By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Party to pay Rs.9,00,000/- to the Complainant being the amount accepted by the Opposite party from the husband of the Complainant in two instalments amounts of Rs.5,75,000/- and Rs.3,25,000/- respectively towards construction of the house of Complainant and also to pay Rs.2,00,000/- as compensation for the deficiency of service to the Complainant.

2. Complaint in brief:- The Complainant's deceased husband had entered into agreement with Opposite party on 16.02.2011 for the construction of a two floor residential building. As per the agreement, the total construction cost was calculated as Rs.22,50,000/-. The Complainant deceased husband had given to the Opposite party Rs.5,80,000/- on the date of agreement and Rs.12,000/- is to be given on 10.8.2011, Rs.40,000/- on 15.10.2011 and the last payment of Rs.70,000/- on the day of handing over the key of the house. Thereafter the Complainant and Opposite party entered in to another agreement on 18.4.2011 as per which it was agreed upon by the Opposite party to the deceased husband of the Complainant to complete the total construction of the house for an amount of Rs.19,75,000/-. The Opposite party has agreed that he had already received an amount of Rs.3,75,000/- on 16.02.2011, to give Rs.2,00,000/- as second instalment, to give Rs.5,00,000/- as 3^rd instalment before construction of lintel of the second floor and balance amount according to completion of the construction. It was also agreed to pay the amount of Rs.17,45,000/- out of Rs.19,75,000/- on the day of handing over the key of the house after completion of work. The Complainant's husband had already given two instalments of Rs.3,75,000/- on 16.2.2011 and Rs.2,00,000/- on 21.04.2011. The Complainant's husband had given an amount of Rs.3,25,000/- to the father of the Opposite Party as an aid for the Opposite party's brother Shibu to go abroad for job. The Opposite party agreed to adjust that amount towards construction cost. Due to the low quality of work and usage of low quality materials by the Opposite party, the house of the Complainant started to leak in the summer rain in the month of September itself ie within a few months after the construction. The complainant a widow along with her small children is living in the leaking house. The act of the Opposite party is nothing but deficiency of service from the part of Opposite party.

3. On receipt of complaint, notice was issued to Opposite party and Opposite party appeared before the Forum and filed version. In the version of Opposite Party, Opposite Party admitted that the agreement entered in to by the Opposite party and Complainant's husband on 16.2.2011. But Opposite Party denied the receipt of Rs.5,80,000/- on the date of agreement as stated in the complaint. The Opposite party also agreed the subsequent agreement on 18.4.2011.  The Opposite Party submitted that the Opposite Party had received Rs.5,75,000/- from the husband of the Complainant ie Rs.3,75,000/- on 16.2.2011 and Rs.2,00,000/- on 21.4.2011. It is also admitted that the Complainant and her husband and children was residing at the rented house of father of this Opposite party for rent and other allegation that the father borrowed Rs.3,25,000/- is denied by Opposite party. The Opposite party was ever ready to complete the construction work on the basis of agreement. Accordingly, the Opposite party completed 12 pillers, plinth beam, removal of mud, construction of retaining wall, wall and collection of materials for concrete under the supervision of Mr. Balakrishnan retired PWD Engineer appointed by the husband of Complainant. The plan and estimate is also prepared by this Balakrishnan. The concrete work of the roof is done by one Radhakrishnan and Rajeesh.K.V as entrusted by the deceased Sasi at his own cost and contract with them. The work of Opposite party completed on 13.08.2011 and the total work values Rs.8,17,000/-. Thus the Complainant is liable to pay Rs.2,42,000/- to the Opposite party deducting the already paid amount . The Complaint is filed to avoid the balance amount of Rs.2,42,000/- payable to Opposite party. There is no deficiency of service from the part of Opposite party.

4. On receipt of complaint, version and documents, the Forum raised the following points for consideration.

1. Whether there is deficiency of service from the part of Opposite party?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A3 and commission report is marked as Ext.C1. The Commissioner is examined as CW1 and Ext.X1 is also marked. Opposite party filed proof affidavit and the Opposite Party is examined as OPW1 and Exts.B1 to B6 is marked. The specific case of Complainant is that the Opposite party had done the ground floor concrete roof work of complainant's house barely and all other work are done by some others engaged by the Complainant. But the Opposite party had denied the allegation that the Opposite party had done the roof of ground floor concrete work. The case of Opposite Party is that the concrete work of the roof is done by other persons and the entire work done by Opposite Party is under the supervision of Engineer appointed by the Complainant. In Ext.B2 reply notice, the Opposite Party had raised the same contention. The Opposite Party stated that the Opposite Party had completed 12 pillars, plinth beam, removal of mud, construction of retaining wall, wall and collection of materials for concrete under the supervision of engineer. The Complainant stated that the Opposite party had completed the structure and concrete of the ground floor roof and there after the Complainant sought the help of other to complete the work. So there is doubt regarding the stage of work done by Opposite party. The Complainant did not examine any witness to prove that the Opposite party had completed ground floor concrete work. As per Ext.C1 commission report, the commissioner reported that the roof slab of the house is seriously cracked at veranda portion. So the rain water is dripping in to the rooms. So by analysing of the commission report, it is found that the roof slab of the house is damaged. But if Opposite Party had not done the roof work, he cannot be held liable for it. There is no cogent and convincing evidence before the Forum regarding this aspect. Ext.A3 document is a photo copy of a lease agreement entered in to between one Chacko and the husband of the Complainant. As per Ext.A3, this Chacko received Rs.3,25,000/- as a security deposit from the husband of the Complainant. But it is seen that there is no condition to adjust the same amount towards consideration for the construction of building in subsequent Exts.A1 & A2 agreements. So by analysing the entire evidences, the Forum is of the opinion that the Complainant failed to prove her case.

In the result, the complaint is dismissed. No order as to costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 28^th day of July 2015.

Date of Filing:13.06.2012.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Rajani. Complainant.

CW1. Baiju. P.B. Asst. Engineer, Kerala PWD, Bridge Section,

Thiruvananthapuram.

Witness for the Opposite Party:

OPW1. Shibu Mason.

Exhibits for the complainant

A1. Agreement. dt:16.02.2011.

A2. Agreement.

A3. Copy of Agreement. dt:07.02.2009.

C1. Letter. dt:13.07.2012.

Exhibits for the opposite Party.

B1. Copy of Letter. dt:19.03.2012.

B2. Copy of Letter. dt:04.04.2012.

B3. Postal Receipt. dt:04.04.2012.

B4. Acknowledgment.

B5. Copy letter. dt:04.04.2012.

B6. Postal Receipt. dt:04.04.2012.