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. 20/2005 Filed on 15.01.2005 Dated : 30.04.2009 Complainant: M. Krishnan Nair, Retd. Dy. S.P, Lekshmi Vihar, Plot No. 18, Padmanagar, Fort, Thiruvananthapuram.
Opposite party:
Prethikumar @ Pradeep, Contractor Panayil Kulathil Veedu, K.A.B.C Lane, Muttathara, Vallakkadavu, Thiruvananthapuram-8.
(By adv. Prasanna Kumaran Nair)
This O.P having been heard on 16.03.2009, the Forum on 30.04.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are are that opposite party has violated the terms and conditions of agreement dated 04.01.2004 for execution of a contract work to be carried out by the opposite party for the complainant, that opposite party has agreed to rectify the problem of water leakage in the building of the complainant by using modern chemicals with the assistance of skilled workers after removing the tiles in the terrace within two weeks from the date of said agreement and received a sum of Rs. 14600/- from the complainant for execution of the said work and that opposite party commenced the contract work on 05.01.2004, while the same was discontinued by the opposite party on 21.01.2004 without completing the contract work as per the terms and conditions of the said agreement, though complainant requested the opposite party to complete the work. The said action of the opposite party is clear violation of the terms and conditions of the contract between the opposite party and the complainant. Hence this complaint to direct the opposite party to pay Rs. 80000/- towards compensation for the damages, to rectify the defect in the work executed by opposite party and to pay Rs. 10,000/- as compensation for the mental agony.
Opposite party entered appearance and filed version contending that the opposite party is totally unaware of the alleged agreement dated 04.01.2004, that the opposite party had not executed any agreement with the complainant on 04.01.2004 or on any other dates for the execution of the contract work or any other works at any point of time, that opposite party had not received Rs. 14,600/- or any other amounts from the complainant or his relatives or his agent, that the opposite party or his workmen have not worked in the building of the complainant as alleged in the complaint. Complainant has no cause of action against opposite party and complaint is not entitled to any of the reliefs as prayed for. Hence opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:- Whether there was agreement between the complainant and opposite party for execution of contract work on complainant's building? Whether the opposite party had violated the terms and conditions of the said agreement? Whether there is deficiency in service on the part of opposite party? Whether the complainant is entitled to compensation? If so at what amount?
In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief. Witnesses were examined as PW2 to PW6 and CW1 and Exts. P1 to P4 and C1 were marked. In rebuttal, opposite party has filed affidavit.
Points (i) to (iv):- It has been the case of the complainant that opposite party has violated the terms and conditions of the agreement dated 04.01.2004 for execution of contract work to be carried out by the opposite party for the complainant. It is further stated by the complainant that the opposite party has agreed to rectify the problem of water leakage in the building of the complainant by using modern chemicals with the assistance of skilled workers after removing the tiles in the terrace within 3 weeks from the date of the said agreement and received a sum of Rs. 14,600/- from the complainant for execution of the said work. Further it is uttered by the complainant that though opposite party had commenced the contract work on 05.01.2004, the same was discontinued by the opposite party on 21.01.2004 without completing the work as per the said agreement. It is submitted by the opposite party that opposite party is totally unaware of the alleged agreement dated 04.01.2004, that opposite party had not executed an agreement with the complainant on 04.01.2004 or on any other date for the execution of contract work or any other works at any point of time, that opposite party had not received Rs. 14,600/- or any other amount from the complainant or his relatives or his agent and that opposite party or his workmen have not worked in the building of the complainant as alleged. The first point requiring consideration is whether there was agreement between the complainant and the opposite party for execution of contract work on complainant's building. In his cross examination, complainant as PW1 has deposed that the alleged agreement dated 04.01.2004 is an oral agreement. On being asked whether the word 'oral' has been mentioned in the complaint, PW1 said that it can be answered only on perusal of the complaint. Nowhere in the complaint, it is mentioned that agreement is 'oral agreement'. Nor does the complainant disclose the nature of the agreement in his affidavit also. In his cross examination complainant has deposed that the amount of Rs. 14,600/- was given to the opposite party in four instalments and the first instalment of Rs. 5,000/- was given to the opposite party on 05.01.2004 by withdrawing the same from his bank account. When it is suggested by the opposite party that no amount was received by the opposite party from the complainant, PW1 deposed that it is lie. The initial onus of proving the existence of agreement between the complainant and opposite party and payment of money to opposite party would rest on the complainant. Ext. P1 is the copy of notice dated 27.12.2004 addressed to opposite party. Ext. P1(a) is the copy of the acknowledgement card. Ext. P2 is the copy of the petition to the Assistant Commissioner of Police, Sanghumugham against the opposite party. Ext. P2(a) is the copy of the courier consignment note. Ext. P3 is the copy of the reply notice dated 10.01.2005 sent by the opposite party to the complainant. Ext. P4 is the copy of notice dated 18.01.2005 addressed to opposite party. In his chief examination, Murukesan as PW2 has deposed that he would know both the complainant and opposite party and it is he who has introduced the opposite party to the complainant. PW2 further deposed that he did not know the work or repair for which opposite party was engaged by the complainant. In his chief examination, PW3, a retired Assistant Executive Engineer has deposed that he had inspected the complainant's building on complainant's request in 2005, but in his cross examination, he has replied that he did not know the person who had executed the repair work on complainant's building. PW4, Mohan Kumar, in his chief examination has deposed that it is the opposite party who had carried out the work in the building in dispute and money(wage) was given to opposite party by his wife. PW4 was absent for cross examination inspite of service of repeated summons. We do not attribute any evidencing value to the deposition of PW4 in chief examination. Deputy Superintendent of Police, CBCID, SIGI, Trivandrum has been examined and cross examined as PW5. In his chief examination he has admitted that he had received a petition dated 24.07.2004 by post and forwarded the same to S.I, Poonthura, for enquiry and necessary action and the case was registered as 38/05. On being asked what happened to case No. 78/2005, PW5 deposed that the said case was referred to Fort Police Station since the cause of action in the petition is within Fort station. PW5 further deposed that he did not conduct enquiry regarding the merits of the case and now he could not say whether the charge in connection with the said case has been referred or submitted before court. One Prasanth has been examined in chief as PW6 and he was absent for further cross examination in spite of repeated summons. Hence we do not weigh with the evidence of PW6. Expert commissioner has been examined as CW1 and cross examined by the opposite party. In construction work or repair work, there must be proper written agreement between the parties with specific terms and conditions, then only it will be easy to trace out the nature of violation if any committed by either party. If there is oral agreement it should be specifically pleaded in the complaint and substantiated by way of cogent and clinching evidence. In this case there is no pleading that there is oral agreement, nor is it substantiated or established by any oral testimony. In chief examination, CW1 has deposed as under “വീടിന്റെ പണി നടത്തിയത് എതിര് കക്ഷിയല്ലേ ? (Q) പണി ചെയ്തത് ആരാണ് എന്ന് എനിക്കറിയില്ല. Opposite party എന്ന് പറഞ്ഞ് കോടതിയില് നില്ക്കുന്ന ആള് പറഞ്ഞത് ഈ work ഞാനല്ല ചെയ്തത് എന്നാണ്. എന്റെ പേരില് നോട്ടീസ് വന്നു. ഞാന് ഹാജരായി എന്നു മാത്രമാണ് അദ്ദേഹം പറഞ്ഞത്.” Though opposite party has filed proof affidavit, opposite party has not been cross examined by the complainant. Hence the evidence adduced by the opposite party by way of affidavit remains uncontroverted.
In view of the foregoing discussions it is pertinent to point out that the alleged agreement dated 04.01.2004 under which execution of contract work on the building referred to above was entrusted to opposite party itself is in dispute. It is also in dispute that complainant paid Rs. 14,600/- to opposite party. Neither the agreement dated 04.01.2004 with its terms and conditions nor the receipts if any issued by the opposite party showing the payment of Rs. 14,600/- by the complainant to opposite party was furnished by the complainant in order to ascertain whether there is any deficiency in service on the part of opposite party in the work done, as well as in the matter of use of materials. The commissioner ought to have stated in his report the nature of work done, what was the material used for construction and what was the materials agreed to be used as per the terms of the agreement. In this case, the commission report is not with reference to any terms and conditions of the Agreement. Therefore no reliance can be placed on the report of the commissioner. Taking into consideration of the totality of circumstances of the case we are of the considered view that there is no material on record to attribute any deficiency on the part of opposite party and that there is no merit in the complaint which deserves to be dismissed. In the result, complaint is dismissed. Both parties shall bear and suffer their 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 day of 30th April 2009.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
O.P. No. 20/2005 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Krishnan Nair PW2 - Murukesan PW3 - Ahamed Basheer PW4 - Mohan Kumar PW5 - A.M. Salini PW6 - Prasanth II COMPLAINANT'S DOCUMENTS : P1 - Copy of letter dated 27.12.2004 issued to the opposite party P1(a) - Copy of acknowledgement card. P2 - Copy of complaint dated 24.07.2004 addressed to Police Asst. Commissioner issued by Tvpm. Citizen's Protection Forum. P2(a) - Copy of courier consignment note No. S07647466 P3 - Copy of letter dated 10.01.2005 addressed to opposite party. P4 - Copy of letter dated 18.01.2005 addressed to opposite party. P5 - Photocopy of FIR dated 10.02.2005. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : D1 - Letter dated 03.06.2005 issued by Expert Commissioner to opposite party and complainant.
V COURT EXHIBIT CW1 - N. Appukuttan Pillai C1 - Commission Report dated 30.06.2005. C1(a) - Mahazar dated 07.06.2005. PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
