O R D E R
Sri. P. Satheesh Chandran Nair (President):
The complainant filed this complaint u/s.12 of the C.P. Act 1986.
2. The case of the complainant is stated as follows: The complainant appointed the opposite party in this case for the construction of complainant’s house on 23.11.2013 as per the agreement between the parties. The opposite parties is bound to complete the building construction within six months for an amount of Rs.10,00,000/-. Due to the irresponsibility of the opposite party he failed to complete the construction work as promised. The opposite party accepted Rs.9,75,200/- from the complainant by several installments and on 18.08.2014 after receiving Rs. 2,00,500/- he stopped the construction of the house. Even though the complainant approached the opposite party several times for the continuation of the construction work, he was reluctant to continue it. As per the agreement between the parties the opposite party is bound to complete the house construction for the cost of Rs. Ten Lakhs except the wood work. According to the complainant, when about Rs. Two Lakhs construction work is remained he stopped the construction and as a result the complainant sustain a loss of Rs. 1,75,200/-. As a result of the non-completion of the construction work within the stipulated time the complainant suffered irreparable loss and damages. He again stated that, he restarted the construction work as his own and as a result he incurred a financial loss of Rs.50,000/- due to the rise of the cost of material and labour charges. At present the complainant is staying in a rental house and he paying Rs.5000/- as monthly rent. The act of the opposite party is a clear cheating and he caused illegal loss from it. On 03.09.2014 the complainant sent an advocate notice to the opposite parties and though the opposite party received it but he did not return the excess amount of Rs.1,75,200/-. Hence this complainant to direct the opposite party to pay the excess amount of Rs. 1,75,200/- with 10% interest, a rent amount of Rs. 20,000/-, compensation of Rs.50,000/- and cost.
3. This Forum entertains the above said complaint and issued notice to the opposite party for their appearance. The opposite party appeared before the Forum and filed his version as follows: According to the opposite party the case against the opposite party is not maintainable either in law or on facts. He admitted that on 23.11.2013 both the parties entered into an agreement for the construction of the building of the complainant. Opposite party stated that, the complainant violated the terms and condition of the said agreement and forcibly evicted the opposite party from the work site without settling the accounts. According to him, there is no latches happened on his side. The delay in the completion of the building is caused solely due to the default of payment and as a result the opposite party compels to spent more amounts due to the hike in the price of the materials and labour charges. The opposite party categorically stated that, he has received an amount of Rs.7,74,200/- only from the complainant and the allegation of receipt of Rs. 9,75,200/- is totally false. According to him, the complainant demanded extra work other than the work scheduled in the agreement and it caused an extra expenditure of Rs. 4,25,800/-. When this opposite party demanded the extra payment the complainant forcibly obstructed the opposite party from carrying out the further work. This opposite party is not responsible to pay any rented expenditure to the complainant as alleged. According to the opposite party he has not committed any deficiency in service or unfair trade practice so that the complainant has no right to get any order from this Forum as alleged through the complainant.
4. We peruse the complaint, version and the records produced by the complainant we frame the following issues for consideration.
- Whether the petition is maintainable before this Forum?
- Whether any deficiency in services or unfair trade practice committed by the opposite party as alleged?
- Regarding the relief and costs?
5. In order to prove the case of complainant he filed a proof affidavit in lieu of chief examination and he is examined as PW1 in this case. When he is examined as PW1, Ext.A1 to Ext.A4 are marked on his side and at the time of cross examination Ext.B1 is also marked. Apart from PW1, PW2 and PW3 are also examined on the side of the complainant. On the other hand the opposite party is filed proof affidavit in lieu of his chief examination and he is examined as DW1 and marked Ext.B1 and B2 series. Ext. A1 is the agreement between complainant and the opposite party. Ext.A2 is the legal notice send to the opposite party. Ext.A3 is its postal receipt and Ext.A4 is its acknowledgement card. Ext.B1 is the reply letter and Ext.B2 series is the postal receipt and its acknowledgement card. The complaint deposed more or less in terms of the complaint. The opposite party as DW1 deposed more or less on the tune of his version. After the closure of the evidence we heard both sides and consider the issues as follows:
6. Point Nos.1 to 3 :- For the sake of convenience we would like to consider Point No.1 to 3 together. Regarding the issue No.1 it is true that, opposite party raise a serious contention to the effect that, in this case a master and servant relations is only existing between the parties and the complainant here in is not comes under the definition clause of Section 2(d) of Consumer Protection Act. When we look into this fact it is clear that, the Ext.A1 agreement between the parties are an agreement for the execution of the house construction and the complainant is paying proper consideration for the fulfillment of the work. Hence it is proved that, the complainant here in is a consumer as per the provisions of the Consumer Protection Act and the opposite party is a service provider. Hence point No.1 is in favour of the complainant.
7. As per the testimony of PW1 in this case, he stated that, the opposite party received an amount of Rs. 9,75,200/- from him for the house construction and the last payment is on 18.08.2014 for an amount of Rs.2,00,500/-. According to PW1, he sustained a loss of Rs.1,75,200/- as a result of the non completion of the construction. But on the other hand the opposite party has a strong case to the effect that, he had not received the payment dated 18.08.2014 for Rs. 2,00,500/-. Apart from the pleading and in the version the opposite party has taken the same stand in his B2 notice also regarding this last payment. However it is seen that, the opposite party has not taken any serious steps to disprove the payment dated 18.08.2014 for an amount of Rs.2,00,500/- referred in Ext.A1 agreement. The learned counsel appearing for the opposite party submitted that, the calculation of the amount received or regarding the dispute, regarding the payment are not at all a question entertainable before this Fourm. Considering the evidence available with regard to the last payment dated 18.08.2014 we are not in a position to arrive a definite finding also. According to us, an expert opinion is highly necessary for a final finding in this issue.
