KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUANANTHAPURAM APPEAL NO.385/09 JUDGMENT DATED 24.3.2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Doraiswamy, S/0 Muthuswany, GokulGardens, Manali Road, Nerugakkad, -- APPELLANT Kalleppulli P.O, Palakkad. (Adv.A.P.Vijayan) Vs. Jayarajan C Union Bank of India, -- RESPONDENT Ayaloor P.O, Palakkad. (S.Krishnakumar) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellant herein was the opposite party and respondent was the complainant in CC.16/08 on the file of CDRF, Palakkad. The complaint was filed for getting refund of the excess amount of Rs.1,20,000/- collected by the opposite party from the complainant with respect to the construction of the first floor of the residential building of the complainant. The opposite party entered appearance and contended that he has not collected excess amount and that the complaint preferred is liable to be dismissed. 2. Before the forum below Exts.A1 to A12 documents were marked on the side of the complainant and B1 document on the side of the opposite party. An expert commissioner was deputed to inspect the building which was constructed by the opposite party for the complainant. The report filed by the expert commissioner was marked as Exts.C1. On the basis of the documentary evidence available on record, the forum below passed the impugned order directing the opposite party to refund Rs.30,000 being the excess amount collected by the opposite party from the complainant with a further direction to pay cost of Rs.2000/-. Hence the present appeal by the opposite party therein. 3. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the counsel for the appellant /opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on the admission made by the complainant in the written complaint that the construction work was entrusted with the opposite party on a consideration of Rs.4,50,000/-and so, the appellant requested to set aside the impugned order passed by the forum below in fixing the cost of construction at Rs.4,20,000/- and directing to refund of Rs.30,000/-. He also pointed out the report submitted by the expert commissioner stating that there was no defect in the construction work. Thus, the appellant requested to set aside the impugned order passed by the Forum below. 4. The points that arise for consideration are:- 1. Whether the respondent/complainant could succeed in establishing the alleged deficiency in service on the part of the appellant/opposite party in constructing the first floor of the residential building of the complainant? 2. Whether the Forum below can be justified in ordering refund of Rs.30,000/- to the complainant by treating the same as excess amount collected from the complainant? 3. Is there any sustainable ground to interfere with the impugned order dated 19.5.2009 passed by CDRF, Palakkad in CC.16/2008? 5. POINTS 1 TO 3:- The respondent/complainant entrusted the construction work for constructing the first floor of his residential house with the appellant/opposite party. The total cost for the said construction work was fixed at Rs.4,50,000/-. There is no dispute that the appellant/opposite party did not complete the construction of the first floor of the building. It is come out in evidence that there was the interference of the police and the matter was settled by refund of Rs.5,500/- and also by completing the construction work like fixing of toilet doors and plastic taps etc. In fact, the matter was once settled by the parties. It is thereafter the present complaint in CC 16/08 has been filed claiming refund of Rs.1,20,000/-. 6. The complainant could not establish his case that he paid excess amount of Rs.1,20,000/-. It is admitted by the complainant himself in his written complaint that the work was entrusted for a total consideration of Rs.4,50,000/-. The complainant has no case that he paid more than Rs.4,50,000/-. The expert commissioner who submitted C1 commission report has categorically reported that there is no defective construction. The expert commissioner could not point out any defect in constructing the first floor of the building. There is also no case for the complainant that the agreed built area has been reduced. So, the appellant/opposite party has completed the construction work and he received the agreed consideration of Rs.4,50,000/-. Then, there would not arise any question of refund of any amount. 7. The forum below much relied on C1 commission report. It is true that in C1 commission report, it is stated that the total construction cost would come to Rs.4,20,000/-. It is based on the said assessment, the Forum below directed the opposite party (appellant) to refund Rs.30,000/- to the complainant by treating the said sum of Rs.30,000/- as the excess amount collected by the opposite party from the complainant. It is to be noted that the C1 commission report has not spoken to anything about the profit that can be collected by the opposite party being the contractor. The mere fact that the construction cost would come to Rs.4,20,000/- cannot be taken as a ground to hold that the complainant is entitled to get the balance of Rs.30,000/-. The expert commissioner and the Forum below have conveniently forgotten the profit accrued from the contract work undertaken by the appellant/opposite party. Once it was agreed that the total consideration for constructing the up stair of the residential building would come to Rs.4,50,000/-, the complainant is legally bound to pay the said amount. In the present case, the complainant has only paid the agreed consideration of Rs.4,50,000/-. So, the claim for refund the amount cannot be upheld. The impugned order passed by the forum below is liable to be quashed. The complaint in CC.16/08 deserves dismissal. Hence we do so. These points are answered accordingly. In the result, the appeal is allowed. The impugned order dated 19th May 2009 passed by CDRF, Palakkad in CC.16/08 is set aside. The parties are directed to suffer their respective costs through out. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER S.CHANDRAMOHAN NAIR -- MEMBER | 
