Sri. P. Satheesh Chandran Nair (President):

The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows.  On 16/06/2016 for constructing the roof work of the complainant’s daughter one Raji.R.V’s house the complainant entrusted an amount of Rs.5,00,000/- to the opposite party and executed an agreement with the complainant.  As per the terms and conditions of the said agreement the opposite party was bound to complete the said roof work before 24/11/2016.  Even though the opposite party received the above said amount the opposite party has not been either started construction or purchased any materials for the said construction.  It is contended that the complainant approached the opposite party several time for the completion of the above said work but the opposite party has not even started that work.  The above said act of the opposite party is clearly comes under deficiency in service as per C.P Act there by the opposite party is liable to the complainant.  On 03/01/2017 the complainant sent a lawyer’s notice to the opposite party for the Redressal of his complaint.  The opposite party did not accept the said notice or redress the grievance of the complainant’s so far.  Hence this complaint, for the refund of above Rs.5,00,000/- compensation, cost etc.etc.

3. This Forum entertained the complaint, and issued notice to opposite party for their appearance.  The opposite party entered appearance on 10/03/2017 through a counsel and seek time for filing version.  This Forum allowed the prayer of the opposite party and case posted to 12/04/2017, 25/04/2017 for filing version.  The opposite party failed to file version within the stipulated time as directed by our Hon’ble Supreme Court in J.J Marchant & Others v/s Shrinath Chadurvedi (2002) 6 SCC 635 & Civil Appeal No. 10941 – 10942 of 2013 (New India Assurance Co. Ltd V.s Hilli Mutipurpose Cold Storage Pvt. Ltd.) On 03/07/2017 this Forum examined the complainant and two witness as PW1 to PW3.  On that day the learned counsel of the opposite party reported no instruction hence this Forum issued notice to opposite party for his appearance on 19/07/2017.  Even though opposite party received notice on 06/06/2017 he was absent on 19/07/2017. Therefore we heard the complainant and the case was posted for order on 28/07/2017.

4. When we refer the complaint and records before us we have to consider the following issues.

1. Whether the complaint is allowable?
2. Regarding cost and relief?

5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination and examined him as PW1.  Ext. A1 to A4 are also marked through PW1.  Ext.A1 is the original agreement dated: 16/06/2016.  Ext. A2 is the copy of legal notice dated:03/01/2017.  Ext. A3 is the postal receipt.  Ext. A4 is the return of covering letter. After the closure of evidence we heard the complainant.  The opposite party was absent even on that day.

6. Point.No.1&2:- For the sake of convenience, we would like to consider Point No.1 and 2 together.  As discussed earlier, when we peruse the proof affidavit of the complainant we can see that the contents of the proof affidavit are more or less as per the tune of his complaint.  It is deposed that the complainant entrusted an amount Rs.5,00,000/- to the opposite party for the tress work of his daughter’s house using good quality materials for an amount of Rs.125/- per sq. feet and also the opposite party offered the complainant to construct a shed using the same materials about 2100 sq. feet for the same rate is Rs. 125/-.  In order to substantiate this contention the complainant produced Ext. A1 the agreement executed by the opposite party in favour of the complainant.  It is further deposed that though the opposite party received the amount Rs. 5,00,000/- the opposite party failed to construct the roof work or shed work within the stipulated time or even started that work.  PW1 deposed that the act of the opposite party is clearly comes under deficiency in service and the opposite parties are liable to the complainant PW1.  It is to see that the evidence adduced by the complainant as PW1 is unchallengeable as far as this case is concerned.  It is interesting to see that though the opposite party appeared before the Forum through a learned counsel the opposite party failed to file a version within the stipulated time or even failed to present any version even after the expiry time.

7.  When we examine the complaint and the Ext.A1 to A4 no materials to show that the case put forwarded by the complainant PW1 was not credible. Therefore we have to give importance to the credibility of the evidence adduce by the PW1’s in this case.  In order to substantiate the case of PW1 he examined PW2 and PW3 in this case.  PW2 is one Muraleedaran Nair who is an attester of Ext.A1 agreement he also filed a proof affidavit in place of the proof affidavit.  PW3 is the 2^nd attester of Ext. A1 agreement.  PW3 is also filed a proof affidavit in lieu of chief examination.  It is also to be noted that a person who agreed to complete the work within a stipulated time and receive a huge amount from a consumer and not doing the work.  It is a clear deficiency in service on the part of the person who received the money and executed an agreement.  The contents of the chief examination and the evidence as per the Ext.A1 to A4 are clear and supportive evidence in favour of the PW1.  The complainant is succeeded to prove his case with clingent evidence.  Therefore, this complaint is allowable and Point No.1 and 2 are found in favour of the complainant. 

8. In the result, we pass the following orders.

1. The opposite party is here by directed to return an amount of Rs. 5,00,000- (Rupees Five Lakhs only) to the complainant with 10% interest from the date of filing of this case onwards i.e., 19/01/2017.

2. The opposite party is also directed to pay a compensation of Rs. 25,000/-(Rupees Twenty Five Thousand only) and a cost of Rs.2,500/- (Rupees Two Thousand Five Hundred only) to the complainant with 10% interest from the date of receipt of this order onwards. 

      Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28^th day of July, 2017.

                                                                                    (Sd/-)

                                                          P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                 (President)

Smt. Sheela Jacob (Member)               :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Vijayan.K.D

PW2  :  Muraleedharan Nair

PW3  :  Thankamani

Exhibits marked on the side of the complainant:

A1 :  Original agreement dated: 16/06/2016

A2 :  Copy of legal notice dated:03/01/2017

A3 :  Postal receipt

A4  : Return of covering letter

Witness examined on the side of the opposite parties:Nil

Exhibits marked on the side of the opposite parties:Nil

                                                                                                    (By Order)

Copy to :- (1) Vijayan.K.D,

   Raji Bhavan,

                     Mekkozhoor.P.O, Mylapra Village,

                     Pathanamthitta.  

2. K.K. Varghese,

             Kaleeykkal Veetil, Mekkozhoor .P.O,

             Mylapra Village, Pathanamthitta.                                                

3. The Stock File.