Andhra Pradesh

Visakhapatnam-II

CC/667/2006

P.K. Visweswara Rao - Complainant(s)

Versus

P. Prabhakar - Opp.Party(s)

N. Prabhakara Rao

04 Feb 2015

ORDER

Reg. of the Complaint:19-10-2006

                                                                                                                                    Date of Order:04-02-2015 BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.N. RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

WEDNESDAY, THE 4^TH DAY OF FEBRUARY, 2015

CONSUMER CASE NO.667/2006

 

BETWEEN:

P.K.VISWESWARA RAO S/O LATE P.SURYANARAYANA MURTHY,

HINDU,  R/O FLAT NO.10, PRINCE APARTMENTS,

C.B.M.COMPOUND, VISAKHAPATNAM.

                                                                                             …COMPLAINANT

A N D:

P.PRABHAKAR, MANSION, D.NO.9-6-15/2,

SHIVAJIPALEM, NEAR KRISHNA TEMPLE,

VISAKHAPATNAM.

 

                                                                                      …OPPOSITE PARTY

 

This case coming on 19-01-2015 for final hearing before this Forum in the presence of Sri. N.PRABHAKARA RAO, Advocates for the Complainant and of     Sri S.MOHAN RAO, Advocate for the Opposite Party, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.       The Complainant filed the present complaint against the Opposite Party, directing him to pay an amount of Rs.1,01,000/- towards financial loss, and to pay Rs.1,99,000/- towards compensation and costs.

2.       The case of the compliant in brief is that he is a possessor of a house bearing no.HIG 1/65 in Srinagar Area of Visakhapatnam city and he entertained an idea to get repaired his house with some modifications and consulted an architect who in turn has drawn a plan approached the OP who is a mason cum contractor, for undertaking the said repairs. The proposed works of modification have been estimated at Rs.1,20,400/- and the OP has agreed to complete the proposed works of modification within 2 or 3 months. Thus, contract has been concluded and as such, the OP has started working in the month of June, 2005 and collected a sum of Rs.1,01,000/- from him but failed to complete the proposed works as  agreed and deviated from the plan it was proposed for renovated house. On account of incompletion work in turn, he was made to stay in a rented house by paying monthly rent of Rs.4,000/- and in addition to it, he was forced to engage a watchman at his house to guard  the same on a monthly salary of Rs.2,000/-. He further incurred expenditure of Rs.3,000/- towards conveyance charges and spent Rs.1,01,000/- under those heads. Hence, this complaint.

3.       In spite of service of notice, OP remained absent and set exparte. After hearing, the complaint was allowed. On which the OP preferred appeal and on hearing, the Appellate Court remanded the compliant setting aside the order of this forum, directing the OP to appear and to dispose of the case on merits. After appearance, the OP filed his counter.

4.       The case of the OP denying the material averments of the complaint is that the complainant is not a consumer and admitted that the complainant is having a house bearing No.HIG 1/65 at Sagarnagar, Visakhapatnam and he wanted to repay and modify the house and consulted an architecture who drew a plan. But, it is not true to say that the OP is a contractor.  He further stated that he is a man doing masonry work. In this case, the complainant has taken his services for doing the missionary work but not on contract basis. The complainant used to purchase the materials such as cement sand, stones and steel for the purpose of particular work and the OP did the work as per the directions and wish of the compliant. The amount mentioned in the paper containing the nature of work clearly indicates the work in square feet @ Rs.60/-5.         That there is no truth in saying that the total estimation for house modification was Rs.1,20,400/-. It is only  approximate required work to be done on the basis of masonry work @ Rs.60/- per sq.feet. The completion of work is not within the hands. It all depends upon purchasing the required material for the work by the complainant. However, he supplied the material in a delayed escape manner, there is no agreement that work should be completed within 2 or 3 months.

6.       That the OP is doing work at the agreed rate of Rs.60/- per sq.feet though the missionary work rate at that time is Rs.100/- per sq.ft.  The more work the OP does will get more amount and hence, there is no necessity for him to escape from the work spot. If the service of OP in doing masonry work are not proper and there is a delay, the complainant has the choice of appoint any person as mason to do his work. The complainant used to get the work done but did not pay the amount completely for the contract works and used to make promise of payment of amount and used to pay the amount partly. The complainant used to demolish certain structures to suit the convenience of Vaasthu and when he stated that for the demolished part of construction made by the complainant, he has no obligation to pay the amounts for the work done and the complainant used to promise to pay the amount for the additional works and alteration but he used to pay the amounts in time and when the amounts for the work done was not given by the complainant, he insisted for payment of the due amount of Rs.33,000/- for doing further work.

7.       That the complainant instead of giving amount has given a cheque for Rs.33,000/- to the Architecture Bhaskar Rao asking him that the OP to take encash the same after completing the work. The complainant got work done for plastering the compound wall, change the doors and windows frequently from one place to another as per the Vaasthu but did not give any amount for work. For these reasons, the compliant is liable to be dismissed.

 8.      To prove the case on behalf of the complainant, he filed his affidavit and  got marked Exhibits A1 to A8 on the other hand, on behalf of the OP, he filed his evidence affidavit but no documents are marked on his behalf.

