Haryana

StateCommission

A/965/2015

MANISH KUMAR - Complainant(s)

Versus

PAWAN KUMAR SHARMA - Opp.Party(s)

RAO AJENDER SINGH

11 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                First Appeal No.965 of 2015

                                                          Date of Institution: 04.11.2015                         Date of Decision: 11.03.2016

 

Manish Kumar S/o Sh. Rajender (contractor) resident of village Neerpur, Tehsil Narnaul, District Mahendergarh.

 …..Appellant

                                      VERSUS

Pawan KumarSharma S/o Sh.Hari Kishan Sharma, R/o H.No.519-P, Part I, Sector 1, Narnaul, District Mahendergarh at present posted as Examiner to the Court of Hon’ble District and Sessions Judge, Rewari..

     …..Respondent

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Rao Ajinder Singh, Advocate counsel for the appellant.

Mr.Pawan Kumar Sharma respondent in person.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It was alleged by complainant that  vide agreement dated 13.06.2011 opposite party (O.P.) agreed to construct ground floor of his house @ 120 per sq. feet, first floor @ Rs.122/- per sq. feet and second floor @ Rs.130/- per sq. feet.  Boundary wall was to be constructed @ Rs.30 per sq. feet.  The construction charges of stairs was charged at 1.5 times then that of the boundary wall.  Water tank was to be constructed for Rs.6000/- and store for Rs.3000/- which were extra. At the time of execution of agreement Rs.10,000/- were given to the O.P.  It was agreed that 70% of total amount would be paid at the time of laying the linter slab.   He paid Rs.3,82,000/- upto 22.10.2012.  Thereafter also he again paid Rs.10,000/-.  O.P. did not plaster the outer walls despite repeated requests.  Ultimately seven months ago, he stopped construction.  The plaster was  falling down from some places and construction was not up to mark. O.P. be directed to complete the construction and to pay Rs.4,70,000/- as a damages etc.

2.      O.P. controverted his averments and alleged that actually the complainant had paid Rs.3,82,500/- only whereas according to measurement he was to pay Rs.4,70,000/-.  Complainant asked him to lay temporary roof and plaster walls lateron because there was paucity of funds. When he demanded remaining Rs.1,28,000/-, complainant became offended and stated that till the work was completed he would not pay any amount.  The construction raised by him was up to the mark.  He never refused to complete the construction and only asked complainant to wait for some time.   

3.      After hearing both the parties learned District Consumer Disputes Redressal Forum, Narnaul (In short “District Forum”)  allowed the complaint vide impugned order dated 08.10.2015 and directed as under:-

“1.     To pay Rs.1,00,000/- (one lakh) as compensation to the complainant

2.      to pay Rs.1,07,000/- to the complainant which was paid by him to the subsequent builder.

3.      to refund Rs.85,776/- to the complainant with interest at the rate of 10% per annum from the date of filing the present complaint till realization.

4.      To pay Rs.2200/- as litigation charges to the complainant.”

4.      Feeling aggrieved therefrom, O.P. has preferred this appeal.

5.      Arguments heard.  File perused.

6.      The learned counsel for the respondent-complainant argued that vide agreement Ex.C-3 complainant agreed to construct his house as per terms and conditions mentioned above.  Rs.3,82,500/- were also paid to him as mentioned in receipt Ex.C-4, but, he has not completed the work, which is clear from the perusal of photographs Ex.C-5 to C-12.  He had to pay Rs.1,07,000/- to the subsequent builder for completion of construction.  He suffered lot at the hands of O.P. and learned District Forum rightly allowed his complaint.

7.      On the other hand, learned counsel for the appellant-O.P. vehemently argued that agreement Ex.C-3 was executed in between complainant and one Sh.Jagdish Parsad. He was not party to the same so the same is not applicable upon him.  Receipt Ex.C-4 was not bearing his signatures.  Complainant has failed to prove that the receipt was bearing his signatures.  Complainant himself asked to construct temporary roof and do plaster lateron because  there was paucity of funds. There is no evidence that he made payment to anyone about completion of construction.  Impugned order is altogether against law and be set aside.

8.      Neither the averments of the complainant nor of the O.P. can be accepted in toto.  Though agreement Ex.C-3 was not executed in between complainant and O.P., but, as per averments it is clear that O.P. charged money for constructing complainant’s house.  Had it not been so, complainant would not have paid single pie to him. It has been alleged by the complainant that he paid Rs.3,92,000/- to O.P., whereas appellant admitted in reply that he received Rs.3,82,500/- only, which is also mentioned in receipt Ex.C-4.  In these circumstances even if there is no written agreement in between them O.P. is bound to complete the construction as per oral agreement in between them.  When some payment has been made to the appellant in lieu of the work done by him, relationship of consumer and service provider exists in between them.  As per averments of O.P. it is clear that the construction was not complete.  He has failed to prove that the complainant was to pay Rs.4,92,000/- to him as mentioned in reply.  He has not produced any estimate to this effect.  when the O.P. has failed to prove the total cost he was to complete remaining construction against the payment already received from the complainant i.e. proper laying of the roof of the first floor and plastering first floor etc.  It may be mentioned here that the complainant has miserably failed to show that he has paid Rs.1,07,000/- to complete the remaining construction. Neither he has mentioned the name of any person nor he has produced the receipt issued by any mason etc. keeping in view all the facts and circumstances the complainant is held entitled for Rs.One lac, seven thousand alongwith interest @ 10% p.a. from the  date of filing of the complaint to complete the remaining construction.  The order of district Forum about refund of Rs.85,776/- cannot be sustained because the alleged estimate was not produced in evidence and O.P. did not get an opportunity to rebut the same.  More so, if the cost of the construction was Rs.3,06,824/- as mentioned in estimate,.  Why complainant paid Rs.3,82,502/-.  It is alleged by him that he paid Rs.3,92,500/- which is far in excess to this estimate.

9.      In view of the above discussion, impugned order dated 08.10.2015 is modified to the extent that the complainant will be entitled to recover for Rs.1,07,000/- alongwith interest @ 10% per annum from the O.P. from the date of the filing of the complaint till realization.

10.    With this modification appeal stands disposed of.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing of the appeal be refunded to the appellant against proper receipt and identification.

March 11th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.