Order:
1. This complaint is filed by the complainant U/Sec 12 of the Consumer Protection Act, 1986 to direct the Opposite Parties –
-i) to pay a sum of Rs.7,74,989/- which is the excess amount received by them.
-ii) to pay Rs.15,600/- towards the amount spent by the complainant to complete the works remained when the house was taken by him.
-iii) to pay Rs.25,000/- for the delay in completing the works as per the Agreement.
-iv) to pay Rs.25,000/- towards damages and for mental agony sustained by the complainant and his family and to award costs of the complaint.
2. The case of the complainant is briefly stated below:
The complainant is working as principal of Government Degree College, Khairatabad and he purchased 200 sq.yds of plot bearing No.14 in Uppal. He wanted to construct a G+1 storeyed independent house in the said plot. He approached Opposite Party No.2 and requested for plan and construction estimates. The Opposite Party No.2 introduced Opposite Party No.1 as his partner and a builder. The Opposite Party No.2 prepared the plan and estimate. After mutual deliberations, the terms of construction were finalized. He agreed to pay Rs.450/- per sft to the Opposite Parties for the works as mentioned in the agreement with specifications. It is agreed that the construction shall be completed within six months. The Opposite Parties agreed to pay penalty of Rs.25,000/- if there is any delay. The construction agreement was reduced into writing on 16.08.2010. The first Opposite Party only signed in the said Agreement. When he asked Opposite Party No.1 as to why Opposite Party No.2 has not signed, he was informed that to avoid tax, they did like that. But Opposite Party No.2 signed as a witness in the said Agreement. He was prompt in payment of the amounts while the Opposite Parties failed to maintain the time schedule at any stage of the construction and the construction did not reach second slab stage in six months. When the house was to be plastered, the Opposite Parties said that unless electric wiring and plumbing is done plastering cannot be done. The Opposite Parties stated that if those works are entrusted to any third party, the construction would be delayed and therefore requested to entrust the said works also to them. He accepted for the said proposal and entrusted the lappam finishing, polishing, painting and ceiling work to them. He went on paying the amounts demanded by the Opposite Parties. He paid in all a sum of Rs.28,52,000/-. The Opposite Parties failed to complete the construction work even after lapse of more than one year. Therefore, he took possession of the house in third week of October, 2011. The Opposite Parties left out the house without completing sump and ramp. He spent Rs.15,600/- for the said unfinished work. The Opposite Parties are liable to pay the said sum. He suspected foul play by the Opposite Parties and got the house estimated by R.B.Enterprises Asifnagar. They estimated the work done by the Opposite Parties at Rs.20,77,011.76 ps as per the Agreement. As per the said report, it is apparent that the Opposite Parties deceived him to a tune of Rs.7,74,989/-. He demanded the Opposite Parties for payment of the said amount besides the sum of Rs.15,600/-. As there is no response from the Opposite Parties, he filed the present complaint.
3. The first Opposite Party filed his Written Version and mainly contended that he is an independent civil contractor and the Opposite Party No.2 is not his partner as alleged in the complaint. He used to take regular advice and professional services from Opposite Party No.2. He was present by chance when the complainant contacted the Opposite Party No.2. He was introduced to the complainant by Opposite Party No.2. The complainant has satisfied with his credentials and entered into an Agreement dt.16.08.2010 for construction of the house. The Opposite Party No.2 signed in the said Agreement as witness. The work originally entrusted to him under the said Agreement pertains to ground+2 floors with brick work, plastering overhead tank, sump, compound wall, earth filling for basement and masonry work for elevation. The rate agreed for the same is Rs.450/- per sft for construction against 4167 sft which comes to Rs.18,75,150/-. During the course of the work, the complainant has increased the scope of the construction and included extra works after satisfying with the progress. He agreed to complete the extra works for a sum of Rs.27,53,905/- as mentioned in his Written Version. The complainant has in all paid Rs.28,45,000/- only but not Rs.28,52,000/- as mentioned in the complaint. The complainant has to pay a sum of Rs.46,29,055/- towards total agreed works. Thus, the complainant is still due in a sum of Rs.17,84,055/-. The complainant came to him in the third week of September 2012 and asked for a comprehensive receipt for the purpose of tax. Therefore, he signed on the receipt in good faith when the complainant promised to settle the account in a short time. There is no deficiency of service on his part. The complainant is not entitled to get the reliefs against him. Therefore, he prays to dismiss the complaint with exemplary costs.
4. The second Opposite Party filed his Written Version and mainly submitted that he is the proprietor of his concern as shown in the cause title of the complaint. The first Opposite Party is not his partner. He furnished the design and plans as required by the complainant free of cost. Thereafter, the complainant has engaged the services of some other civil contractor who executed the work upto footings only. Some disputes arose between the complainant and the said civil contractor. Thereafter, the complainant has engaged the Opposite Party No.1 for completing the construction and executed the Agreement dt.16.08.2010. He attested the said document as a witness as both parties are known to him. Therefore, he prays to dismiss the case with exemplary costs.
5. The points for consideration in this case are:
1) Whether the second Opposite Party is the partner of the first Opposite Party as alleged in the complaint?
2) Whether there is any deficiency of service on the part of the Opposite Parties?
3) To what relief?