9.       Exhibit A1 is the Original list containing the works to be done with plan given by Architect, Exhibit A2 is the office copy of registered lawyer’s notice got issued by the Advocate for the complainant to the OP dated 26-08-2006, Exhibit A3 is the Original courier receipt dated 28-08-2006, Exhibit A4 is the original certificate issued by Vasthu Shilpa Architects and interior designers.,, Exhibit A5 is the original receipts towards rent and maintenance for the month of August, 2006, Exhibit A6 is the Original receipt of salary to the watchman, Exhibit A7 is the Original Photographs 4 in number. Exhibit A8 is the copy of list of payments.

10.     Both parties filed their respective written arguments.

11.     Heard oral arguments from both sides.

12.     Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

13.     First of all, I would like to deal with the documents marked on behalf of the complainant. As seen from the complaint, and his evidence affidavit, the OP agreed to undertake the repairs, modifications of the house as per specifications in Exhibit A1 for Rs.1,20,400/-. According to the complainant, the modification work was commenced in the month of June, 2005 and that the OP has collected Rs.1,01,000/- from him and that he kept cheque for Rs.33,000/- with architect and that inspite of taking Rs.1,01,000/-, the OP did not complete the work as agreed in time. Exhibit A1 does not contain any endorsement to show that that OP received Rs.1,01,000/- or any other amount and it is only mere estimation  containing the specifications of the work to be done. It also shows the break up figures of the individual works and total estimations of said works as Rs.1,20,400/-. There is no mention in the said Exhibit A1 that the work has to be completed by such and such times. The complainant did not mark any documents evidencing that he paid such and such amount to the OP in connection with the said repairs and modifications work much less Rs.1,01,000/-.

14.     I submit that Exhibit A2 notice got issued by the complainant to OP that the work promised with the entire work would be completed within 2 or 3 months is not sufficient so also that Rs.1,01,000/- as mentioned in the complaint was collected by OP from the complainant. There is no documentary evidence from the complaint’s side that he kept cheque for Rs.33,000/- with V.Bhaskar Rao, the architect. The relevant affidavit in this regard is not filed by the complainant to prove his contention mentioned in the said notice that the OP demanded additional amounts for alteration etc., is not sufficient to hold that  there is no evidence in the said context also. Merely because the OP did not give reply to the notice, it does not mean that he accepted the contents of the said notice. Receipts of Exhibit A5, A6 and A7 do not relate to the OP. Exhibit  A5 disclose that  Rs.2,800/- was received by one K.Adinarayana from the complainant and Rs.600/- towards monthly maintenance charges were received from the complainant by Prince Apartment Association. Exhibit A6 discloses that Rs.2,000/- salary was received by Ch.Bhadrayya through the complainant. In the absence of relevant evidence much less their respective affidavits, we are of the considered view that all the such documents are self styled and they are no way helpful. Further, there is no time stipulation for completing the alleged work.

15.     According to OP, he is a mason and his duty is construction as desired on payment basis when the complainant bring the matter. Thus according to him, there is no contract work taken by him from the complainant and as such the complainant is not a consumer.  It is also the case of the OP that there is no truth in saying that the total estimation for house modification works Rs.1,20,400/- and it is only an approximate required work to be done on the basis of masonry  work @ Rs.60/- on placing the material after purchasing by the complainant at work place, though the actual machinery work leads Rs.100/- per sq.ft. According to OP, the complainant used to get the work done but did not pay the amount completely to him. We also stated OP used to demolish certain works to suit his convenience as per Vaasthu but he did not make payment even after the competition of the masonry work. Perusal of the contentions of the OP, the evidence on record shows oath against oath only. There is no recorded evidence of course, it is for the complainant to prove his case but not by OP. since it is held in the above paragraphs that the complainant failed to substantiate his case to show that the OP is a contractor and did work on contract basis. It can be held that the complainant failed to prove his case that the OP carried on the work as a contractor but  not as a mason. Perusal of the record, it can be further held that the relationship between the complainant and the OP is not comes under the purview of a consumer. If that be so, question of deficiency of service while carrying the work of complainant by OP, does not arise. For these reasons, were are of the considered view that the complaint is liable to be dismissed.

16.     In the result, this complaint is dismissed , No costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 4^th day of January, 2015.

 

  Sd/-                                                  Sd/-                                      Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT        

 

 

 

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A 1		List containing the works to be done with plan given by Architect, Exhibit Exhibit A6 is the Original receipt of salary to the watchman, Exhibit A7 is the Original Photographs 4 in number. Exhibit A8 is the copy of list of payments.	Original
A2	26-08-2006	Registered Lawyer’s Notice got issued by the Advocate for the complainant to the OP	Office copy
A3	28-08-2006	Courier Receipt	Original
A4		Certificate issued by Vasthu Shilpa Architects and interior designers.	Original
A5		Receipts towards rent and maintenance for the month of August, 2006	Original
A6		Receipt of salary	Original
A7		Photographs 4 in nos.	Original
A8		List of Payments	Original

 

For the Opposite Parties:-   -nil-

 

     Sd/-                                               Sd/-                                      Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT