Filed On:02.01.2009
Disposed On:31.07.2015
THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S. PANDIAN, B.SC., L.L.M : PRESIDENT
TMT. S. SUJATHA, B.Sc., : MEMBER-I
THIRU. V. VENKATESAN, M.A.B.Ed., M.B.A., M.Phil., B.L., : MEMBER-II
Friday, the Day of 31st July-2015
CC. No. 1 / 2009
Umapathi,
s/o,Gurusamy Bajar Street, Avadi
Chennai-54. …Complainant
-Vs-
Sri Narayana Constructions
Rep. by Proprietor
No. 5, G.N. Swamy I Cross Street
Gandhi Nagar West , Avadi
Chennai – 600 054. …Opposite Party
Counsel For Complainant : M/s. B. Kamarajan, Advocate
Counsel For Opposite Party : M/s. G. Mohan Ram, Advocate
This Complaint is coming upon before us finally on 21.07.2015 in the presence M/s. B. Kamarajan, Advocate on the side of the complainant and M/s. G. Mohan Ram, Advocate appeared on the side of the Opposite Party, and upon hearing arguments on the side of both and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESiDENT
This complaint is filed by the complainant u/s 12 of consumer protection act 1986, to direct the opposite party to pay the compensation amount of Rs. 2,00,000/- towards deficiency in service and thereby caused the mental agony to the complainant and cost of the complainant.
The Brief facts of the complaint are as follows:
1 The Complainant has entrusted the construction work to the opposite party in respect of alteration works in his property which is situated at Bajar Street, Avadi, Chennai-54. The cost of the construction was originally fixed as Rs. 2.5 lakhs and the above work was to be completed within 2 months from the date of the commencement of the work.
2. The opposite party has not completed the work within the time stipulated and continued the work up to 7 months period. During the course of the construction work the opposite party has received Rs. 4.5 lakhs from the complainant against the various works done by the opposite party. After completing the work the opposite party has given one bill dated 30.01.2008. For Rs. 6, 08,717/- and after adjusting the payment made by the complainant, the opposite party has claimed the amount in opposite party bill is Rs. 158717/- to be payable by the complainant. Since the complainant is not convincing the bill submitted by the opposite party, he has sought the detailed bill from the opposite party before the settlement of the above payment.
3. The opposite party has submitted the detailed bill wherein he has claimed the final amount of Rs.7, 06,175/- and after adjusting the advanced made by the complainant, the opposite party has claimed Rs. 2, 56,175/- from the complainant to be payable in receipt of the above work. It is quiet contrary that when the two bills submitted by the opposite party in two different figures for the same work executed by him.
4. The above bills are nothing but the inflated figure and with an intention to cheat the complainant to grab more money from him. The opposite party has since not made proper concreting and there is no bonding between the existing building and the portico construction, there is a leakage, just like water is porting in between the existing building and portico. The opposite party has replaced the doors and windows in his existing house and he has supplied all the wood items to the opposite party for fixing the same.
5. The opposite party he has not re-fixed the same and due to his poor quality of work the complainant finds it difficult to open and close the same. The opposite party has not done the plastering work properly and he has not done any scrapping before the plastering and as a result of poor workmanship there is lot of undulation in all the walls where the opposite party has plastered through his workmen. The opposite party has not made any weathering course tiles in the toilet which is situate at outside of the building (forming part of the building). As a result there is a leaking in the toilet also. The complainant is ready to take the joint measurements with the help of his engineers to arrive at the correct value subject to the condition that the opposite party has to complete all the pending works to the satisfaction of the complainant through his notice dated 29.04.2008 and 03.06.2008. But he has not done the same till date. Hence this complainant.
The Contention of the Written Version Filed by the Opposite party as brief as follows:
6. The complainant is not maintainable either in law or in facts. The opposite party denies all the charges made by the complainant. The Opposite Party is the sole proprietor of Sri Narayana Constructions one of the leading private building contractors at Avadi and doing construction activities for the last 20 years. During this period the opposite party never had any friction or quarrel or legal tangle with any of his clients.
7. In June 2007 Mahendra Babu who is the brother of the complainant called the opposite party to his residence and took him to his father Mr. Guruswamy’s residence. Mr. Mahendra Babu asked for a rough estimate for addition and alteration works to be done to the building and for which the opposite party calculated roughly in 5 minutes for the work they intend to be carried out. For the work Mr. Mahendra Babu wanted to be executed, the opposite party calculated the estimate amount would be anywhere between 2-2.5 Lakhs. Mr. Mahendra Babu asked the opposite party, if he can execute the work for him for which the opposite party refused to do as he had a lot of pending work to be completed.
