This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay `4,93,000  to the complainant as compensation.

          The case of the complainant in brief is as follows: Complainant is a doctor. He entrusted the opposite party contractor to construct a new house, executing an agreement for an amount of `9, 75,000 on 10.10.2006. A supplemental agreement was executed on July 2007 stipulating some additional construction with an additional consideration of `5,40,000. On 3.1.2008 another additional agreement was executed including some more additional work with an additional payment of `2,50,000. It was specifically stipulated that the date of completion of construction of building in total (GF+FF) is 10<sup>th</sup> April 2008. Opposite party managed to get `18,08,000 instead of `17,65,000 towards payment. He had also managed to force to pay the bills of the building materials which had to purchase as per contract. Opposite party did not complete the work in time. He used unskilled workers and substandard materials. The opposite party illegally stopped the construction without completing the construction work as a protest against the demand to cure the defects and to replace the substandard articles. Complainant forced to complete the work by entrusting other workers spending `1,50,000. There are number of defects viz. the wall of the house are in bend shape, sunshades and slabs are having leakage, the window shutters and door shutters are got gaps and cracks and some doors cannot close due to bend. The flooring of tiles are not done properly. It has got cracks. Complainant got incalculable damages but limiting the claim to `l2,00,000. Complainant also entitled to get back `1,00,000 spent for purchasing building materials and `43,000 paid in excess. Complainant caused lawyer notice, in reply opposite party filed false case before Munsiff court. Complainant prays for an order directing the opposite party to  pay `4, 93,000.

          Opposite party entered and filed version contending as follows: Opposite party agreed to undertake the construction of house of the complaint on an agreement dated 10.10.06. Additional agreements on July 2007 and 3.1.2008 also executed for additional construction. Even though the time fixed for the completion was on 10.4.2008 it could not be completed on that day as the  complainant failed to make the periodical payments agreed to be paid and also for the reason of undertaking additional work which is not mentioned in the agreement. The averment that opposite party received `18,08,000 instead of `17,65,000 is false. The amount received by opposite party `50,000 was meant for demolishing old existing house which was not mentioned in any of the agreement. that was done on an oral understanding .Apart from the work detailed  in agreements some other additional work such as demolition of old house, construction of compound wall, ornamental works in all windows, other ornamental works in the wall, granite works in varantha fittings of modular switches etc. were entrusted this opposite party. The above works were done as per the provisions in 1<sup>st</sup> and 3<sup>rd</sup> agreements. Complainant agreed other than those specified in the agreement will be charged extra. Since the complainant failed to make payment agreed this opposite party constrained to stop the construction. The opposite party issued detailed bill to the complainant by post stating the item wise details of the work to be undertaken and completed. The cost of that work will come to `90,000.The amount of `2,27,592 is to be received from the complaint for the works already completed. Unless the amount is paid, the work mentioned cannot be undertaken. On getting the letter of this opposite party complainant issued a reply stating that he received an envelop which contain only 4 blank papers. The reply was sent by him on 1.1.2009.On 1.1.2009 itself the complainant issued a lawyer notice demanding `4,00,000 as compensation. He approached complainant and gave this final bill but he did not settle the matter. Thereafter complainant filed caveat before the court. On 15.1.2009 the opposite party came to know a new contractor started the work utilizing the building material that the opposite party stored worth more than `2,00,000 and also  using tools of opposite party. So opposite party approached Munsiff court for an injunction. Advocate Commissioner noted building materials. At the time of second visit of the commissioner it was found that the construction work was completed by the new contractor utilizing entire materials of opposite party. No materials or tools were found in the site. Opposite party left construction materials worth `2,00,000. For completion of building the materials worth `50,000 were only needed but the remaining materials and tolls and equipments were clandestinely disposed off. This complaint is filed sensing the legal consequences. There is no deficiency in service on the part of opposite party. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Party?  

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of complainant as PW1 and Exts.A1 to A6, B1 to B8 and C1 also marked. No oral evidence adduced by opposite party.

Issue Nos.1 to 3

Admittedly complainant entrusted the construction of his house on an agreement and certain other additional constructions by two additional agreements. Complainant’s grievances are that the contractor did not complete the work within the stipulation and stopped the construction even though entire amount had been received by him. Complaint also alleged that the contractor also managed to get some excess amount by persuasion. The averment of the complaint is that the  opposite party has performed the construction with substandard materials and the work which he has carried out consist of so much defects. When he stopped the work complainant was forced to engage some other contractor to finish the work. At the same time the opposite party/contractor contended that he could not proceed the construction work since the complainant did not make payment. He was then constrained to stop the construction.

          Expert commission was appointed and he had submitted Ext.C1 report.

PW1 adduced evidence by means of chief affidavit as follows: Opposite party started the construction work with Ext.A1 agreement dated 10.10.2006. As per the agreement the amount was fixed as `9,75,000. The addition agreement executed on 7.7.2007 which is marked as Ext.A1 (a) intended to certain additional construction for an amount of `5,40,000. One more additional agreement Ext.A1(b) executed  on 3.1.2008. The time prescribed for the work as per Ext.A1 was 150 days and as per Ext.A1(b) date of completion was fixed for 10^th April 2008. Ext.A2 to A2(a) are the copy of the Bank statements that show the amount drawn by opposite party through cheques from the account of complainant. Apart from this, opposite party also received an amount of `13,000. Complainant adduced evidence by affidavit evidence that he is bound to give only `17, 65,000 as per agreement but opposite party obtained an amount of `18, 08,000. Ext.A2 and A2 (b) shows that opposite party received `70,000 through cheque. Ext.A2 (b) to A( r) are cash receipts issued by opposite party in different days which covers `17, 25,000.  Complainant stated that opposite party received another `13,000 for which no receipt was issued. However, this payment of `13,000 has not been supported by any documentary evidence though not specifically denied. Opposite party admitted that the time fixed for completion of the work was 10.4.2008. But opposite party contended that complainant failed to make periodical payments as agreed in the agreements. Opposite party also contended that the averment of the complainant that he had received `18,08,000 instead of 17,65,000 is not correct. However opposite party has admitted that by ExtA2(a) to A2(o)     complainant had paid `13,65,000. It is also admitted that by October 2008 complainant had paid `16,65,000. According to opposite party the balance amount of `1,00,000 was paid on 8.12.2008. Hence it is a fact that admittedly opposite party has received a total amount of `17,65,000. He has also admitted the payment includes the amount Ext.A2(a) to (o). The amount he calculated in Ext.A2(a) to (o) is `13,65,000 but it is actually `13,75,000. So there is a difference of `10,000. However Ext.A2(a) to (o) are admitted by opposite party.Ext.A2 statement of account of complainant shows complainant has paid `45,000.The cheque number is also produced. Opposite party did not challenged the payment made by the complainant through the bank which is shown in Ext.A2.There is no need to disbelieve the statement of account of the bank especially when it is not challenged.Ext.A2 if required to be proved genuine or not that could have been done by simply calling for the document from the bank. Production of statement of account and marking it discharge the burden of proof of complainant since it was not challenged. Ultimately this is a matter opposite party could have been easily disprove the payment if it was not genuine since it is a part of record of a bank account. So also opposite party did not specifically challenge Ext.A2(p)(q),(r) etc. which are cash receipts. Ext.A2(p),A2(q),A2((r)are cash receipts issued by .V.Ramadas/opposite party.  If the same was not genuine at least opposite party could have been very well enter in  box and adduce evidence to the effect that the same had not been issued by him. The question of disbelieving these receipts does not arise if there was no opportunity to cross examine opposite party. Hence the payment of `17,95,000 by Ext.A2 & A2(a) to (r ) have been proved by complainant. Complainant also has the case that an excess amount of `13,000 also paid for which opposite party had not issued any receipt. The pleading of the complainant is that including the said `13,000 a total of `18,08,000 has been paid to opposite party. Opposite party denied the payment contending that the opposite party succeeded in obtaining `18,08,000 instead of `17,65,000 is not correct. But no where it can be seen a specific denial of the averment of the complaint that he had received `13,000 over and above the stipulated amount of `17,65,000. Opposite party pleaded to produce all the receipts issued by opposite party. When complainant pleads that for payment of `13,000 opposite party did not issue receipts, there is no point in demanding to produce the receipt for the same. Opposite party should have  specifically denied the receipt of `13,000 first of all. Since there is no denial specifically the pleading of complaint that he has paid `13,000 over and above the stipulated amount `17, 65,000 can only be believed. Anyhow, it is only a mater of difference of `13,000 since opposite party has admitted the payment of `17, 65,000.

Opposite party produced Ext.B1 bill for the additional work. But the same is not proved. Complainant did not enter inbox and say that Ext.B1 is a genuine document. In absence of supporting evidence it is not possible to come into a definite conclusion on the basis of Ext.B1.

