KERALA STATE ONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM COMMON ORDER IN APPEAL NOS.305/08 AND 283/08 JUDGMENT DATED: 26.11.09 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER APPEAL 283/2008 Shri.Gopinathan Nair, : APPELLANT Dhanya, Kummil, Kollam. Vs. Shri.J.Antony, : RESPONDENT Proprietor, Shinar Granite & Mosaic Flooring, (SSI Reg.No.09/10/13802) Elavattom, Palode, Pin- 695 562. ( By Adv.N.R.Sureshkumar) APPEAL 305/2008 Shri.J.Antony, : APPELLANT Proprietor, Shinar Granite & Mosaic Flooring, (SSI Reg.No.09/10/3802) Elavattom, Palode. ( By Adv.N.R.Sureshkumar) Vs. Shri.Gopinathan Nair, : RESPONDENT Dhanya, Kummil, Kollam. JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal No.305/08 prefers from the order passed by the CDRF, Thiruvananthapuram in the file of OP.552/02 dated 16.8.08. The appellant is the opposite party in the above OP. In short the complainant is decided to construct a building at Venchanvod near Sreekariyam for his daughter Smt.Manju. The opposite party is the proprietor of Shinar Granite and Mosaic flooring, Palode. On 28.7.02 the complainant and opposite party entered into a contract for the purpose of decorating the floor with marble cutting design grey and white 12 inch x 12 inch tiles and it is finishing work for the newly constructed building for the complainant and agreed to complete the work before 26.8.02. As per the said agreement a total sum of flooring works for Rs.42398/-(Rs.29 per sq.ft) out of it opposite party received an advance amount 15000/- for making tiles from the complainant on 28.7.02. On 7.8.02 the opposite party received an amount of Rs.20500/- and 4.11.02 opposite party received Rs.5000/- from the complainant. Opposite party received a total sum of Rs.50700/- from the complainant. On 4.11.02 opposite party assured the complainant that he will complete the work within 22.11.02. The opposite party acknowledged the receipt of the amount and the receipt of the amount in his own hand writing on the reverse of the agreement done between both parties. The opposite party did not complete the work within the stipulated period on 9.12.02 and the complainant issued a notice to the opposite party demanding the completion of the above work. On 18.12.02, a written voucher was issued by opposite party. Opposite party received exorbitant amount from the complainant. The complainant was suffering from various decease. The purpose of the above building is for his treatment. The deficiency in service of opposite party caused loss and mental agony to the complainant and his family. He sustained unexplainable loss. Hence this complaint claiming refund of the amount received by the opposite party from the complainant with interest thereon, and payment of Rs.50000 towards compensation and cost to the complainant. The other side appeared before the Forum below and filed their detailed written version. They contended that the complainant is filed without any bonafides. They denied the averment in para 1 of the complaint. They contended that the para No.3 is not fully correct.. They never promised to complete the work before 26.8.02. The agreement date 28.7.02, as also been changed by mutual understanding by the parties on various aspects and conditions. The parties were at consenses to novate the agreement on the reason of non availability of power supply, grey cement, river sand etc at the site which were agreed to be provided by the complainant. There had been no delay on their part in completion of the work. They had done the work at the 1st opportunity itself. The payment as stated in the complaint are made by the complainant on different stages of completing the works undertaken by the opposite party. The complainant entrusted the work on fixing hand rails on the staircase, sitouts, ceramic tile works in the toilet, kitchen slab fixing skirtiz etc. These works were also satisfactorily done by the opposite party . At no point of time complainant raised any dissatisfaction regarding the nature or quality of work done by the opposite party. The cost of works done by the opposite party as per the renewed agreement far exceeded the payments made by the complainant and as the works were about to be finished the opposite party sought for an assurance of payment of balance amount from the complainant. The complainant was living evil motives of causing illegal gain by not paying full amount to the opposite party on completing the worrk. Opposite party had collected all materials including granite slab in the kitchen for finishing the work. The notice sent by the complainant was duly replied stating true facts There has been no deficiency in service on the part of the opposite party. The complainant did not facilitate to complete the works by the opposite party with ulterior motives. There is no cause of action or for filing this complaint against opposite party, and none of the reliefs as prayed for in the complaint is allowed. The complainant is not entitled to get any amount from the opposite party, on the other hand the opposite party is entitled to realize the amount of Rs.28976/-. Hence the opposite party prayed for dismissal of the complaint. Forum below raised three issues mainly; they are: 1) Whether the complainant is entitled for refund the amount from the opposite party? 2) Whether there has been deficiency in service on the part of the opposite party? 3) Reliefs and costs? C.S.Padmakumar who examined asa PW1 from the part of the complainant and documents Exts.P1 to P6 were marked. For the opposite party J.Antony examined as DW1 marked documents Exts.D1 to D3. On the part of the court, examined as CW1, Meerakumari and marked the commission report as Ext.C1. the Forum below heard both sides and appreciated the entire evidence adduced by both sides. Forum below r answered all the questions araised for consideration and taken a view that the opposite party has received excess amount of Rs.8402/-, then what the opposite party is entitled to get as per the P1 agreement. The Forum below found that the opposite party never completed the work as per the agreement. The non completion of work evenafter receipt of the entire agreed amount within the stipulated time would amounted to a deficiency. Forum below ordered the opposite party to refund an amount of Rs.8402/- towards excess amount received by them with a tune of Rs.2000/- towards compensation for non completion of work and Rs.2500/- as cost to the complaint. Thus appellant prefers this appeal from the above impugned order passed by the Forum below and to set aside the order. On this day the appeal came before this Commission for final hearing, the appellant appeared through his counsel and the respondent/complainant appeared through his authorized representative. The authorized agent appeared on before the complainant/respondent invited our attention that he preferred an appeal No.FA.283/08 for encashment the compensation already ordered by the Forum below and he submitted that both appeals preferred from the same order in OP.No.552/02 CDRF, Thiruvananthapuram. He submitted that both appeals posted this day and may be heard together. This Commission allowed his oral request and there is no objection raised by counsel for the appellant in the appeal No.FA.305/08. This Commission is hearing both appeals together in this day. The counsel for the appellant in FA.305/08 argued on the grounds of appeal memorandum that the Forum below failed to appreciate the contentions of the appellant which remained uncontroverted and also supported by the evidence adduced from respondent side itself. The Forum below did not appreciate various pleadings and evidence adduced by him. The counsel submitted that Fourm below with wrong in allowing the complaint and entering the finding like there was deficiency in service on the part of the appellant. Forum below did not appreciate the terms of the agreement and evidence adduced by the respondent/opposite party in the matter of non completion of the work on the agreed date. The Forum below ought to have found that the works could not be completed before 22.11.02 solely because the pending work were not completed by the respondent before the date agreed by the respondent/opposite party. The Forum below also ought to have found that the time was noted as a condition of the agreement between the appellant and the respondent. The counsel for the appellant in FA.No.283/08 submitted that the complaint is not any way that the complaint is not maintainable according to the provisions of C.P.Act. He submitted that there is no legality to demand for recovery of balance amount. For this purpose a suit for recovery of money in a civil court is the only legal remedy. The counsel for the appellant/opposite party strongly argued that this case is only maintainable before the Civil Court as per the provisions of the Civil Procedure Court. It is not coming under the Consumer Protection Act. But this argument is not legally sustainable. Here the complainant claimed the money as a part and parcel of the deficiency in service and unfair trade practice. The amount demanded for deficiency in service and unfair trade practice committed by the opposite party. No doubt that this complaint is coming under the provisions of the Consumer Protection Act. The authorized representative of the respondent/complainant submitted that there is no irregularity or illegalitty in the order passed by the Forum below except the amount of the compensation from the same order OP.552/02. Hence his appeal prefers for the enhancement of the compensation. He argued on the strength of his entire evidence adduced by him before the Forum below. This Commission perused