Tamil Nadu

StateCommission

FA/563/2012

N. MANGALAM - Complainant(s)

Versus

J.N. JENA - Opp.Party(s)

BALASUBRAMANIAN

08 Jun 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE                             THIRU.A.K.ANNAMALAI       PRESIDING  JUDICIAL MEMBER 

                         Tmt. P. BAKIYAVATHI                                                     MEMBER

 

F.A.NO. 563/2012

[Against the Order in  C.C No.258/2009 dated 25.5.2010 on the file of the DCDRF, Chennai (North) ]

DATED THIS THE 8^th DAY OF JUNE 2015

Ms. N.Mangalam

Daughter of V.Nagarajan,

No.4, Anjaneyapuram First Main Road,

Kakkalur Village, Thiruvallur District            ..Appellant/complainant

                                          Vs

J.N.Jena,

Son of Karthik jena

No.94, Halls Road,Kilpauk

Chennai 600 010                                ..Respondent/opp.party 

 

Counsel for Appellant/complainant      : M/s Balasubramaniam    

Counsel for Respondent/opp.party      : M/s P.S.Ratnamani

 

The complainant is the appellant.  The District Forum dismissed the complaint. Against the said order, the Appellant/complainant filed this appeal praying to set aside the order of the District Forum, Chennai(North) in CC.No. 258/2009 dated 25.5.2010. 

          This appeal coming before us for hearing finally on 1.6.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, Chennai (North) this commission made the following order.

THIRU.A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

1.     The unsuccessful complainant is the appellant.

2.     The complainant engaged the opposite party for the construction of her house in the plot owned by her, in entering an agreement on 21.10.2007 for the consideration of Rs. 16 lakhs. Since the complainant not satisfied with the work of the opposite party having found defects in the construction, issued notice on 9.7.2008 finding out the mistake and delay. Further one month time was extended at the request of the opposite party and the building was handed over during third week of August 2008 and there are defects in the building in weathering course and other over hand tank leaking and other minor defects pointed out and the in-completed works has been listed for which the opposite party executed the letter on 2.8.2008. Subsequently, the opposite party had a quarrel with the complainant’s father and the opposite party gave police complaint against the complainant for cheating and not paying the balance amount and there after sent a legal notice on 10.12.2008 claiming service tax and excess amount for extra work for which all bills claimed and also filed a private complaint before the criminal court, and the complainant was forced to pay a sum of Rs.75,000/- to with draw the complaint, hence the consumer complaint came to be filed seeking the relief before the District Forum.  

3.      The opposite party denied the allegations contended, all the pending works were pointed out by the complainants were done to the satisfaction of the complainant and only water tank work to be completed that too due to fault on the part of the complainant. The complainant as to pay a further sum of Rs.1,30,000/- for the work completed by the opposite parties. Hence the police complaint was filed for settling the claim and it was settled by paying Rs.75,000/-, since the complainant was forced to pay the amount, she has come forward with this false complaint.

4.         The District Forum after an enquiry, accepted the contentions of the opposite party and on basis of other materials came to the conclusion that the complainant had not established the negligence and deficiency in service on the part of the opposite party and thereby dismissed the complaint.

5.           Aggrieved by the impugned order, the complainant filed this appeal contending that the District Forum erroneously dismissed the complaint without taking into consideration, deficiency and delay in completion of work admitting the defects in the construction work by the opposite party and the opposite party had only approached the criminal court and made the complainant to pay the amount. Hence the appeal to be allowed.

6.        When the appeal is taken up for hearing there was no representation and appearance of appellant and  after closing the appellant side arguments, Respondent was heard and the order being passed on merits.

7.       It is the admitted case of both sides, the complainant had entrusted the construction work of her house to the opposite party for a sum of Rs. 16 lakhs in which the complainant alleged that there was delay in handing over of the construction and also pointed out certain defects in the construction and there upon there was rectification of the defects by the opposite parties and the opposite party contended since there was the additional work carried out for which the complainant had to pay a sum of Rs.1,30,000/- which was unpaid. Hence for the amounts he had given criminal complaint and thereby the complainant was forced to pay  the amount to the extent of Rs.75,000/- by way of settlement. The District Forum in its order observed since there was a dispute between the parties regarding payment and the complainant even though alleged several works left incomplete by the opposite party and some defects have been repaired as not come forward with any appointment of Commissioner to inspect the property and get report with the assistance of qualified Civil Engineer to prove the same and since the opposite party is not accepting the evaluation report in Ex.A.10 or Ex.A.11, the District Forum was not in a position to arrive at correct conclusion as to whether there was any deficiency in service on the part of the opposite party.

8.        To counteract the report under Ex.A.10, the opposite party also engaged another Engineer to evaluate the building who filed report under Ex.A.11. It is also pointed out the both parties have approached criminal court for the dispute relating to the money, the complainant was forced to pay Rs.75,000/- by way of settlement as per her own averments. In those circumstances when there is dispute relating to the money and payment between the parties which are to be decided on the basis of breach of contract or otherwise when the District Forum expressed its inability to decide regarding deficiency in the absence of qualified expert’s report/evidence regarding the construction which are to be furnished only by the complainant to prove her case and the same is lacking to decide the complaint, we are of the view that the District Forum has taken into consideration of all the relevant materials and came to proper conclusion in this regard with which finding, we find no error or infirmity and thereby this appeal deserves to be dismissed as devoid of merits and accordingly,

             In the result, this appeal is dismissed by confirming the order of the District Forum, Chennai (North) in CC. 258/2009 dated 25.5.2010.

          No order as to costs in this appeal.

 

 

P.BAKIYAVATHI                                                      A.K.ANNAMALAI                            

   MEMBER                                                PRESIDING JUDICIAL MEMBER