The allegation of the complainant is that there are three agreements in connection with the construction and opposite party did not carryout the work as per the terms and conditions. It is also alleged that the work already performed were done with substandard materials and defectively. Complaint has further case that he has performed the balance work by spending 1.5 lakh by the complaint. He has deposed in cross examination that Ext.A3 and A4 documents were produced to prove that the balance work was done by the compliainant.Ext.A3 & A4 are bills for the purchase of materials for the balance work done by him. Complainant in cross examination deposed that “ Construction \pambn _Ô-s¸«v  3 agreement D­m-bn-cp-¶p. AXp-{]-Im-cT apgp-h³ {]hÀ¯n-bp-T-sNbvXnà F¶-XmWv Fsâ ]cmXn IqSmsX  1.5 lakh Rm³ apS¡n _m¡n sNbvXp-F-¶pT tIÊp­v”. Hence the definite case of the complaint is that opposite party did not complete the work before 10.4.08 so that he was compelled to finish the work by himself by spending 1.5 lakh. What is pleaded by opposite party is that for completing the remaining construction left by the opposite party, construction materials worth `50,000 was required but he had left construction materials worth  rupees more than `2,0,000. He futher contended that  materials worth of `1.5 lakh and construction tools and equipments appears to have been clandestinely disposed of by the complainant.

From the contention of opposite party itself it is clear that he had left the wok without completing the construction in time and even according to him construction material worth `50,000 is at least required to finish the work. If the case of opposite party was true that he had left on the work sport construction materials worth more than `2,00,000 there is no logic in leaving the work without finishing the remaining work. It is also difficult to believe that in a work spot where required only construction materials of `50,000 at the edge of finishing point the contractor happened to store building materials of his own for worth of `1,50,000 and even then leaving the place stopping the work.

Regarding the construction work carried out by opposite party it is a fact that complaint has been dissatisfied with the defective works by unskilled workers. He had complaints of leakage of slab and sunshade. He alleges that the walls of the house were in bend shape and the wood materials used were substandard variety instead of irool or karivaga. Ultimately the case of the complaint is that the opposite party illegally stopped the construction without completing it as stipulated in the agreements as a protest to the demands of the complainant to cure the defects and to replace the substandard articles in the construction.

Complainant has taken out an expert commission to asses the damage caused to the complainant. Commission was deputed for the purpose assessing dampness, disfiguration and to assess the cost of completion of the work. Expert Commissioner inspected the property in the presence of the parties and counsel on both sides and submitted report Ext.C1 observing that: “Dampness are seen due to water percolation at upper living area near window, comer of upper living room. First floor sunshade bottom side is wet even though it is covered with roofing tile. Leakage is seen on the courtyard portion roof slab. Court yard portion; columns are not in plumb or in level. Defective wall plastering in many room walls. Wall putty finishing works are not done properly. Air hole in the first floor portion is not in a plastered finished manner. Bath room tiles laying in some portion are not done properly. Floor tiles laying in some portion are not proper; resulting cracks on the floor and noise while walking through this area. Since the wooden shutters were painted/polished, the type of wood could not be identified. Defective window shutter frames and defective fittings were also seen. Small gaps are seen between the frame and shutter. Window grill design is changed in one room. Width of the stair case is not uniform through out. Defective floor tiles near Pooja, Dining area can be seen. In bath rooms, the portions above tiled area are not properly finished. Kitchen floor tiles are cracked at some places due to defective laying. Front sit out floor is defective and roof tiles are leaking”.

 Commissioner pointed out that the major defects are due to poor quality of workmanship. In his opinion many of the defects could be rectified or corrected before the completion of the work and some other works at later stage. He has also opined that dampness on the bottom side of slab/sunshade could also be rectified. Commissioner has noted the major pending works as per the discussion are car porch tiles flooring and staircase hand rails. He has also noted some additional works carried out by opposite party which was not in the agreement such as ornamental plastering works, additional sloped portion above the courtyard roof. Any how commissioner couldn’t submit details estimate of the works carried out by the complainant at  that point of time of his inspection. Inspection was conducted on 6.8.2010.

The facts of the case reveals that the last supplemental agreement Ext.A1(b) was executed on  3.1.2008 and stipulated the  date of completion GF & FF on 10^th April 2008. The first agreement on Ext.A5 executed on 10.10.2006.

Ext.A3 to A3 (b) purchase bills shows that complainant purchased building materials for an amount of `67,650. Ext.A3 is not  an original document but Ext.A3(a) and A9b) are documents reveals that complainant purchased materials for `7170. Ext.A4(a)(b)(c)(d)(e)(f)  documents are not by impression proper receipts with details of issuing persons. Ext.A4 (g) to (j) are  not clear as genuine. But Ext.A4(k) to (y) are bills and invoice for purchase for an amount of `61,308.

          Ext.A5 is the copy of the lawyer notice. Complainant sent lawyer notice calling upon to pay `4,00,000. Receipt and acknowledgement proves that complaint has sent the notice. It was alleged in the notice that opposite party had received `17,90,000 instead of `17,65,000. It is further alleged that the date of completion of the construction fixed in the agreement (Ext.A4) dt.3.1.2008,  is 10.4.2008. But on failure of completion of the work in time by the opposite party complainant was compelled to spend `1,25,000 for completing the same. The defects of the construction and of employing of unskilled workers etc are also alleged against the opposite party. The notice reveals that complaint raised the demand as early on 31.12.2008. Opposite party did not send any reply. Opposite party has no case that he has sent any reply by post, though he has stated that he had approached the complaint to settle the matter. No reply of legal notice in a case like this is a serious draw back on the side of the opposite party and that itself reveals opposite party has no justifiable ground towards allegation of complainant.

It is pertinent to note that he did not adduce any evidence entering in witness box. That can only be considered as tactics to avoid cross examination. Complaint had been cross examined at length. But opposite party did not adduced evidence by means of chief  affidavit and denied opportunity for complainant to cross examine him. He has produced certain documents.  But he was not interest to prove those documents. Ext.B1 is a bill prepared by opposite party himself. At least he could have entered in box in order to prove this document. Ext.B2 reply letter have no relevancy since the same was admitted by the complainant. At least ExtB5, commission report could have been proved by examining the commissioner. Other documents plaint and  all has no  direct relevancy and not in any way helpful to gather any pieces of evidence so as to strengthen the pleadings of opposite party.

On going through the evidence and scrutinizing the entire materials on record we have no hesitation in holding that there is deficiency in service on the part of opposite party in carrying out the construction work of the house of the complaint, even though opposite party had admittedly received `17,65,000 which according to  he himself the  amount of contract between complaint and opposite party.

The facts and available evidence makes it clear that opposite party left the construction  without completing the work, which caused loss and sufferings to complainant to complete the work. The commission report specifically concluded that there were defects in the work which he had performed. He has also received excess amount `13,000. Ext.A3 (a) and (b) the purchase bills proved that the purchase of building materials by the complaint for more than `7170. Ext.A4(k) to Ext.A4(y) proved the purchase of `61308. The facts and circumstances reveal the possibility of more expenses and mental and physical sufferings. Hence we are of opinion that the complainant is entitled for compensation for an amount of `2 lakh and an amount of `2500 as cost of this litigation. Hence the issues 1 to 3 are answered in favour of complainant. Order passed accordingly.

          In the result, the complaint is allowed directing the opposite party to pay an amount of  `2,00,000(Rupees Two lakhs only) as compensation and an amount of `2,500 (Rupees Two thousand five hundred only) as cost of this proceedings  to the complainant within one month from the date of receipt of this order, failing which  complainant is also entitled for 10% interest from the date of this order till the realization of the amount. Complainant is at liberty to execute the order after the expiry of one month of the order as per the provisions of consumer protection Act.

                     Sd/-                         Sd/-                 Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.Copy of the agreement executed by complainant and    OP

A2. Bank statements

A3. Bills for purchasing materials.

A4. Bills and receipts for purchase of materials and wages.

A5.Copy of the lawyer notice sent to OP, Postal receipts & AD cards

A6. Receipt for wages.

Exhibits for the opposite party

B1.          Copy of bill for the additional work of complainant

B2.          Letter dt.1.1.09 issued by complainant

B3 to B5. Certified copy of the Plaint, written statement,

                 commission report in O.S.48/09 of the Addl. Munsiff

                 court, Kannur.

B6 & B7. Copy of the caveat filed before  Munsiff court, Kannur.

B8. Postal acknowledgement card

Exhibits for the court

C1.Commission report

Witness examined for the complainant

PW1.  Complainant

Witness examined for the opposite party:

Nil

                                                  / forwarded by order/

                                                                                                                                           Senior Superintendent