BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 9th day of November, 2017
FIRST APPPEAL No. 14/2016
Kumaran, S/o Sampath Kumar,
No.5, Narayani Illam,
III Cross Street, Brindavanam,
Puducherry-13. …………. Appellant
Vs.
Davoulath Bee, W/o Andonisamy,
No.25, Yanam Venkatachalam Pillai St.,
Puducherry-1. …………… Respondent
(On appeal against the order passed in C.C.No.45/2010, dt.15.03.2016 by District Forum, Puducherry)
C.C.No.45/2010
Davoulath Bee, W/o Andonisamy,
No.25, Yanam Venkatachalam Pillai St.,
Puducherry-1. …………… Complainant
Vs.
Kumaran, S/o Sampath Kumar,
No.5, Narayani Illam,
III Cross Street, Brindavanam,
Puducherry-13. …………. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
THIRU. S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Tvl. R.Thiroumavalavan & R.Ramachandiran,
Advocates, Puducherry.
FOR THE RESPONDENT:
Thiru M.Vikunth,
Advocate, Puducherry.
O R D E R
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry, dated 15.03.2016 made in C.C.45/2010.
2. The opposite party thereon is the appellant herein and the complainant before the District Forum is the respondent.
3. The parties are referred in the same position as they have been referred before the District Forum for the sake of convenience.
4. The short matrix of the complaint by the complainant before the District Forum is set out hereunder:
The complainant engaged the opposite party for thumb-all work (maelevellai) for the premise owned by her at No.41, 5th Cross, Dr.Radha Krishnan Nagar Extension, Moolakulam, Puducherry and entered into an agreement dated 30.04.2008 under Ex.C1. The tentative cost that arrived was Rs.5,40,000/- inclusive of labour charge and material costs. The complainant has paid Rs.4,30,000/- on various dates. The opposite party did not complete the work and left many in incomplete works. When prayed for completing the work, the opposite party laid a police complaint. Before the Police authorities, the opposite party promised either to complete the work or return the cost, but, did not fulfill the promise. In fact, before the Police authorities the opposite party wanted that the tiles have to be supplied by the complainant. The complainant purchased tiles and given the same to the opposite party. However, the work was not completed. Hence, the complainant and her brother gave complaint to the police. On 08.11.2008. the opposite party took inventory of the work done by him and photographed the same and handed over the keys to the complainant. After issuing legal notice, the complainant filed the complaint before the District Forum. The work carried out by the opposite was only to the tune of Rs.2,90,725/-. Therefore, the complainant claimed various reliefs set out in the complaint.
5. Reply version has been filed on behalf of opposite party and the gist of the same is set out hereunder:
Various listed works have been carried out by the opposite party. The complainant stated that excess amount was received by the opposite party and asked the opposite party to complete the work and receive the balance amount. The opposite party refused to accept the said deal. The balance amount that has to be payable by the complainant is only Rs.1,10,000/-. The opposite party has also done extra work. Thus, the reply version sought for the dismissal of the complaint.
6. Before the District Forum, the complainant herself was examined as CW1 and Exs.C1 to C14 were marked. On the side of opposite party, the O.P. examined himself as RW1 and Ex.R1 alone was marked. One Mr.Shankar, J.E., P.W.D. has been examined as CW2 and through him Exs.X1 and X2 have been marked. The said J.E. was appointed by the District Forum to file a report after inspecting the building.
7. Before the District Forum, the following four points were framed for determination:
1. Whether the complainant is a consumer?
2.Whether the complainant is entitled for a sum of Rs.2,47,990/-, being
the refund amount to be paid to the complainant for the incomplete
work by the opposite party?
3. Whether the opposite party attributed any deficiency in service?
4. To what relief the complainant is entitled for?
8. On the first point whether the complainant is a consumer, the District Forum held that the complainant is a consumer. On the second point whether the complainant is entitled for a sum of Rs.2,47,990/-, being the refund amount to be paid to the complainant for the incomplete work by the opposite party, the District Forum found that the opposite party shall return a sum of Rs. 1,46,800/- to the complainant. On the third point whether the opposite party attributed any deficiency in service, the District Forum found that there is deficiency on the part of opposite party. The District Forum also directed the opposite party to return Rs. 68,925/- being the cost of tiles and Rs.7,994.75 being the cost of electrical items purchased by the complainant. The District Forum also having held that the opposite party is liable for deficiency, has awarded Rs.25,000/- as compensation for negligent act. Further, the District Forum has awarded a sum of Rs.5,000/- towards cost of the proceedings.
