ORDER<br /> <br /> <br /> By Sri. K. Gheevarghese, President:<br /> <br /> <br /> The complaint filed under section 12 of the Consumer Protection Act. <br /> <br /> <br /> The Complainant is the power of attorney holder of his Sister Fathima, Kuniyil House. The Complainant entrusted the Opposite Party to construct a wall to prevent mud sliding from the house site of the Complainant Sister. An agreement was executed in between the Complainant and the Opposite Party with specifications of the terms and conditions. Accordingly the Complainant had to supply boulder, sand, cement, iron rode and metals at the site. The work of constructing the wall is to be done by the Opposite Party in front of the courtyard. A wall of 100 feet length, 12 feet hight is to be constructed. The Complainant agreed to give the Opposite Party Rs. 7.50/- per cubic feet as the wages for the work. The agreement showing all the terms and conditions was executed between the parties on 17.01.2001. The Opposite Party received<br /> (Contd...... 2) <br /> - 2 - <br /> Rs. 15,000/- as advance on the date of agreement. The work had to be completed before 30.04.2001. The work was started by the Opposite Party meanwhile in course of work Rs.18,450/- were received by the Opposite Party in several occasions. Towards the cost of the material the Complainant had spent Rs. 60,000/-. Opposite Party did the work with untalented and unexperienced workers and without any proper supervision and hence the wall work could not be erected to the sufficient hight and more over the wall which was partly built was slanted to the road side and there after the Opposite Party left the place without completing the work. The Opposite Party did not turn back. Knowing the seriousness of the situation the Complainant was forced to do the supporting work to keep the wall in its position and to avoid further consequence. Even after this additional work the wall is in such a position that it will be collapsed at any time afterwards. Two concrete pilers were erected as a support for which Rs.22,000/- was spent by the Complainant. The Complainant already spend Rs.1,15,450/- for the construction purpose. The wall constructed is to be dismantled for which Rs.10,000/- is to be <br /> spent. Similarly again for the construction work Rs.45,000/- is to be spend including all other expenses. The Complainant had a loss of Rs. 2,10,450/- . The Opposite Party may be directed to reconstruct the wall which is improperly constructed or else the Complainant is to be paid Rs.2,10,450/- towards the cost .<br /> <br /> The Opposite Party filed version on their appearance. It is admitted that there was a talk in between the Complainant and Opposite Party for the construction of a wall with boulder stone. An agreement was also executed in between the Complainant and the Opposite Party. Droping the other works the Opposite Party took the risk to carry out the work, being the work is to be completed within the mentioned time. The Opposite Party when to do the work it was seen that the work was entrusted to one Vasu. The Opposite Party had to give up some other works and heavy lose was incurred upon the Opposite Party due to the breach of the terms and conditions<br /> (Contd..... 3)<br /> - 3 -<br /> <br /> by the Complainant. The Opposite Party demanded the Complainant to compensate the loss. Instigated by the loss demanded by the Opposite Party the Complainant filed the petition. The Opposite Party had not done any work apart from executing the agreement. The work was carried out by one Vasu. The Opposite Party did not receive any amount from the Complainant. If any drawback cost in the construction of the wall, the Opposite Party has no liability. There is no deficiency in services on the part of the Opposite Party. The allegations are false and without any bases and more over it is nothing but to harras the Opposite Party. The complaint is to be dismissed with compensatory cost to the Opposite Party.<br /> <br /> Points considered are:- <br /> 1.Whether the Opposite Party was entrusted to construct the wall?.<br /> 2.Is there any deficiency in service?.<br /> 3.Relief and costs.<br /> <br /> Point No.1:-<br /> <br /> The Complainant is examined as PW1. Ext.A1 is the agreement executed between the<br /> Complainant and Opposite Party. It is admitted by the Opposite Party that the agreement was there in between the Complainant and Opposite Party. As per the terms and conditions of the agreement, the work is to be completed before 31.04.2001. On the day of the execution of the agreement Rs.15,000/- was received by the Opposite Party. The power of attorney holder of Opposite Party was examined as OPW1. The advance amount Rs.15,000/- is admitted by Opposite Party. The contention of the Opposite Party that the work was not started by him is not supported by any evidence. It is not reasonable to think that after acceptance of the amount<br /> (Contd....... 4) <br /> - 4 -<br /> <br /> without any sufficient ground, the work is entrusted to somebody else. Ext.B1 is the Power of Attorney entrusting the Opposite Party's brother to appear in behalf of the Opposite Party. According to OPW1, the Opposite Party and OPW1 are partners in work. If the Opposite Party entered in to any agreement for the purpose of doing in work he himself used to do it. As per the version filed by the Opposite Party, the Complainant entrusted the work to one Vasu. Two witnesses are examined on Complainant side PW2 and PW3 subsequently. PW2 deposed as the relative of the Complainant and distant relative of Opposite Party. PW3 is the Sister of the Complainant who entrusted the work to her brother the Complainant. PW2 is the first witness who signed in Ext.A1. It is deposed by PW2 that the work was given in contract to the Opposite Party and the materials required for the work was supplied by him. The power of attorney holder of the Opposite Party is examined as OPW1. According to him though OPW1 and Opposite Party are brothers the work which was undertaken by the Opposite Party is carried out by him. It was known to him that the Opposite Party entered in to an agreement for a construction of a wall. He has no knowledge regarding the construction of the wall, apart from what he was informed by the Opposite Party. OPW2, the witness examined from the side of the <br /> Opposite Party was absolutely ignorant of the names of the workers or how much workers were engaged for the construction of the wall. Though it is stated by OPW2 that the work was entrusted to him alone this witness is not reliable one. From the above inferences it is to be considered that the construction of the wall was entrusted to the Opposite Party and Ext.A1 confirms it also.<br /> <br /> Point No.2:<br /> The Advocate Commissioner was appointed with the assistance of an expert to inspect the wall constructed for the report the extension of the wall and present position of the cost<br /> (Contd....... 5)<br /> - 5 - <br /> incurred and the damages caused. The report of the Commissioner is marked as Ext.C1. According to Ext.C1 the Construction of the wall appeared to him done by the untalented and unexperienced persons. The defects cannot be the rectified keeping the wall in its position. OPW2 also deposed that the wall is broken. Ext.A3 is the photo of the wall constructed. It also shows that the wall which is of considerable hight is not in a stable conditions. The work was entrusted to the Opposite Party abide by an agreement. There is deficiency in service on the part of the Opposite Party the point No.2 is found against the Opposite Party. <br /> <br /> Point No.3:<br /> The wall is broken due to defect in construction according to experts reports Ext.C1. It is reported in Ext.C1 that the wall if have kept in the same position it will be collapsed. For reconstruction the amount estimated in the Ext.C1 is Rs.82,187/-. The Opposite Party has to give the Complainant Rs.82,187/- the expense that is required for the reconstruction. <br /> <br /> In the result, the Opposite Party is directed to give the Complainant Rs.82,187/- (Rupees Eighty Two thousand One hundred and Eighty Seven only) and the Compensation of<br /> Rs.5,000/- (Rupees Five thousand only) along with the cost Rs.1,000/- (Rupees One thousand only) to the Complainant. In case of any failure on the part of the Opposite Party the Complainant is entitled to execute this order as per the provisions of law.<br /> <br /> Pronounced in open Forum on this the 15th day of November 2007.<br /> <br /> <br /> PRESIDENT: Sd/-<br /> <br /> MEMBER: Sd/-<br /> /True Copy/<br /> <br /> <br /> <br /> PRESIDENT, CDRF, WAYANAD.<br /> <br /> APPENDIX<br /> <br /> Witnesses for Complainant:<br /> PW1. Assainar Haji. Complainant.<br /> PW2. Moideen. Agriculturist. <br /> PW3. Fathima. -<br /> Witnesses for Opposite Party :<br /> OPW1. Siddique Mason.<br /> OPW2. Vasu. Mason.<br /> Exhibits for Complainant:<br /> A1. Agreement. Dt:17.01.2001.<br /> A2 Series<br /> (3 in numbers Bill. <br /> <br /> A3. Photo of Wall <br /> <br /> C1. Commission Report. dt: 10.10.2001.<br /> <br /> Exhibits for Opposite Party: <br /> <br /> B1. Power of Attorney dt: 25.06.2003.<br /> <br /> <br /> PRESIDENT, CDRF, WAYANAD.<br /> <br /> Compared by:<br /> M/<br /> <br /> <br /> <br />