By Smt. Bindu. R,  President:

          This complaint is filed by the Pazhasi Raja College against the Opposite party, who is  a contractor alleging deficiency of service on the part of the  Opposite Party.  The Complainant states that the Complainant is serving in the field of education for the last  three  decades and the project of construction of out door stadium was discussed with the Opposite Party and thereby an agreement was executed between the Complainant and the Opposite Party. It is stated by the Complainant that the Opposite Party is well aware that the  Construction of the work of  outdoor stadium is with the fund of UGC and Opposite Party has to comply the terms of agreement.  In order to complete the work, penal  clause is also included in the agreement.  It is stated in the complaint that the Opposite Party deliberately delayed the work and the project could not be completed and the same caused to   cut the root of the training facilities of the physical development of the students of the Complainant.  It is stated by the Complainant that the Opposite Party had done the work without verifying the approved plan and when it was noticed by the Opposite Party he convinced of the defect and offered to  demolish  the same and came forward to  reconstruct  2.5 m. height  construction and the Complainant offered Rs.1,00,000/- as the contribution of the Complainant.  The Complainant  offered to pay Rs.8,00,000/-  for further work and repair work and given Rs.5,00,000/-  on 15.03.2017,  and offered the balance on completion of work. It is stated in the complaint  that other works were also entrusted to the Opposite Party for which the payment shall be paid only after completing the work as per the structural plan. But the Opposite Party abandoned the work without completing and receiving excess payment.  Even though notice was issued  to the  Opposite Party,  no reply was given by the Opposite Party and hence a registered  legal notice was issued  on 17.01.2018  and for the same Opposite Party sent reply notice stating  untenable  contentions.  It is  stated by the Complainant that there is deficiency of service on the part of the Opposite Party and hence the complaint  for reliefs praying to direct the Opposite Party to return Rs.5,00,000/-  with interest along with other reliefs.

          2. Upon notice from this Commission the Opposite Party appeared and filed version denying the allegations in the complaint.  It is contented that the work was delayed since the electricity and water facility are not made available by the Complainant as agreed.  The facilities given only on 05.01.2018 and  only for that reason,  the Opposite Party could not complete the work in time.  It is also contented that  an amount  of Rs.2,00,000/- is still  pending to the Opposite Party for the works already done as per the agreement dated 23.03.2015.  It is also contented that after the 2^nd agreement, the Opposite Party had to demolish the construction and clear the site spending more  than Rs.5,00,000/-.  It is contented that the complaint was changing his plans without giving a specific plan for the construction.  An amount of Rs.1,00,000/- is still due from the Complainant to the Opposite Party.  More over now there is an enhancement of 25% increase in the wages and  prayed for dismissal of the complaint with costs.

          3. Earlier PW1 and PW2 were examined and Exts.A1 to A11 were marked from the side of the Complainant and evidence was  closed.  Later  the evidence  of the Complainant was reopened and PW3 and PW4 were examined and Ext.A12, A13 and C1, C2 were marked.  From the side of the Opposite Party,  OPW1 was examined.

          4. Considered the matter in detail both oral  and documentary evidence adduced by both the parties and the following questions are coming up for consideration of the Commission.

1.  Whether there is any deficiency of service or unfair trade practice happened  from the side of the Opposite Party?
2. Whether the Complainant is entitled to get any compensation as claimed?
3. Costs of the proceedings.

5. It is the specific case of the Complainant that  an agreement was entered

into, for constructing  an out door stadium, and Ext.A1 shows   sanction of the University Grants Commission for payment of grant of Rs.30,00,000/- as  1^st  instalment.  Ext.A2 is the agreement entered into  between the Complainant and the Opposite Party.  As per Ext.A2 dated 23.03.2015 the completion  period for the specified scope of work is 240 working days from the date of signing the agreement.  But  another agreement is  seen signed by the parties which is marked as Ext.A5 dated 15.03.2017 regarding  restructuring of the work as per the plan of  architect.  Since  the work was not completed as per the agreement the Complainant issued  Ext.A6 and A7 notices and finally Advocates notice on 17.01.2018 which is marked as Ext.A9 for  which Ext.A10 reply notice was received from the Opposite Party.  Ext.A11 order is produced by the Complainant to show that how  the Opposite Party is irresponsible in their work. According to the Complainant, the work was completed by PW4  another contractor under Ext.A12 agreement.   In this case Commissioner was appointed who filed Ext.C1 and C2 series and the Commissioner was examined as PW3.   PW4  is the  new contractor who completed the work as per Ext.A12 agreement.  According  to him he reconstructed the retaining wall since the  work  already done was not in accordance with the plan of the structural Engineer and the labour and material costs are mentioned in Ext.A12.

          6. Opposite Party was examined as OPW1 and according to him  he had constructed the retaining wall as per the plan but the Complainant requested to change the same by demolishing the wall already constructed. The Opposite Party claimed additional amount for  reconstruction  and hence the 2^nd  agreement  was signed on 15.03.2017 after cancelling the  1^st  agreement.  The Complainant had not provided the water and electricity as agreed and since the Complainant requested for changing the plan occasionally and hence the Opposite Party could not complete the work in time.  During  cross examination, OPW1 deposed that  he had completed the work,  by taking   electricity and  water from out side and which is not mentioned in the version. OPW1 had admitted in the box that the wall having 2 ½ m height was not in accordance  with the plan of the architect and hence  demolished.  According to him he had constructed the wall  as per the plan given to him and  the same is still in his possession but not produced to prove his case.  According to him the construction made by him is proper and  still an amount of Rs.1,00,000/-  is due to him and the wall constructed is not fell down but is demolished by his employees.  It is due to the act   and behaviour of the Complainant himself,  the work could  not be completed by the Opposite Party.

          7. The over all consideration of the evidences on record,  reveals that the wall was collapsed  due  to the unscientific way of construction made by the Opposite Party which is evidenced from the   Commissioners Report and Ext.A4 series.  PW4 the  new contractor who completed the work was examined  but nothing was brought out during cross examination to prove the statement of the  Opposite Party in this case.  It is  in evidence that the wall having  2.5 m  height was constructed without any lateral support  or beam.  According to PW2, the technician of  the Complainant’s College,  it was collapsed during rain and the same was removed by the intervention of the Panchayath Authorities.

          8. On the other hand,  the  Opposite Party had not proved his case that it is due to the fault and non co-operation of the Complainant the work could not be completed by him.   On the basis of the above discussion this Commission finds that the Complainant had proved  his case and point No.1  is found in favour of the Complainant.

          9. Since  point No.1 is found  in favour of the Complainant it is found  that the Complainant is entitled to get the reliefs  and hence the  following orders are  passed.

1.  Directing the Opposite Party to pay Rs.5,00,000/-  (Rupees Five Lakh only) to the Complainant which is spent by him for the reconstruction.
2. Directing  the Opposite Party to pay Rs.50,000/-  (Rupees Fifty thousand only) towards compensation to the Complainant.
3. Directing the Opposite Party to pay Rs.5,000/-  (Rupees Five thousand only) towards cost  of the proceedings.

10. The above said amounts to be paid by the Opposite Party within one

month from the date of receipt of a copy of this order. 

11. Needless to say that if the amounts  are not  paid as directed  the Complainant is entitled to get interest at the rate of 6%  from the date of order till the date of realisation. 

Hence the complaint is partly allowed.

Dictated to the Confidential Assistant, transcribed by him and corrected   by   me and  pronounced  in  the  Open  Commission on this the 21^st   day of June 2023.

          Date of filing:02.05.2018.

                                                                             PRESIDENT:  Sd/-

                                                                             MEMBER    :   Sd/-

                                                                             MEMBER    :   Sd/-

APPENDIX.

Witness for the Complainant:

PW1.            Fr.  Varghese Kollammavudy.          Priest.

PW2.            Biju Scaria.                                      Electrician.

PW3.            James John.                                     Advocate.

PW4.            Biju Francis A.K.                                      Construction.       

Witness for the Opposite Party

OPW1.          Arulappan.                                                Contractor.

Exhibits for the Complainant:

A1.             Letter.                                       dt:19.01.2018.

A2.             Agreement.                              dt:23.03.2015.

A3.             Copy of Plan.                

A4(a)          Photo.

A4(b)          Photo.

A4(c )         Photo.

A5.             Agreement.                              dt:15.03.2017.

A6.             Copy of Letter.                         dt:10.10.2017.

A7.             Copy of Notice.                       dt:12.01.2018.

A8.             Returned  Postal cover.

A9.             Copy of Notice.                       dt:17.01.2018.

A10.           Reply Notice.                           dt:12.01.2018.

A11.            Copy of Order in CC 90/2011. dt:30.05.2012.

A12.           Agreement.                              dt:22.05.2018.

A13.           Application submitted by the Complainant. dt:21.10.2022.

C1.              Commission Report.                dt:18.06.2018.

C2(a)           CD.

C2(b)          Photo.

C2(c )                   Photo.

C2(d)          Photo.

C2(e)           Photo.

C2(f )          Photo.

C2(g)          Photo.

Exhibits for the Opposite Party:

Nil.            

                                                                                    PRESIDENT  :   Sd/-                       

MEMBER     :   Sd/-

MEMBER     :   Sd/-