of complainant. Hence the said affidavit evidence of K. Nagesh babu and his sketch plans enclosed to said affidavit being not independent but said to have been at the instance of the opposite parties is not remaining worthy of reliance especially when M. Narasimha Rao whose presence was alleged in the affidavit of K. Nagesh babu , in his affidavit does not spell at the presence of said K. Nagesh babu nor of his comparative observations at that structure to which he photographed .
9. If the opposite party No.2 instead of furnishing the detailed estimate cum abstract ( Ex.B6 ) as to work done , especially when it is not their case the entire work was finished , if would have furnished the work yet to be completed in vis avis to the detailed cum abstract in Ex.A8 it would have been remained worthy of comparison and in case of any material variations between them there would have been possibility for appointment of commissioner for ascertaining the truth among them. There was any such endeavour on the part of the opposite parties to rebut and discredit the Ex.A8. None of the photographs in Ex.B9 to B14 are either self explanatory or intelligible to the identity of the disputed question involved in the case i.e as to the work yet to be finished . Hence in the circumstances stated above the Ex.A8 – as to the work yet to be finished to the house construction of the complainant and value of said estimate is remaining un rebutted and so the liability of its completion by the opposite parties subsist if the liability under said agreement in Ex.A1 was not other wise vitiated .
10. The sworn affidavit of G. Rama Subba Reddy , Dr.Sardar Singh were introduced by the complainant side as to their intervention for settlement of dispute in question between the complainant and opposite parties on 13-6-2004 and the complainant depositing with them a cheque dated 13-7-2004 for Rs.20,000/- in faovur of the opposite parties and the opposite parties to complete the residuary work of the said house and collect the said cheque and the failure of the opposite parties to complete the said work and collect the said cheque from Dr.Sardar Singh . Even though nothing to discredit their veracity was brought in their replies to the interrogatories caused by the opposite parties – as there being any mention of this in complaint averments or sworn affidavit averments of complainant side they carry any worth of reliance especially when the so called cheque deposited with Dr. Sardar Singh, which remain to have been not collected by the opposite parties , is mentioned with reference its cheque No in the affidavit of those third parties i.e G.Rama Subba Reddy and Dr.Sardar Singh , to established the identity of Ex.A 14 as the same not a fabricated one to suit the convenience of the complainant .
11. The evidence of Dr.P.Chandra Sekhar and Ex.A.15 were introduced by the complainant side as to the complainant No.1 under going treatment for complaint of breathlessness , cough diagnosed as cronic obstructive lung decease (COPD) with cronic corpal monale and hypertension with said doctor from 10-1-2004 to 17-1-2004 as I.P No.859 and the visit of the complainant No.1 with the same complaint, even after discharge , on 3-2-2004 , 6-2-2004 and 25-12-2004 . Even though the complaint was filed in January 2005 there being any mention of it in legal notice (Ex.A9) or in sworn affidavit of the complaint or in complaint averments , the said treatment even if be true for a movement , the Ex.A 15 can not be held as having any relevancy for appreciation in this case.
12. The Ex.A11 and A12 introduced by the complainant side to say as to purchase of polished flooring stone worth Rs.15,000/- and its making dues in flooring of the complainants house as additional work . But they are not remaining of any worthy of appreciation for want of its substantiation by any relevant recital in complaint pleadings or in averments of sworn affidavit of complainant No.1 or in legal notice ( Ex.A9 ) or by examination of the person concerned with Ex.A12 .
13. The Ex.A13 counter file of a cheque also bears any relevancy for its appreciation in this case for want of its substantiation by the person who received by cheque nor there being any mention in said Ex.A 13 as to payment of amount concerned in Ex.A12 by way of cheque mentioned in Ex.A13 nor there being any relevant mention of it in the pleadings of the complainant and while the transaction in E.xA12 is of 26-3-2004 the EX.A13 envisaging said date of cheque as 29-3-2004 and there being any mention in Ex.A12 that the said was on credit and not on cash and that Ex.A13 not bearing even any signature of the person who must have received it.
14. As stated in earlier paras as the opposite party has not filed any material as to work yet to be finished in reference to the Ex.A1 agreement plan to have any comparative study with Ex.A8 and to discredit the bonafides of it , the conduct of the opposite parties, in the light of complainants grievances as to non completion of work, is amounting to deficiency in service in completion of construction as per agreement inspite of receiving a major portion of agreed amount and demanding extra amounts on the pretext of extra works done which is not substantiated with any cogent, relevant and reliable material , as the Hon’ble A.P.S.D.R.C Hyderabad in Smt. M. Suvarna Vs V. Pentaiah reported in 2005 (I) CPR Pg.64 holds the failure to complete construction in terms of agreement amounts deficiency in service.
