SMT. RAVI SUSHA  : PRESIDENT

     The  complainant filed this complaint   U/S 35 of Consumer Protection Act 2019,against  opposite party  company  alleging  deficiency  in service in the construction of his house, entrusted by the complainant to the OP on contract basis and claimed to refund Rs.1,42,212.50 by the opposite party.

   It is the  case of the complainant that  the OP failed to construct the house  in accordance with the agreed specifications and time limit that as per agreement  OP agreed to complete the work within 18 months from the date of  executing the agreement.  Complainant alleged that he had paid total Rs.12,92,812/- to OP in different instalments for the construction of house within the time limit.  But the OP had not completed the construction work purposefully and withdrew from further construction work.  So  the complainant was constrained to complete the work by spending Rs.3,26,350/- in addition  for purchasing the  construction materials.  The complainant alleged that the OP had done the work only for an amount of Rs.4,50,600/-.  Complainant further alleged that the entire work done for that amount was also weak  and done in a negligent manner.  The plastering of the  roof was done even in rainy day and hence there was roofing leakage.  Further due to proper non filling of basement with sand, there was weakness on the structural work also.   One of the allegation of the complainant is that as a security for payment of construction work he had given a  blank cheque to the OP.  But  the OP filled  cheque for an amount of Rs.3,87,000/-   and presented before the bank.  Hence in  his  complaint, the complainant therefore prayed for an award of Rs.1,42,212.5 with compensation from the OP.

   After  receiving  notices OP filed  written  version, strongly contended the allegations of complainant.  OP admitted the engagement of construction work of complainant and executed an agreement between them and agreed to construct at a  rate of Rs.1250/- per Sq.ft.  The total square feet was 1250.  So the total work  worth Rs.15,62,500/- as per the agreement.  OP contended that the complainant had given only Rs.12,44,912. OP further contended that the cheque as alleged by the complainant was given to him for balance payment.  But the cheque were returned from bank on  presenting  as dishonoured.  OP had claim Rs.3,87,000/- due from the complainant.  OP contended  that he could not complete the construction work because of  nonpayment of agreed amount by the complainant.  OP further contended that repeated  interferences in his professional working, including actual construction, by the complainant whose views were quite frequently different.  The OP contended that it was the complainant who had committed a breach of the agreement due to multiple interference  made by him, as a result of which  and nonpayment of expense the OP was prevented from carrying  out the work undertaken by him  and were forced to deviate from the agreed plan and structure.  On these ground OP prayed for the dismissal of the complaint.

   Complainant has filed his chief affidavit and documents.  He has been examined as PW1 and Exts.A1&A2 series were marked.  Ext.A1 is the agreement between parties and Ext.A2 series are the photos of the building marked subject to proof.  From the side of OP, though filed chief affidavit of OP, he has not turned up to enter into the witness box and adduced evidence.  After that complainant has filed written argument notes with some documents.

   Here the complainant’s allegation  about the OP is that the OP company had not completed the work within the specified period as agreed between parties in Ext.A1 agreement and the construction work done by OP is defective and further OP has received additional amount of Rs.1,42,212.50, considering the work done.  For proving  the allegations of the complainant about the violation of agreement Ext.A1  and poor workmanship in the construction work, the material evidence before us is only Ext.A2 series, photos, which were marked subject to proof.  The letter from Eernjoli Grama Panchayath office dtd.3/5/2023 shows that the complainant has not received the building number still now due to the violation of KPBR 2019 Rule 26,76(2),35 in  completing the construction work.  From the documents of Grama Panchayath, we can realize that the construction work was completed by the complainant with some other contractors other than OP company.

   Here there is no dispute that OP agreed to construct the building of the complainant and the complainant had paid Rs.1292812/- to OP for the construction work.  According to the OP, he was  forced to deviate from the approved plan due to the interferences by the complainant.  During cross-examination, complainant denied the said contention of OP.  Here it is to be noted that OP has not appeared before the commission to adduce evidence for proving  his contentions in the version.  Mere contention in the version is not sufficient.  Any way OP denied the allegations of the complainant about the poor construction work and receival of extra amount.  Here it is to be noted that complainant has not led any expert evidence except his own affidavit and  printed copy of photos which were objected  by OP with contention that Ext.A3 series photos do not belong to complainant’s building in dispute.  In the absence  any authentic evidence, it cannot be presumed that work done by the OP was defective and roof was leaking and there was hole in the basement.  Further presenting of cheque before the bank cannot be presumed that complainant has to give further amount to OP as contended by OP.

   Even if, there is no evidence with regard to the above points. The records of concerned Panchayath show that there was violation in construction of the building from the approved plan.  For that OP is responsible .  OP failed to establish his contention through evidence.

   Finally for the aforesaid reason, we are of the view that there is deficiency in service on the part of OP and is to be compensated.

   Therefore complaint is allowed in part.  Opposite [party is directed to pay Rs.1,00,000/- towards compensation to the complainant for the deficiency in service on the part of opposite party.  The opposite party shall pay the amount within one month from the date of receipt of the certified copy of this order.  Failing which the amount  Rs.1,00,000/- carries interest @9% per annum from the date of order  till realization.  Complainant  can execute the order as  Consumer Protection Act 2019.

Exts:

A1- agreement

A2series- photos(subject to proof)

PW1-Shamseer.T.K.complainant.

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                    MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR