District Consumer Disputes Redressal Forum, Tarn Taran (Punjab)
Consumer complaint No: 28 0f 2015
Date of Institution: 12-05-2015
Date of Decision: 27-07-2015
Sukhwinder Kaur wife of Rashpal Singh, resident of Village: Fathechak, Tehsil & District Tarn Taran.
…Complainant
Versus
Khajan Singh @ Bitu son of Gurdev Singh, resident of village: Nevein Pind Daleke, Tehsil & District Tarn Taran.
…Opposite Party
Complaint Under Section 12 & 13 of the Consumer Protection Act, 1986.
Present: Sh.Gaurav Chopra, Advocate counsel for Complainant.
Opposite Party exparte on 22-06-2015.
Quorum: Sh. J.S.Khushdil, President.
Sh. R.D. Sharma, Member.
Smt.Jaswinder Kaur Dolly, Member
(Sh.J,S.Khushdil, President)
- The complainant Sukhwinder Kaur has filed the present complaint under Section 12 & 13 of the Consumer Protection Act, 1986 (herein-after called as ‘the Act’) against Khajan Singh @ Bitu son of Gurdev Singh, resident of village: Nevein Pind Daleke, Tehsil & District Tarn Taran (herein-after called as ‘Opposite Party’) supported by various documents levelling allegations of deficiency of service on the part of the Opposite Party.
- As per the version of the complainant, Opposite Party is building contractor and is doing the business of construction of buildings on Theka/ Agreement. Complainant approached Opposite Party in the month of December, 2013 for the purpose of construction of a building in the shape of residential house over their site measuring 110 square feet, situated at village: Fathechak, Tehsil & District Tarn Taran. Said plot is in the name of complainant. Written agreement dated 23.12.2013 was executed between the parties for the construction of three storey building of the complainant @ Rs.110/-per feet. Opposite Party accordingly obtained Rs.20,000/- as earnest money in advance from the complainant as his labour for the contract and therefore, the complainant is consumer of the Opposite Party and is beneficiary of services. As per the agreement dated 23.12.2013, the Opposite Party was to complete the work of construction of residential house within 12 months, but inspite of receiving the advance amount from the complainant, the Opposite Party did not start the work of construction within time, as agreed. Moreover, the Opposite Party had obtained a total sum of Rs.95,000/- from the complainant on different occasions. Thereafter, the complainant approached Opposite Party many a times with a request to start the construction work, but the Opposite Party put off the matter on one pretext to another. Thereafter, the complainant got done her construction of house from labours on the daily wages to whom the complainant paid the wages. It is alleged that Opposite Party is guilty of fault, imperfection, abort coming and inadequacy in the quality, nature and manner of performance of service. Due to this act of the Opposite Party, the complainant suffered great mental pain, agony, harassment and inconvenience. As such, following relief has been claimed by the complainant against the Opposite Party: -
(A) Rs. 2,00,000/- on account of compensation for causing her mental & physical harassment
(B) Rs.15,000/- as litigation expenses.
(C) Rs. 95,000/- which were paid to the Opposite Party as advance alongwith interest.
and prayed to accept the complaint.
- Notice of this complaint was issued to the Opposite Party. The Opposite Party did not appear in the Forum despite the proper and valid service. Therefore, the Opposite Party was proceeded against exparte vide order dated 22.6.2015 of this Forum.
4 The complainant in order to substantiate her claim tendered in to evidence her duly sworn affidavit Ex. C-1 alongwith following documents
Ex. C-2 Agreement dated 26.12.2013.
Ex.C-3 Self attested copy of agreement dated 23.12.2013.
Ex.C-4 Duly sworn affidavit of Avtar Singh.
Ex.C-5 Self attested copy of details of payment (containing pages 1 to 8)
and closed the evidence.
5 We have heard ld. counsel for the complainant exparte and also perused the evidence produced on record with the assistance of ld. counsel for the complainant viz-a-viz written arguments filed by the complainant.
6 Ld. counsel for the complainant submitted that Khazan Singh @ Bittu, Opposite Party is doing the construction work. The complainant approached the Opposite Party for the construction of her house over her site measuring 110 square feet situated at village: Fathechak, Tehsil & District Tarn Taran. It was agreed between the parties that Rs.110/- square feet for construction of 3 storey building would be charged. Agreement to this effect was executed between the parties and a sum of Rs.20,000/- was paid as advance to the Opposite Party. Ld.counsel for the complainant has referred to the agreement dated 23.12.2013 Ex.C3. It is submitted that another agreement dated 26.12.2013 Ex.C2 was executed and a sum of Rs.25,000/- was again paid to the Opposite Party by the complainant. It is further submitted that in this case, the complainant has paid Rs.45,000/- upto 26.12.2013. The complainant also paid Rs.30,000/- and Rs.20,000/- to the Opposite Party, but no receipt was issued by the Opposite Party. Ld.counsel for the complainant submitted that despite of receipt of amount and as per the terms of the agreement executed between the parties, the Opposite Party has refused to do the construction work of her three storey building and therefore, the complainant was compelled to engage Avtar Singh to do the construction work as mason from 2.5.2014 to 27.2.2015. The complainant made the payment to Avtar Singh and labours who were alongwith him, copy of list of payments on different occasions to Avtar Singh Mason and labours is Ex.C3. It is submitted that however, the complainant has paid Rs.95,000/- in total to the Opposite Party and even then, the Opposite Party failed to construct the house of the complainant which caused mental harassment, tension and agony to the complainant. The aforesaid evidence and submissions of the complainant remained unrebutted. It was prayed to accept the complaint of the complainant as claimed for.
