KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.  113/12

JUDGMENT DATED 23.11.2012

PRESENT:-

SMT. A. RADHA                                :    MEMBER

SHRI. K. CHANDRADAS NADAR    :     JUDICIAL MEMBER

APPELLANT

M/s. Johnson Johnson Pools,

Represented by its Proprietor,

Johnson Varkey, 215 C,

Soumya Nagar, Alinchode, Vennala P.O.,

Ernakulam.

                                 (Rep. by Sri. Adv. Asok kumar)                                  

                            Vs

RESPONDENT

Geemon Chettiyattu,

Chettiyattu House,  Mattakuzhi, NH-49,

Varikoli P.O.,

Ernakulam District.

                              (  Rep. by Adv. Roy Varghese. )

JUDGMENT

SMT. A. RADHA :    MEMBER

Aggrieved by the order passed by the CDRF, Ernakulam in C.C. No. 628/2009,   the opposite party came up in appeal. The Forum below while allowing the complaint, directed the opposite party to pay Rs. 40,000/- being the price of 3 Teak wood trees with 12% interest.

          2.  The case of the complainant is that the opposite party undertook the construction of  a swimming pool for the complainant for a construction  cost of Rs. 7lakhs. As advance payment a cheque was issued for Rs. 1,50,000/- dated 25.10.2008.  During the course of work the eastern boundary of the complainant happened to collapse for which the opposite party had to pay Rs. 30,000/- to the complainant.  The opposite party cut and removed 3 teak Wood trees valued Rs. 40,000/- from the plot of the complainant.  This amount was not paid to the complainant and the complaint is filed for the realisation of the amount with interest.

          3.  In the written version the opposite party contended that the agreement between the parties as ‘a contract of personal service’ and is not entertainable before the forum below.  It is contended that there is no deficiency in service on the part of the opposite party.  The work entrusted could not be completed due to the non co-operation of the complainant.  The allegation that the opposite party’s Marketing  Executive approached the complainant is disputed by opposite party . It is also stated that no authorization was issued to any of the  opposite party’s representative to enter into any contract with the complainant.  It is not in dispute that the earth and soil excavated as    part of the preliminary work for the construction of the swimming pool.  It is also admitted that at the time of the excavation work the  compound wall was collapsed and the complainant was compensated  for the damages.  The opposite party denied that there had no Teak Wood trees in the plot of the complainant.  The opposite party denied the authorization of any marketing executive or any assurance given to the complainant.  The complaint is false and vexatious and it is merely to harass the opposite party.  The alleged agreement executed by the marketing executive was also denied and contended that the marketing executive was not made  a party to the proceedings.

          4.  The evidence consisted of the oral testimony of the complainant as Pw1 and documents marked as Exts. A1 to A4.  No oral evidence adduced by the opposite party and B1 was marked on the side of opposite party. The Forum below on considering the evidence and documents, allowed the complaint and directed the opposite party to pay the cost of 3 Teak wood trees together with interest.

          5.  The counsel for the appellant/opposite party submitted that Ext. B1 is the agreement with the opposite party who paid the compensation for rebuilding of the collapsed boundary during the construction of the Swimming Pool. The Ext. A2and A3 submitted by the respondent/complainant were disputed  as the appellant had no marketing executive or any representative entrusted to continue the work of the swimming pool.  He also contended that the complaint is devoid of merit due to non-jointer of the necessary party.  He emphatically denied that there had no Teak Wood Trees in the plot of the complainant. No witness was examined to prove this matter.   The construction of pool is only the contract of personal service and that matter does not come before the consumer Forum.  As there had no Teak Wood trees in the plot of the complainant, the appellant is not entitled to pay Rs. 40,000/- as  the value of the Teak trees.                    6.  The submission of the counsel for the respondent is that the opposite parties introduced themselves as  a leading pool company  having the knowledge and  infrastructure to construct swimming pools with modern technology. Ext. A1 is produced to prove the details of the Swimming pool maintenance  and construction.  Ext. A2 & A3 were the agreements entered into with the appellant/opposite party who was represented  as marketing executive of the appellant.  It is also submitted that before the construction of the Swimming Pool advance  cheque for Rs. 1,50,000/- was issued to the opposite party/appellant which was later on terminated evidenced by  Ext. A4.  It is also not disputed that there had a dispute of the boundary collapse while the construction of the Swimming Pool was in progress and the appellant had to pay  an amount of Rs. 30,000/- as damages to the complainant which is also not disputed by the appellant.  It is also submitted that for the construction of the Swimming Pool the opposite party had cut and removed the teak wood trees.  It is a matter of fact that  the agreement was cancelled due to difference of opinion between the parties and the construction came to a stand still and cancelled the advance cheque also.   Since no agreement was existing, the price of the teak wood trees was due to be paid to the appellant/opposite party which comes to  40,000/-

          7.  On hearing both the counsels in detail and on going through the documents we are of the view that the complainant entrusted the work  with the opposite party  for construction of the Swimming pool. It is also in evidence that there had a boundary damage while constructing the Swimming Pool.  It is also clear from the document that  the agreement was withdrawn and the cheque issued in advance was also cancelled.  The boundary dispute caused while removing the soil for the proposed swimming pool and the damage caused by the opposite party amounting  to Rs. 30,000/- which was already paid to the complainant.  The soil was removed for the proposed construction of area of the Swimming Pool.  It is in evidence that an advance cheque for Rs. 1,50,000/- was issued to the opposite party and the  dispute regarding the advance payment had already been settled.    Further the marketing Executive of the appellant was not examined to prove this case. It is to be pointed out that through the appellant emphatically denied the existence of the teak trees; no evidence is adduced to prove his contention.  It is an admitted fact that the preliminary work for the construction of swimming pool was carried out by the appellant and during the course of soil excavation work the compound wall collapsed and the damages caused to the respondent was also compensated.  Hence  the preponderance of probability is in favour of the respondent.   Hence we find there is deficiency on the part of appellant/the opposite party for non payment of  the price of the Teak Wood Trees.     

          In the result, the appeal is dismissed and we have no hesitation to uphold the order passed by the forum below. 

          Office is directed to   send a copy of the order to the Forum below along with L.C.R.

                                                                       A. RADHA   : MEMBER

                              K. CHANDRADAS NADAR :  JUDICIAL MEMBER

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