SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act seeking to get an order directing opposite party to pay Rs.3,37,500/- to the complainant the excess amount received by OP from the complainant with interest. Along with Rs. 2,00,000/- towards compensation and Rs.20,000/- towards cost of proceedings of this complaint. After that as per in order in IA 131/23 the complaint was amended and sought relief to get Rs.15,50,000/- from the opposite party.
The case of complainant is that as per agreement (A1) dated 13/04/2021, the construction of the retain wall was likely to be completed within three months of the agreement dated 13/04/2021, between the complainant and the OP. He further submitted that though a sum of Rs.8,00,000/- was paid by the complainant, on the basis of the agreement, the OP had made only 50% of work. Complainant submitted that to refund the excess amount received by the OP with compensation. Complainant stated that OP was deficient, in rendering service to the complainant, by doing the balance work as agreed in Ext.A1 agreement.
OP in his version, admitted Ext.A1 agreement between the complainant and OP. It is also admitted that the total agreement amount is Rs.9,25,000/- and a sum of Rs.8,00,000/- by way of installments towards to the constructions of retaining wall in question, from the complainant. Further submitted on the other hand, the counsel for the OP submitted that Ext.A1 agreement was executed between complainant and OP. He submitted that since there was default on the part of complainant, in paying the installment amount as per A1 agreement and as complainant entrusted additional work to do, he could not complete the work within the stipulated time. OP further submitted that under these circumstances he had to do the work during rainy season and there was land slide happened. Due to that his work became delayed, which was beyond his control. OP further submitted that in such situation, he was not at all deficient in rendering service and neither liable to refund the amount nor liable to pay any compensation. OP agreed to receipt of Rs.8,00,000/- from the complainant in different installments. Hence prayed for the dismissal of complaint with cost.
While pending of this complaint, complainant has taken steps to appoint an Expert commission to inspect the scheduled property of complainant and file a report and plan and present condition of the retention wall, volume of work completed by the OP and calculate the balance of the work to be done and to report the cost of work already completed. Mr. Sreesanth P, Civil Engineer with Diploma in civil engineering was appointed. The expert commissioner has inspected the premises of complainant after giving prior notices to both learned counsels of parties and conducted inspection in the presence of complainant, OP and their counsels. After inspection expert commissioner has filed his report. OP has filed objection to expert report.
The complainant, in support of his case, filed his proof affidavit. Examined as Pw1 and marked documents as Ext.A1 to A7. The expert report was marked as Ext.C1 subject to proof. Pw1 was cross-examined by OP. On the side of OP, OP filed his chief affidavit and was examined as Dw1. Dw1 was subjected to cross-examine by complainant. After that both learned counsels made oral argument and the learned counsel of OP submitted two judgments of Hon’ble Supreme court.
The counsel for the complainant submitted that as per agreement (A1) dated 13/04/2021, the construction of the retain wall was likely to be completed within three months of the agreement dated 13/04/2021, between the complainant and the OP. He further submitted that though a sum of Rs.8,00,000/- was paid by the complainant, on the basis of the agreement, the OP had made only 50% of work. So he is entitled to refund the excess amount received by the OP with compensation. According to the complainant OP was deficient, in rendering service to the complainant, by doing the balance work as agreed in Ext.A1 agreement.
On the other hand, the counsel for the OP submitted that Ext.A1 agreement was executed between complainant and OP. He submitted that since there was default on the part of complainant, in paying the installment amount as per A1 agreement and as complainant entrusted additional work to do, he could not complete the work within the stipulated time. He further submitted that under these circumstances he had to do the work during rainy season and there was land slide happened. Due to that his work became delayed, which was beyond his control. He further submitted in such situation, he was not at all deficient in rendering service and neither liable to refund the amount nor liable to pay any compensation. OP agreed to receipt of Rs.8,00,000/- from the complainant in different installments.
The 1st question, that arises for consideration, is as to within which period the construction of the retaining wall was likely to be completed? There is no dispute that the complainant entrusted OP, to construct the retaining wall in dispute and gave Rs.8,00,000/- in different dates to OP for the work.
The agreement executed between complainant and OP dated 13/04/2021was produced and marked as Ext.A1. In Ext.A1 it is specifically stated that the work is to be completed within 3 months from the date of executing the agreement. OP has not objected the said clause. It is, therefore, hold that the construction of the retaining wall was to be completed within 3 month from 13/04/2021.
The next question that arises for consideration is as to whether the complainant is entitled to get the amount for the balance work (50% of work as alleged) from OP? In the last para of Ext.A1 agreement it is written that if any of parties in the agreement committed fault in complying the conditions stipulated in it, the defaulted party will be responsible for it.
