O R D E R
Sri. Satheesh Chandran Nair (President):
The complainant filed this complaint before this Forum u/s. 12 of the C.P. Act.
2. The case of the complainant is stated as follows: The complainant is a consumer of the opposite party. She entered a written agreement with opposite party on 20.11.2013 for doing roofing work of her house at the rate of Rs.77 per sq.ft. and he agreed to complete the work within 10 months of the date of agreement. The opposite party measured the working area and agreed the estimate of the work for Rs.1,37,984/- for an approximate plinth area of 1792 sq.ft. According to the complainant, an amount of Rs.11,000/- was paid to the opposite party as an advance for the work on the date of agreement. Subsequently, he paid Rs. 1 lakh to the opposite party on 03.02.2014. All the payment was also acknowledged by the opposite party. Opposite party on 08.04.2014 and 09.04.2014 did the skeleton work of roofing. On 18.07.2014 the opposite party came to the complainant’s house with 20 aluminum sheets in a pickup van bearing Reg.No.KL.27A-9575. On that date the complainant paid Rs.25,680/- and an additional of Rs.1,000/- as the driver expense of carriage. The complainant spent a total amount of Rs.1,37,680/- for the purpose of work. The opposite party on 19.07.2014 placed 19 aluminum sheet on the roof. According to the complainant, with this aluminum sheet only half of the roofing work was completed. Thereafter, several time the complainant approached the opposite party to complete the roofing work but it was in vain. The materials purchased for the work are lying abandoned and the same is ruining and it caused a financial loss of Rs.5,000/- to the complainant. As a result of the non-completion, the residential building is leaked and it also caused a financial loss of Rs.25,000/- to the complainant. The complainant is causing a financial liability of Rs.50,000/- for the remaining completion work. The complainant is caused mental torture, harassment and mental strain and it would caused an amount of Rs.10,000/-. Any how, according to the complainant the opposite party has liable to pay an amount of Rs.95,000/- as compensation-mental torture, harassment and mental strain of Rs.50,000/- and Rs.10,000/- as the penalty for non-completion and Rs.5,000/- as the legal expenses of this case. The base fittings of the roof structure has to be concreted to strengthen the entire structure and to prevent base materials from rusting. The complainant had incurred the above mentioned loss due to the act of the opposite party which is a deficiency in service in terms of Sec.2(1)(g) of C.P. Act, 1986.
3. This Forum entertained the complaint and issue notice to the opposite party. Even though coercive steps were taken for the issuance of notice the opposite party at last received the notice but did not appear before the Forum. Hence the opposite party declared as exparte by this Forum.
4. When considering the pleading of the complaints we raised the following points for consideration:
- Whether the complainant is a consumer under C.P. Act?
- If so what relief can be granted by this Forum for redress the grievances?
5. Point Nos. 1 & 2:- For the sake of convenience we are going to consider the point No.1 and 2 together. As per the pleadings in the complaint it is clear to say that the complainant comes under the purview of definition clause discussed in C.P. Act. In order to prove the case of the complainant he applied before the Forum for appointing an expert commission and the same is allowed. The expert commissioner filed a commission report regarding the present nature of the roof and regarding the non-completion etc.
6. The complainant was examined by this Forum as PW1. She filed a chief affidavit in lieu of chief examination and along with that chief examination this Forum marked the Exts.A1 to A3. The commission report is also marked through PW1 and the commission report is marked as Ext.C1 and C1(a). Ext.A1 is the agreement between the complainant and opposite party. Ext.A2 is the receipt of acceptance of Rs. 1 lakh which was paid by the complainant to the opposite party on 13.02.2014. Ext.A3 dated 18.07.2014 is the original bill from CMR Steel Agency. Ext.C1 and C1(a) are the expert commissioner Smt. Rema Bhai, Asst. Executive Engineer, Building Sub Division, Harippad - commission report and sketch. Though PW1 is examined and marked the above said document the opposite party not turned up before the Forum to cross-examine this witness. So the deposition given by PW1 is unchallengeable as far as the opposite party herein is concerned.