8. The learned counsel appearing for the opposite party argued that, the complaint has no pleading with regard to the deficiency in service or he has not adduced evidence with regard to this aspect. The term deficiency is clearly discussed in Consumer Protection Act 1986 Section 2(g) reads as follows : “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; On the basis of the above explanation of deficiency it is clear that, the opposite party entered an agreement with the complainant for the construction of his building and the opposite party is duty bound to perform the work in pursuance of the said contract. Here the opposite party failed to act in accordance with the contract agreement Ext.A1. It is true that, the opposite party has a definite case to the effect that the complainant failed to comply the terms and condition of agreement and not paid the amount in time. It is interesting to see that, the opposite party has not adduced any evidence to prove his case. More over the PW1 is examined in cross he deposed that “Opposite party-യിൽ നിന്ന് എനിയ്ക്ക് സേവന വീഴ്ച ഉണ്ടായിട്ടുണ്ട്. ഞാൻ കൃത്യസമയത്ത് material cost ഉം labour ഉം നൽകിയിരുന്നു. So it is clear that, the complainant has a definite case of deficiency in service against the opposite party. The complainant again deposed that, he sustained a loss of Rs.1,75,200/- for the completion of the neglected work of opposite party. According to the complainant, PW2 is the subsequent contractor who completed the complainant’s house construction. According to his deposition as PW2 in cross examination he stated that, 6 മേശിരി പണിയും 5 മൈക്കാട് പണിയും എൻറെ ചുമതലയിൽ നടന്നിട്ടുണ്ട്. ഞാൻ പണി ഏൽക്കുമ്പോ 5 മൈക്കാടിൻറേയും 6 മേശിരിപ്പണിയുമേ ബാക്കിയുണ്ടിയിരുന്നുള്ളൂ. A man of prudent cannot think that a person spent Rs.2,09,200/- as the wages of 6 mason and 5 workers. It is pertinent to see that, the evidence adduced by PW1 has not corroborated by PW2 with regards to the excess expenditure caused to the complainant as per his complaint. The complainant examined PW3 on his side to prove his case. According to him, he is the person who witnessed Ext.A1 agreement and the said agreement bears his signature as a witness. According to his deposition there is an amount of Rs.2,00,000/- work was pending when this opposite party given up the work. But at the time of cross examination he deposed that ഞാൻ ഹർജികക്ഷിയുടെ അയൽവാസിയാണ്. Agreement-ൽ കൂടുതലായി എന്തൊക്കെ പണി ഹർജിക്കാരൻ opposite party യെ കൊണ്ട് ചെയ്യിച്ചു എന്ന് എനിക്കറിയില്ല. As per his version as stated above we cannot rely the testimony of PW3 in this case and the credibility of this witness is also challenged at the time of cross examination. According to DW1 in his testimony before the Forum he deposed that, he entered an agreement for house construction with the complaint on 23.11.2011 and admitted Ext.A1 agreement. According to him, he received only Rs. 7,74,200/- from the complainant and denied the case of the complainant with regard to the acceptance of Rs.9,75,200/- and the entry dated 18.08.2015 for an amount of Rs. 2,00,500/-. As per the deposition he spend Rs.4,25,800/- for an additional expenditure for the construction of the complainant house. But it is pertinent to see that, either the complainant or the opposite party has not taken any steps to appoint an expert commissioner to ascertain these disputed facts. On the basis of the available evidence before the Forum, the said evidence is not sufficient to ascertain the actual expenditure incurred by the opposite party in this case for the alleged excess work.
9. In the light of the above discussion we have to arrive a conclusion to the effect that, the opposite party has not completed the house construction within the stipulated period, more over the opposite party not succeeded to prove the latches on the part of the complainant as alleged. It is true that, the complainant alleged that, he is now residing in a rental house but at the same time he has not adduced any convincing evidence to prove this allegation. The delay for completing the house construction is the defect on the part of opposite parties. As per the contract agreement (Ext.A1), opposite party is liable to complete the house construction within the stipulated time. Hence deficiency in service can be seen as the part of opposite party. Hence, Point No.2 and 3 found in favour of the complainant.
10. In the result, we partly pass the following orders:
- The opposite party is directed to pay a compensation of Rs.30,000/- (Rupees Thirty Thousand only) to the complainant with 10% interest till its realization from the date of this order onwards.
- The opposite party is also directed to pay a cost of Rs.2,000/- (Rupees Two Thousand only) with an interest of 10% till its realization to the complainant from the date of this order onwards.
Declared in the Open Forum on this the 30th day of November, 2015.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. K.P. Padmasree (Member – I) : (Sd/-)
Smt. Sheela Jacob (Member – II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Balan Nair
PW2 : Sahadevan
PW3 : C. Thulaseedharan Pillai
Exhibits marked on the side of the complainant:
A1 : Agreement between complainant and the opposite party.
A2 : Copy of the legal notice dated 03.09.2014 sent by the complainant
to the opposite party.
A3 : Postal receipt
A4 : Acknowledgement card.
Witness examined on the side of the opposite party:
DW1 : Aji K. George
Exhibits marked on the side of the opposite party:
B1 : Reply letter dated 18.09.2014
B2 series : Postal receipt and acknowledgement card.
(By Order)
Copy to:- (1) Balan Nair P.N, Kailas Bhavan, Vazhamuttam kizhakku P.O,
Vallikkodu Village, Konni Taluk.
(2) Aji.K.George, Kalarunilkkunnathil House,
Mallassery P.O, Pathanamthitta.
(3) The Stock File.