Here, complainant submitted Ext.A6 series (8 in Nos.) to establish his averment that he made payments to OP up to 8,00,000/- in time. The balance Rs.1,25,000/- is to be paid after completing the work. But Op failed to complete the work in time. On perusal of Ext/A6 series, we can also reveal that complainant made installment payment to OP without any delay.
Here OP also admitted that he could not complete the work as agreed in Ext.A1 agreement. According to him, due to the interference of complainant by engaging additional work, the work as per Ext.A1 had to be done in rainy season. Then land slide was happened 4 times. So the circumstances became beyond his control, that delay was caused in the agreed construction of the retaining wall. OP further submitted that he had to spent additional amount for the construction of additional work as well as for the clearance of land happened in land slide by using JCB etc. According to OP he had to spent 2 lakhs rupees more than the agreed amount. OP has denied the averment of complainant that after receiving Rs.8,00,000/- only 50% of work was completed by him.
According to OP, due to some dispute with complainant, the construction could not be completed within the time limit.
To establish the allegation of the complainant, an expert commissioner Mr. Sreesanth P was appointed. In the presence of both parties and their counsels, inspection was conducted and he filed a report. In his report he has observed and submitted report in tunes with the allegation of the complainant. As per the expert report, the expert also observed that only 50% of the work was completed by OP at his inspection time.
OP strongly opposed that observations of the Expert commissioner as recorded inExt.C1 report and filed a written objection. Through Pw1 the expert report was marked subject to proof.
During the argument time the learned counsel of OP, vehemently submitted that, the expert commissioner’s report cannot be taken into evidence, as the expert was not examined and proved his observations in the report. The learned counsel submitted two judgments also supporting his argument. In the judgments the Hon’ble Supreme court held that without examining the expert as a witness, no reliance can be placed on an opinion alone.
Here on perusal of proceeding sheet we can reveal that the complainant has taken steps to examine the expert commissioner in two times. Both summonses were returned with endorsement as ‘left India’. Then this commission closed the witness list from examining the expert commission. So complainant cannot be blamed for not examining expert witness; under the circumstance in this case we cannot taken a view, about rejecting the Expert report as a whole. We have to evaluate the observations in Ext.C1 report because OP also did not contended in his objection to remit or reject the expert report. He could have taken steps to reject Ext.C1 and to appoint another Expert commissioner.
Here OP admitted the inspection of the Expert commissioner. OP contended that the expert has not measured the actual height of the retaining wall, Pillar and length of Belt and foundation by removing the land over whelmed the retaining wall, so his observations about the measurement of height etc. of the retaining wall in the report is not correct. Further contended that the expert observed that the length of the constructed retaining wall as 37.75m. The total length must be 55M. Then as per the observation of Expert, OP had completed more than 65% of the construction of retaining wall. Further stated that about the height of the wall, the expert observed the total height of the wall including belt, as 3.5M to 4.8M. Then also more than 80% was completed.
On a perusal of Ext.A1 agreement we can see that the total hight of the retaining wall including belt must be 8 1/2 M. (Wall 5m+belt 3 1/2 ) and lenth 55M. In Expert report the depth of foundation observed as 1.80Cm, and except north side wall, total height of other wall including belt as 3.5m ie below 50% of the hight as agreed in Ext.A1.
Expert also observed about the land slide in that region and opined that if the work will complete instantly, land slide will happened again which obstruct the construction work.
Here OP failed to prove his contention that the land slide was happened within the time limit as stated in Ext.A1 agreement and due to natural calamity he could not do the work ie. beyond his control. Further no evidence that he had done additional work more, than stipulated in Ext.A1. Further there is no evidence that OP had met the expenses incurred for clearing land after landslide.
For the reason stated above, from the available evidence we are of the view that there is deficiency in service on the part of OP.
Here complainant is claiming Rs.15,50,000/- as per the rate considering 50% of work to be completed, which was strongly opposed by OP. Complainant failed to establish the rate as claimed by him.
Considering the facts and circumstances of this case, we are of the view that complainant is entitled to get refund of Rs.3,00,000/- based on Ext.A1 agreement from the OP with compensation.
In the result complaint is allowed in part. Opposite party is directed to pay Rs.3,00,000/- to the complainant. Opposite party is also directed to pay Rs.50,000/- towards compensation and Rs.10,000/- towards cost of proceedings of this case. Opposite party shall comply the order within one month after receiving certified copy of this order. Failing which the amount Rs.3,00,000+ Rs.50,000 with carry interest @9% per annum from the date of order till realization and complainant can execute the order by filing EA against opposite party as per the provisions consumer Protection Act 2019.
Exts.
A1-Agreement
A2-Complaint copy to the police
A3- Lawyer notice sent by OP
A4- Reply notice
A5- Inspection report(subject to proof)
A6(Series)- Receipt (8 in Nos.)
A7-Photos
Pw1-Vazhavalappil Noushad-Complainant
Dw1- P Gireesh
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
