KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 349/2009 JUDGMENT DATED: 8-10-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU :PRESIDENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER M. Krishnan Nair, Retd. Dy S P, Lekshmy Vihar, Plot No.18, Padmanagar, Fort, : APPELLANT Thiruvananthapuram. Vs. Prethikumar @ Pradeep, Building Contractor, : RESPONDENT KBAC Lane, Muttathara, Vallakkadavu, Thiruvananthapuram. (By Adv:Sri.Prasanna Kumaran Nair) JUDGMENT JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT The appellant is the complainant in OP.20/05 in the file of CDRF, Thiruvananthapuram. The complaint stands dismissed. The case of the complainant is that the opposite party on 4/1/2004 had agreed to rectify the leakage of water from the first floor of the building and from the first floor bathroom by using modern chemicals and by removing tiles in the terrace and plastering using costly modern materials. He had also agreed that if any defect is noticed thereafter he himself will rectify the defects without any payment. It was Murukan an employee of Thrissur Jwellers, East fort, Thiruvananthapuram who introduced the opposite party to the complainant. The complainant also personally knew the opposite party. It was agreed that the works will be executed within 3 weeks time. He commenced the work on 5/1/2004. As per agreement in the presence of respectable witnesses at the residence of the complainant altogether a sum of Rs.14,600/- was paid to the opposite party. The total amount agreed was Rs.18,000/-. Rs.5000/- was entrusted on 5/1/2004 in the presence of witnesses. From 10/1/2004 another sum of Rs.4000/- was paid. On 14/1/2004 another sum of Rs.600/- was paid. On 16/1/2004 a sum of Rs.5000/- was paid. But the opposite party discontinued the work from 21/1/2004. Although the complainant requested the opposite party to complete the work. the opposite party did not respond. The complainant approached the police through Sri.A.Salim, Assistant Commissioner of Police, Shangumughom Sub Division. But the opposite party influenced Sri.Ganesan, Sub Inspector of Police (Crime), Poonthura Police Station. The opposite party is residing within the limits of Poonthura Police Station. A registered notice was sent to the opposite party on 27/12/2004. In the reply dated:12/1/2004 he has willfully suppressed the facts in issue. Opposite party has also received a cash cheque for Rs.1,400/- on 1/3/2004 for purchasing 500 lr water tank for storing drinking water in the terrace of the 1st floor of the building. The cheque has been encashed. The complainant has claimed a sum of Rs.80,000/- as compensation and has also sought for an order directing the opposite party to rectify the defects in the works executed by him at his own cost and also to pay a sum of Rs.10,000/- as compensation. The opposite party in the version fled has denied any such oral agreement or any other type of agreement as alleged in the complaint. He has stated that he has not undertaken or executed any work in the building of the complainant. He has denied the receipt of any money from the complainant. It is alleged that the intention of the complainant is to make unlawful gain. It is alleged that the complainant who is a retired DYSP has got high influence in the Police department and that he is a constant litigant. It is pointed out that the Sub Inspector of Poonthura Police Station realized that the complaint is a false one and has given a strict warning to the complainant not to file false complaints against anybody. The evidence adduced consisted of the testimony of PWs 1 to 6, CW1, the proof affidavit of the opposite party and Exts.P1 to P4 and C1. The Forum has observed that the case of the complainant in the cross-examination that the agreement was an oral one is not in tune with the averments in the complaint as to the agreement dated:4/1/2004; and that the averment would really give the impression that the agreement was a written one. The Forum has noted that the evidence of PW4 cannot be considered as he was not present for cross-examination inspite of repeated summons issued. The same is the case with the evidence of PW6. The evidence of the other witnesses ie PW2, PW3 and PW5 was not helpful, it was also noted that the opposite party was not cross-examined though he has filed proof affidavit and hence the evidence of the opposite party stands uncontroverted. The Forum has also did not place any reliance on the report of the commissioner as the commissioner has not noted in his report as to what was the materials used for construction and what was the materials agreed to be used as per the terms of the agreement. It was also noted that the alleged agreement and the receipts if any issued by the opposite party evidencing payment of amounts to the opposite party were not produced. Hence the complaint was dismissed. On a perusal of the evidence adduced in the matter we find that the Forum has given stress as to the case pleaded by the complainant regarding the agreement entered into on 4/1/2004. Of course on a reading of the complaint the same would give rise to an impression that there was a written agreement. In the instant case it was the complainant himself who was conducting the case and evidently it was he who drafted the complaint. In the cross-examination he has stated that the agreement was an oral one. In the above context it is pertinent to note that in the version filed by the opposite party it is specifically mentioned that there was no oral or any other agreement. PW1 the complainant has not been cross-examined as to any other dispute or incident that prompted the complainant to institute such a proceedings. In the version filed by the opposite party it is alleged that the complainant has filed the complaint against him on account of political animosity. The same has not been put to PW1 in the cross-examination. In the reply notice of the opposite party it is also alleged that the complainant while in service had attempted to file false cases against him (copy of the reply notice is seen in the case file). The same also has not been put to PW1 in the cross-examination. PW2, Murukesan who is mentioned as Murukan in the complaint as the person who introduced the opposite party to the complainant has admitted the same. He has stated that it was with respect to certain maintenance works. PW2 was requested to be treated as hostile at the instance of the complainant as he pleaded ignorance as to what were the works executed by the opposite party. PW1 the complainant has filed proof affidavit and he was cross-examined. He has stated that he had contacted the opposite party on a number of times over telephone requesting to complete the works. PW3 a Retired Assistant Executive Engineer has stated that he had gone to the house of the complainant and examined the works executed by the opposite party and that the works executed were defective in nature. He has not stated anything with