Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he wanted to raise construction for his residential premises and for this, Opposite Party approached him with an offer that he is A-One contractor and is expert in raising huge construction having his own force i.e. labour, articles for shuttering and is having vast experience in raising big bungalows. Further alleges that the complainant had to raise construction in 5950 square feet at his village Khukhrana and he got proper site plan drafted from an architect at Ludhiana and for this, the Opposite Party entered into verbal contract with the complainant that he would provide all sorts of construction work, labour including the articles which are required to raise construction @ Rs.120/- per square feet for entire construction work both at the ground floor and at first and second floor including the boundary wall. It was agreed by the Opposite Party to complete the work in 9 months and the entire raw material shall be provided by the complainant i.e. sand, cement, bricks, iron and other articles required for raising the construction work well in time and the construction was to be raised as per the site plan so provided by the complainant. Further alleges that as the complainant is also having agricultural land in District Faridkot, so taking the benefit of the absence of the complainant, the Opposite Party at his own raised the construction by going across the limits of the site plan as well as the drawings and not only this, he totally raised unwanted first floor at the premises of the building of the complainant. Whenever the complainant raised the objection that the Opposite Party has not been raising the construction as per the drawings/ site plan, then the Opposite Party started harassing the complainant on one pretext or the other. Not only this, instead of completing the entire construction work in 9 months, the Opposite Party in between stalled the construction and it took three years to the Opposite Party, but still the entire construction work as per the site plan supplied by the complainant was not done by the Opposite Party, rather the Opposite Party kept on missing himself alongwith the labour from the site plan in order to harm and harass the complainant. The complainant has already paid an amount of Rs.8,05,000/- to the op and the last amount of Rs.15,000/- was given to the op through his man namely Atma Singh. Further alleges that since the Opposite Party has not been raising the construction as per the requirement of the complainant, then the complainant had to get the construction work stopped from the Opposite Party and had to engage a new contractor for the completion of his construction. So, much so, the complainant had to remove the wrong stairs, boundary wall, two walls, floor of the first floor and other material defects which were constructed by the Opposite Party, due to which the complainant had to spend about Rs.10 lakhs and still the work is pending. The complainant asked the Opposite Party several time regarding his poor workmanship and regarding his Unfair Trade Practice and asked him as to why he has caused loss t o the complainant by raising false construction and much against the site plan so provided to him, then the Opposite Party started threatening the complainant with dire consequences due to which the complainant underwent mental tension, agony and pain for which the Opposite Party is liable to pay Rs.2 lakhs as damages. As such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Party to pay Rs.10 lakhs on account of damages alongwith Rs.2 lakhs on account of suffering mental tension, agony and pain by the complainant and also to pay Rs.25,000/- on account of letting the complainant to indulge in avoidable litigation. Hence, the present complaint is filed by the Complainant for the redressal of his grievances.
2. On notice, Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party. First of all, no written agreement was executed. The complainant approached the Opposite Party to construct a house on contract basis at the rate of Rs.120/- per square feet excluding flooring and digging of earth for foundation purposes and stair cases for the entire construction according to the site plan which was provided by the complainant. In fact, the entire construction was done as per the site plan which was provided by the complainant, but the complainant has not given the correct site plan to the Opposite Party and he has given some sketch. Thereafter, from time to time, they did modification in the construction. Moreover, all the articles which are required for the construction of the building were to be provided by the complainant. Requisite shuttering was to be provided by the complainant. However, the Opposite Party brought the shuttering for construction of the building and thus the rent or costs of the shuttering was to be borne by the complainant. Not only this, the costs of any missing/ broken or stolen part of shuttering was to be paid by the complainant. Further foundation expenses and other charges for foundation for digging earth were to be borne by the complainant. As the Opposite Party has constructed the boundary wall which costs Rs.66,846/- and the foundation was raised by construction to the extent of 3 feet. In this way, 1260 layers of the bricks were laid that costs Rs.15,120/- and total construction comes to 6437 square feet i.e. ground floor 2665 square feet, first floor 2263 feet, mounti 974 square feet, shelves 119 square feet, triangle slabs 47 square feet, down beams 144 square feet and down slabs 25 square feet. Besides this costs of the staircase was settled between the parties i.e. Rs.1200/- per one step and there were total 18 steps which comes to Rs.21,600/- and 18 steps on the second floor costs of which comes to rs.21,600/- total Rs.43200/-. As per complaint, the total construction area was 5950 square feet, but the Opposite Party has constructed 6437 square feet i.e. total 487 square feet extra. Not only this, at the time of construction, the Opposite Party brought 55 spot paid and 300 fatties but after completion of construction, the Opposite Party has received only 7 spot pad and 35 fatties as the Opposite Party has not received 48 spot pads and 265 fatties, market rate of the spot paid is Rs.150/- per spot pad, so that the Opposite Party is entitled to get Rs.7200/- and costs of fatties @ Rs.40/- per fatti market rate of which comes to Rs.10600/-. As the Opposite Party has raised construction of 6437 square feet and total costs comes to Rs.7,72,440/- and besides this, the Opposite Party is entitled to recover the above said amount of Rs.1,14,376/- total Rs.8,86,816/-, but the complainant has paid Rs.7,35,500/-, so the Opposite Party is entitled to recover balance amount of Rs.1,51,316/-. When, the Opposite Party raised the demand of balance amount from the complaint, he refused to make the payment and rather filed the present complaint. In view of the above the present complaint is liable to be dismissed. On merits, Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections and hence, it is prayed that the complaint of the complainant is liable to be dismissed against Opposite Parties.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 and Ex.C3 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Party tendered into evidence affidavit of Sh.Bag Mohammad Ex.R1 alongwith copy of document Ex.R2 and closed the evidence on behalf of Opposite Party.
5. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
6. During the course of arguments, both the ld.counsel for the Complainant as well as Opposite Party have mainly reiterated the facts as narrated in the complaint as well as in the written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the ld.counsel for the complainant is that the Opposite Party has not done the construction work as per the agreement between the parties and rather caused loss of material and others and also constructed the building beyond the limits as sited in the plan and hence caused great loss. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant and contended that first of all, no written agreement was executed between the parties and the entire construction was done as per the site plan which was provided by the complainant, but the complainant has not given the correct site plan to the Opposite Party and he has given some sketch. Thereafter, from time to time, they did modification in the construction. Moreover, all the articles which are required for the construction of the building were to be provided by the complainant. Requisite shuttering was to be provided by the complainant. However, the Opposite Party brought the shuttering for construction of the building and thus the rent or costs of the shuttering was to be borne by the complainant. Not only this, the costs of any missing/ broken or stolen part of shuttering was to be paid by the complainant. Further foundation expenses and other charges for foundation for digging earth were to be borne by the complainant. As the Opposite Party has constructed the boundary wall which costs Rs.66,846/- and the foundation was raised by construction to the extent of 3 feet. In this way, 1260 layers of the bricks were laid that costs Rs.15,120/- and total construction comes to 6437 square feet i.e. ground floor 2665 square feet, first floor 2263 feet, mounti 974 square feet, shelves 119 square feet, triangle slabs 47 square feet, down beams 144 square feet and down slabs 25 square feet. Besides this costs of the staircase was settled between the parties i.e. Rs.1200/- per one step and there were total 18 steps which comes to Rs.21,600/- and 18 steps on the second floor costs of which comes to Rs.21,600/- total Rs.43200/-. As per complaint, the total construction area was 5950 square feet, but the Opposite Party has constructed 6437 square feet i.e. total 487 square feet extra. Not only this, at the time of construction, the Opposite Party brought 55 spot paid and 300 fatties but after completion of construction, the Opposite Party has received only 7 spot pad and 35 fatties as the Opposite Party has not received 48 spot pads and 265 fatties, market rate of the spot paid is Rs.150/- per spot pad, so that the Opposite Party is entitled to get Rs.7200/- and costs of fatties @ Rs.40/- per fatti market rate of which comes to Rs.10600/-. As the Opposite Party has raised construction of 6437 square feet and total costs comes to Rs.7,72,440/- and besides this, the Opposite Party is entitled to recover the above said amount of Rs.1,14,376/- total Rs.8,86,816/-, but the complainant has paid Rs.7,35,500/-, so the Opposite Party is entitled to recover balance amount of Rs.1,51,316/-. When, the Opposite Party raised the demand of balance amount from the complaint, he refused to make the payment and rather filed the present complaint. Perusal of the record shows that not even a single document has been placed on record by the complainant to prove any deficiency, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by the Opposite Party in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. Admittedly, there is no written agreement ever executed between the parties. In the case of Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) 1 SCC 66 the Hon'ble Supreme Court has laid down the test of deficiency in service by stating that:-
“The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortious acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”
7. The main controversy between the parties is as per the complainant that the Opposite Party has not done the construction work as per the site plan provided by the complainant, but on the other hand, the Opposite Party has contended that as per the wish of the complainant, he has done the work completed and when the Opposite Party raised the demand of balance amount, then the complainant has filed the instant complaint to avoid the liability, but both the parties have failed to produce any iota of evidence on record to prove their respective assertions. Hence, we are of the view that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. Not only this, the nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in various judgements. Further in case Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-
“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”
Their lordships have further held that :-
“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”
A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement which reads as under:-
“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction.”
8. Keeping in view the aforesaid facts and circumstances of the case, the instant complaint is not maintainable in this District Consumer Commission for its proper adjudication and the same stands dismissed. However, the complainant can get redressal of his grievance from the Civil Court/ or any other competent authority, in accordance with law, for which the time spent before this District Commission shall stand excluded under Section 14 of the Limitation Act in the light of the judgment of the Hon'ble Supreme Court in case titled 'Lakshmi Engineering Works vs PSG Industrial Institute reported in 1995(3) SCC 583'. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
9. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:08.06.2022.
