DOF.06.02.2009
DOO. 27.09.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Dated this the 27th day of September 2011.
C.C.No.38/2009
Moideen Hajee
Mukkannan Angethalakkal House,
P.O.Kattambally,
(Via)Chirakkal. Complainant
(Rep. by Adv. C.K. Rathnakaran)
N.P.Suresan,
Naluputhirikkal House,
Maildaathadam,
P.O.Azhikode. Opposite Parties
(Rep. by Adv.A.V.Balachandran)
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to refund `5862 along with `55000 as compensation.
The case in brief of the complainant is that 10 cents of properties comprised in RS.5011 of Chirakkal amsom and desom is owned and possessed by his wife and her mother jointly and he is supervising the entire affairs including the property. The complainant entrusted the opposite party to construct an upstairs to the existing residential building situated in the above said property. It was decided to supply all the materials necessary for concrete including stone, sand, cement etc. by the complainant and other materials which are required for concrete work like wooden panel, nails etc. to be supplied by opposite party. The complainant agreed to pay `16 per sq.ft. for concrete work and `6 per sq.ft. for structural work and 100 as cooli for bringing one window or door frames to upstairs and also to complete the work within 3 months. Accordingly the opposite party started the work on 12.10.07 and had not completed the work even after lapse of span of one year and he left the place during September 2008. Even though the opposite party agreed for bringing wooden panels for the concrete work he had declined from it and used 17 wooden panels of Irool, teak wood and jack trees belongs to the complainant for concrete work and they become useless and hence the complainant had incurred a loss of `20,000. Above this the complainant had purchased wire nails for `1700. The opposite party had demolished a part of the existing compound wall with a condition that he will reconstruct it after the work, but he had not completed and hence the complaint had reconstructed and for which he had incurred `1000 as cost. For bringing the windows and doors to the upstairs, the stipulations are to give `100each per window or doors. But instead of this the opposite party demands `100 for each panel of windows. The complaint has provided only1915 laterite stones and instead of this the opposite party had given calculation showing 2215 laterite stone. As per the agreement the complainant is bound to pay `29648 for 1853 sq.ft. and `11490 for the work of 1915 laterite stone, `1606 for two pillars and `1100 for bringing 4 door frames and 7 window frames. So the complainant is liable to pay only `43838. Out of which the opposite party had received `47000 from the complainant. The opposite party has not done the grouting of coating, the wall was not completely constructed and not made any air holes on the walls and had left without finishing the work during 2008 September. So the complainant was forced to complete the work with another person by name Shamseer with higher rate. The price of the building materials also increased considerably and due to deficiency of service of opposite party, the complainant had incurred considerably more amount for completing the work which amounts to `25,000.
Meanwhile opposite party preferred a criminal complaint before Valapatanam police and a criminal case was registered against the complainant and his wife and now they are on bail. The above case was filed with a false allegation that the complaint had agreed to pay `26 per sq.ft. The complaint had never agreed to pay `26 per sq.ft. The opposite party has calculated `21 per sq.ft in the calculation given to the complainant. So there is grave deficiency of service on the part of opposite party and he is liable to compensate the complainant by refunding `3162 received in excess, `1000 incurred for reconstruction of the compound wall, `1700 incurred for nails, `20,000 as compensation for damage caused to the wooden panels by using the wooden panels belongs to the complainant, `25,000 for which was given for the materials due to price rise and `10,000 as compensatio for the mental agony. Hence this complaint.
In pursuance to the notice issued by the Forum, opposite party appeared and filed his version admitting that the complainant entrusted the work of upstairs building to him. According to opposite party during that time the prevailing rate approved by concrete workers and supervisors association per sq.ft was `26 and the same was accepted by the complainant at the time of entrusting, since the concrete work of the 2nd floor is a tedious work. The opposite party had completed 1853 sq.ft. of concrete work and 2115 numbers of laterite stone’s work. He had constructed two pillars worth `900each and brought to upstairs 19 windows frames and 4door frames for each worth `100. So he had completed the work of `65068 and out of which the complainant has paid only `44000 and there is a balance of `21068 yet to be paid by the complainant. Even though the opposite party repeatedly demanded to discharge the liability, complainant has not heeded to the words of opposite party and finally he had issued a demand notice and the same was returned unclaimed and subsequently the opposite party preferred a complaint and filed a complaint under section 415, 417 and 418 of IPC before JFCMII Kannur and the same was referred to the Valapatana, police for investigation. Under section 156 of CrPC, this is under investigation. This complaint was filed by the complainant as a counter to that complaint. There is no contractual obligation to opposite party to complete the work within a short span of 3 months. The opposite party denies the contention that the opposite party has used the panels made up of Irool, teakwood and Jack tree belongs to the complainant and made a los of `20,000. It is also denied by opposite party that the complainant had spent `1700 for nails for the usage of opposite party, demolished the compound wall and the complainant had reconstructed the same by incurring `1000 etc. The opposite party further denies the allegation that the rate shown in the calculation sheet given to the complainant by opposite party is `22 per sq.ft. The complainant accepted the contract rate as ` 26 per sq.ft. and later forces the opposite party to settle the account with `22, which was not acceptable. There is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed.
Upon the above contentions the following issues have been raised for consideration.
1. Whether there is any deficiency of service on the part of
opposite party?
