By Sri. Chandran Alachery, Member:-
The complaint filed under section 12 of the Consumer Protection Act of 1986 for an order directing the Opposite Party to pay Rs.12,500/- being the excess amount received by him from the Complainant in the house construction and to pay a compensation of Rs.25,000/- to the Complainant.
2. The complainant's case in brief as follows:- The Complainant own 5 cents of property in Kaniambetta Panchayath and in order to construct a house in that property, the complainant entered into an agreement with Opposite Party to construct the house as per the plan. The agreement is executed between the parties on 21.05.2012 and the Opposite Party accepted Rs.5,000/- as advance amount. As per the contract, the payment of consideration is fixed in the following levels. (a) Rs.20,000/- after the completion of platform work. (b) Rs.25,000/- on completion of wall up to lintel level. © After completion of concrete of teruss of the house calculate the plinth area and Rs.145/- per square feet is fixed as per contract. But Opposite Party had done only platform work and received Rs.20,000/- from the Complainant thereafter, the Opposite Party did not turn up and completed the work. The complainant contacted the Opposite Party as several occasions and demanded to complete the work, but Opposite Party requested further time. The Opposite Party never come back to complete work. So Complainant suffered so many hardships mentally and financially. The Complainant then preferred a complaint before the Kambalakkad Police Station on 24.08.2013 and Opposite Party was called up on 04.09.2013 for a settlement talk but Opposite Party did not co-operate. As per plan, there are two bed rooms, one living room, Dining Room, Store room, site out, Kitchen, Bath room, Varandha is there in the house. Complainant also gave the plan to the Opposite Party. Instead of doing the entire plat form work as per plan, the Opposite Party had done the plat form work excluding the plat form work of Kitchen, site out, Bath room. The Opposite Party informed the Complainant that it will be done later. But Opposite Party had accepted the entire amount of Rs.20,000/- for platform work violating the terms of agreement on 16.02.2012. Opposite Party accepted the advance amount of Rs. 5,000/- already. In order to complete the plat form work, a sum of Rs.7,500/- is required. So Opposite Party is liable to repay Rs.7,500 + Rs.5,000 = 12,500/- being the excess amount received by him. Aggrieved by this, the complainant filed this complaint before the Forum, for redressal of his grievance.
3. On receipt of complaint, notice was issued to the Opposite Party and Opposite Party appeared before the Forum and filed version. In the version, the Opposite Party contended that the complaint is filed by the complainant only to escape from the liability of paying the balance coolie amount of plat form work and only to harass the Opposite Party. According to the Opposite Party, the complainant got the house under EMs housing scheme from Panchayat to person below poverty line and the total plinth area is to be 430 square feet only. So the complainant directed the Opposite Party to do only the plat form work of Kitchen, site out and store room and bath room. Then only the complainant will get the 1st instalment for plat form work, More over, the Opposite party contents that the complainant did not supply the building materials in the site as per the contract and it is the reason for the non completion of house construction work. The complainant compelled the Opposite Party to 630 square feet plat form work. The Opposite party is entitled to get Rs.28,350/- as coolie from the complainant. But the complainant paid only Rs.25,000/- to the Opposite Party, and the balance coolie payable is Rs.3,350/-. The Opposite Party contents that he is not a contractor. He is doing only coolie work in construction field. As
per the contract, the completion of house construction will be done within 4 months of the stating of contract and work materials should be supplied at the site by the complainant. But complainant violated the terms of agreement and Opposite Party cannot do his work in time. According to the Opposite Party, there is no deficiency of service from his part. The Opposite Party contents that he is not liable to pay Rs.12,500/- to the Complainant . Hence the complaint may be dismissed.
4. On going through the complaint, affidavit, documents and Opposite Parties version and documents, the Forum raised the following points for consideration.
1. Whether there is deficiency of service from the part of Opposite Party?
2. What order as to cost and compensation?
5. Point No.1:- The complainant in addition to complaint, filed proof affidavit and produced documents complainant is examined as PW1 and documents are marked. Ext.A1 is the original contract and Ext.A2 is the plan. According to the Complainant, the Opposite Party had accepted Rs.5,000/- as advance and Rs.20,000/- for plat form work. But Opposite Party did not complete the plat form work and not turned up later. In the cross examination of complainant, the Complainant stated that he had entrusted the Opposite Party to construct a house with a plinth area of 650 square feet. He further states that the Opposite Party had completed 80% of the plat form work. In order to prove the work position of the house construction, the complainant did not take any steps to appoint a commissioner to examine the site and to file report. But Complainant had stated that in the plat form work of the house 80% of the work is completed by the Opposite Party. But as per agreement, the complainant have to pay Rs.20,000/- to the Opposite Party on completion of plat form work. But as per evidence of complainant and Opposite Party the plat form work is not completed, 20% of the work is yet to be completed. But the Opposite Party had accepted the full amount for plat form work. The complainant lodged a complaint before the Sub Inspector of Police, Kambalakkad and the Sub Inspector directed the Opposite Party to complete the work. But the Opposite Party did not comply the direction. Opposite party says that after the direction of police, he went to the site of complainant to continue the work, but the complainant did not supply materials to him, so he did not complete the work. That version of Opposite Party cannot be believed because the Opposite Party did not went to the Police Station again to inform the Sub Inspector regarding non-supply of materials as per direction. So by analysing the evidence of complainant and Opposite Party, the Forum found that there is deficiency of service from the part of Opposite Party in completing house construction work of Complainant. The Opposite Party stated that he is a coolie worker and he had done plat form work of the house of complainant for 30 days. The present normal coolie for a men worker in Wayanad District is Rs.450/- per day. If so the coolie payable to the Opposite Party will be Rs.450 x 30 days = Rs.13,500/-. The Opposite Party had accepted Rs.25,000/- from the Complainant already towards the work. So the Forum found that the Opposite Party had accepted an excess sum of Rs.11,500/- from the Complainant towards the work. Absolutely there is no cogent record before the Forum to consider the coolie on the basis of square feet. Point No.1 is found accordingly.
6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get the cost and compensation.
In the result, the Opposite party is directed to pay Rs.11,500/- (Rupees Eleven thousand and Five hundred) only to the complainant being the excess amount accepted by him from the complainant. The Opposite Party is also directed to pay Rs.1,000/- (Rupees
One thousand) only as compensation and Rs.1,000/- (Rupees One thousand) only as cost of the proceedings. The Opposite Party is directed to pay the above amounts to the complainant within 30 days from the receipt of this order failing which the complainant is entitled to get 12% interest per annum for the whole amounts there after.
Dictated to the C.A transcribed by him and corrected by me and pronounced in the Open Forum on this the 2nd day of July 2014.
Date of filing:09.09.2013.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
A P P E N D I X
Witness for the Complainant:
PW1. Rafeeque Complainant.
Witness for the Opposite Party:
OPW1 Dileep Mason
Exhibits for the Complainant:
A1. Agreement.
A2. Copy of Plan.
Exhibit for the Opposite Party:
B1. Copy of Plan.