9. The present appeal is laid challenging the said order. We have perused the entire pleadings, the evidence recorded, the documents filed by both sides and the report of the expert and also heard the arguments of the learned counsel appearing for the appellant as well as the counsel appearing for the opposite party.
10. The facts which are not disputed are that the complainant has engaged the opposite party for thumb-all work (maelevellai) work for her house at No.41, 5th Cross, Dr.Radha Krishnan Nagar Extension, Moolakulam, Puducherry. It is also not disputed that an agreement, dated 30.04.2008 (Ex.C1) was entered into between the complainant and the opposite party. The tentative cost of the work was estimated at Rs.5,40,000/- inclusive of labour charge and material costs. This could be found from Ex.C1. It is also not disputed that the complainant has paid various amounts on various dates totallying Rs.4,30,000/-. However, each blaming the other for incompletion work. But, the fact remains that the building was not completed and handed over to the complainant. The incomplete work, according to the finding of the District Forum is Rs.2,56,800/-, as has been estimated by the expert. However, we are unable to agree with the finding of the District Forum regarding the report of the expert. The expert in his first report, dated 20.02.2014, which is marked as Ex.X2, stated that sump work has been completed but connection was not given. However, in the civil work estimate for the balance work, the report of the expert dated, 16.07.2014, it is stated that " balance work of sump for the proper arrangement the RCC precast slab to the proper position and fixing with cement morter and plastering the top of sump including labour charges, etc." was one of the items mentioned as incompletion work. As stated already, this version of the expert in his report dated 16.07.2014, is quite contrary to the report given by him on 20.02.2014.
11. Furthermore, it is an admitted fact that wood has to be supplied by the complainant. In the cross-examination of CW3 – the expert, has deposed as follows:
"It is true that as per the agreement Ex.C 1, the complainant has to supply necessary woods for windows and doors. I agree that, as suggested, in the building wooden frame work has been done by the complainant. In the 13 items pointed out by me as defect, the work relating to the wood work is incomplete due to non-supply of further wood by the complainant."
12. This part of evidence of expert CW2 was taken into consideration by the District Forum though there is no evidence about the cost of such work. It can be safely concluded that atleast considerable amount would have been spent by the opposite party for the above wood works. This aspect failed to catch the mind of the District Forum while awarding amounts in favour of the complainant.
13. That apart, the complainant has laid the tiles in the building in question, which could be found from the report of the expert. That was also not taken into consideration by the District Forum.
14. Thus, considering the flaws in the order of the District Forum, it can be safely and roughly estimated that for the incomplete work, it would cost a sum of Rs.2,25,000/- to the complainant instead of Rs.2,56,800/-, as found by the District Forum. Deducting a sum of Rs.1,10,000/- payable by the complainant, it would be just and reasonable to fix a sum of Rs.1,15,000/- payable by the opposite party to the complainant instead of Rs.1,46,800/-, as was fixed by the District Forum. As regards the direction to return Rs.68,925/- being the cost of tiles is concerned, we are of the view that since the tiles have been utilized and laid by the opposite party in the premises of the complainant, as could be seen from the report of expert, the direction to return Rs.68,925/- to the complainant by the opposite party, is liable to be set aside. The cost of electrical items payable by the opposite party to the complainant at a sum of Rs.7,994.75 is retained. A sum of Rs.25,000/- that was awarded by the District Forum towards compensation for the negligent act of the complainant, do not need any modification in the appeal. A sum of Rs.5,000/- was awarded by the District Forum as cost of the proceedings, which is just and reasonable.
15. In fine, the opposite party is liable to pay (a) Rs.1,15,000/- (Rupees One-Lakh and Fifteen-Thousand only), being the cost of incomplete work, (b) a sum of Rs.25,000/- (Rupees Twenty-Five Thousand only) as compensation for the negligent act of the opposite party, (c) Rs.7,994.75 being the cost of electrical items purchased by the complainant, (d) a sum of Rs.5,000/- (Rupees Five-Thousand only) towards cost of proceedings.
16. The amounts have to be payable by the opposite party to the complainant within two months from the date of receipt of this order, failing which, the opposite party is liable to pay interest at 12% p.a. from the date of expiration of two months' period till full payment.
17. The appeal stands allowed in part as indicated above. However, there is no order for cost in this appeal.
Dated this the 9th day of November, 2017
(Justice. K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
