IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan: President K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 4th day of January 2009 C.C.No.237/08 A.R.Mohammed Koyama, S/o Abdul Rahman, Arakkal, : Complainant Kannur-670 003. Vs. T.P.Pushparaj, S/o Govindan, Proprietor, Peeyar S.S.Industries Ltd., Kakkad Road, Chovva, : Opposite Party: Kannur. O R D E R Smt.K.P.Preethakumari, Member. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to return the gate taken back by Opposite Party and to refund excess amount of Rs.10750/- with interest and for compensation of Rs.25000/- with cost. The Complainant’s case is that he has placed an order for a gate for his house under construction on 03.01.08 and paid Rs.15000/- as advance by cheque on the same day. At the time of entrust the Opposite Party agreed to deliver it on 25.01.08. Later on the Complainant had again paid Rs.10000/- by cheque. But the Opposite Party had delivered a semi-finished gate on 01.05.08 for erecting pillar and on 23.05.08, he has taken back it for finishing the work. But the Opposite Party has not returned back the gate after finishing its work. So the Complainant approached the Opposite Party for several times and as a result, the Opposite Party given a promise in writing that he will deliver it positively on 25.08.08. But in spite of this the Opposite Party had delivered the same only on 15.09.08, but due to some defects, the Opposite party was asked to rectify it from the site itself. But, the Opposite Party took away one of the gates to his shop on 20.09.08 and is not returned back.When the Complainant approached the Opposite Party for the gate, he replied that it will deliver only after the entire payment by the Complainant. But according to the Complainant the Opposite Party has to deliver the same during January 08 and during that period, the price of the steel per Kg. was 35.5. Adding the work charge of Opposite Party as Rs.12/- per Kg., the cost of the gate per Kg will become Rs.47.5 and the total weight of the gate is 300 Kg. So the total price of the gate will be only Rs.14250/-. Instead of this the Complainant has already paid Rs.25000/-. So the Opposite Party has to return back Rs.10750/-. Similarly the opposite Party has provided 42 sq.ft. of Poly Carbonated sheet to cover the gate against the present rate of Rs.2730/-, he has quoted Rs.4800/- and when the same was pointed out, he agreed with the Complainant. Due to non-delivery of the gate the Complainant’s house warming became delayed and hence the Complainant has caused so much of mental hardship and financial loss. This was caused due to the deficiency of service of Opposite Party and hence he is liable to compensate the Complainant. Hence this complaint. On receiving the notice from the Forum, Opposite Party has appeared through Adv.C.Krishnan and filed their version. The Opposite Party filed version contenting that the Complainant has not placed any order for making gate and hence there is no privity of contract between the Complainant and Opposite Party. But admitted that one Mayan has placed an order to make an executive gate and issued two cheques for Rs.25000/-. The Opposite Party further admits that a semi-finished gate was delivered for erecting the pillar and thereafter the gate was taken back for finishing the work. But due to nonpayment the Opposite Party could not complete the work and at the time of taking back the gate a letter was given to the above said Mayan and he was agreed to pay the amount. But nobody has paid and after a long time the Complainant approached the Opposite Party and he informed the Complainant about the total cost of the gate, but he was not ready to pay the same. The total cost of the gate is Rs.37700 and the Complainant has given only Rs.25000/- and an amount of Rs12,700/- is still in balance to be paid by the Opposite Party and hence delay is caused due to willful default of the Complainant in paying the balance amount. The Opposite Party is ready to deliver the gate immediately after receiving Rs.12,700/- and there is no deficiency of service on the part of Opposite Party and the Complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. - Whether there is any deficiency on the part of Opposite Party?
- Whether the Complainant is entitled to any relief?
- Relief and cost.
The evidence in the above case consists of the oral testimony of PW1 and Exts.A1 to A4 . Issues1 to3 The Complainant contented that on 03.01.08 he has placed an order for executive gate with a stipulation to deliver it on 25.01.08 and gave Rs.25000/- by way of two cheques. Even thogh he had delivered a partly finished gate for pillar work and the same was taken by Opposite Party for finishing and subsequently it was returned back after completing the work. But due to some defects the Opposite Party was asked to correct it, but the Opposite Party has taken one gate to his shop by saying that the Complainant has to pay balance amount and the gate will be returned only after payment. So the Complainant had paid Rs.12700/- during pendency of case since the house warming has been delayed. In order to prove his case he has produced Exts.A1 to A4, Ext.A1 is the letter issued by Opposite Party. A2 is a quotation given by Opposite Party to the Complainant and A3 and A4 are two bills. The Opposite Party contented that there is no privity of contract between the Complainant and Opposite Party since the order for the gate was placed by one Mr.Mayan and not by the Complainant. But Ext.A2 is a quotation given by Opposite Party in the name of the Complainant, for making an executive gate. The Opposite Party also admits that he has given quotation to the Complainant as per his request. Moreover, Opposite Party has not produced any documents to prove that the order was placed by one Mayan. Above all he has no case that the gate is not for the use of the Complainant. The points to be decided is on which date the Opposite Party agrees top deliver the gate, what is the actual price of gate on that date and what was the amount given by the Complainant to Opposite Party. According to the Complainant, the Opposite Party was agreed to deliver the gate on25.1.08 and the order was placed for him on 03.01.08. But the Opposite Party is keeping mum about the date of placing order and date of promised delivery. So in the absence of contra evidence, we hold that the date of placing order is on 03.01.08 and the date of delivery is 25.01.08. In order to decide the actual price of the gate the Complainant has produced Exts.A3 and A4 bill which shows the price of steel during 2008 January. The Complainant contented that the price of material is 35.5 per Kg. and by adding Rs.12/- per Kg. as cost and hence the price of material of one Kg. is 47.5 and the total weight of the gate is 300 Kg and hence the total price of the gate will be Rs.14258/-. But the Opposite Party contented that the gate was constructed with M.S.Steel and the price of M.S.Steel during January 2008 is Rs.48/- per Kg as per Exts.A3 and A4. The Opposite Party has not denied the version that the gate has 300 Kg. weight. But no documents before us to show the labour charges and charges for other materials to decide the actual price of the gate. Moreover no expert’s opinion before us to show the type of material used, its value, labour charge etc. So in the absence of expert’s opinion and documents we are not in a position to assess the actual price of the gate. The Complainant contented that the he had given Rs.25000/- to the Opposite Party by way of two cheques and later on Rs.12700/- was given to Opposite Party while the petition is pending before the Forum. The Opposite Party admits that he has received Rs.25000/- by way of cheques and no other amount was received by him. The Complainant has not produced any documents to prove that he has paid Rs.12700/- to the Opposite Party. Moreover he contented that it was given during pendency of the complaint. But he has not brought the same in the notice of the Forum. So the above contention of the Complainant cannot be believed at all. Above all the Opposite Party contented that during pendency of the case in the presence of mediators finished gate was taken by the Complainant agreeing to pay the balance amount within a week. This was not disputed by the Complainant. So the Complainant has failed to prove his case beyond doubt and hence we are of the opinion that the Complainant has failed to prove the case and hence the Complaint is liable to be dismissed and order passed accordingly. In the result, the complaint is dismissed. No cost. Sd/- President Sd/-Member Sd/-Member APPENDIX Exhibits for the complainant A1.Letter dt.13.8.08 issued by OP A2.Quotation issued by OP A3 & 4.Bills issued by OP Exhibits for the opposite party: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur | 
