<br /> COMPLAINT FILED: 30.12.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 12th MARCH 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2855/2008<br /> <br /> <br /> COMPLAINANT Sri.V.Vijayanathan,S/o Late P.S.VenkatachalaiahAged about 65 years,Residing at No.772, 13th Main, III Block, Rajajinagar,Bangalore – 560 010.Advocate – Sri.Ramesh KumarV/s.<br /> OPPOSITE PARTY Sri.B.K.Muniswamy,Fathers name not know to complainant,Aged about 45 years,Prop. M/s.Neelakanta Constructions,No.44, III Cross, Vibuthipura,Near Yellamma Temple,Marathahalli Post,Bangalore – 560 037.Advocate – Sri.A.Y.N.Gupta<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to carry out all the left out work and pay a compensation of Rs.1,00,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant is the absolute owner of property bearing No.409/1, measuring 30’ x 40’. In order to construct a house of his choice, he has availed the services of the OP who claims to be the builder and constructor of residential house. An agreement came be executed on 14.02.2007. The cost of the construction was agreed for Rs.6,50,000/-. Complainant went on paying the amount to the OP as and when demanded. Even he has paid Rs.20,000/- by cash towards electric connection and Rs.18,000/- for water connection apart from the payment made through Bank cheques. In all he paid Rs.8,39,800/- against the agreed amount of Rs.6,50,000/-. With all that OP left the construction in the middle failed to provide ventilation, fittings of the Lever locks to the doors, Portico, compound wall, Ward robe, front gate, car gate is not provided, painting was not done. The repeated requests and demands made by the complainant to the OP to complete the said unattended work went in futile. He even got issued the legal notice. Again there was no response. Complainant felt deficiency in service. Complainant for no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the agreed rate for roof area construction was Rs.72,000/- and not Rs.69,500/-. OP constructed 12 squares building, he is entitled the cost to the tune of Rs.8,64,000/- and not Rs.6,50,000/- as alleged. As per the request and demand of the complainant, OP raised the construction more than the agreed area with the fond hope that complainant will make payment in due course. It is denied by OP that complainant made payment of Rs.20,000/- and Rs.18,000/- respectively in cash. According to the OP, complainant himself is still in due of Rs.68,826/-. When OP made demand of the same, complainant has come up with this false and frivolous complaint. There is no deficiency in service on the part of the OP. Complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant availed the services of the OP for the construction of house of his choice in his site No.409/1, measuring 30’ x 40’. An agreement came to be executed on 14.02.2007. Terms and conditions, item wise is described at para.1 to 30. According to the complainant the total cost of the construction is being Rs.6,50,000/-. Now it is further contended by the complainant that as and when demanded by the OP he went on making the payment of the amount and further he says he made payment of Rs.20,000/- by cash towards electrical connection, Rs.18,000/- towards water supply. For this basically there is no proof, no receipts are produced. All the other payments made by complainant are only through cheques not once but on several occasions. When that is so, the contention of the complainant that he made payment of Rs.38,000/- in cash rather can’t be believed.<br /> <br /> 7. When complainant says that the total cost of the construction is only for Rs.6,50,000/-, what made him to pay Rs.8,39,800/- is not known. It is not a small amount. Complainant has paid Rs.2,00,000/- in excess which is unbelievable. Of course complainant says that OP failed to complete the construction with regard to item No.7, 8, 11, 19, 20, 23 & 24 that is ventilation, Lever lock, Portico, compound ward robe, gates and paintings. We have gone through the photographs produced by the litigating parties they clearly show the existence of the compound wall and so also the portico at some portion. So that allegations of the complainant are also appears to be baseless.<br /> <br /> 8. According to the complainant he got assessed the unattended work through some Consulting Engineer and produced his report. Unfortunately he is not examined on behalf of the complainant to substantiate his report. Under such circumstances no such importance can be given to the report for which OP is not a party. Item wise report given by said Consulting Engineer with regard to unattended work and the description of the unattended work given by the complainant in his para.5 of his complaint that is with respect to item No.7, 8, 11, 19, 20, 23 & 24 are self contradictory. <br /> <br /> 9. When we go through the said Engineer report it speaks to the painting, use of Synthetic enamel paintings etc., whereas construction agreement speaks to otherwise. The said Engineer report further speaks to item No.7 providing and laying cement concrete, providing and fixing M.S Ventilators, plastering of the wall, curing etc., as well as electrical work, water supply, sanitary and removal of damaged tiles, replacing of the same. His assessment to attend unattended work is Rs.3,19,320/-. As already stated by us the nature of unattended work stated by the complainant differs from the nature of work to be attended as observed by the Consulting Engineer. No such importance can be given to the said report.<br /> <br /> 10. On going through the contents of the complaint, affidavit and the built up area noted by the so called Engineer there is a variance with regard to the measurement of the site as well as actual construction that has been done. So the complainant is not very much sure about the site measurement, the actual building existing in the said site. According to OP he has constructed the said building of worth Rs.8,64,000/- and he spent money towards water charges, electrical deposit etc. According to OP even after giving deduction of Rs.8,39,800/- alleged to have been paid by the complainant but still complainant is due of Rs.68,626/-. When the complainant has taken possession of the property after making thorough inspection and being satisfied with the quality of work. He started residing in the said house. Now what made the complainant to raise this litigation in the year 2008 is not known. So the approach of the complainant does not appear to be as very much fair and honest.<br /> <br /> 11. We have closely scrutinized both oral and documentary evidence, we are of the view that complainant has utterly failed to prove the deficiency in service on the part of the OP. There is a dispute with regard to the payment of the amount as well as the amount in due and the total construction of the building. Considering the complex question of law, it entailed it would require volume-ness evidence for its disposal which is not possible for this Forum to go into all these aspects in its summary jurisdiction. If the complainant is so advised he can file a comprehensive civil suit for the enforcement of the said contract and the agreement as the case may be. There is no proof of deficiency in service. Complaint appears to be devoid of merits. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 12th day of March 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> Vln* <br /> <br /> <br />