15. As the opposite parties are defaultive of non completing the construction even as per the admissions in their written versions , the opposite parties are remaining liable to finish of the left over work estimated in Ex.A8 for receiving the balance of agreed amount or to pay the estimated value of un finished work mentioned in Ex.A8 along with compensation Rs.10,000/- for mental agony accrued to the complainant s at the lapsive conduct of the opposite parties and Rs. 5,000/- as cost of this litigation as the opposite parties constrained and driven the complainant for redressal of its grievances to the forum.
16. Hence, the case of the complainant is allowed directing the opposite parties in joint and several liability to complete the un finished work as mentioned in Ex.A8 and there on to receive the balance amount of Rs.35,000/- ( i.e, Rs. 3,75,000/- agreed amount) – (Rs.3,40,000/- amounts paid under Ex.A2 to A 7) or to pay to the complainant the value of un finished work as in Ex.A8 along with compensation of Rs.10,000/- for mental agony and Rs.5,000/- as costs of this case within a period of one monthfrom the date of receipt of this order. In default the opposite parties jointly and severally to pay to the complainant the supra award amount with 9% interest from the date of default till realization .
Dictated to the stenographer, transcribed by her , corrected and pronounced by us in the open bench on this the 28th day of August, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : For the opposite parties :Nil
PW.1. Deposition of P.W.1 dated24-3-2006
(P. Chandra Sekhar)
List of exhibits marked for the complainant:-
Ex.A1. Construction Agreement of Model Constructions,
Kurnool dated 22-7-2003 for Consultations House of
Complainant.
Ex.A2. Receipt of Model Constructions, Kurnool amount paid
Of Rs.1,25,000/- ,dated 8-8-2003.
Ex.A3. Receipt of Model Constructions Kurnool amount paid of Rs.50,000/- dated 4-10-2003.
Ex. A4. Receipt of Model Constructions Kurnool amount paid of Rs.25,000/- dated 25-11-2003.
Ex.A5. Receipt of Model Constructions, Kurnool amount paid of Rs.75,000/-,dated 17-10-2003.
Ex.A6. Receipt of Model Constructions Kurnool amount paid of Rs.25,000/-,dated 1-12-2003.
Ex.A7. Receipt of Model Constructions Kurnool amount paid of
Rs.40,000/- dated 13-3-2004.
EX.A8. Detailed cum Abstract Estimate issued by P. Arun Bhaskar
Monarch Construction, Kurnool.
Ex.A9. Legal notice, dated 3-1-2005 addressed by complainant
Counsel to Ops 1 and 2.
EX.A10. Reply , dated 10-1-2005 of Ops counsel to complainant counsel.
Ex.A11. Bill, dated 26-3-2004 of Sri. Dhanalakshmi Minerals,
Bethamcherla, for Rs.15,000/-
Ex.A12. Receipt dated 5-4-2004 for flooring work of Rs.9,000/-
Ex.A13. Counter fail of cheque No.488591, dated 29-3-2004 in
Favour of T. Venkateswarulu.
Ex.A14. State Bank of Hyderabad (SBH) cheque for Rs.20,000/- dated
13-7-2004 (cheque No.058139 to pay B.V.Ramana)
Ex.A15. Particulars of record book (Cardiology Department)
Ex.A16. Detailed Estimate – cum Abstract, dated 2-11-2004
List of exhibits marked for the opposite parties:
Ex.B1. Agreement plan. Para No.6 of S.A of K Nagesh Babu.
Ex.B2. APHB Residential Building Rough plan of K. Nagesh Babu.
Ex.B3. Fair plan of Ex.B2 para 5 of S.A.
Ex.B4. Plan para 7 of S.A.
Ex.B5. 2nd plan para 7 of S.A K. Nagesh Babu.
Ex.B6. Detailed Estimate Cum Abstract (4) pages (Actual Work
Done )
Ex.B7. Detailed Estimate Cum Abstract (Referred in S.A of Ops )
(Extra Work done)
Ex.B8. Bill for 49 photos , dated 28-7-2005 for Rs.588/-
EX.B9. Index photos 25-36 & E.
Ex.B10. Corresponding negatives of Ex.B9.
EX.B11. Photos Sl.No.1 to 13 positives of Ex.B9 & 10 negatives
25 to 36 & E.
Ex.B12. Index photos 00,01-34.
Ex.B13. Corresponding negatives of Ex.B12.
s
Ex.B14. Photos Sl.No.14 to 48 positives of Ex.B12 & 13 negatives 0,
1 to 34.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