7. It is stated earlier that through the pleadings of the complainant and when we peruse the deposition and exhibit in favour of the complainant it is very clear to say that the complainant is comes under the purview of the C.P. Act. The next question to be considered is whether the opposite party committed any deficiency in service of their work in this case. It is seen from C1(a) sketch the commissioner clearly pointed out that 1/3rd of the total area did not cover with the aluminum sheet. It is seen that the skeleton work of the whole area is completed. When we examine the commission report it is seen that the roofing work is in completed stage and out of 168 m2 only 94 m2 is covered with sheet. The remaining 74 m2 area is still uncovered. It is important to see that the base of the column is not covered with cement concrete. According to the commissioner, one point of the building under the column has a tendency to percolate water through the base due to absence of concreting. If it is exposed to rain the roof portion may not withstand in future. The commissioner again point out that due to the non-completion of the damaged material for the cost of Rs.2,000/- is also found in the working area. According to the commissioner for covering the remaining uncovered area of 74 m2, as per the present PWD rate Rs. 80,000/- is also required. As per Ext.A1, the agreement between the complainant and opposite party dated 20.11.2013 and a receipt of Rs.11,000/- are marked through PW1. It is a cogent and conclusive proof of transaction between the parties and the receipt of money for beginning the work. As per Ext.A2 receipt of Rs. 1 lakh dated 13.02.2014 by the opposite party the subsequent payment to the opposite party is proved. Ext.A3 is the sales invoice issued by CMR Steel Agency in favour of the complainant dated 18.07.2014 for an amount of Rs.25,680/-. As per this document, the payment of the said amount for the materials are also proved. It is seen from the exhibits that the complainant paid the whole estimated amount i.e. Rs. 1,37,680/- to the opposite party. As per the agreement the estimate is for Rs.1,37,984/- the difference is only for Rs.304/-. It is pertinent to see that PW1 performed all his duties to perform the A1 agreement. But on the side of the opposite party he made all kinds of deficiency for the performance and completion of work as per the agreement. It is also important to see that the delay of completion caused so many difficulty to the complainant. Among the difficulties the change of wages of workers, the change of price of materials and the damages caused to the building due to the change of climate are also to be taken in evidence. In Ext.C1(a) report all these facts are described and those facts are also conclusive evidence to decide the case of the complainant. The commission report that Ext.C1 and C1(a) which was already discussed above also give sufficient proof of the incompletion of the building and the amount required for the completion etc. When we consider the nature and circumstance of this case, we can see that the opposite party was always evaded from the process of law and committed grave deficiency in service which caused mental and financial liability and difficulty to the complainant.
8. In the result, we pass the following orders:
- The opposite party is directed to complete the construction of the building within 10 days after the receipt of this order.
- The opposite party failed to comply the order No.1. The complainant is eligible to realise Rs.50,000/- (Rupees Fifty Thousand only) as compensation from the opposite party with interest of 10% from the date of order.
- The opposite party is directed to pay Rs.10,000/- (Rupees Ten Thousand only) as the damage caused to the building due to the incompletion with 10% interest from the date of the order.
- The opposite party is directed to pay Rs.2,500/- (Rupees Two Thousand Five hundred only) as the cost of the case to the complainant with an interest of 10% from the date of order.
Declared in the Open Forum on this the 30th day of March, 2015.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. K.P. Padmasree (Member – I) : (Sd/-)
Smt. Sheela Jacob (Member – II) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Shisha. K.M
Exhibits marked on the side of the complainant:
A1 : Agreement between the complainant and opposite party.
A2 : Receipt dated 13.02.2014 for Rs. 1 lakh issued by the complainant to
the opposite party.
A3 : Original bill dated 18.07.2014 from CMR Steel Agency.
Witness examined on the side of the opposite party: Nil.
Exhibits marked on the side of the opposite party: Nil.
Court Exhibits:
C1 & C1(a) : Report & Sketch
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Shisha. K.M., Kapilavasthu, Kanichanelloor,
Muttom. P.O., Harippad, Pin – 690 511.
(2) Jijumon. C.T., Jishnu Engineering Works, Reg.No.4370,
1/255, Chalakkery House, Muthoor, Thiruvalla.
(3) The Stock File.
