By. Sri. Jose. V. Thannikode, President:-
In this case this Forum already pronounced a judgment on 28.04.2015. On receipt of Judgment the complainant filed an I.A.335/2015 for a review of the order for a mention regarding the deposited of Rs.10,000/- before the Forum by the complainant and the complainant can withdraw the same from the Forum. Since the prayer in the petition I.A.335/2015 is found genuine convincing to the Forum, the Forum allowed the I.A.335/2015 and reviewed the Order of the Forum passed on 28.04.2015 in C.C.138/2013. The revised order is as follows:-
2. The complainant filed this complaint to direct the opposite party to hand over the lorry bearing No. KL 48 A 2010 to the complainant within no time along with Rs.2,00,000/- which is received by the opposite party from the complainant as advance for repair work and to pay cost of Rs.1,500/- per day from 15.03.2013 due to the deficiency of service from the side of opposite party.
3. Brief of the complaint:- The complainant entrusted his above said vehicle to the opposite party for accident repair works on 24.11.2012. As per the terms of the agreement the total repair charge including material is fixed as Rs.2,50,000/- and for repair 40 days time is fixed and if the vehicle is not delivered within the stipulated time a compensatory cost of Rs.1,500/- day is to be paid to the complainant and it is also agreed upon and as advance Rs.1,50,000/- is paid to opposite party on 04.12.2012 and thereafter paid Rs.50,000/- on 16.02.2013. But the opposite party could not complete the repair work as stipulated by the agreement within the time and due to this, the complainant sustained huge losses and damages. Due to the non delivery of the vehicle after completing the repair work, the complainant is entitled for the cost and compensation as stipulated by the agreement and thereafter. Hence this complaint.
4. On receipt of the complaint, Notice were served to opposite party and opposite party is entered in appearance before the Forum and filed version denying all the allegation and stated that already the opposite party have spent more than Rs.2,20,000/- for the repair even though the opposite party have received only Rs.2,00,000/- and further stated that he could not complete the remaining repair works because the complainant is not giving the adequate fund for completing the work as per the progress of the work. Hence the opposite party prayed for the dismissal of the complaint with compensatory cost to the opposite party.
5. Complainant filed proof affidavit and he is examined as PW1 and Ext.A1 to A8 is marked and Ext.C1 is also marked. Ext.A1 is the undertakings given by the opposite party to the complainant dated 24.11.2012, wherein all work is specified and also agreed that after completion of insurance claim formalities within 40 days the vehicle will be delivered after completing all the work and also agreed that if the work is not finished within the period a compensation of Rs.1,500/- per day will be paid to the complainant and it can be deducted from the total amount and also stated that the opposite party received Rs.1,50,000/- on that day out of the total amount of Rs.2,50,000/- and the remaining amounts must be paid by the complainant according to the completion of the work. Ext.A2 is the Receipt issued by the opposite party to the complainant after receiving Rs.1,50,000/- as advance amount as per Ext.A1 dated 04.12.2012. Ext.A3 is the Receipts issued by the opposite party to the complainant after receiving Rs.50,000/- dated 16.02.2013. Ext.A4 is the Lawyer Notice issued to the opposite party by the complainant's counsel dated 05.07.2013 wherein it is requested to pay cost and compensation due to non compliance of Ext.A1 agreement for damages. Ext.A5(a) is the Acknowledgment Card for Ext.A4 Lawyer Notice. Ext.A5(b) is the Postal Receipt for Ext.A4 Lawyer Notice. Ext.A6 is the Photocopy of the Registration Certificate of the above said vehicle. Ext.A7 is the request of opposite party to the complainant seeking 16 days time for completing the work and also apologizing for the delay and undertakes to deliver the vehicle after completing the work within 10.04.2013. Ext.A8 is the Quotation given to the Insurance company by the opposite party on 06.12.2012. Ext.C1 series is the Commissioner Report. Ext.C1(a) is the Commissioner Report in which he reported with the help of Expert Commissioner that for the remaining work of the disputed vehicle an amount of Rs.70,000/- is required. Ext.C1(b) is the calculation statement given by the opposite party which shows the amount of Rs.2,25,000/- which he incurred for completing the work till that day. Ext.C1(c) is the report of the Expert commissioner, which states that an amount of Rs.70,000/- may come for the remaining work. Which is to be completed hereafter.
6. The opposite party also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 is marked from the side of opposite party through PW1. Ext.B1 is the Reply Notice to Ext.A4 in which opposite party stated that about 90% of the work is completed. So the opposite party requested the complainant to pay Rs.25,000/- to complete the remaining work.
7. On perusal of complaint, version, affidavit, documents and deposition, the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
8. Point No.1:- All the exhibits are admitted by both parties including the Commissioner Report. Only the point which is to be decided is whether the complainant is paid the remaining amount of contract as per the terms in the Ext.A1. For proving this, an Advocate Commissioner and Expert Commissioner was appointed and the Commissioner Report filed. About Commissioner's Report the OPW1 deposed before the Forum that " the Commissioner Report after the examination is true and for that I have no objection" and OPW1 also deposed before the Forum that " as per the Ext.A1 it is agreed that after starting the work, within 40 days the vehicle will be delivered after completing the repair work and on failure of the terms the compensation also agreed. Commissioner Report clearly stated that on the inspection date, work of Rs.70,000/- remain pending. This means that 1,80,000/-rupee's work only completed and Rs.2,00,000/- already paid by the complainant to the opposite party. So the opposite party can only demand further cash payment only after completing the work worth Rs.2,00,000/-. So Forum is of the opinion that before completing the proportionate work for the received amount of Rs.2,00,000/- and demanding further payment and not completing the work is not fair. More over Ext.A7 reveals that the opposite party has further sought 16 days time for complying the work and also it is agreed that the vehicle will be delivered within 10.04.2013. Thereafter also the vehicle were not delivered. So this is a clear case of deficiency of service from the part of opposite party.
9. Point No.2:- Since the Point No.1 is found against the opposite party, the opposite party is liable to pay compensation and cost and the complainant is entitled for the same.
In the result, the complaint is partly allowed and opposite party is directed to pay Rs.500/- (Rupees Five Hundred) only per day to the complainant from 10.04.2013 to 21.03.2014 and Rs.20,000/- (Rupees Twenty Thousand) for the incompleted work (Total amount received Rs.2,00,000/- minus Rs.1,80,000/- for the work already completed by opposite party at the time of delivery) and also directed to pay Rs.5,000/- (Rupees Five Thousand) as compensation and Rs.3,000/- (Rupees Three Thousand) as cost of the proceedings. The opposite party is directed to comply the Order within 30 days from the date of receipt of this order, thereafter the complainant is entitled for an interest at the rate of 12% per annum for the whole the amount. The complainant can take back the amount of Rs.10,000/- (Rupees Ten Thousand) from the Forum which is already deposited by the complainant before the Forum as security.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 3rd day of August 2015.
Date of Filing:27.07.2013.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Mohandas. Complainant.
Witness for the Opposite Party:-
OPW1. Thankappan. Workshop Worker.
Exhibits for the complainant:
A1. Undertakings given by opposite party to the complainant. Dt:24.11.2012.
A2. Receipt. Dt:04.12.2012.
A3. Receipt. Dt:16.02.2013.
A4. Copy of Lawyer Notice. Dt:05.07.2013.
A5(a). Acknowledgment Card.
A5(b). Postal Receipt.
A6. Copy of Registration Certificate
A7. Copy of Request of opposite party to the complainant.
A8. Copy of Quotation. Dt:06.12.2012.
C1(a). Commissioner Report.
C1(b). Calculation Statement.
C1(c). Report of Expert Commissioner.
Exhibits for the opposite party:-
B1. Copy of Reply to the Lawyer Notice. Dt:18.07.2013.
Sd/-
PRESIDENT, CDRF, WAYANAD.
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