7 We have given thoughtful consideration to the submissions of ld.counsel for the complainant.
8. The complainant has averred that she is owning a plot measuring 110 square feet in her name and the complainant wanted to construct her three storied building on the said plot. Therefore, an agreement dated 23.12.2013 was entered into by the complainant with Opposite Party and at that time, the Opposite Party received Rs.20,000/- from the complainant as earnest money as per receipt. According to the version of the complainant, the construction work was to be completed by the Opposite Party within 12 months, but inspite of her requests, the Opposite Party failed to do the construction work of the three storied building of the complainant. Ultimately, the complainant got the construction work done through daily labour by incurring expenses. In her duly sworn affidavit Ex.C1, the complainant has strengthened her aforesaid version and has examined Avtar Singh, Mason who deposed on oath vide his duly sworn affidavit Ex.C4 that he alongwith three/ four labour persons have also worked to construct the house of the complainant from 2.5.2014 to 27.2.2015 and charged Rs.350/- and Rs.250/- per day respectively. Smt.Sukhwinder Kaur, complainant in her sworn affidavit Ex.C1 has deposed on the line of her version contained in the complaint. Ex.C2 is the agreement dated 26.12.2013 which had set out certain additional conditions of construction. It is also mentioned that Opposite Party has received Rs.25,000/- on 26.12.2013 in addition to Rs.20,000/- received by the Opposite Party on 23.12.2013, totaling to Rs.45,000/-. Ex.C3 is the agreement dated 23.12.2013. It is stipulated that construction work of the house of the complainant was to be completed within 12 months. Ex.C5 is detail of payments made to the mason and his labours, on different occasions.
9. From the initial agreement dated 23.12.2013 Ex.C3, it reveals that a sum of Rs.20,000/- was paid by the complainant to the Opposite Party and thereafter, the complainant has also paid Rs.25,000/- to the Opposite Party as per endorsement on agreement Ex.C3.
10. Opposite Party has not come present to rebut the agreement dated 23.12.2013 (Ex.C3) or agreement dated 26.12.2013 (Ex.C2) or receipt of Rs.20,000/- as earnest money and subsequent amount of Rs.25,000/- total amounting to Rs.45,000/-. It is for the Opposite Party to prove that in pursuance of the agreement dated 23.12.2013 (Ex.C3) or agreement dated 26.12.2013 (Ex.C2), any construction work of the complainant was done or not. There is sufficient evidence on the file that the complainant has got done the construction work from Avtar Singh and other labours when the Opposite Party has refused to do the construction work. It is apparent from list of payment to daily labours (in 8 pages) Ex.C5 that the payment was made to Avtar Singh and his Labours. Avtar Singh in his statement by way of affidavit Ex.C4 has deposed that he did the aforesaid construction work on daily wages basis @ Rs.350/- and Rs.250/- per day to each labour. According to the version of Avtar Singh, he had done the construction work from 2.5.2014 to 27.2.2015. Further no evidence has come from the site of the Opposite Party that any construction work was done during, before or after this period. As per the version of the complainant, the 3 storey house was to be constructed.
11. There is cogent and convincing evidence of payment of Rs.20,000/- as earnest money and subsequent payment of Rs.25,000/- total amounting to Rs.45,000/- paid by the complainant to Opposite Party, but there is no evidence led by the complainant to prove that she has paid Rs.30,000/- and Rs.20,000/- on subsequent dates. There is unrebutted evidence for the complainant as she has produced Avtar Singh who got her house constructed and the complainant paid the wages as detailed in Ex.C5. The aforesaid evidence produced by the complainant for making the payment of Rs.20,000/- as earnest money and subsequent amount of Rs.25,000/- total amounting to Rs.45,000/- remained unrebutted and unchallenged.
12. We therefore, hold that the complainant has paid only Rs.45,000/- on 23.12.2013/ 26.12.2013 to the Opposite Party as per agreements Ex.C2 and Ex.C3 and she had got constructed her house from other mason/ labours, therefore she would have suffered mental tension and agony.
13. We, therefore, allow this complaint partly and the Opposite Party is directed:-
(i) To refund the amount of Rs.45,000/- to the complainant alongwith interest @ 6% per annum (as claimed) from the date of its payment till the date of this order,
(ii) To pay a sum of Rs. 20,000/- being consolidated amount of compensation which includes counsel fee and litigation expenses.
14. The Opposite Party is directed to comply with this order within 60 days from the receipt of copy of order, failing which the Opposite Party will pay interest at the rate of 6% per annum on the amount of Rs. 45,000/- from the date of this order till its realization. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Pronounced in open Forum.
Dated: 27-07-2015.
(J.S.Khushdil) President
(Jaswinder Kaur) (R.D.Sharma)
Member Member
hrg
