Complaint for realization of compensation of Rs.75,000/- ,costs etc. The averments in the complaint can be briefly summarized as follows: The opp.party has done the concreting work of the roof of complainant’s building. The complainant and the opp.party entered into an agreement on 28.12.2001 for the construction of pillars and beams for constructing a shop building in favour of the house of the complainant. As per the agreement the complainant purchased cement, metal, sand iron rods etc and entrusted with the opp.party for which he spent Rs.1,02,296. On 23.1.2002 the opp.party started the work of the roof. During this period the opp.party has received from the complainant a sum of Rs.33,820/-. On the next day when the complainant inspected the concrete portions cracks were noticed at certain places. Certain projections were also noticed on the beams. The complainant thereupon informed this to opp.party. But the opp.party did not rectify the same. This is happened due to the negligence of the opp.party in engaging unskilled worker for the work. There after further works were stopped which still remains like that. If the defects are not rectified the strength of the building itself would be affected. Even after repeated requests the opp.party has not done anything. Due to acts of the opp.party, the complainant is not in a possession to complete the building causing mental agony and financial loss to the complainant. There is deficiency in service on the part of the opp.party. Hence the complaint. The opp.party filed version contending as follows: The complaint is against law, facts, circumstances and probabilities of the case The opp.party is a maizon belonging to Tamilnadu who came to Kerala in 1981 and settled at Kollam. He has 22 years experience in construction field including concrete works. He has participated in the construction works of many buildings in Kollam and had no occasion to face damaging criticisms ever before. The opp.party is financially very poor and his family lives on the income he derives out of construction works. In pursuant of the oral agreement entered into with the complainant, the opp.party under took the labour portion of the concrete work of the shop building of the complainant. The rates of the different concrete works agreed upon were reduced to writing by the complainant. The total labour charges as agreed by both parties would out to Rs.33,853.86. The averment that the opp.party has received Rs.33,820/- as labour charges during the period upto 23.1.2002 is false and hence denied. The opp.party has so far received only Rs.10,040/- from the complainant The details of the payment received and labour employed on each day are written then and there in a small diary kept by the opp.party. As soon as any payment is received, the opp.party used to invariably acknowledge receipt of the amount by putting his signature against the entry in the note book maintained by the complainant.. This book is in the exclusive possession of the complainant and the entries therein would tally with the entries in the small diary kept by the opp.party. When the slab concrete was done on 23.1.2002 the complainant instructed the opp.party to adjust the support so as to give room to park the Ambassador car of the complainant beneath the roof which was objected by this opp.party. On 24.1.2002 ie. approached the complainant to take the measurement. It was seen that the Ambassador car was parked beneath the roof slab removing or adjusting some of the supports. On 25.1.2002 the measurement was taken and at the time of taking measurement some hair thick cracks in one or two parts of the concrete were noticed . The complainant scolded the opp.party using abusive language when the opp.party requested the amount due from the complainant. The damages were caused as a result of removing or adjusting the support and also taking up construction work of wall above the concrete on the western side of the roof before curing time for the concrete. The very small cracks are only superficial and not detrimental to the strength of the building. After taking measurement the complainant became violent and the opp.party was virtually driven away from the premises. The material used for concrete work could be recovered from the premises only on 9.3.2002 due to the intervention of the police, who came there in pursuant the complaint filed by the opp.party. The opp.party sustained huge loss due to the delay in receiving materials from the work site and also because of the non- payment of balance amount by the complainant . The good name of the opp.party which is his main assets is also affected badly. The complainant using abusive language threatened the opp.party claiming that he is an office bearer of District Consumer Council and he will not make any further payment. The allegations are unfounded, exaggerated and the damages alleged are not due to any negligence or deficiency in service on the part of the opp.party. Hence the opp.party prays to dismiss the complaint and award Rs.23,813.86 being the balance amount due to him from the complainant with compensation and costs Points that would arise for consideration are: 1. Whether there is any deficiency in service on the part of the opp.parties 2. Relief’s and costs. For the complainant PW.1 is examined. Ext. P1 toP3 are marked. For the opp.parties DW.1 and 2 are examined. Ext. D1 to D3 are marked. POINTS:’ Oral agreement between the complainant and opp.party regarding construction of the complainant is admitted. According to the complainant in pursuance of the agreement the opp.party has done the concreting work on 23.1.2002 and as on 23.1.2002 a sum of Rs.33,820/- was received by the opp.party towards its charges. But on 24.1.2002 he noticed certain cracks on the slab which were caused due to the negligence and deficiency in service on the part of the opp.party. It is the further case that the complainant though requested the opp.party to rectify the defects in the construction the opp.party did not turn up. The case of the opp.party is that he has done the concreting work of the complainant’s building on 23.1.2002 but he has received only a sum of Rs.10,040/- for the work as against agreed amount. On 25.1.2002 when measurement was taken small hair thick cracks were noticed. The definite case of the opp.party is that such cracks developed not due to any deficiency in service or negligence on his part, but due to the disturbing of the props applied to the roof concrete of the car shed which is the only access to the complainant’s house by the inmates and also for parking the car belonging to the complainant. As a matter of fact no Engineer was employed to supervise the work. PW.1 has stated in cross examination that the opp.party was given only labour contract and directions on engineering side was given by the owner who is none other than the complainant himself. To use the words of the complainant “construction Sin\mj licence eB\vuf\fjHrjr\rk\ tmkf\fj}jh\h. Opp.party ]k\ labour contract Lln\ sdlmkf\fjgkr\rfk\ Engineering rjGSp\pCb\bX Kmac\FR rHdjufkrkcgjv\vk\QlSgl enjukA svu\ukdulujgkr\rk;” From the above statements it is obvious that the super vision of the construction was done by the complainant himself.. When that be the position it is not just or proper to blame the opp.party for any defect in the construction. In this context the cross examination of DW.2 is material. It was suggested to DW.2 . that the he complainant was a Diploma Engineer by the learned counsel for the complainant. That means that the complainant himself was a competent engineer. If so, when the concreting was done under the supervision and as direction of the owner /complainant the opp.party need only obey the instructions. PW.1 has no case that the opp.party has ever disobeyed his directions during concreting. The burden to establish that the cracks developed in the roof is due to the negligence of opp.party is on which the complainant in our view the complainant failed to discharge. It is worth noticing in this context that the concreting was done on 23.1.2002 and alleged cracks noticed on 24.1.2002, but the expert visited only on 4.3.2003. The expert as DW.1 stated that he has not noticed whether the building was plastered or not. So it cannot be conclusively said that the cracks are on the roof or in the plastering. The expert reported in Ext.C1 that plan and structure design have not been given to the construction and very poor and non technical methodology have been adopted for the construction. The expert has reported that the reason for development of crack formation are [1] poor construction methodology and defective structural designing. The opp.party admittedly is not a qualified Engineer whereas the complainant is a qualified Engineer and defective structural design and poor construction methodology cannot be attributed to opp.party. Expert further stated in Ext. C1 that cracks have formed due to settlement of slab during the early days and this is due to disturbance of props given for scaffolding and this could be caused due to [1] poor and weak scaffolding [2] Non bracing of props used for scaffolding [3] Removal of props willfully or accidentally by outsiders. It is an admitted fact that the entrance to the house of the complainant is through the garage and expert has said that there is every possibility of getting disturbance to the props placed in the garage from the regular visitors of the house which is quite probable. Even if the case of the complainant that he kept his car in another house is accepted even the complainant has no case that visitors or inmates of the house have not traveled to and fro through the garage. The complainant is relying on Ext.P1 for the payment of Rs.33,860.86. Ext.P1 is a photocopy, the marking of which was objected and despite that the original was not produced. In this context it is pertinent to note the date of Ext.P1. Ext.P1 is dated 7.2.2002 where as the alleged dispute regarding cracks arose from 25.1.2002 . It is quite improbable that opp.party would give Ext.P1 especially when the opp.party claim that he has received only Rs.10,040/- and in on view Ext.P1 cannot be accepted safely. The claim of opp.party also cannot be accepted as the entries in Ext. D1 are not attested by the complainant. For all that has been discussed above we are of the view that the complainant failed to establish negligence or deficiency in service on the opp.party. Point found accordingly. In the result the complaint fails and the same is hereby dismissed. No. costs. Dated this the 25th day of September, 2010. I N D E X List of witnesses for the complainant PW.1. – Sundaresan List of documents for the complainant P1. – Receipt P2. – FIR P3.- Plan C1. – Commission report List of witnesses for the opp.party DW.1. – M.M. Khan DW.2. – Kanakaraj List of documents for the opp.party D1. - Receipt book D2. - Letter sent by Quilon District Sonsumers Council to the opp.party D3. – Notice sent by complainant to the opp.party | 
