Complaint filed on: 20-02-2016                                                      Disposed on: 15-12-2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.40/2016

DATED THIS THE 15^th DAY OF DECEMBER 2016

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -                                                     

Smt.Renuka.N,

D/o. Janardhana Rao,

Aged about 35 years,

R/at Oil Mill Road,

Chickpet, Tumakuru

(By Advocate Sri.Bendre Kumar.T)   

V/s

Opposite party:-       

Gangaraju,

S/o. Venkatappa,

Aged about 40 years,

R/at B.H.Palya,

Dibbur Post, Kasaba,

Tumakuru

(By Advocate Sri.T.N.Gururaj)

ORDER

SMT.PRATHIBHA. R.K. PRESIDENT

This complaint is filed by the complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to pay the excess amount of Rs.1,67,180=00 along with cost and mental agony, in total loss of Rs.2,00,000=00 including excess amount to the new contractor, in the interest of justice and equity.

2. The brief facts of the complaint is as under.

          The complainant is the owner of the site and she is intending to construct the building in her site. To construct the building, the complainant has entered into the agreement with the OP and his friend by name Lakshmana S/o. Hanumanthaiah on 29-9-2014 with Rs.25,000=00 per sq. ft. (chadura). The building total measuring Ground floor, 1^st and 2^nd floor totally 23 ¼ sq. ft. (chadura). The complainant further submitted that, the OP and his friend started the work, after sometime, there was a misunderstanding between the OP and his friend, the OP’s friend Sri.Lakshmana left the partnership from the OP in the beginning itself and the OP alone started the building work. The complainant further submitted that, the OP is habit of collecting the excess amount by violating the terms and conditions of the agreement, on the good faith, the complainant paid the amount to the OP.

          The complainant further submitted that, the OP has stopped the work all of a sudden without intimation to the complainant and also lifted the building construction equipments from the complainant’s building. The complainant contacted the OP and requested to complete the work as per the terms and conditions of the agreement. But the OP dragged the request of the complainant one or the other pretext. The complainant has approached the jurisdictional police and filed a complaint before the jurisdictional police. The said jurisdictional police called the OP to the police station, the OP gave an evasive reply before the jurisdictional police and the police has issued an endorsement to approach the proper court for recovery.

          The complainant further submitted that, according to the civil engineer calculation, the OP still has work to be done at site of Rs.2,55,000=00 and total cost of the building for masonry work is Rs.5,81,250=00 but the complainant paid to the OP of Rs.4,93,430=00. So the OP has collected the excess amount of Rs.1,67,180=00 from the complainant. The complainant has contacted the new contractor to finish the building work and paid Rs.2,50,000=00 to the new contractor. Hence, the complainant has come up with the present complaint to recover the excess amount from the OP.

3. After service of notice, the OP has appeared through his counsel and filed written version contending interalia as under:

The OP has denied all the allegations made in the complaint as false and documents produced by the complainant are concocted and fabricated for the purpose of filing the frivolous complaint.

The OP submitted that, he has taken up the construction work and completed the work and received the amount towards the work done on daily wage basis. The OP further submitted that, he has not at all entered into any agreement between them at any point of time and the alleged agreement is concocted and fabricated by the complainant for her illegal gain. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.

4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents along with the complaint, which were marked as Ex-C1 to C8. We have heard the arguments of both parties and perused the documents produced by the complainant and posted the case for orders.   

5. Based on the above materials, the following points will arise for our consideration.

1. Whether there was deficiency in service on the part of the OP as alleged by the complainant?
2. What Order?  

6. Our findings on the above points are;

          Point no.1: In the negative

          Point no.2: As per the final order below.

REASONS

          7. On perusal of the pleadings, affidavit evidence, objections of the OP and documents produced by both parties, it is an admitted fact that, on 29-9-2014 the complainant had entered into an agreement with the OP and his friend by name Sri.Lakshmana S/o. Hanumanthaiah to construct the building in the complainant site for Rs.25,000=00 per sq. ft. (chadura). To substantiate the above fact, the complainant has filed her affidavit evidence and also produced agreement copy entered between the OP and his friend Sri.Lakshmana S/o. Hanumanthaiah; it is marked as Ex-C1. In this agreement, it is seen that, the complainant Smt.Renuka had entered into an agreement with the OP and Sri.Lakshmana for Rs.25,000=00 per sq. ft. (chadura), but this agreement has not registered or notarized.

          8. The complainant further submitted in her complaint and also affidavit evidence that, the OP started the construction work, there is a misunderstanding between the OP and his friend Sri.Lakshmana, Sri.Lakshmana has left the partnership from the OP in the beginning itself and the OP alone started the construction work. All of a sudden, the OP has stopped the construction work and lifts the building construction equipments from the site of the complainant. The complainant contacted the OP and requested him to complete the construction work. The OP did not respond to the request of the complainant. Then the complainant has filed a complaint before the jurisdictional police and the police have issued an endorsement to approach the proper court for recovery of the excess amount from the OP. In this regard, the complainant has produced endorsement letter dated 9-7-2015, FIR copy, Ruby Architects and Engineers letters and three Xerox paper of payment made to the OP.  

          9. The material evidence placed by the complainant is insufficient to hold that, the OP is negligent and there is deficiency of service on the part of the OP in not completing the construction work as per the agreement and also the complainant has not produced any believable documentary evidence to prove her case. 

          10. The OP has submitted that, the OP has taken up the construction work and completed the work and received the amount towards the work done on daily wage basis. It is further submitted that, the OP and the complainant have not at all entered into any agreement at any point of time. The alleged agreement is concocted and fabricated by the complainant for her illegal gain. The complaint is not maintainable as there is no relationship of consumer and vendor and the question of deficiency of service does not arise between the parties.

11. On making careful scrutiny of the case of complainant on the background of oral and documentary evidence of complainant, it is crystal clear that, on 29-9-2014 the complainant had entered into an agreement with the OP and his friend Sri.Lakshmana, after that OP’s friend Lakshmana has left the partnership. The complainant and OP have not entered into fresh agreement between them to do the construction work. Without any agreement or documentary evidence, we cannot come to conclusion that, there is a negligence and deficiency of service on the part of the OP. Further the complainant has produced Engineers estimation issued by Ruby Architects. Estimation copy given by the above said Engineers is as per Ex-C4 to C7. Nowhere in the estimation copy, the Engineer has not mentioned the site number nor the complainant name.   Hence, this forum cannot believe this estimation copy given by the said Engineer and it belongs to the complainant’s building. Further the complainant has also not produced any agreement copy between the complainant the OP. All the issues which arise for consideration are disputed question of fact. Since all are disputed question the complainant is directed to approach the appropriate court for redressal of her grievance. Hence, the complainant has failed to prove her case by producing believable documentary evidence before the forum.  Accordingly we are of the opinion that, there is no deficiency in service on the part of the OP. Accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint is disposed off. No costs.   

The complainant is at liberty to approach the appropriate court.

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 15^th day of December 2016).

LADY MEMBER                      MEMBER                       PRESIDENT