BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

                                                                             Dated this the 20^th December 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                      : HON’BLE MEMBER

ORDER IN

C.C.No.189/2012

(Admitted on 13.06.2012)

Smt. Usha S Rao,

W/o Sadananda Rao,

Aged about 41 years,

R/at Halepete, Ujire,

Belthangady Taluk.

                                                                ….. COMPLAINANT

(Advocate for the Complainant: Sri.BNK)

VERSUS

Mr. Surendra,

S/o K. Chellappan,

Aged about 42 years,

Occupied as Building Contractor,

Residing at Ranjal Mane,

Ujire,

Belthangady Taluk.

                                                                           .....OPPOSITE PARTY

(Advocate for the Opposite Part: Sri. ADB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

      The complainant contends she was a consumer of a house entered into an agreement with opposite party a building contractor for construction of house for Rs.12,00,000/ and paid amounts by way of cheque totalling Rs.16,17,000/.  From the beginning the attitude of opposite party was not conducive and throughout the kind the process of construction of the building there were high and complication asserting in laying just brick and mortar.  Due to non completion of construction by opposite party the complainant is suffering and leading a life with mental agony.  Due to substandard construction by opposite party for no fault of complainant.  Hence seeks direction to opposite party to take immediate steps to restore the building and pay Rs.7,00,000/ towards the restoration and another Rs.1,00,0000/ towards mantel agony as suffers towards damages.

II.      The opposite party in the written version admits entering into the agreement for a total sum of Rs.12,00,000/ and the agreed area of construction is 1,600 sq.ft which was suppressed the complainant.  The amount paid by the complainant to opposite party on various days amount to Rs.16,17,000/ was denied.  The opposite party has not received the amount mentioned in the complaint. On the other hand opposite party received Rs.1,00,000/ in cash and another Rs.1,00,000/ through cheque drawn on Rubber Growers Marketing & Processing Co operative Society ltd., Ujire.  After receiving advance amount the opposite party started to construct the building according to their terms and conditions of the building opposite party had performed his duty by finishing the work in time.   When complainant failed to make payment on completed work to opposite party, opposite party was requested to construct furthermore 1,000 sq.ft of the construction of the building.  When this 1000 sq.ft was constructed by opposite party and requested payment the complainant asked opposite party to fix the tiles to the floor and the windows which was refused by opposite party even after repeated request to pay the amount.  There was complaint by opposite party before labour officer claiming payment of the work done and on coming to know of this complainant filed police complaint.  One Civil Engineer Mr. Naresh Kamath of Ujire took measurements and found the actual construction was found 2,623.74  sq.ft but the agreement was for 1,600 sq ft.  There is no non-completion of construction by opposite party hence seeks dismissal.

     2.     In support of the above complainant Smt. Usha Rao filed affidavit evidence as CW1 and but not answered the interrogatories served on her and produced documents marked Ex.C1 to C4 detailed in the annexure here below.  On behalf of the opposite party no evidence filed. 

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No. (i): Affirmative

              Point No. (ii): Negative

              Point No.(iii): As per the final order.

REASONS

IV.   POINTS No. (i):   There is an agreement for construction work entered between complainant and opposite party for construction of a building to complainant is admitted by both sides.  However the extent of the construction required to be done and paid were all disputed.   Hence the complainant as consumer and the opposite party as service provider and that there is a dispute on the agreed terms.  Hence there is a live dispute between the parties as defined under the C P Act is established.  Hence we answer point No.1 in the affirmative.

POINTS No.(ii):  The complainant produced the copy of the agreement and building licence and also 9 photographs not marked.   Hence they are now marked at Ex.C1 to C4. Ex.C1 is the copy of the Sale Deed, Ex.C2 is the copy of the agreement dated 29.10.2010.  Complainant admits the extends agreed to be constructed by opposite party is 1600 sq ft.  The copy of the construction license issued shows the extent of the building to be constructed as per the estimation as 1966.94 sq ft but in view of the admissions of the complainant the extent of construction is 1600 sq ft there are no documents produced by complainant as seen from Ex.C2 on the reverse of the 1^st sheet there is an endorsement of total payment of Rs.11,17,000/- and then subsequent 3 endorsement of Rs.1,00,000/ each and also mentioned that the Rs.2,00,000/ advance paid was not included.

2.     Even as seen from Ex.C2 the actual extent of the building agreed to be built is as shown as 600 with the digits pertaining to thousand appears to have been erased.   Thus it is clear the complainant has not come before this Forum with his clean hands.  Even the interrogatories filed on behalf of opposite party to the affidavit evidence of the complainant is not answered by the complainant. The court commissioner appointed but the commissioners in his report dated 10.2.2013 the construction work in question is not completed.  Unfortunately the commissioner has not detailed as to what is the extent of the construction work undertaken.  Hence this report of the commissioner though points out incomplete almost at all levels except of skeleton of RCC work and the rest of the work is not done without making a mention of the extent of the constructed portion.  When the construction claimed by the opposite part being 2,623.74 sqft claimed by complainant at 1600 sqft.  The report is not of any help in arriving at the decision considering no reply affidavit filed by complainant to interrogatories, the only conclusion that we are of view the complainant failed to establish deficiency of service as alleged.  Hence we answer point No.2 in the negative.

POINTS No. (iii): Wherefore the following order

                                                                                                                 ORDER

                        The complaint is dismissed.

Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 6 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 20^th December 2016)

             MEMBER                                              PRESIDENT

(SRI. T.C. RAJASHEKAR)             (SRI. VISHWESHWARA BHAT D)

D.K. District Consumer Forum              D.K. District Consumer Forum

 Additional Bench, Mangalore                Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Smt. Usha Rao

Documents marked on behalf of the Complainant:

Ex.C1: 19.03.2004 : Deed of Sale entered into between Ganapathi Nayak as Vendor and Usha s Rao as Purchaser Registered as                                    document No.1371/2003.04 before the Sub Registrar of Belthangady                                 

Ex.C2: 29.10.2010 : Agreement for construction entered into Between Surendra and Usha S Rao

Ex.C3: 26.02.2011 : Building licence issued by Ujire Grama Panchayat to Usha SRao

Ex.C4:                   : Photographs (9 in nos)

COURT DOCUMENT No.1: Commissioner Report

Witnesses examined on behalf of the Opposite Parties:

Nil 

Documents marked on behalf of the Opposite Parties:

 Nil 

Dated: 20.12.2016                                    PRESIDENT