O R D E R
AS PER SRI G.APPALA NAIDU,MEMBER
This complaint is filed U/s-12 of C.P.Act,1986 seeking the relief to pass an award in favour of the complainant and against the O.P’s directing the O.P. to complete the balance construction work is agreed by him or otherwise to compensate the grants to complete the work estimated by an engineer approximately to a tune of Rs.3,76,600/- to the complainant, to pay a sum of Rs.50,000/- towards damages/compensation for mental agony, inconvenience, harassment and causing financial loss to the complainant, to pay costs of the complaint and to grant such other relief or reliefs as Honourable Forum deems fit and necessary in the circumstances of the case and render justice on the following averments:-
The complainant is a retired employee who intended to raise new construction by removing his sold tiled house bearing Dr.No.10-4-1-2, which is situated at Hukumpeta, Vizianagaram in an extent of 110 square yards for which he searched for a good contractor. In that connection the O.P. approached the complainant and introduced himself saying that he is a good contractor having good experience in raising complete constructions. Believing the words of O.P. the complainant agreed for handing over the said old tiled house for its new construction by removing the old house structure. The O.P. estimated the cost for its construction including three small rooms and laying upstairs on the same for a total sum of Rs.9,30,000/- for which an agreement was entered by and between the both the parties on 30.01.2012, according to which the O.P. agreed to complete the said house construction and agreed orally to handover the same within one year from the date of the said agreement.
The O.P. started construction in the month of February, 2012 and with the house construction came to its slab level the O.P. almost received a sum of Rs.9,30,000/- from the complainant on various dates which was acknowledged on a dairy maintained by the complainant but inspite of repeated requests made to the O.P. he did not make efforts to complete the construction. Further since some amounts were spent for medical expenses of the wife of O.P. who is seriously sick, the O.P. requested the complainant for some more amounts required to complete the balance works. Under these circumstances the complainant provided a sum of Rs.1,38,250/- on various dates for the completion of the said house and with this amount the complainant paid a sum of Rs.10,68,250/- to complete the said construction work but invain.
Under the above circumstances the complainants approached police station and made a report in the month of November, 2013 against the O.P. but the police have not taken the same on record as it is a civil matter and taking advantage of the situation O.P. stopped further construction work there by subjecting the complainant to much loss and mental agony.
Complainant repeatedly requested the O.P. to complete the construction or return the amount paid by him by deducting the present construction worth of work, the O.P. did not respond for the same and on the other hand is got issued a legal notice dated 04.12.2013 to the complainant by suppressing all the material facts and also demanded the complainant to pay a sum of Rs.4,00,000/- for which the complainant got issued suitable reply notice to the said notice through his advocate. Subsequently the complainant also got issued a legal notice dated 02.01.2014 to the O.P. calling upon him to complete the remaining construction work, which is estimated by an engineer to cost Rs.3,76,600/- but there is no response from the O.P. Hence the O.P. committed deficiency of service also subjecting the complainant to much damage, humiliation, inconvenience and mental agony. Hence this complaint.
Counter filed by the O.P. denying the allegations leveled by the complainant in the complaint, except those which are specifically admitted therein and puts the complainant to strict proof of the same.
The O.P. submits that the complainant is silent about the material facts and the complainant also suppressed that true and correct facts only with a malafide intention. The worked further submits that in never executed any agreement in writing much less the agreement referred to in the complaint. Further at the time of entrusting work, the complainant purchased an N.J.Stamp paper and obtained the signature of the O.P. and might have filled it with held of his benchmen according to his convenients. It is further submitted by the O.P. that the signature on the dairy entries are all absolutely false since he never signed them and accordingly the O.P. deny those signatures. The O.P. also submits that he will challenge those signatures by sending them to expert opinion, as there forged. The O.P. also denies the receipt of amounts as alleged in the complaint i.e. Rs.10,68,250/-. Further the agreement filed by the complainant bearing date 30.01.2012 did not contain any mention about the payment made on that day by the complainant to the O.P. or earlier. According to agreement, it is dated 30.01.2012 but according to diary entries to payment made by complainant is shown as 04.01.2012 but there is no mention in the agreement about the same, which clearly speaks volumes about the entries made in the diary by the complainant. This alone is sufficient to dismiss the complaint disbelieving the version of the complainant and disbelieving the documents filed by the complainant. Therefore all the documents filed by the complainant are all false and correct with a malafide intention. When the complainant failed to pay the amount according to the work, the O.P. got issued a registered lawyer’s notice on 04.12.2013 in which the O.P. clearly demanded the complainant to pay the balance amount payable by the complainant for the work done by him and to pay the same with interest at 24% p.a., from 01.09.2013 and also claiming compensation and damages to a tune of Rs.2,00,000/- but the complainant having received the said notice sent a reply with all false and untenable allegations and anticipating the intended actions of this O.P, the complainant filed this complaint with all false and untenable allegations suppressing true and correct facts.
The O.P. further submits that exhibit plastering of elevation and one side of wall, the rest of the work was long back completed and as a complaint failed to pay the amount payable to the O.P, the O.P. could not complete it due to non-payment of the said amount payable by the complainant. It is also submitted by the O.P. that apart from the agreed construction work, the O.P. constructed another house towards west of the present house which is the subject matter of this complaint. Therefore there is no deficiency of service render by this O.P. Since there are no merits or bonafides in the complaint it is liable to dismissed with exemplary costs in the interest of justice. Further the O.P. submits that this Forum has no jurisdiction to entertain this complaint and therefore the complainant has to approach civil code for appropriate relief.
Exhibits A1 to A8 are marked on behalf of the complainant and no exhibits are marked on behalf of the O.P’s.
Heard arguments. Posted for orders. The orders are as follows:-
The counsel for both the parties advanced arguments by reiterating what they have stated in the complaint, counter, evidence affidavits and brief written arguments respectively. Since the O.P. did not file brief written arguments inspite of sufficient time allowed it was treated that there are no brief written arguments from the side of O.P.
The main contention of the complainant is that even though he paid almost total amount of Rs.9,30,000/- has committed in the agreement dated 30.01.2012 and also further amount of Rs.1,38,250/- by way of excess amount to the O.P. for completion of the house, as per the request of O.P, he could not complete construction of house and accordingly there are unfinished works which will cost around 3,76,600/- as per the estimation of the engineer and even the advocate commissioner who visited the spot on 18.06.2014 along with the counsel for both the parties, the complainant and the O.P. observed and found that there are unfinished works as a result of which the house is damaged due to seepage of water as and when it was raining and some parts of the house are badly damaged and hence there is deficiency on the part of O.P. subject the complainant to financial loss, inconvenience, hardship and mental agony.
The main contention of the O.P. is that out of the total agreed amount of Rs.9,30,000/- for completion of the construction of house the complainant paid only Rs.5,00,000/- and the balance was not paid by the complainant and hence could not complete the construction of the house and accordingly there is no deficiency of service on his part. Therefore he got issued a legal notice to the complainant and 04.12.2013 and demanding payment of the said balance amount the O.P. also denied execution of any agreement particularly the agreement dated 30.01.2012 and that he has not affixed signature on the said agreement the O.P. also pleads that he diary entries regarding payment claimed by the complainant made to the O.P. on 04.01.2012, 06.01.2012 and 30.01.2012 but there is no mention of the same in the agreement dated 30.01.2012 the O.P. also pleads that he constructed another house towards west of the present house, which is the subject matter of this complaint but further details and the connection between this house and the subject matter of this complaint is not established.
In view of the different claims made by both the parties when in advocate commissioner was appointed by the Forum who filed his report in this Forum on 05.08.2014 but when objections were called for from the O.P, he and his counsel were called absent and hence treated has no objections from O.P. The said report placed before this Forum reveals the following:-
(a)In the entries of the house, the walls are not properly plastered and hence bricks are appearing with exposure out city.
(b)In the 1st room, rainy water is sunk seeping into the walls and as a result the walls are badly damaged since water is falling drop by drop whenever it is raining.
(c)In the 2nd room, some unfinished work and some cracks appearing on the walls and rainy water also sinked and some parts are badly damaged.
(d)In the upstair, the plastering work of steps was not done and all sides of the building (outer part) is not finished with plastering work. Furher upstair room also was damaged due to rain water.
(e)It is stated that the neibour of the southern side of the building told that on the lost occasion due to heavy rain fall, the unfinished wall fell down on their building and i.e. very danger to their lives.
(f)Also observed that in the center of the building, some book holders appeared and finishing brick work was not completed and in respect of all the above photographs and also C.D. were also submitted into the court.
Now the point for consideration is whether there is deficiency in service on the part of O.P.
As per the legal notice dated court hall 213 got issued by the O.P. to the complainant he demanded payment of Rs.4,00,000/- from the complainant towards the balance part in respect of the building construction so as to enable the O.P. to complete the said construction. Whereas the complainant issued legal notice dated 02.01.2014 to the O.P. informing that the unfinished work of the house building will cost amount Rs.3,76,600/- as per the estimate of the engineer. As per the report commissioner filed in order to Forum on 05.08.2014 reveals that there are several unfinished works mentioned supra but the estimate cost to be incurred for the same is not specified. The O.P. claims that the agreement dated 30.01.2012 is not signed by him and it is only prepared for the purpose of filing the complaint and the signature appeared there on does not belong him. Further the O.P. also states that when the dairy entries of payment particulars maintained by the complainant in respect of amounts claimed to be paid by the complainant on 04.01.2012, 06.01.2012 and 30.01.2012, the same were not mentioned in the agreement dated 30.01.2012 if the agreement is really correct, there should have been clear mention about the same. As the complainant failed to pay the balance amount to the O.P. he could not complete it. The signature of O.P. as appeared on the agreement dated 30.01.2012 is not fully tallying with that all the signatures of O.P. as appeared in the dairy entries and also that of vakalat signed by O.P. In the chief examination affidavit of O.P. there was only a mention about the balance amount to be payable by the complainant for the work done but the vigor relating to the same is not mentioned. Further the estimated cost of pending works as submitted by the complainant from the civil engineer is Rs.3,76,600/- vide exhibit A8. After perusal of the diary intries it is found that the complainant paid the entire amount of Rs.9,30,000/- to the O.P. as per the agreement and also excess amount on different dates which were signed by the O.P. opposite each diary entry in token of receipt of the amounts though 1st three entries regarding payment were not reflected in the agreement entered into by and between the both the parties as per the material placed on record and further hearing held on 10.06.2014 which was attended by the complainants advocate but not attended by the O.P. are his counsel inspite of advance notice we are convinced that there is deficiency of service and dereliction of duty on the part of O.P. since there are unfinished works as per the report of the advocate commissioner report dated 05.08.2014 for which there were no objections of whatsoever from the O.P. Therefore we are of the considered view that the complaint can be partly allowed.
IN THE RESULT, THE COMPLAINT IS PARTLY ALLOWED DIRECTING THE O.P. TO COMPLETE THE BALANCE CONSTRUCTION WORK AS REPORTED BY THE ADVOCATE COMMISSIONER ON 05.08.2014 TO THE ENTIRE SATISFACTION OF THE COMPLAINANT OR ALTERNATIVELY TO REFUND AN AMOUNT OF RS.3,76,600/- (THREE LAKHS SEVENTY SIX THOUSAND SIX HUNDRED ONLY) TO COMPENSATE THE COMPLAINANT AS PER THE WORK ESTIMATE OF THE CIVIL ENGINEER. THE O.P IS FURTHER DIRECTED TO PAY DAMAGES OF RS.2,000/- TO THE COMPLAINANT FOR CAUSING MENTAL AGONY, HARASSMENT, DISCOMFORT AND INCONVENIENCE TO THE COMPLAINANT. THE O.P. IS FURTHER DIRECTED TO PAY RS.1,000/- TOWARDS COSTS OF THE COMPLAINT WHICH INCLUDES ADVOCATE FEE OF RS.500/-. THIS ORDER SHALL BE COMPLIED WITHIN 45 DAYS FROM TODAY.
Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 12th day of June, 2015.
MEMBER PRESIDENT
C.C.No.27 / 2014
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:- For opposite parties:-
PW 1 RW1 & RW2
DOCUMENTS MARKED
For Complainant:-
Ex.A-1 Agreement got signed by both the complainant and the
O.P, Dt.30.01.2012.
Ex.A-2 Receipts got signed by the O.P. on various dates
from 30.01.12 to 08.02.13, in a dairy in 14 pages.
Ex.A-3 Legal notice got issued by the O.P. to the
complainant, dt.04.12.2013.
Ex.A-4 Reply notice got issued by the counsel of the
complaimnant, dt.18.12.2013.
Ex.A-5 Postal acknowledgement got signed by the Advocate
counsel of the O.P, dt.24.12.2013.
Ex.A-6 Office copy of reply notice to the notice given by
the counsel of the complainant, dt.02.01.2014.
Ex.A-7 Postal acknowledgement got signed by the O.P,
Dt.08.01.2014.
Ex.A-8 Estimation Memo for pending construction work given
by the civil engineer.
For OP’s:- -NIL-
president
