DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 30th Day of November 2011 Present : Smt.Seena H, President : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member Date of filing: 08/08/2011 (C.C.No.132/2011) Parameswaran, S/o.Gopalan, “Sree Nandanam”, Vrindavan Nagar,
Pudussery, Palakkad – 678 623 (Adv.P.Prasad) - Complainant V/s C.P.Gireesh Kumar, D-15, ‘Dhanush’, Venkateswarapuram, Puthur, Palakkad – 678 001. - Opposite parties (By Adv.Sreeprakash) O R D E R By Smt.PREETHA G NAIR, MEMBER The complainant entrusted the house construction work to the opposite party on the promise and assurance made that he will finish the house construction before 31/7/2011 and entered into an agreement. The opposite party received Rs.5,10,000/- from the complainant and he has not even completed the brick work or earth filling or reached the main slab level. The complainant paid Rs.10,000/- as token advance on 14/11/2010 prior to the agreement, Rs.3,00,000/- on the agreement day and Rs.2,00,000/- on 5/1/2011. The opposite party has not even finished the 2nd stage as specified in the agreement. He has not done any work after 26/2/2011. He has not completed the work due to his own willful laches and negligence. There is no materials kept in the site. When the complainant enquired about the latches and negligence in completing the work the opposite party threatened him and he lodged a complaint before the police station. The opposite party in order to escape from the liability issued a notice to the complainant stating that the work is at the 3rd stage and requesting for additional amount of Rs.1,00,000/-. Now he states that he is not in a position to complete the work at the agreed rate and to settle the account and terminate the agreement or to extent the time with a revised rate. The complainant was put to much hardship and financial loss since the work was not completed as stipulated in the agreement. The detailed measurement of the civil work done is assessed by the Chartered Engineer and approved valuer, and the report shows that the opposite party had done the work only to the extend of Rs.2,50,084/-. Then the complainant send the reply notice dated 14/7/2011 to pay Rs.2,59,916/- due to him. The opposite party has committed deficiency of service and unfair trade practice. Hence the complainant prays for an order directing the opposite party to - Pay Rs.2,59,916/- as the balance work kept pending after receiving the payment of Rs.5,10,000/- and
- Pay Rs.1,00,000/- as compensation for mental agony and financial difficulties and
- Pay the cost of the proceedings.
Opposite party filed version stating the following contentions. The agreement entered between the parties specifically provide schedule for payment to be made at different stages of the constructions. As per the payment schedule Rs.2,88,000/- has to be paid for completing the first stage and for completing the 2nd stage an additional sum of Rs.2,16,000/- has to be paid. Where as the total payment made is only Rs.5,10,000/- it is not even sufficient for the purpose of starting the third stage of work. Admittedly the work specified in second stage is already done. More over the construction materials worth Rs.10,000/- is kept in the property. In this circumstances the work was stopped with effect from March 2011. Repeated oral demands for the amount were made by the opposite party before stopping the work. Complainant was not ready and willing to make payment of the amount on other hand he wants to proceed with the work without payment. Since the stopping of the work was caused solely due to the failure on the part of the complainant in performing his part of contract, there is no deficiency of service on the part of opposite party. When the complainant failed to make payment opposite party issued a letter on 28/6/2011 to the complainant. This was followed by a complaint before the police. After knowing the true facts police refused to take action. The assessment alleged made by the Chartered Engineer and approved valuer is without any basis and appears to have been obtained at the instance of the complainant. Hence the opposite party prayed that the complainant may be dismissed with cost. Complainant and opposite party filed affidavit. Ext.A1 to A10 marked on the side of the complainant. Matter was heard. Issues to be considered are - Whether there is any deficiency in service on the part of opposite party ?
- If so, what is the relief and cost entitled to the complainant ?
Issue No.I & II We perused relevant documents on record. In Ext.A1 both parties entered into an agreement on 1/12/2010 to complete the construction work within eight months from the date of agreement. Also in Ext.A1 page 3 mentioned schedule of payment Rs.2,88,000/- has to be paid for agreement executing stage and Rs.2,16,000/- has to be paid for brick work starting stage. In Ext.A2 and Ext.A3 the opposite party had received Rs.5,10,000/- from the complainant. In Ext.A5 the opposite party issued a letter dated 28/6/2011 to the complainant for clearing of balance payment. In Ext.A6 the complainant and his wife filed a complaint dated 29/6/2011 before the police station. In the present case the opposite party admitted that received Rs.5,10,000/- and the work specified in second stage is already done. In Ext.A9 the cost of detailed measurement of the work done is Rs.2,50,084/-. The opposite party has not raised any objection to marking of Ext.A9. No contradictory evidence was produced by the opposite party. In the affidavit the opposite party stated that as per the available information the Engineer is a close friend of the complainant and making use of such relationship, a report is created to suit the purpose of complainant. Mere statement is not considered as evidence. The opposite party has not examined the engineer prepared by Ext.A9 as a witness. In Ext.A10 the photos along with CD of the construction of house produced. In Ext.A10 also show that the construction work was completed upto the lintel stage. In Ext.A1 agreement shows that 3rd stage is ground floor main slab stage. But the opposite party has not completed the 2nd stage. In Ext.A5 the opposite party stated that either settle the account and terminate the agreement at the earliest or extent the time stipulated in the agreement with a revised rate. Now the prices of building materials are going up every day. The act of opposite party amounts to deficiency in service. The complainant has not taken commission before the Forum. But Ext.A9 prepared by the Chartered Engineer and approved valuer. In Ext.A9 the Engineer assessed the total cost of work done was Rs.2,50,084/- So the complainant claimed Rs.2,59,916/- as the balance amount for work kept pending. The opposite party has not produced evidence to prove that the work completed as cost of Rs.5,10,000/- In Ext.A1 agreement shows that the work was completed in the month of August. Ext.A5 letter dated 28/6/2011 issued by the opposite party to clearing of balance payment. Also the work was not completed as the payment given by the complainant. It is evident from Ext.A9 that the total cost of work done is Rs.2,50,084/- In the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result the complaint allowed. We direct the opposite party to pay Rs.2,59,916/-(Rupees Two lakhs fifty nine thousand nine hundred and sixteen only) as the balance amount for work kept pending and pay Rs.5,000/-(Rupees Five thousand only) as compensation for mental agony and pay Rs.500/- (Rupees Five hundred only) as cost of the proceedings to the complainant. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization. Pronounced in the open court on this the 30th day of November 2011 Sd/- Seena.H President Sd/- Preetha G Nair Member Sd/- Bhanumathi.A.K. Member APPENDIX Exhibits marked on the side of the complainant Ext.A1 – Work Contract Agreement dated 1/12/10 (Original) Ext.A2 – Receipt (original) for Rs.3,10,000/- dated 1/12/10 issued by opposite party Ext.A3 – Receipt (original) for Rs.2,00,000/- dated 5/1/11 issued by opposite party Ext.A4 – Copy of complaint filed against opposite party by complainant to SI of Police, Kasaba Station dated 29/6/11 Ext.A5 – Copy of letter sent to complainant by the opposite party dated 28/6/11 Ext.A6 – Copy of reply letter dated 14/7/11 sent by opposite party counsel. Ext.A7 – Postal receipt Ext.A8 – Acknowledgment card Ext.A9 – Approved Engineer valuation report. (original) Ext.A10 – Photographs with CD of incomplete house. Exhibits marked on the side of the opposite parties Nil Cost Allowed Rs.500/- allowed as cost of the proceedings. |
