Kerala

Idukki

CC/68/2021

Asifkhan - Complainant(s)

Versus

Joshy - Opp.Party(s)

Adv:lissy mm

22 Nov 2022

ORDER

DATE OF FILING : 12.4.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  22^nd  day of  November,  2022

Present :

                    SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.68/2021

     Between

Complainant                                        :   Asif Khan, S/o. A. Abdul Kareem,

                                                                House No.1/30, AAK Estate,

                                                                Kilavipara, Chinnakanal, Udumbanchola.

(By Adv: Lissy M.M.)

        And

Opposite Party                                     :   Joshy, S/o. Varghese,

                                                                 Puthanparakal House,

                                                                 Irumbupalam, Valara P.O.,

     Mannamkandam, Devikulam.

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 35 of Consumer Protection Act, 2019 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant is a cardamom planter. He had entered into an agreement with opposite party, who is a building contractor, for construction of a 2 tier shed in his premises, on 5.11.2020.  As per terms of agreement, entire work was to be completed on or before 24.11.2020.  Complainant was to pay Rs.5,22,200/- for construction of the shed and an addition of Rs.1,08,000/- for extra work to be carried out as specified in the agreement.  Complainant had, on the basis of representation made by opposite party, with regard to completion of work, paid Rs.4,13,501/- to him. However, entire work was not completed, as agreed, before 24.11.2020.  Complainant upon verification, found that construction of shed and roofing of complainant’s building was not yet done by opposite party.  70% of work remained to be completed.  Due to delay, complainant was unable to utilize the building in time.  Upon verification, complainant had found that opposite party had received Rs.1,90,721/- from him in excess.  Despite repeated requests by complainant, opposite party has not completed the work.  Hence on 21.1.2021, complainant had issued a lawyer notice through his lawyer to opposite party, seeking return of excess amount of Rs.1,90,721/- paid by him and also for damages, informing opposite party that the agreement has been cancelled.  There was no response from opposite party, even after receipt of notice.  Not completing the construction of  building and shed within the stipulated period amounts to deficiency in service and unfair trade                                                                                                                      (cont….2)

• 2  -

practice.  Complainant therefore prays for  return of Rs.1,90,721/- paid by him to opposite party in excess, penalty of Rs.62,000/- as per the penal provisions of the contract, Rs.38,000/- towards increase in material costs necessary for completing the work, Rs.1 lakh for mental pain and agony owing to deficiency in service and Rs.5,000/- towards litigation costs.

 

          2. Opposite party, despite service of notice, has not appeared or filed written version.  Though the case was thereafter repeatedly posted for complainant’s evidence, complainant has not appeared or filed affidavit in proof of his contentions.  Hence we have marked 4 documents produced by him and also the Commission Report filed by Expert Commissioner after inspection of the work.  Exts.P1 to P4 (2 in numbers) are the documents relied upon by complainant and Ext.C1 is the commission report.  There was no representation from the side of complainant and opposite party on 15.9.2022, the date on which case was posted for exparte evidence of complainant.  Hence we have taken the matter for orders.  Now the point which arise for consideration are :

1)  Whether there was any deficiency in service or unfair trade practice on the part of opposite party ?

2)  Whether complainant is entitled for return of Rs.1,90,721/- from opposite party being excess payment received by opposite party ?

3)  Whether complainant is entitled to realise any penalty from opposite party and if so, the quantum  ?

4)  Whether complainant is entitled for compensation for the pain and mental agony suffered due to deficiency in service and unfair trade practice on the part of opposite party ?

5)  Costs of the proceedings?

6)  Final Order to be passed ?

 

3. Point Nos.1 to 4 are considered together :

 

          We have carefully gone through the complaint and all the documents submitted along with it.  We have also perused Ext.C1 Commission Report.  Ext.P1 is a copy of agreement executed by complainant and opposite party with regard to the work to be done by opposite party.  Ext.P2 is office copy of lawyer notice sent on behalf of complainant to opposite party by registered post with acknowledgement card.  Ext.P3 is a cash voucher dated 8.11.2010 for Rs.10,000/-.  Ext.P4 is a copy of print out taken with regard to payment made to opposite party by ‘phonepe’  application.  Ext.P4(a) is a print out purportedly of personal account of opposite party maintained by complainant.

 

          Ext.C1 is report of expert commissioner.  Expert has reported that construction of  2 tier shed was completed in all respect except for provision of sheet roofing and that only GI pipe work has been completed with  regard to  2^nd construction, which has a floor area of 113 sq. ft..  The report indicates that work has not been completed.                                                                                                                          (cont….3)

• 3  -

However, considering the extent of work shown to be carried as per Ext.C1, we are unable to agree with the complainant in his contentions that 70% work remains to be completed.  In paragraph 2 to 5 in Ext.C1, learned commissioner has reported, cost of materials and labour charges along with logistics for completion of work and the remaining work to be done.  Break up of costs is also mentioned in Ext.C1.  However, we find that there is no sufficient proof with regard to excess payment which the complainant has purportedly made towards construction of the building portion.  According to complainant, he has paid Rs.1,90,720/- in excess to opposite party. To prove this, he has submitted Ext.P4(a), which is a copy of print out pertaining to personal account of the opposite party maintained by him.  Complainant has not provided computation with regard to cost of finished building and manner in which he had arrived at the amounts which he claimed to have been paid in excess.  Complainant has also not appeared for evidence or tendered evidence in clarification of these aspects.  Therefore, we find that complainant has not proved that he is entitled to get back Rs.1,90,721/- from opposite party, which he claimed to have paid in excess.

 

          In so far as penalty aspect is concerned, as per terms of Ext.P1 agreement, 5% of total project cost is to be paid as penalty by the contractor if work is not progressing for 30 days from the agreed date.  Thereafter, if the project is not completed by 90 days from the commencement date, contractor shall be deemed to be at default and owner will be entitled to all legal remedies for breach of construction contract.  According to complainant, there was delay of 2 months to arrive at present stage of building.  That being so, complainant will be entitled for a penalty assessed at the rate of 5% upon total project cost, to Rs.5,22,200/- for 2 months, which will be Rs.52,220/-.

 

          No doubt, entire work as per Ext.P1 has not been completed by opposite party.  Hence we find force in the complaint averments that there was deficiency in service on the part of opposite party contractor. However, contentions that opposite party had mislead the complainant with regard to progress of work, remain unproved due to lack of evidence.

 

          Complainant had prayed for Rs.1 lakh as compensation for the mental agony and pain suffered by him due to deficiency in service from the side of opposite party. Considering the circumstances of the case, especially nature of work and amount involved, upon a fair assessment, we find that an award of Rs.10,000/- as compensation on this count will be sufficient.  Point Nos.1 to 4 are answered accordingly.

                                                                                                             

4.  Point No.5 :

 

          As far as litigation costs are concerned, since complainant had not cared to appear to prove his case, we are of the view that costs are not to be ordered.

                                                                                                                        (cont….4)

 

• 4  -

 

5. Point No.6 :

 

          In the result, complaint is allowed without costs, in part upon the following terms:

 

Opposite party is directed to pay a sum of Rs.52,220/- along with a further sum of Rs.10,000/- to complainant within 45 days from the date of this Order, failing which the amount mentioned above will carry interest at the rate of 6% per annum from the date of Order, till payment or realization, as the case may be.  Parties are directed to take back extra copies produced by them without delay.

 

                    Pronounced by this Commission on this the  22^nd  day of November, 2022

 

                                                                                                     Sd/-

             SRI. C. SURESHKUMAR, PRESIDENT

                                         Sd/-

 SMT. ASAMOL P., MEMBER

                    Sd/-

SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1     -  Copy of construction contract.

Ext.P2     -  Copy of legal notice with AD Card and postal receipt.

Ext.P3     -  Copy of cash voucher dated 8.11.2010 for Rs.10,000/-

Ext.P4    -  Copy of print out taken with regard to payment made to opposite party

                   by phonepe  application.

Ext.P4(a) - Copy of print out pertaining to personal account of the opposite party.

Ext.C1   -   Commission report dated 9.8.2021.

On the side of the Opposite Party :

Nil.                                                                                    Forwarded by Order,

 

 

 

                                                                                       ASSISTANT REGISTRAR