DOF.27.07.2012
DOO.31.01. 2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Smt.M.D.Jessy : Member
Dated this, the 31st day of January 2013
CC.221/2012
1. Nishayi.M.P,
W/o.Mohammed Shafi,
Makkoolakath House,
Thayatheru,
Near Malayala Manorama, Kannur 2.
2. Mohammed Shafi,
Lawyer,
M.K.Associates, Near LIC Office,
Kannur 2. Complainants
M.Prabhu,
PWD Contractor,
Keloth House,
Varam, Valiyannur
Kannur 670 594.
(Rep. by Adv.P.V.Abdul Kader) Opposite party
O R D E R
Sri.K.Gopalan, President
Heard both parties upon the question of maintainability. Complainant engaged opposite party to do the RCC works of complainants’ residential building. Complainant’s case is that differences and disputes creped up between complainant and opposite party basically on the point of delayed and protracted works. The opposite party ultimately after much delay finished the first floor roof on 30.07.2010 thereafter he had abandoned the remaining works. Complainant issued notice to have a mutual joint measurement to quantify the work done. The defects and deficiencies were also pointed out. Finally OS.501/2010 was filed before Munsiff court, Kannur and moved I.A.3775/2010 for mandatory injunction directing the opposite party to complete the remaining abandoned work. Since he was not prepared to do it on his own, the Hon’ble court permitted the complainant to complete the remaining work. The suit was finally decreed enabling the complainant to claim refund of surplus amount as well as damages. In the aforesaid suit the compensation for mental agony was not claimed. Equally, certain pecuniary loss in the form of special damages like interest paid on housing loan, hike in price of construction commodity etc. were restricted. Though he was entitled to get damages in the suit itself the same was not specifically asked by way of relief. Since Consumer Protection Act is a special legislation nor in derogation of any other statute, the complainant is entitled to claim compensation.
Opposite party filed version contending that the mater in issue in the above complaint was the matter in issue in OS.501/2010 of Kannur Munsiff court. In that case, the complainant has claimed deficiency of service. In the suit complainant/plaintiff has assessed actual and special damage arising out of the various defects, deficiency of service and short comings in the work. Hence the complaint is hit under principles of resjudicata.
It can be seen that the close reading of the pleadings of the complainant would show that the cause of action for the suit OS 501/2010 and the above complaint is one and the same. It also reveals that the purpose of the complaint is that the complainant omitted to ask for certain relief in the suit and the same wanted to be solved by raising that relief’s herein.
Hon’ble National Commission neatly dealt with the issue in the case W.Rajendran Vs. TamilNadu Mercantile Bank Ltd., I (1992) CPJ 223(NC) and held thus “Section 3 of the said Act lays down that the provisions of the act are in addition to and not interrogation of the provisions of any other law for the time being in force. Thus there were two remedies open to the claimant. He could have filed civil suit for the recovery of the amount or he could have instituted proceedings under the Act of 1986.The complainant choose the first referred remedy and filed a civil suit for the recovery of the amount and the same has been decreed. For delayed payment by the bank his claim for interest has been allowed by the court. He cannot be now permitted to institute proceedings under the Act of 1986 in respect of the same subject matter regarding which he had filed the suit and obtained certain relief. If he allowed to do so it will amount to abuse of the process of law. A party cannot be permitted to harass the other party twice for the same cause of action”.
We do not feel that much discussion on this point necessary to establish the legal position. The principle derived by the Hon’ble National commission in the above case is aptly applicable to the case in hand.
The matter in issue in the case in hand in fact, was the mater in issue in OS.501/2010 of Munsiff court, Kannur. Opposite party cannot be permitted to harass the opposite party again for the same cause of action. Hence the argument that the complaint is not maintainable before this Forum bearing legal strength to hold that the above complaint is not maintainable. The above complaint thus found not maintainable and is hereby dismissed. No order as to costs.
Sd/- Sd/- Sd/-
President Member Member
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur.
