BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 447/2002 Filed on 25.10.2002

Dated : 31.05.2010

Complainant:

P. Kesavan, House No. 101, N.C.C Nagar, Peroorkada, Thiruvananthapuram.

(By adv. G.K. Namboothiry)

Opposite party:

Peter, Contractor, Plot Bo. 132, Vinayaka Nagar, Karamana, Thiruvananthapuram.

(By adv. S. Harichandran)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 30.11.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 30.04.2010, the Forum on 31.05.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: Complainant is residing in T.C 101, NCC Nagar, Peroorkada. The opposite party was doing some construction work at the site of House No. 100 belonging to Mathew Philip. As such the complainant acquainted with him and as he agreed the opposite party was engaged to repair the leak in the sunshade of the complainant's house. The opposite party was engaged for the work and the complainant spent more than Rs. 35,000/-. The work was done by him between 11.11.2001 to 15.12.2001 and lastly on 15.12.2001 opposite party received Rs. 500/- and asked the complainant to purchase paint. Afterwards he did not turn up and he did not complete the work. The leak is there as it was even after his work. A notice by registered post was issued calling upon him to return the amount received by him. He received the notice, but did not reply. Hence this complaint.

Opposite party in this case filed version. In their version opposite party stated that complaint is not maintainable either in law or on facts. There is no jurisdiction to file the complaint in this Forum. The complainant is not at all a consumer under Consumer Protection Act. This opposite party is not a contractor. He is a senior citizen. The opposite party has no agreement or contract with the complainant. This opposite party is totally a stranger and he has no construction work in any where else. Opposite party denied the statement of the complainant that he had paid some amount to the opposite party for the work. No notice was issued to the opposite party in his address and he has no relation with the complainant. Hence he prayed for dismissal of the complaint.

In this case the complainant was examined as PW1 and his wife was examined as PW2. From the complainant's side 3 documents were marked as Exts. P1 to P3. Opposite party cross examined the witness. As per the application of the complainant this Forum appointed Mr. Krishnan as the commissioner. The commissioner filed report and the report was marked as Ext. C1.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service occurred from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- The case of the complainant is that he had engaged the opposite party to repair the leak in the sunshade of the complainant's house and he spent more than Rs. 35,000/-. But the opposite party did not complete the work and the leak is there as still now. The complainant has produced 3 documents which were marked as Exts. P1 to P3. Ext. P1 is the diary of the complainant, the complainant stated that he has written the details of the expenses incurred in the work done by the opposite party. But no where in the diary has he mentioned the name of opposite party. Ext. P2 is the copy of notice issued by the complainant to the opposite party dated 17.06.2002. Ext. P3 is the delivery certificate issued by the postal authorities to complainant's counsel, stating that the registered article was delivered to the addressee at Pappanamcode P.O on 20.06.2002. In this case the opposite party argued that he had not received any notice from the complainant. To controvert that contention complainant has produced Ext. P3 document. But the opposite party's post office is not at Pappanamcode. In this case the complainant furnished the address that the opposite party's house is at Karamana P.O. The notice issued from this Forum accepted by the opposite party is in the address Karamana P.O and not at Pappanamcode P.O. As per the direction of the complainant, this court appointed Mr. Krishnan as the expert commissioner and he has filed report and the report was marked as Ext. C1. In his report he reported that the bottom portion of replastered sunside, bottom of edge of car shed, top of celling plaster, dampness of slab in the shelf of bedroom etc. all around is getting wetted during rainy season and an amount of Rs. 7,500/- is recommended to rectify the above defects. From these documents and evidence adduced by the complainant he failed to establish his case. The complainant has no evidence to show that he had entrusted the repairing work to the opposite party and he has paid any amount to the opposite party. No agreement or contract has been produced by the complainant to prove that contention. There is no evidenciary value for the notes mentioned in the diary. The complainant can write anything in his own diary if it is true or false. If the entries had been acknowledged by the opposite party, we could consider it as evidence, but the same is absent here. On the basis of the notes in the diary, we cannot allow the complaint. From the above stated reasons, we find that the complainant has miserably failed to establish his case. Hence the complaint is dismissed. No costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of May 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 447/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - P. Kesavan

PW2 - Draupathy

II COMPLAINANT'S DOCUMENTS :

P1 - Diary of the complainant

P2 - Copy of notice issued by the complainant

P3 - Delivery Certificate

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT:

C1 - Commission Report

PRESIDENT