2. Whether the complainant is entitled to any relief?
3. Relief and cost.
The evidence in the above case consists of oral testimony of
PW1, DW1 to DW3 and Ext.A1, C1, X1 to X2© and Ext.B1 to B3.
Issue Nos.1 to 3
The complainant’s case is that due to deficient service of opposite party, the complainant has suffered loss of `55,000 and the opposite party had extracted `3162 more than the total amount he has entitled and has not paid the value of reconstructed demolished compound wall which amounts to `1000 and also not paid `1700 being the value of nails purchased by the complaint for the use of opposite party. In order to prove this contention the complainant was examined as PW1 and Ext.A1 the measurement of work done calculated by engineer and commission report are produced. In order to disprove the above contention opposite party examined DW1 to DW3 and produced documents such as copy of lawyer notice issued to the complainant, copy of criminal complaint before JFCM II, Kannur copy of FIR in crime No.980/08 before Valapattanam Police station, measurement by Mr.K.Rajeevan, receipt by SHO, Valapattanam police station etc.
The opposite party admits that there was an oral agreement with the complainant for constructing the upstairs of the building. In order to decide the deficiency of opposite party the following question to be answered. Firstly whether there is any stipulations to complete the work within 3 months for an amount of `16 per sq.ft for concrete work and `6 per sq.ft for structural work of the upstairs building . Secondly whether the opposite party had left behind any work, Thirdly whether the opposite party had used and caused any damages to the wooden panel of the complaint against the stipulation and had demolished the compound wall with a condition to reconstruct the same with opposite party’s own cost. Fourthly what were the coolie fixed for bringing door frames and window frames to upstairs and whether the complaint had purchased any nails for the opposite party’s use?
The complainant has a case that the opposite party agreed to complete the work within 3 months for an amount of `16 per sq.ft. for concrete work and `6 per sq.ft for structural work. Admittedly there was no written agreement and the opposite party admits that there was an oral agreement with the complainant for constructing the upstairs building and according to opposite party the rate fixed was `26 per sq.ft. and complainant contended that it is `16 per sq.ft. But the complaint has not produced any document to prove this. On the other hand the opposite party produced Ext.B3 rate card issued by state Committee of Concrete workers Supervisor’s Association during 2008 and the Secretary of above Union’s Kannur branch was examined as DW3. As per this the rate is `20 sq.ft. for downstairs and an increase of 20% to the subsequent stairs. So Ext.B3 shows that only `24 per sq.ft. was prevailing during 10.9.08. But the disputed work was done during October 2007. The DW3 deposed before the Forum that “ 2008-09se Ime-b-f-hnse chart rate BWv Ext.B3. 2007 chart rate Dm-bn-cp-¶p. B chart rate tImS-Xn-bn lmP-cm-¡n-bn-«n-Ã.. 2008\p ap¼p-ff chart rate B3sb¡mÄ Ipdª rate Bbn-cn-¡pT’. So it is clear that rate during 2007 is below `24 per sq.ft. But there is no concrete evidence before us to come to the conclusion that the rate prevailing during 2007 is `16per sq.ft. and opposite party agreed to do the concrete work within this rate. The opposite party has not challenged the rate of structural work. So the complainant has failed miserably to substantiate the case that opposite party had agreed to do the concrete work for`16 per sq.ft within 3 months.
According to the complainant, the opposite party has not done the grouting work, no space left for air holes, the work of wall also not completed and in order to prove this he was taken out an expert commission and the report was marked as Ext.C1. The commissioner has reported nothing about the grouting work. He reported that one air hole was demarcated as the front wall. The Commissioner again reported that the complainant reported him that the wall above the door leading to the rear terrace was constructed by him. But there is no primary evidence before us to come to the conclusion that the opposite party had left the work without completing. So the complainant failed to prove that the opposite party had left behind the work without doing grouting work, completion of wall etc.
The complaint further contended that opposite party had used and caused damages to the wooden planks belongs to the complainant. The Commissioner reported that nails and cement paste were seen most of the planks found at the house of the complaint and are unfit for any other use except as farm work. But admittedly the complaint had completed the work with the help of other workers and so we are not in apposition to say who had used these planks and caused damages to these planks, since no evidence before us to show that it is caused by opposite party. Regarding compound wall, the commissioner reported that a clear demarcation of a newly constructed portion in the compound wall was seen. Regarding the demolition and re-construction also there is no cogent and convincing evidence before us to show that it was demolished by opposite party and reconstructed by the complainant. No independent witness was examined by the complainant. Regarding coolie for brining the window and doors to upstairs purchase of nails etc. complaint has not produced any evidence. So the complaint has failed miserably to substantiate his contentions through convincing evidence and hence we are of the opinion that the complaint is liable to be dismissed and order passed accordingly.
In the result the complaint dismissed. No order as to cost.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the Complainant
A1. Estimate and calculation given by the Engineer appointed by the OP
Exhibits for the opposite parties
B1.Copy of the Lawyer notice sent to complainant
B2.Copy of the complaint submitted before JFCM No.II Kannur
B3.Rate card for the year 2008-09 issued by Secty.Concrete workers supervisors Association, Kannur Dist. Committee
Exhibits for the court
C1.Commission report
Exhibits fort the witness
X1. Copy of Case Diary in980/08 in Valapattanam, police station
X2.CD file, copy of lawyer notice, measurement statement
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1.N.P.Sureshan
DW2.Unnikrishnan
DW3.C.Vinod
/forwarded by order/
SENIOR SUPERINTENDENT