6. The complainant filed his evidence Affidavit and got marked Ex.A1 to A17. The Opposite Party No.1 only filed his Evidence Affidavit and no documents are marked on the side of the Opposite Parties.
7. The learned counsel for the complainant and Opposite Parties filed their Written Arguments.
8. Point No.1: It is the case of the complainant that the Opposite Party No.2 is the partner of Opposite Party No.1 and claims the reliefs against both of them. First of all, the complainant did not show Opposite Party No.2 as partner of Opposite Party No.1. Moreover, he showed Opposite Party No.2 as proprietor of S‘n’S Associates Architects and Engineers. Likewise, Opposite Party No.1 is shown only as a builder, but not being represented to any firm. Ex.A1 is the Construction Agreement between the complainant and the first Opposite Party only. In other words, the Opposite Party No.2 did not execute the said Agreement as partner of Opposite Party No.1. Moreover, he attested the said document only as the witness since both parties are known to him. It is quite probable and natural for Opposite Party No.2 to attest Ex.A1 Agreement as he introduced the complainant to Opposite Party No.1. There is absolutely no evidence on the side of the complainant to show that Opposite Party No.2 is the partner of Opposite Party No.1. The version of the complainant that Opposite Party No.1 only signed as an executant in Ex.A1 Agreement for the sake of tax is not tenable. Therefore, we answered this point against the complainant.
9. Point No.2: Admittedly, the complainant and the Opposite Party No.1 entered into a Construction Agreement dt.16.08.2010 which is marked as Ex.A1 and the Opposite Party No.1 (hereinafter referred as builder) agreed to complete the construction within a period of six months. Evidently, the mode of payment and the materials to be used for the construction are clearly mentioned under Ex.A1 Agreement. It is the further case of the complainant that he entrusted some more works to Opposite Party No.1 and in all he paid a sum of Rs.28,52,000/- as mentioned under Ex.A2 receipt. No doubt, the Opposite Party No.1 also admits his signature on Ex.A2 even though he disputes its correctness. The complainant filed several receipts which are marked as Ex.A4 to A13 to show his expenditure and estimation of works. Now the complainant claims an amount of Rs.7,74,989/- and another amount of Rs.15,600/-. It is the version of the complainant that he got the works estimated by R.B.Enterprises Asif Nagar who estimated the value of the work done by the builder to a tune of Rs.20,77,019.76 ps as mentioned under Ex.A3 and therefore he claims the difference amount (Rs.28,52,000/- - Rs.20,77,011.76/-). There is no Agreement between the complainant and the builder that the payment should be made as per the estimation made by any other Engineer. We do not understand the logic for making such claim by the complainant/owner. Generally, every builder accepts the works only for getting some benefit. In other words, no builder would take up the construction work of any building without any profit. Therefore, the above claim of the complainant is baseless and untenable. It is not the case of complainant that the builder left any works as agreed under Ex.A1 Agreement. He claims the other amount of Rs.15,600/- on the ground that he completed the works by spending his own money. Admittedly, there is no Agreement in writing for the additional works entrusted to the builder. In the above circumstances, there is no cogent evidence on the side of the complainant to show any deficiency of service on the part of the builder. It is argued on behalf of the complainant that Opposite Party No.1 is working as a conductor in RTC and filed Ex.A14 to prove the same. However, it is not a ground to award any compensation in favour of the complainant. It is the duty of the complainant to engage the builder after making proper enquiry. It is for the employer of Opposite Party No.1 to take any departmental action if necessary. The said aspect is nothing to do with the present case. Likewise, the complainant gave a complaint to the state SHO of Uppal Police Station under Ex.A15 against the Opposite Party No.1 to punish him. The said aspect has no bearing on the present case. For the reasons stated above, we held that there is no deficiency of service on the part of the Opposite Parties.
10. Point No.3: In the result, the complaint is dismissed. Both parties are directed to bear their own costs.
Dictated to the Steno-typist, transcribed by her, corrected by me and pronounced by us in the Open Forum on this the 24th day of February, 2014.
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PRESIDENT MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainant For Opposite Parties
Affidavit filed OP-1 filed Affidavit
EXHIBITS MARKED
For Complainant
Ex.A1 – Copy of Construction Agreement dt.16.08.2010
Ex.A2 – Copy of Cash Receipt
Ex.A3 – Copy of Assessment Summary Report of Work completed as per the
Agreement and assigned extra work
Ex.A4 – Bills issued by Pragathi marbles & granites
Ex.A5 – Cash Memo bills
Ex.A6 – Bills issued by Sri Gopal Ply Woods
Ex.A7 – Bills dt.23.07.2011
Ex.A8 – Quotation issued by Sri Lakshmi Electricals and Hardware dt.23.10.2011
Ex.A9 – Estimate of Plumber First Choice
Ex.A10 – Cash/Credit Memo dt.13.06.2012 for Rs.23,170/-
Ex.A11 – Bills issued by R.S.Grills Works
Ex.A12 – Bills issued by Breeze Shower Cubicals and Aluminium dt.21.09.2011
Ex.A13 – Bills issued by Sadanand Engineering Works dt.15.07.2011
Ex.A14 – Letter dt.08.08.2013
Ex.A15 – Police Complaint dt.30.08.2013
Ex.A16 – Copy of House Plan
Ex.A17 – Photos
Exhibits marked for the Opposite Parties
Nil
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PRESIDENT MEMBER