the entire evidence adduced by both sides and from the LCR and heard both sides. We are not seeing any irregularity or illegality in the order passed by the Forum below except the quantum of compensation. As per the submission of the respondent/complainant that, he filed his appeal for the purpose of enhancement of the compensation only and strongly opposed the counter allegations of the appellant/opposite party. The appeal No.FA.305/08 filed by the opposite party to set aside the impugned order passed by the Forum below and the appeal No.FA.283/08 filed by the appellant/complainant to enhance the compensation ordered by the Forum below in the OP.552/02. As per the submission of authorized representative of the appellant/complainant that the unfairness begun from the Ext.P6 advertisement given by in Malayala Manorama daily by the opposite party in the above said OP. Authorised representative of the appellant who submitted that as per Ext.C1(Commission report) the general conditions of the flooring, it has been reported that the appearance of the floor indicates that only a rough polishing has been done, there is visible level difference in between the tiles at many locations , the cutting of the flooring has not been properly laid and finishing of the same is not perfect, the flooring work has not been completed fully and an area of 16.73 sq.ft. is left out over the floor and staircase. The total floor area inclusive of wall cutting and of stair case was out to be 1374.42 sq.ft.(tiles have been laid for an area of 1357.14 sq.ft. 16.73 sq.ft yet to be carried out). As regards quality of flooring, as tiles are in laid condition, some samples of the same has been taken from the site and tested in the Laboratory of the Government College of Engineering, Thiurvananthapuram. It is concluded that the tiles appeared to be poor quality. The workmanship for the same is also poor. As regards quality of flooring it has been reported by the Commissioner that the total area of the flooring laid using the design tiles works out to be 1374.42 sq.ft for which 15 days works were required. These are the established fact and evidence. The expert Commissioner failed to assess the amount of the total loss sustained by the complainant in this case. After hearing both sides and perused the entire evidence; the amount ordered by the Forum below for the compensation for non completion of work is only Rs.2000/-. It is a very meager amount if considering the deficiency and unfair trade practice committed by the opposite parties. This amount is very negligible but the same time the amount demanded by the complainant/opposite party as a compensation is very high and exorbitant and the complainant/appellant is also not taking any steps to produce any bills of payment done by him either before the Forum below or before the appellate Commission with petition. But we the Commission decided to interfere in the compensation for non completion of work which is a deficiency in service and unfair trade practice committed by the opposite party. In the result (1) this appeal FA.283/08 filed by the appellant/ complainant is allowed in part. The Forum below only direct to pay the opposite party Rs.2000/- as a compensation of non completion of work. It is modified and this Commission directed the opposite party shall refund an amount of Rs.8402/- towards excess amount received, Rs.15000/- towards compensation for non completion of work deficiency in service and unfair trade practice and also Rs.2500/- towards cost to the complaint. This appeal decided accordingly. In the result (No.2)(the FA 3035/08 filed by the appellant/opposite party is dismissed and confirmed the order passed by the Forum below. With a modification of compensation as Rs.15000/-. Other portions of the order of the Forum below is confirmed. Normally in such cases ordinary person can only possible to adduce this type of evidences to support his case. The opposite party is a industrial concern. Consumer cannot anticipated any further legal complications in connection with the proposed construction of his sweet dream home. Ordinary course a person is constructing only one house in his lifetime. But the opposite party is a institution having all facilities like office, staff etc. It is not possible to equate both fethals in a same weighing machine. It is a Commission established under the provisions of the Consumer Protection Act. It is a most socially benefited legislation passed by the Parliament for ensure protection and speedy justice to the consumers of the country. In this circumstance we disposed both appeals from a very same order accordingly. Both parties are directed to suffer their own respective costs. The points of both appeals answered accordingly. SRI.M.K.ABDULLA SONA : MEMBER JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT ps | 