respect to the involvement of the opposite party. PW4 is the son in law of the complainant who has supported the case of the complainant. As mentioned above the Forum has noted that he did not appear subsequently inspite of repeated summons issued. PW4 had testified in chief in the Forum. No coercive steps were taken to procure his presence. PW5 is the Assistant Commissioner of Police, Shangumughom. He has admitted that he has received a complaint dated:24/7/2004 from the complainant and that he has forwarded the same to Sub Inspector, Poonthura for enquiry and necessary action. He had registered the case as Crime No.38/04 vide Ext.P5 and the case was referred to Fort Police Station as a cause of action has taken place within the jurisdiction of the Fort Police Station. PW6 is a relative of the complainant. He has supported the case of the complainant. He was cross-examined in part. Subsequently he also did not appear. CW1 is the expert commissioner who submitted Ext.C1 report. He is a retired Superintending Engineer. He has stated in Ext.C1 report that the building involved is a two storied building of the Kerala State Housing Board built in the year around 1965. He has stated that there was water leakage into the ground floor. In the kitchen portion also there was wetting and dripping of the water from the sunshade portion. In the bed room the roof slab is seen crushed and the wall is horizontally cracked where it is joined the slab. There is also crack below the slab in the dining hall. The terrace of the original building constructed by the Housing Board was provided weather proof course with brick jelly concrete laid over floor tiles pointed cement mortar. It was found that the entire weather proof course has been removed and the surface plastered. It is mentioned that the complainant informed that the plastering was done with adding some liquid with the mortar and that the opposite party informed that the additive was water proofing compound to prevent leak. It is also noticed that in the portion of the building wherefrom the weather proof course had been removed the plastered surface is covered by simply spreading the dismantled floor tiles. It is also noticed that the entire plastering done after dismantling the tiled weather proof course over the roof is full of hair line cracks which will allow water to sweep into the slab. It is also noted that the water tank over the roof constructed in brick in cement mortar along the construction of the building is visibly in a shaken position. It is mentioned that the complainant has stated that the shaking is due to the effect of heavy blows by the opposite party to dismantle the brick jelly concrete over the slab. It is also mentioned that as an after effect of dismantling 100 mm thick weather proof course and plastering 15mm thick, the lower level of down water pipes became in a higher level of terrace surface due to which drainage of roof water became a problem. The water will accumulate in the terrace surface and hence it became necessary to dismantle and refit the down water pipes. The commissioner has noted that the defects which were in existence before repairs remained even after the works were done. He has also noted that other defects developed as a result of negligence and carelessness with which the repair works were carried out by the contractor. He has also observed that the owner of the building was completely misguided and cheated. He has noted that the works executed were not the works that ought to have been done. Commissioner has also noted that the roof top has been plastered by the contractor and that he has claimed that costly leak proofing material has been added to the mortar. But he has noted that the entire surface is spread with hair line cracks. He has noted that the contractor has not only removed the non defective weather proof structure but also provided with defective plastering. He has also noted that the structure is heavily strained because of the shock blows effected by the workers who removed surki concrete by applying heavy blows. He has assessed a sum of Rs.30,125/- as the amount of compensation that the contractor has to pay being the depreciation value of Rs.6020/- per year for 5 years, which he estimated to be the shortage of life of building as a result of excessive stress applied on the building. He has also stated that the contractor is eligible only for a sum of Rs.4500/- for plastering the roof of the portion which remains in good condition extending about 55 sq.mr. He has also suggested that the contractor should pay a sum of Rs.3000/- for installing a water tank in the place of a shaken water tank. Opposite party has filed objection on the report of the commissioner. All the same we find that the total denial of the opposite party as to his involvement in the repair works stands disproved as in the report the commissioner it is mentioned that the contractor has stated that he added water proofing compound in the mortar and that he claimed costly leak proof material has been added to the mortar. In the cross-examination of CW1, the commissioner the above statements were not put to him. Hence we find that the case of the opposite party that there was no agreement or contract and that he has not done any works for the complainant and that he has not received any amounts from the complainant appears totally false. The commissioner has not been cross-examined on the above matters reported in Ext.C1. Further we find that the issuing receipts or insisting for receipts for piecemeal payment for maintenance works is not done by everybody. We find no reason to disbelieve the case of the complainant that he has paid a sum of Rs.14,600/- to the opposite party and that the opposite party left the work incomplete. The complainant being not a person trained in conducting cases and drafting pleadings has conducted the case not with perfection and is having infirmities left. But the same is no reason to discard his case which appears essentially true. It was also not proper to discard the report of the commissioner. In the circumstances the order of the Forum is set aside. The opposite party is directed to refund a sum of Rs.10,100/- to the complainant (The Commissioner has suggested a sum of Rs.4500/- as the amount due to the opposite party). The opposite party would also to be liable to pay a sum of Rs.15,000/- as compensation to the complainant. The complainant would be entitled for interest at 12% per annum on Rs.10,100/- from the date of complaint ie 15/1/2005 till payment. The complainant would also be entitled for a sum of Rs.6000/- towards cost. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 15% per annum on all the amounts due from today, the date of the order of this commission. In the result the appeal is allowed as above. The office will forward the LCR along with the copy of this order to the Forum. JUSTICE K.R. UDAYABHANU: PRESIDENT S. CHANDRAMOHAN NAIR : MEMBER VL. | 