8. After a month on 22.07.2007 Mr. Mahendra Babu called the opposite party to his residence and requested the opposite party to execute the work since he didn’t find a suitable person to execute the same. On the fullest trust and faith in the name of friendship the opposite party accepted the same and was paid Rs.2,00,000.00 in cash by Mr. Mahendra Babu as advance under one assurance that he will do all the required demolition works, do the carpentry works do all the electrical works, pluming works grill windows, flooring and painting works. All the opposite party needed to do is to do the structure as he was told and give Mr. Mahendra Babu the bill for the work executed and for the materials and labour supplied by the opposite party.
9. The ground floor building had two portions let out for rent by Mr. Guruswamy Naidu. Both the portions were to be altered and combined to make one portion in the ground floor. The opposite party has not given any assurance by mouth or in writing or signed an agreement. The work included removal of old portico and staircase removal of Main door, two windows in the existing hall, realigning the wall in the southwest corner, removal of one number window on the north bed room of hall and reconstructing the same with fixing a main door in the North West corner.
10. The Opposite party began the work on 26.7.2007 by fixing the main doorframe. There in after the demolition work took nearly three weeks and again Mr. Mahendra babu asked the opposite party to execute the work at the earliest, as his sister was to be married in 2-3 months time. During the process of demolition, the opposite party observed that section of newly constructed walls when plastered will not coincide or merge with the old plastering so he requested Mr. Mahendra babu to remove the plastering completely on the inner walls and therefore advised Mr. Mahendra babu that if the complete internal plastering is removed and redone the finishing will be better. After the plastering was removed, the opposite party started work on 20.08.2007 with the construction of internal walls for bedroom, kitchen hall etc. While plastering, the opposite party noticed that the existing wall were not to plump and has slanted to roughly 2-3 inches, which is very difficult to alter and therefore the opposite party had no other go than to plaster in as it was constructed. All works were executed and materials used as per the instructions given to the party by Mr. Guruswamy Naidu and Mr. Mahendra Babu.
11. On 23.09.2007 as the opposite party’s expenditure rose by around 1.5 lakhs my Client requested for Rs.
12. In spite of sufficient time and opportunities given to the opposite party, he has not chosen to appear before this forum to defend complainant after filing the written version, he was Set Exparte. Eventhough this forum, wants to dispose the complaint filed on merits of the complainant.
13. On the side of the complainant, in order to prove the complaint the proof affidavit is submitted as his evidence and Ex.A1 to A9 marked.
14. At this juncture, the main points for consideration before this forum is,
(1) Whether there is any deficiency of service as alleged in the
complaint on the part of the opposite party?
(2) To what other relief the complainant is entitled?
15. Point No 1;- As per the case of the complainant is that the opposite party has not completed the accepted construction work without the time stipulated and contented the work upto 7 months and have shown the different to us with different values and also has not done the plastering work, not refused the doors and windows, not made any weathering course tiles in the toilet and thereof a leakage presents but the opposite party has claimed more money in order to grab the money and therefore there is a deficiency of service and caused much mental agony and hardships . Whileso, the opposite party is remained Exparte, this forum has to consider the Written Version which was filed by the opposite party with initial stage, on perusal of the written version, it is stated that only Mr. Mahendra Babu who is the brother of the complainant herein asked the opposite party for alteration work to be carried out on a 35 years old building owned by the Mr. Gurusamy Naidu, and on the fullest trust and faith in the name of friendship, the opposite party accepted the same and was paid Rs.2,00,00/- in cash by Mr. MahendraBabu as advance. It is further stated that the opposite party began the work on 26.07.2007 and thereafter the demolition work took nearly three weeks and during the process of demolition, the opposite party observed that the section of newly constructed portion when plastered will not coincide or merge with the old plastering and so that one by one work increased and all works were executed and materials used as per the instructions given by Mr. Gurursamy and Mr. Mahendra Babu. It is learnt that only on 10.12.2007 when the opposite party gave bill for Rs.4,90,00/- and the opposite party was paid Rs.10,00,000/- by Mr. Mahendra babu in the present of the complainant, which was the first time in three months after beginning of the construction work and at that time, when the complainant wanted to know how much more amount will it cost, for whih, the opposite party replied that another 1,00,000/- will be required. It is brought that till they said date the complainant has not only spoken to the opposite party but also not given any instruction to any part of the execution and after all other works were completed, on 17.12.2007, the opposite party requested Mr. Mahendra Babu, for payment of a further sum of Rs.1,00,000/- and opposite party was decided to ask the complainant. For some or other reasons the Balance amount of construction work executed by the opposite party has not been paid and the complainant drag on the payment and the opposite party has informed that if it is found that the bill amount is higher than the estimated cost given by the chartered engineer the opposite party is ready to return the excess money received by him the of further stated that there is no question of cheating the complainant and he didn’t want to take a family matter to court and therefore there is no deficiency of service and not at all caused any mental agony and hardships to the complainant.
