BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 30th June 2009
COMPLAINT NO. 2/2009
(Admitted on 22.1.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2. Sri. K. Ramachandra, Member
BETWEEN:
Vranda S.Kumar,
Wo Santhosh Kumar,
Aged 55 years,
Near Srinidhi Apartments,
J.B.Lobo, 1st Right Cross Road,
Ashoknagar Post, Kodikal,
MANGALORE575 006. …….. COMPLAINANT
(Advocate: Sri.M.P.Shenoy)
VERSUS
Mr.Mayya,
Padmashree Electrical Services,
Electrical Engineers and Class I
Contractors,
L.No.4010, OppL Vijaya Bank,
B.C.Road, BANTWAL Taluk. ……. OPPOSITE PARTY
(Advocate: Sri.K. Rajarama Nayak)
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
It is a case wherein the Complainant submits that he has constructed new house at Kodikal of Mangalore Taluk, the work of Electrification and Plumbing of the aforesaid house was undertaken by the Opposite Party and agreed to complete the work within six months.
It is submitted that, the Complainant believed the assurance of the Opposite Party and paid a total sum of Rs.39,000/-.
It is alleged that, the Opposite Party though started the work in the first week of May 2008 assigned by the Complainant, there was no progress in his work and there was no proper supervision of the work.
It is alleged that, the Opposite Party was not serious in his work and did not visit the site nor he has supervised the work and needed materials are not supplied by the Opposite Party there was many short comings in the work done by the Opposite Party like electrical pipes were laid down beneath the flooring against the MESCOM guidelines, unfinished earthing wire, Break opening the finished plastered and painted walls and even the roof slabs to insert the plumbing pipes leaving all these unfinished made the Complainant to purchase excess plumbing material worth Rs.5,000/- at her cost which are still lying in the site and further contended that the lid of the Distribution Board in the ground and first floor has been intentionally not fixed as a result of which the wires are hanging and are dangerous, intentional increase in the running feet of the wiring so as to make unlawful gain at the cost of the Complainant, incomplete plumbing work and unattended sanitary work etc. It is submitted that all the aforesaid acts have caused unnecessary monitory loss and under gone mental strain and the Complainant had issued a notice dated 13.11.2008 to settle his accounts since he has been overpaid by providing her all bills within a weeks. The Opposite Party replied the notice with all sorts of false allegations and demanded further money without giving any accounts and bills and also submitted that the Opposite Party provided temporary connection from the Electric Pole without getting sanction from the Department and he has not submitted C.R. and Wiring Diagram, Agreement, etc to the Department. The non-submission of these documents by the Opposite Party is intentional which renders deficiency in service. Hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay a sum of Rs.22,011/- with interest at 12% per annum from the date of filing the complaint till actual payment and also to return the lid of two Distribution Boards in the ground and first floor at the earliest to avoid any future problems and also to pay monitory loss and mental agony and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version denied the entire allegations alleged by the Complainant in her complaint and stated that this Forum has no jurisdiction to entertain the complaint, the alleged claim has arisen out of contract and it requires extensive oral and documentary evidence apart from expert evidence.
It is further submits that the Opposite Party has undertaken the work of Electrification and Plumbing of the newly build house of the Complainant. It is also admitted that, Complainant has paid an amount of Rs.39,000/- to the Opposite Party and denied that the Opposite Party has not done the work as per the Complainant specifications.
It is submitted that, after the work of Electrification and Plumbing work being given Opposite Party has started his work and the Complainant has failed to pay the amount for the work done by the Opposite Party and was not co-operating with the Opposite Party in the execution of the work. It is further submitted that, the Opposite Party completed the half of his work and total cost of his work is Rs.49,000/- and the Complainant is liable to pay a sum of Rs.10,000/- in the mean time without settling the dues of the Opposite Party the Complainant entrusted the further work to somebody else and she has failed to settle the dues of the Opposite Party and contended that there is no deficiency of service and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether this Forum has jurisdiction to entertain the complaint and the Complainant is a consumer?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Ayubkhan, General Power of Attorney holder of the Complainant (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C10 were marked for the Complainant as listed in the annexure. Opposite Party though filed version not adduced any evidence nor produced any documents.
We have heard argument of the Complainant, perused the pleadings, documents and evidence placed on record. We answer the points are as follows:
Point No.(i): Affirmative
Point No.(ii) to(iv): As per the final order.
REASONS
5. POINT NO. (i):
In the instant case, it is admitted that Complainant entrusted the work of Electrification and Plumbing work to the Opposite Party. The Opposite Party admitted that he had received Rs.39,000/- by way of consideration for the contract of service. Hence the service availed by the Complainant false within the purview of 2(1) (o) of Consumer Protection Act and the Complainant is a consumer and the complaint is maintainable. Point No.(i) held in favour of the Complainant
POINTs No.(ii) to (iv):
As far as issue No.(ii) to (iv) are concerned, the allegation of the Complainant is that, the Opposite Party has not done the work as per the Complainant’s specifications there are many short comings in the work done by the Opposite Party like electrical pipes were laid down beneath the flooring against the MESCOM guidelines, unfinished earthing wire, break opening the finished plastered and painted walls and even the roof slabs to insert the plumbing pipes, leaving all these unfinished and further the lid of the Distribution Board in the ground and the first floor has been intentionally not fixed. As a result of which the wires are hanging and are dangerous and incomplete Plumbing work, unattended Sanitary works etc. etc. the same has been caused monitory loss.
On the contrary, the Opposite Party denied the entire allegations and contended that he had attended the work of the Complainant, the Complainant had promised to pay the amount at different intervals and she was not co-operating with the Opposite Party and submitted that he has completed half of his work and the total cost of his work is Rs.49,000/- and Complainant paid only an amount of Rs.39,000/- and 10,000/- is balance. In the mean time, without settling the dues of the Opposite Party the Complainant entrusted the work to some body else and contended that there is no deficiency on his part. But no material evidence placed before the Fora nor led any evidence through his counsel in order to substantiate his contentions.
In the present case, the Complainant filed the affidavit, the entire burden lies upon the Complainant to show before the Fora that the work carried out by the Opposite Party has many short comings in the work done by him. In order to substantiate the contention of the Complainant filed oral evidence as well as documentary evidence before the Fora wherein the Ex.C2 is the letter dated 13.11.2008 issued by the Complainant to the Opposite Party clearly shows that the Complainant called for the Opposite Party to discontinue the electrical and plumbing works of his residence entrusted stating that there was lack of supervision and there are many shortcomings in the work as stated in the complaint. The above letter addressed by the Complainant clearly shows that the work carried out by the Opposite Party has many shortcomings in the work done by him. And further it is admitted by the Opposite Party that he had received Rs.39,000/- from the Complainant towards the electrical and plumbing work entrusted by the Complainant. And in the version as well as reply notice the Opposite Party though admitted the payment of Rs.39,000/- as discussed herein above but raised a contention that Rs.10,000/- balance in the work carried out by him. Further contended that he had done half of the work for that he claims Rs.49,000/-. It is pertinent to note that in Ex.C2 as discussed above while issuing notice to the Opposite Party the Complainant called for the relevant bills to settle the account of the Opposite Party. When such being the case the Opposite Party ought to have submitted the bills and should have shown what all the works carried out by him. Except the version there is no material evidence placed on record to show that what works were carried out by him.
Further we find that the Opposite Party though appeared through his counsel filed version and served interrogatories to the complaint but not led evidence on behalf of Opposite Party. Not only the evidence but also not represented the case before the Fora in spite of taking sufficient time. It is significant to note that, the contentions taken by the Complainant is proved by evidence of CW-1 along with documents i.e. Ex.C1 to C10(as mentioned in detail in the annexure). The averments in the complaint and the documents produced by the Complainant is not contradicted by the Opposite Party by producing cogent evidence. The entire evidence was unrebutted by the Opposite Party and hence it requires no further proof.
Taking into consideration of all the views herein above, the documents produced by the Complainant as well as the oral evidence led by the Complainant proved that so far the Complainant paid Rs.39,000/- to the Opposite Party and the work carried out by the Opposite Party is a defective and has many short comings and the details of the work carried out by the Opposite Party not produced. Hence we consider that the work carried out by the Opposite Party amounts to deficiency in service. Therefore, we hereby direct the Opposite Party to pay Rs.22,011/- as claimed by the Complainant in his complaint along with interest at 10% per annum from the date of filing of the complaint till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party is hereby directed to pay Rs.22,011/- to the Complainant along with interest at 10% per annum from the date of filing of the complaint till the date of payment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of June 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Ayubkhan, General Power of Attorney holder of the Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 6.3.2009 : General Power of Attorney.
Ex C2 – 13.11.2008 : Office copy of the letter issued by
the Complainant to the Opposite Party.
Ex C3 – 13.11.2008: Courier Consignment Note.
Ex C4 -14.11.2008 : Copy of DTDC Delivery Run Sheet.
Ex C5 – 31.7.2008: Labour Rates for Plumbing and Sanitary Works.
Ex C6 – 2.8.2008: Estimate.
Ex C7 – Receipt of F.K.Electricals, Mangalore.
Ex C8. 1.12.2008 : Lawyer’s Notice.
Ex C9 – Invitation Card.
Ex C10- 15.11.2008 : Copy of the request to execute an order for Intermission Pole.
Witnesses examined on behalf of the Opposite Party:
- NIL -
Documents marked on behalf of the Opposite Party:
- NIL -
Dated:30.6.2009 PRESIDENT
