DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 31st day of August 2011 Present : Smt.Seena H, President : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member Date of filing: 08/10/2010 (C.C.No.123/2010) 1.T.R.Seshan, S/o.T.S.Ramachandran, 17, Kamaraj Nagar, Chennai (Presently working at Abudabi, U.A.E.) 2.Ramani Seshan, W/o.T.R.Seshan, 17, Kamaraj Nagar, Chennai (Presently working at Abudabi, U.A.E.) - Complainants (By Adv.Ullas Sudhakaran) V/s Jolly George, S/o.K.M.George, Proprietor, Land Consultancy, Kallekulangara Post, Railway Colony, Palakkad. Presently residing Near Chethi Veetil Bhagavathy Temple, Dhoni, Palakkad - Opposite party O R D E R By Smt.SEENA.H. PRESIDENT Complaint in brief: Complainant entrusted work of house construction to the opposite party vide agreement dated 11/12/2008. At the time of entrusting the work, construction upto the lintel level was completed and opposite party was entrusted with the remaining works. As per agreement opposite party had agreed to make modification in the approved plan such as including an additional bathroom, staircase etc. The consideration fixed bilaterally for the above work was Rs.11,55,000/- and the opposite party had agreed to complete the work on or before 11/6/2009. Complainants had paid an amount of Rs.5,90,000/- to the complainant. The grievances of the complainant is that opposite party knowing the fact that complainant could not supervise the works as they are working abroad, deliberately did not carry out any work till March 2009. Again money was advanced as requested by the opposite party for completing the work. Subsequently opposite party agreed to undertake the construction of the first floor of complainant’s house having an area of 252 Sq.ft. for a total consideration of Rs.1,90,000/-. During November 2009, opposite party called the complainant and informed that he had completed the work as per the agreement and demanded more money. Complainant was not ready to pay any more amount without personally verifying the stage of work. Complainants realized that opposite party has done one more cheating that the opposite party sold the above property to the complainant’s predecessor in interest by concealing the charge over the said property. Complainants were left with no other option than to enter into another agreement to complete the work within 5 weeks from 18/11/09. Complainants further cleared the debt payable by opposite party and a sum of Rs.3,85,896/- was paid to the bank. According to the complainant, opposite party deliberately did not carry out the work and failed to perform part of his agreement even after repeated demands and hence the complaint. According to the complainants opposite party is liable to pay a sum of Rs.6,78,409/- which include sum of Rs.3,85,896/- paid to the bank by the complainant for clearing the liability of opposite parties and Rs.2,92,513/- received in excess by the opposite party along with 12% interest. Further claim Rs.5 lakhs as compensation for deficiency in service and for mental agony. Even though notice was served opposite party did not appear before the Forum and hence was set exparte. Evidence laid by the complainants consist chief affidavit. Ext.A1 to A11 marked. Commissioner appointed has filed report and is marked as Ext.C1. Issues for our consideration are - Whether there is any deficiency in service on the part of opposite party ?
- If so, what is the relief and cost complainants are entitled to ?
Issue No.1 & 2 The grievances of the complainants is that opposite party failed to complete the work of house construction of the complainants within the stipulated time as agreed. Further opposite party has received an excess amount of Rs.2,92,513/- from the complainant. Going through the evidence on record we find that there are 3 agreements executed by the complainants and opposite party. The first agreement dated 11/12/08 for a total consideration of Rs.11,55,000/- for the ground floor. 2nd one dated 13/8/2009 for a total consideration of Rs.1,90,000/- for construction of hall above the existing ground floor and 3rd one dated 18/11/09 for completion of plastering works, electrical works etc. It is the case of the complainants that work upto the lintel level was completed at the time of entrusting the work with the opposite party. The said fact is not born out in the agreement executed between the parties marked as Ext.A1. As per Ext.A1 foundation work etc. is seen to be entrusted with the opposite party. Complainant is relying upon Ext.A11 photograph to show that work upto the lintel level was completed as on 9/12/08. We feel that, Ext.A11 is not at all reliable evidence because no negatives were produced by the complainants. Since there is no contra evidence we accept the say of the complainants. Total payment of Rs.5,90,000/- is proved by Ext.A4 to Ext.A7 documents. Commissioner has assessed value of the work done by the opposite party and report is marked as Ext.C1. The value of the work assessed by the Commissioner upto the lintel level is Rs.3,77,617/-. Total value of work stated is Rs.7,65,481/-. Hence as per the complaint the value of the work done by opposite party amount to Rs.3,87,864/- Complainant has paid Rs.5,90,000/-. Hence excess payment of Rs.2,02,136/- is seen to be excess payment as per the Commissioner Report. But as per the agreement between parties total consideration is Rs.13,45,000/-. Even if Rs.3,77,617/- as assessed by the commissioner is deducted the work done by opposite party is seen to be for Rs.9,67,383/-. Complainant has no case that opposite party has not completed the whole work or work completed has any defects. The evidence on record also does not reveal the fact that there was any delay in carrying out the work entrusted. Instead the agreements entered into between parties one after other for carrying out further works will only lead to presumption that opposite party has carried out the work entrusted as agreed. We find that complainants has claimed an amount of Rs.3,85,896/- which they have paid to the bank for clearing the debt of opposite party stating that opposite party has cheated the complainants without informing about the mortgage. We are of the view that it is for the purchaser to ascertain such facts before purchase of the property and also this is not the proper Forum to claim such an amount also. Even if there is no contrary evidence to that one adduced by the complainants we find that complainants has not successfully established their case. On appreciation of the evidence placed before us we do not find any deficiency in service on the part of opposite party. Hence complaint is dismissed. Pronounced in the open court on this the 31st day of August 2011. Sd/- Smt.Seena.H President Sd/- Smt.Preetha G Nair Member Sd/- Smt. Bhanumathi.A.K. Member APPENDIX Exhibits marked on the side of the complainant Ext.A1 – Agreement dated 11/12/2008 (Original) Ext.A2 – Agreement dated 13/08/2009 (Original) Ext.A3 – Agreement dated 18/11/2009 (Original) Ext.A4 - Receipt dated 17/12/08 for Rs.85,000/- Ext.A5 - Receipt dated 02/03/09 for Rs.2,00,000/- Ext.A6 - Receipt dated 08/06/09 for Rs.1,00,000/- Ext.A7 - Receipt (counterfoil) dated 13/06/09 for Rs.1,90,000/- Ext.A8 - Receipt (counterfoil) dated 02/02/10 for Rs.3,85,896/- Ext.A9 - Receipt issued by Etihad Airways for payment of Air Fare for travel on 7/2/2010 Ext.A10 - Receipt issued by Air India Express for payment of Air Fare for travel on 12/11/09 Ext.A11 - Photograph showing stage of work as on 9/12/08 Exhibits marked on the side of the opposite parties Nil Commissioner Report Ext.C1 – C.Anandan, Registered Engineer Cost Allowed No cost allowed. | 