16. At this juncture, it is the bounden duty of the complainant to prove his case by means of cogent and acceptable evidence. First point received towards deficiency of service by the complainant is that the opposite party has not completed the construction work without the stipulated time of 2 months so, it has been proved by the complainant. While being so, on careful perusal of the complaint and the proof affidavit it is sated that the stipulated time is 2 months where as in Ex.A7, the written statement filed in o.s.73/2009 on the file of the sub court, Poonamallee which was filed by the opposite party, it is stated the stipulated time as 3 months so, the complaint is not stable or correct stand regarding the stipulated time for completion of work but it is contrary with each other and also his own statement. At the same time, it is learnt from the written version of the opposite3 party, initially a particular work was assigned to the opposite party and thereafter, the opposite party was entrusted more other works one by one viz facing of main door frame, demolition work, construction of intended walls for stainless kitchen hall etc., Even than the opposite party began the work on 26.07.2007 and completed the entire work 6 months. It is not a long time on considering that question of work as described by the opposite party. More so, it is brought to this forum that there is no written arguments executed by the opposite party by fixing any stipulated time. However all that construction works were completed within the reasonable time. In this regard, the plea taken by the complainant holds not good.
17. The next thing to be taken into consideration is that while the complainant was requesting the opposite party, the detailed bill for the construction work done by the opposite party, the opposite party has given two bills one by one, which is quite contrary and he has claimed the Balance of Rs.2,56,175/- which is not correct and in order to grab the money, the opposite party claimed such amount since as per the complainant side engineer the value of the construction ought to have came Rs. 3.5 lakhs to 4.00 lakhs and not otherwise in such being the portion, it should be proved by the complainant but he has failed to do so. Therefore the complainant stated about his engineer, report, the same has not been produced before this forum. Further, it is learnt from the records that the complainant has filed one petition for the appointment of Consumer to inspect the said construction work along with the counsel engineer to find out the actual quantum of work and the estimation and the cost of this forum, in different two dates viz 13.6.2011 and 3.8.2012 . Bu the complainant has not taken further steps, the said petition was dismissed for defect on 9.11.2011 final. But the complainant ha not chosen to restore the same or to file any fresh application after obtaining the order from the State Consumer Redressal commission for restoring this case. Therefore without producing the Engineer report in respect of the actual work done of the opposite party and he estimation this forum cannot come to first decision of the complainant case. Not only that, it is learnt from Ex.A6, & Ex.A7, that the opposite party has filed the counter but in OS. 73/2009 before this sub court , poonamllee against the complainant for clearing the balance amount due to his for the construction work done of the opposite party. Moreover it is further learnt that there is no prayer on the side of the complainant to give decision to the opposite party to complete any construction work which is pending or his completed. So, it can be easily conclude that the opposite party had completed the execute construction work which was handed any time to time. In other aspects also there is no sufficient evidence on the side of the complainant.
18 In the light of the above facts and circumstances this Forum concludes that the complainant failed to prove the case of deficiency of service and other facts. Therefore, this Forum without any hesitation to hold that there is no deficiency of service on the part of the opposite party. Thus this point is answered accordingly.
19. Point No. 2:- In view of the decision arrival in point no. 1, it goes without saying that the complainant is not entitled for any relief as prayed for and answered this point accordingly.
In the Result, this Complaint is Dismissed. No Cost.
Dictated directly by the president to the steno-typist, transcribed and computerized by her, correctly by the president and pronounced by us in the open forum on this the 31st July-2015.
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MEMBER-I PRESIDENT
List of Complainant Documents:
Ex.A1 Dt. 10.12.2007 - Xerox Copy of Final Bill for Building Constructions
Ex.A2 Dt. 30.01.2008 - Xerox Copy of Additional and alteration works Bill
Ex.A3 Dt. 10.02.2008 - Xerox Copy of Additional and Alteration works Bill
Ex.A4 Dt. 29.04.2008 - Xerox Copy of Counsels Notice with Acknowledgment Card
Ex.A5 Dt. 13.06.2008 - Xerox copy of Counsel Notice with Acknowledgment card
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MEMBER-I PRESIDENT
