A Rajesh, President.
The case of the complainant is as follows:
The complainant is the co-owner of 3.47 acres of land in Sy No. 306/3 in muttar village. On 23-05-2008 the complainant entered into an agreement with the opposite party for construction of a residential building in the said property. The opposite party agreed to contruct the building in 8 months. The complainant advanced an amount of Rs. 7,20,000/- to the opposite party. The work completed by the opposite party was assessed at Rs. 5 lakhs. The opposite party failed to complete the work as agreed by him. Later he abandoned the work. The complainant caused to issue a layer notice to the opposite party demanding to refund the excess amount of Rs. 2 lakhs and to pay a compensation of Rs. 1 lakh. In the meantime the complainant restarted the work on her own. Since the opposite party tried to obstruct the work the complainant was constrained to approach the Munsiff Court, Aluva from restraining the opposite party from trespassing into the property. Thus the complainant is before us seeking direction against the opposite party to pay Rs. 2 lakhs the excess amount collected by him and a compensation of Rs. 1 lakh together with costs of the proceedings.
2. Version of the opposite party.
The complainant has no right to approach this Forum since she is only one of the joint owners of the property. The opposite party received a sum of Rs. 7,20,000/- from the complainant. He could not complete the work since he was compelled to construct the basement by using columns and beams. On 10-03-2009 the complainant suggested drastic change in the plan and directed to construct a single storied building instead of the double storied building as per the agreement. So he did not proceed with the construction. He had completed the work to the tune of Rs. 5,33,000/-. He purchased wood for Rs. 1,22,000/- and other accessories for Rs. 94,000/- and also expended Rs. 50,000/- to construct a temporary shed. Complainant has no cause of action against the opposite party. Opposite party requests to dismiss the complaint.
3. The witness for the complainant was examined as PW1 and Exts. A1 to A6 were marked on the side of the complainant. The opposite party was examined as DW1 and Exts. B1 to B4 were marked on his side. Heard the counsel for the parties.
4. The only point that arose for consideration is whether the complainant is entitled to get a sum of Rs. 3 lakhs from the opposite party in toto that is Rs. 2 lakhs for non completion and Rs. 1 lakh towards compensation.
5. Admittedly the complainant and the opposite party entered into Ext. A2 agreement for the construction of the residential building of the complainant. It is not in dispute that the complainant had paid and the opposite party had received a sum of Rs. 7,20,000/- for the construction of the building. Since the work was stopped abruptly for reasons raised by the opposite party the complainant had to approach the Munsifs court, Aluva.
6. At the instance of the complainant the Hon’ble District Court, (vacation Court) Ernakulam deputed an advocate commissioner to assess the quantum of work done by the opposite party. The report of the commissioner was marked without demur as Ext. A6. The commissioner assessed the quantum of work done by the opposite party approximately at Rs. 5 lakhs.
7. According to the opposite party he had expended the following amounts.
Cost of construction work Rs. 5,33,000
Price of wood (evidenced by Ext. B4) Rs. 1,22,000
Price of other accessories Rs. 94,000
Cost of construction of shed for employees Rs. 50,000
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Total Rs. 7,99,000
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8. The advocate commissioner has assessed the total work done by the opposite party at Rs. 5,00,000/-. The opposite party has not raised any objection to the commission report which was marked as Ext. A6 which necessarily entails the complainant to receive back the excess amount collected by the opposite party.
9. Though the opposite party raised a contention that some building materials have accumulated during the process of construction no quantification has been made of the same neither has a prayer for calculation for nor a denial of it is before us which calls this Forum not to consider the same on the face of records. If at all, the claim by the complainant falls short of Rs. 20,000/- which could be accounted for that reason. Natural justice, rule of law and the prestige and pride of the consumer have to prevail and this can’t be brought to note by the inconstancy of a service provider at what ever cost exemplarily, though tall costs are called for expecting we fix it at Rs. 1,000/- with the hope that practices like this would not be repeated.
10. In the result, we allow the complaint in part and direct as follows:
i. the opposite party shall refund Rs. 2 lakhs to the complainant for the reasons stated above together with interest @ 9% p.a. from the date of receipt of a copy of this order till realization.
ii. the opposite party shall pay Rs. 1,000/- to the complainant by way of costs of the proceedings.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 20th day of July 2011
