<br /> COMPLAINT FILED: 29.11.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 31st JANUARY 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.2602/2008<br /> <br /> <br /> COMPLAINANT Sri.B.B.K.Sastry,S/o B.Dakshinamurthy,Aged 75 years,C/o B.Akhilesh Arka,Flat No.304, Ashiana Gardens,56/2, Doopanahalli,HAL 2nd Stage, Indiranagar,Bangalore – 560008.V/s.<br /> OPPOSITE PARTY Sri.N.Chidananda,S/o K.P.Narayana,Aged 46 years,Civil Engineer,12/18, Udani Layout,Cambridge Road,Ulsoor,Bangalore - 560008Advocate – Sri.G.D.Srinivas.<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.4,00,000/- and pay a compensation of Rs.3,50,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant availed the services of the OP who claims to be a Civil Engineer engaged in construction of residential house so as to build a house of his choice in plot No.135 of Srigandhada Kaval. An construction agreement came to be executed on 22.12.2005. OP agreed to complete the construction at the cost of Rs.650/- per Sq. feet, which covers the building foundation, ceiling, brick walls, doors, windows, plumbing, sanitary and electrical fittings etc. Though complainant made payment of lump sum amount as agreed but OP failed to complete the work to the satisfaction of the complainant. The repeated requests and demands made by the complainant to complete the construction as per the terms of the agreement went in futile. Under the circumstances complainant with no other option took the assistance of some third party to complete the remaining work. For that he incurred huge expenses. Complainant made payment of Rs.16,17,000/- to the OP. OP collected Rs.4,00,000/- more than what complainant is liable to pay towards the completion of the construction of the said house. With all that OP left the work in the middle. With great difficulty complainant got completed the construction at his own cost. Then wrote a letter to the OP on 09.06.2008 seeking for compensation and refund of the excess of amount paid but all his efforts went in futile. Though complainant invested his hard earned money he is unable to reap the fruits of his investment because of the hostile attitude of the OP. Complainant felt deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant has committed a breach of contract. Complainant and his son according to their own convenience went on changing their plans and modified the original construction plan as against the sanction accorded by BMP. Though OP attended to all the construction work as per the agreement complainant failed to make payment of the amount in due time. There is a increase in the material cost, due to delay in payment of amount by the complainant, OP for no fault of his fetched the loss to the tune of Rs.2,60,000/- and odd OP is unable to complete the work because of the irregular payment. Due to the repeated changes in selection of the materials and interiors OP suffered huge labour cost. There is no deficiency in service of any kind on the part of the OP. When OP demanded the complainant to pay the amount in due after the completion of the construction of the said house complainant has come up with this false and frivolous complaint. Complaint is devoid of merits. OP is not liable to refund Rs.4,00,000/- or pay the compensation. Among these grounds, OP prayed for the dismissal of the complaint.<br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant has availed the services of the OP a Civil Engineer for the construction of his house in plot No.135. It is also not at dispute that a construction agreement came be to executed on 22.12.2005. There was an understanding to make payment of the cost incurred by OP in construction of the said house in a time bound manner as work proceeds. The said agreement covers certain items and specifications. Now it is the grievance of the complainant that though he paid Rs.16,17,000/- OP failed to complete the construction of the said house in time. According to the complainant OP has collected Rs.4,00,000/- more than the cost he incurred in the construction of the said house. Further it is alleged that the OP left the construction work in the middle that is why complainant is obliged to secure the help of the third party to complete the job.<br /> <br /> 7. On the perusal of the complaint averments and the evidence produced by the complainant it clearly discloses that he diss associated with the OP from several jobs originally expected to be done by OP. What made him to dissociated is not known. The construction agreement is neither cancelled nor there is any modification. Who is that third party, whose assistance complainant took to complete the work is not known. No affidavit is filed. According to the complainant the work left unattended includes flooring, teak wood door, glazed tiles, sanitary fixtures etc. To corroborate and substantiate it no evidence either oral or documentary is produced. Under such circumstances on the face of it there appears to be a breach of agreement committed by the complainant himself.<br /> <br /> 8. If the complainant felt that OP failed to perform his part of contract in pursuance of the said agreement the best remedy open to the complainant was to file a comprehensive civil suit for the enforcement of the said contract. Again no such steps are taken. What is the basis for the complainant to come to the conclusion that OP collected Rs.4,00,000/- excess than what is actually spent for the construction of the said house is not known. OP has produced the details of cost, measurement etc. Contents of the said documents are not other wise disputed or denied by the complainant. If the complainant seriously disputes the said document produced at annexure-A he would have got appointed another technically qualified person in the field to conduct the measurement of the construction and report about the use of the material, cost of the material etc. Again no such steps are taken. <br /> <br /> 9. Under such circumstances the bare and vague statement of the complainant that OP left the construction in the middle rather can’t be believed. The photographs produced by the OP speaks to the completion of the construction of the said house. The fact that complainant every now and then changed the original construction plan sanctioned by BMP and made construction is also not at dispute. When that is so, complainant can’t take the things lightly in violating the approved sanctioned plan issued by the statutory authority. If OP objected for the said modification and the alteration that act can’t be termed as deficiency in service.<br /> <br /> 10. As stated by the complainant himself to complete some work he got engaged the laborers of his choice and got done certain work against the will, wish and consent of the OP. That act of complainant appears to be against to the terms of the agreement. There is a dispute with regard to the time schedule payment. According to OP due to the delay in payment the construction was stopped for some time. In the mean time there is an escalation in the construction materials and labour cost. According to OP he has spent more than Rs.2,60,000/- towards construction of the said house than that of the payment made by the complainant. The said defence appears to be reasonable and acceptable. If the OP has not completed the construction as per the requirement there was no need for the complainant to make payment right up to 21.04.2008.<br /> <br /> 11. Viewed from any angle we find complaint appears to be devoid of merits. Considering the complex question of law, it entailed it would require volume-ness evidence for its disposal which is not possible for this Forum to go into all those aspects in its summary jurisdiction. If the complainant is so advised he can redress his grievance by filing a comprehensive civil suit. When there is a claim and counter claim it is advisable that the parties be directed to approach the civil court to settle their dispute and score out the differences. With these reasons we find it is not a fit case wherein complainant deserves the relief as claimed. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 31st day of January 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Vln* <br /> <br /> <br />