Sri.K.GOPALAN: PRESIDENT<br /> This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to pay an amount of Rs 2,00,000/- with 18% interest and cost of this proceedings. <br /> The case of the complainant in nutshell are as follows: Opposite party had undertaken the construction work of complainant’s new house as per the plan approved by the Elayavoor Grama Panchayath . Agreement executed on 15.9.2004 between complainant and opposite party by which opposite party had undertaken to complete the construction work within 6 months from the date of agreement for a total consideration of Rs 3,00,000/-. The total construction includes material costs, supervisory charges, labour charges and service charges etc. The opposite party managed to extort an amount of Rs 2,75,000/- from the complainant made believe him the entire construction would be completed within 15.3.2004. But opposite party did not complete the work before 15.3.2004 and further more all the work done by him were defective. Though undertaken, the following work has not been done by the opposite party.<br /> 1. Work of stair case was not completed.<br /> 2. Work of building wall of 7 feet height from slab of stair case room was not done<br /> 3. Car porch was not constructed.<br /> 4. Concrete slabs for kitchen, work area were not done.<br /> 5. Concrete slabs for septic tank was not made<br /> 6. Concreted Almirahs were not made.<br /> 7. Steps in the front way was not made etc.<br /> The work which has been done defective are : <br /> 1. The support of main slab was removed within 2 days and thereby concrete main slab became bent.<br /> 2. 4 windows were fixed not in the place provided in the plan.<br /> 3. The building wall was made with unfinished laterate stones and thereby 110 sacks of cement and 6 load sands were more expended for finishing work.<br /> 4. The column constructed in the entrance from main hall to dining hall is defective in toto.<br /> Complainant submitted that to cure the defects and completing the unfinished construction he had spent about Rs 1,00,000/-. The construction of house remained incomplete even after the lapse of stipulated period of 6 months causing damages to complainant to the tune of Rs 1,10,000/- The complainant sent a letter to the opposite party calling upon to pay Rs 1,20,000/-. The opposite party approached the complainant after getting the letter and as per mediation in the presence of neighbours came into a settlement whereby opposite party agreed to pay back Rs 95,000/-within 4 months and opposite party requested the complainant to deploy some other person to proceed with construction work and rectification of defective work. The work was then entrusted one V.B.Jayan and completed the work with a further period of 3 months. The complainant spent an amount of Rs 1,28,000/- for this . Because of the deficiency in service on the part of opposite party the construction of complainant’s house delayed to a period of 3 months and suffered much mental pain. Complainant estimates his loss to the tune of Rs 1,10,000/-.<br /> Forum sent notice to opposite party but did not turn up . There was no use though repeated notice. Finally publication was ordered. Publication produced and opposite party was declared exparte.<br /> The important question to be decided is whether there is any deficiency on the part of the opposite party and whether the complainant is entitled for the remedy as prayed in the complaint.<br /> The evidence consists of the chief affidavit and Exts. A1 to A7.<br /> The complainant’s case is that he has entrusted the construction work of his house to opposite party Mr. K. Prabhakaran. Ext. A1 is the agreement between complainant and opposite party with respect to the construction work of complainant’s house. Ext.A3 notice dated 19.3.2005 sent by the complainant to opposite party and Ext.A4 legal notice dated 28.6.2005 sent by opposite party to complainant proves that the complainant has entrusted the construction wok to opposite party ,Prabhakaran . Ext. A1 agreement executed on 15th day of September 2004 with a stipulation to construct the house within 6 months. The construction of house was not completed within 6 months. Exts. A2, A3, A4 & A5 make it ascertain that the construction of house was not completed as per the conditions of the agreement. Complainant in his pleadings and in affidavit categorically stated that opposite party has received Rs 2,75,000/- as consideration. This fact has also stated in the notice Ext. A3 sent by the complainant on 19.3.2005. Ext. A2 proves that Ext.A3 notice has been sent to opposite party. There is no whisper about such a letter of Ext.A3 in the lawyer notice sent by the opposite party. Ext. A5 is the reply lawyer notice of Ext.A4.<br /> Opposite party however admitted he has received Rs 2,65,000/- though the complainant claims that he has paid Rs 2,75,000/-to opposite party . There is only a difference of Rs 10000/- Ext.A5 reply notice, Complainant denies the allegation of opposite party that there was no proposal of construction of the Car Porch. He has also denied the allegation that the plan given was proposed by the Carpenter. The complainant specifically stated in the Ext. A2 that he has given the plan approved by the panchayath and in that plan car porch was also included. The claim of the opposite party Rs 12,082/- for the grills work, Rs 5,540/- as cost of the shed, Rs 5257 as cost of the septic tank were all denied by the complainant . He has stated in complaint, in Ext.A3, A5 and in affidavit that Rs 2,75,000/- has been paid to opposite party believing that the entire construction work will be completed within 15.3.2004. Complainant alleges that almost all the work done by the opposite party was defective specifying certain items like bent of main slab, change of place of placing windows, using of unfinished laterate stone for construction, column constructed in the entrance etc. Complainant alleged in detail with respect to the work omitted by the opposite party which was undertaken to be performed like work of staircase , work of building of wall of 7 feet of staircase room, car porch, concrete slab for septic tank, slab in kitchen, concrete almirahs and front steps etc. Complainant also stated in the reply notice Ext.A5 that the complainant had spent about Rs 1,10,000/-for curing the defect of work done by the opposite party and completing the construction which has been left behind by the opposite party. It has also mentioned therein that he had sent Ext.A3 letter on 19.3.05 calling upon the opposite party to return back the amount Rs 1,20,000/- . Ext.A5 also referred that the opposite party approached the complainant after Ext.A3 and amicably arrived at settlement in the presence of neighbours and had agreed to pay back an amount of Rs 95,000/- to complainant. It has also mentioned that the opposite party had requested to deploy any other person to proceed with the construction and thus entrusted to one Mr.V.B.Jayan, he who completed the work, for which an amount of Rs 1,28,000/- was expended.<br /> It can be seen that the opposite party had not been so serious and sincere in sending the lawyer notice Ext.A4. Opposite party has not come forward to take any action against the complainant to get enforced the grievances raised in the notice. Opposite party was silent about the letter Ext.A3 sent by complainant on 19.3.2005 with all the allegations herein above given. Ext. A2 is a document sealed by postal department on 19.3.2005 by which that can be presumed that the letter had been received by the opposite party. Even if it had not happened to reach, Ext.A5 reply notice cannot be denied. Ext. A6 proves that the complainant had sent reply to Ext.A4.<br /> In ordinary course in the light of Ext. A4, the opposite party is expected to be taken further steps to realize his demands. Why did he kept silence? Why did he kept silent even after Ext. A5? Ext. A5 cannot be denied since it is proved by Ext. A6. The opposite party has got sufficient opportunity to deal with Ext. A5. But he has totally been kept with silence that which naturally leads to the admission of the allegations of complainant. Ext. A5 gives definite answers to the allegations of opposite party and further raise specific allegations against opposite party. Opposite party kept silence towards Ext.A5 swallowing Ext. A4 himself. There is nothing more to be proved to establish deficiency of service . Hence we are of opinion that there is deficiency in service on the part of opposite party.<br /> The complainant alleged that he had sent a letter to the opposite party calling upon him to return back the amount of Rs 1,20,000/-. Ext. A3 , the letter sent by the complainant to opposite party on 19.5.2005 did not ask to pay Rs 1,20,000/- whereas , asked to give compensation that may assessed through mediators. In the pleading he has stated that as per mediation in the presence of neighbours the matter had been settled amicably and the opposite party agreed to pay back an amount of Rs 95,000/- to the complainant against the damages caused to the complainant. What is asked by the Ext. A3 is thus”<br /> <br /> <br /> <br /> <br /> <br /> <br /> The sum total of demand that quite clearly placed by the complainant in this letter is to return an amount that may fixed by mediators. According to complainant after receiving the letter the matter had been amicably settled between complainant and opposite party in the presence of mediators and as per settlement opposite party agreed to pay Rs 95,000/- against the damages. Ext. A3 covers the entire loss sustained by the complainant. Ext. A5 is the lawyer notice which has demanded “ to obey the understanding in the mediation and to return back the said amount Rs 95,000/-within a period of 15 days from the receipt of notice and to send a written apology”. Except the cost of this proceedings, there is no other evidence that has been brought before the Forum to say any further liability accruded upon the opposite party thereafter the amicable settlement. Thus, the prayer over and above the amount of Rs 95,000/- has not been supported by any reasonable ground. Circumstances speaks the settlement amount is reasonable and acceptable.<br /> In the light of the above discussion taking into consideration the available evidence placed before the Forum, we are of opinion that the complainant is entitled for an amount of Rs 95,000/- as compensation. Complainant is also entitled for RS 500/- as cost of this proceedings. Order passed accordingly.<br /> In the result, the complaint is allowed directing the opposite party to pay a sum of Rs 95,000/-( Rupees ninety five thousand only) with a cost of Rs 500/- ( Rupees five hundred only) to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order as per the provisions of Consumer Protection Act.<br /> Sd/-MEMBER Sd/- MEMBER Sd/- PRESIDENT<br /> APPENDIX <br /> Exhibits for the complainant<br /> <br /> A1. Copy of agreement executed between complainant and opposite party on 15.9.2004.<br /> A2. Copy of certificate of posting dt. 19.3.2005<br /> A3. Copy of letter sent to opposite party dt. 19.3.2005<br /> A4. Lawyer notice dt. 28.6.2005 sent by opposite party<br /> A5. Copy of reply notice sent to opposite party dt. 26.7.2005<br /> A6. Acknowledgement card dt. 2.8.2005.<br /> A7. Paper publication in Sudinam dt. 16.7.2008<br /> Exhibits for the opposite party – NIL.<br /> <br /> Witness examined on either side – NIL<br /> Fowarded/ by order <br /> <br /> SENIOR SUPERINTENDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />