Complainant present in person
Opponent through Lrd Adv. Shinde
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(05/03/2014)
This complaint is filed by the consumer against service provider for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant is a owner of plot bearing Sr. No. 16/1, Madhuban Society, Lane No. 3, Old Sanghvi, Pune – 21. That plot is admeasuring 1500 sq. ft. The complainant entered into an agreement with the opponent for the construction of bungalow on the said plot on 3/5/2008. As the dispute arise between the parties during the course of completion of construction work, both of them went to Sanghvi Police Station, where additional agreement took place between them. As per the contents of the additional agreement, the complainant had paid an amount of Rs. 3,23,000/- to the opponent, for which the opponent has to carried out the work of external plaster and internal plaster in the house and bathroom etc. After receipt of the amount, the opponent had done external plaster by applying single coat only. The maximum valuation of the said external plaster is Rs. 95,000/-. After adding the profit of the opponent amounting to Rs. 35,000/-, the total valuation came to Rs. 1,30,000/-. The opponent had also carried out the internal plastering of two bathrooms and the cost of the said is Rs. 15,000/-. Thus the opponent has done work of Rs. 1,45,000/-, even though the complainant had paid an amount of Rs. 3,23,000/-. The complainant had required to stay in Government quarter and has to pay an amount of Rs. 5000/- per month as a rent due to incomplete work. The complainant has claimed balance amount of Rs. 1,78,000/- of the contract, notice charges Rs. 5000/-, compensation of Rs. 40,000/-. The total claim of the complainant is Rs. 2,23,000/-. The complainant has also asked interest on the said amount @ 18% p.a.
2] The opponent has resisted the complaint by filing written version, in which it has denied the contents of the complaint. It is the case of the opponent that the complaints of the complaint are false. The opponent has done additional work for the complainant and he did not pay the charges of additional work, which was worth of Rs.2,95,800/-. The opponent has filed regular civil suit no. 2183/2009 for recovery of Rs. 2,95,800/-. The opponent has prayed for dismissal of the complaint.
3] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant has established that the opponent has caused deficiency in service by non implementation of the agreement and not completing the construction work? | In the negative. |
2. | Whether complainant is entitled for the compensation? | In the negative. |
3. | What order? | Complaint is dismissed. |
REASONS :-
4] It reveals from the record that the opponent has filed special civil suit no. 2183/2009, which was decided by Learned Joint Civil Judge, Junior Division on 03/04/2014. That suit was filed by the opponent for recovery of Rs. 2,95,000/- and partly decreed and the present complainant was directed to pay an amount of Rs. 60,000/- along with interest @ 6% p.a. It further reveals from the said judgment that even though the complainant has made averment about the claim of present complaint in the said proceeding, he has not made any counter claim, as he had already filed complaint against the opponent. It also appears from the said judgment that the learned Civil Judge has not considered about the claim of the complainant of Rs. 1,78,000/- in the said judgment. Hence, that judgment does not come in the way of deciding the present complaint, as that issue was not adjudicated by the learned Civil Judge. It appears from the pleadings that initially the cheque of Rs. 2 lac was dishonoured, which was issued by the complainant. But after settlement of the dispute, new cheque of Rs. 2 lac was issued to the opponent and then and then only the opponent had started remaining construction. In these circumstances, this Forum is of the opinion that the complainant has paid an amount of Rs. 3,23,000/- to the opponent. It is the case of the complainant that the opponent has not carried out entire work as per the agreement and the work, which was done by the opponent was worth of Rs. 1,45,000/-, as per the valuation done by his Architect. The complainant has produced entire record as regards the payment made by him to the opponent. All the payment were made by issuing cheque to the opponent. In these circumstances, this Forum is of the opinion that the complainant has pad an amount of Rs. 3,23,000/- as alleged. Even though, it is alleged by the complainant that the valuation of the work done by the opponent is Rs. 1,45,000/-, the complainant has not produced any documentary evidence to substantiate his contention. Even name of the Architect is not referred either in the complaint, affidavit or in the written argument by the complainant. When any technical issue is involved in the complaint, expert evidence is mandatory as per section 13(c) of the Consumer Protection Act, 1986. The complainant has failed to adduce such evidence. Hence, this Forum is of the opinion that the complainant has failed to prove that the opponent has caused deficiency in service and therefore he is not entitled for any relief. In the light of the above discussion, the Forum answers the points accordingly and pass the following order.
** ORDER **
1. Complaint stands dismissed. In the
peculiar circumstances, there is no order
as to the costs.
2. Copies of this order be furnished to
the parties free of cost.
3. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 05/03/2014
