D.O.F.17.04.2012
D.O.O.28.11.2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan : President
Smt.Sona Jayaraman.K : Member
Sri.Babu Sebastian : Member
Dated this, the 28th day of November 2013
CC.112/2012
Shafeek,
S/o.Moosan,
Chengalayi Amsom,
P.O.Chengalayi, Taliparamba. Complainant
(Rep. by Adv.K.K.Purushothaman Nambiar)
P.K.Noushad,
S/o.Usman,
Safeera Manzil,
Dhardmadam Amsom desom,
Vellak, Building contractor,
Tlhalassery Taluk. Opposite party
(Rep. by Adv.V.M.Sharesh Kumar)
O R D E R
Smt.Sona Jayaraman.K, Member
This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to return Rs.1,50,000 which was received by the opposite party and to get an amount of Rs.2,00,000 towards compensation.
The case of the complainant in brief is as follows: The opposite party is a contractor and the complainant entrusted the construction work of his house to the opposite party. An agreement was also executed by them. Although complainant has given the amount in excess to the agreed amount the opposite party did not complete the work. For the part of work done by him he has used low quality stone and cement. So the complainant has faced several difficulties. As per the agreement the complainant paid Rs.1,50,000 as advance and on two occasions the opposite party received an amount of Rs.1,00,000 in addition to Rs.1,50,000. Although complainant issued 2 cheques for Rs.50,000 each to the opposite party, later he had issued memo to bank to prevent the opposite party from encashing the cheque. So the opposite party has cheated the complainant and he has left the work unfinished. So the complainant has requested the Forum to permit him to continue the construction work after taking out the expert commission regarding the construction work done by the opposite party. So the complaint is filed to direct the opposite party to refund the amount of Rs.1, 50,000 together with Rs.2,00,000 as compensation towards mental agony.
In pursuance to the notice issued by the forum the opposite party appeared and filed his version. As per the version of opposite party he admits the execution of the agreement and the receipt of Rs.2,00,000. According to the opposite party he was not in a position to complete the work as the complainant has unilaterally violated the terms and conditions of the agreement.
On the above pleadings the following issues were raised for consideration.
1. Whether there is any deficiency in service on the part of the
opposite party?
2. Whether the complainant is entitled for the remedy as prayed in
the complaint?
3. Relief and cost.
The evidence consists of the oral testimony of PW1 and Exts.A1 to A8 and Ext.C1.
Issue No. 1
As per the contention of the complainant Opposite party agreed to do the construction of his house and an agreement was executed by them. That agreement was marked as Ext.A1. Ext.A1 document clearly shows that the opposite party undertaken to do the work mentioned in the agreement and the complainant agreed to give an amount of Rs.1,50,000 as advance. In the version filed by opposite party he also admits the execution of agreement. According to the opposite party he has received an amount of Rs.2,00,000 in total for the work done by him. The specific case of the complainant is that opposite party has done the work by using low quality materials. The complainant has taken out an expert commission to prove that. As per the commission report, Ext.C1, the construction work is not over and the opposite party had used some low quality laterite stones. So it can be understood that the opposite party has willfully refused to perform his part and he has done deficiency in his service. The complainant was cross examined by the opposite party and the complainant had specifically stated his case at the time of cross examination also. Even though opposite party has filed chief affidavit he was not present before this Forum for cross examination. So no evidence was adduced by the opposite party. The willful non appearance of the opposite party shows his attitude towards the issue in dispute. From the evidence it can be seen that there is clear deficiency in service on the part of the opposite party. So the 1st issue is answered in favour of the complainant.
Issue No.2 & 3
The prayer of the complainant is to return back Rs.1,50,000 out of Rs.2,50,000 which was paid by him to the opposite party. The opposite party has admitted in his version that he has received Rs.2,00,000 from the complainant. Ext.A5 to A8 shows that apart from the advance amount of Rs.1,50,000 the opposite party collected Rs.1,00,000 from the complainant. As per the Ext.C1 report it can be seen that the work was not completed. Ext.A7 document shows that the opposite party has collected Rs.50,000 although complainant issued Ext.A8 memo to the Bank. Even at the time of cross examination also opposite party has no case that he has not collected Rs.50,000 as per Ext.A6 cheque. According to him that amount was given by the complainant towards the amount spend for construction of his house. So it is clear that Rs.50,000 was collected by the opposite party in excess. So the opposite party is liable to refund that amount to the complainant. The contract was for construction of the house and that was not completed. As the complainant has sustained huge financial loss and mental agony by the act of the opposite party, the opposite party is liable to compensate the complainant. As nothing was stated in Ext.C1 report regarding the expenses for the assessment of work we are of the opinion that opposite party is liable to give an amount of Rs.10,000 as compensation and a sum of Rs.2,250 as cost of litigation of this complaint.
In the result, the complaint is allowed directing opposite party to refund Rs.50,000 ( Rupees Fifty thousand only) which he had collected in excess and Rs.10,000 (Rupees Ten thousand only) as compensation together with Rs.2,250 (Rupees Two Thousand Two hundred and fifty only) towards cost of the proceedings to the complainant. Opposite party shall make the payment of amount within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1. Contract work agreement.
A2. Copy of Lawyer notice.
A3(a). Postal receipt.
A3(b).Postal acknowledgment card.
A4. Photographs.
A5. Copy of cheque dated 09.02.2012.
A6. Copy of cheque dated 25.02.2012.
A7. Statement of account of NMGB of complainant dated 15.05.2012.
A8. Copy of letter dated 23.02.2012.
Exhibits for the opposite party:
Nil
Exhibits for Court
C1. Commission report.
Witness examined for Complainant:
PW1. Complainant
Witness examined for Opposite Party :
Nil
/forwarded by order/
Senior Superintendent
