BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 444/2003 Filed on 01.11.2003<br /> Dated : 30.05.2008<br /> Complainant:<br /> K. Ramachandran Nair, Saraswathy Mandiram, Thevally, Kollam from Chirappattu Veedu, Chemmaruthy, Vadasserikonam P.O, Thiruvananthapuram. <br /> <br /> (By adv. Sri. Dinesh Sajan.K)<br /> Opposite party:<br /> <br /> R. Rajesh, S/o Ramachandranunnithan, Thiruvonam (Panappamkunnu), Puliyirakonam P.O, Madavoor, Pallickal, Thiruvananthapuram.<br /> <br /> <br /> 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 08.09.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.04.2008, the Forum on 30.05.2008 delivered the following: <br /> <br /> ORDER<br /> SMT. S.K. SREELA: MEMBER<br /> The complainant had entered into a contract with the opposite party for doing certain extension works to the existing building of the complainant for an amount of Rs. 2,20,000/-. He had agreed to complete the work within a period of six months. Certain additional works had to be carried out for which Rs. 20,000/- was fixed. Though the contract amount was for a sum of Rs. 2,40,000/- including the additional works the opposite party had received Rs. 2,74,100/- from the complainant for the completion of the work, which shows that he had received Rs. 34,100/- from the complainant as excess amount for the construction. The opposite party was irregular in executing the works as agreed. There was latches and negligence on his part on several aspects. There were many defects in the constructions. Though the defects were pointed out, it was not rectified. But lastly the opposite party had unilaterally abandoned the work without notice to the complainant. In addition to the above, the complainant was compelled to purchase some materials for the construction and also compelled to give labour charges to the labourers. Major part of the flooring works and painting works are yet to be completed for which more than Rs. 30,000/- is required. The work is incomplete even after the expiry of the period stipulated. The acts and deeds of the opposite party is nothing, but deficiency in service for which this complaint has been filed directing to refund the excess amount received with interest and to direct the opposite party to pay the amount that may incur for the remaining works along with compensation and costs. <br /> The opposite party did not appear hence it was proceeded against ex-parte. Complainant, PW1, adduced evidence by way of affidavit and Exts. P1 to P5 were marked on his part. <br /> The main issues raised for consideration are: -<br /> (i)Whether there is deficiency in service on the part of opposite party?<br /> (ii)Whether the complainant is entitled for the reliefs claimed for?<br /> Points (i) & (ii):- The agreement for construction entered into between the complainant and opposite party has been marked as Ext. P1. Apparently it is for an amount of Rs. 2,20,000/- and the receipt of Rs. 2,49,100/- by the opposite party is also duly acknowledged in it. The case of the complainant is that, the opposite party had collected an excess amount of Rs. 34,100/- from him for which the complainant has approached this Forum. The complainant alleges that for the construction works alone the opposite party had received Rs. 2,74,100/- including the additional works. The complainant further alleges that there are many defects in the constructions which though the complainant had pointed out has not been rectified by the opposite party. Further more, the works with regard to flooring and painting are yet to be completed even after the receipt of the entire amount by the opposite party. Still the work has not been completed even after the expiry of the stipulated period. Here the pertinent point to be noted is that the above mentioned allegations have not been established by the complainant. When the complainant alleges defects in construction and alleges collection of excess amount by the opposite party and not carrying out work accordingly, the onus is on the part of the complainant to prove the same. Complainant has not taken out an expert commission to prove the same. Though there is an order for commission application as on 20.02.2004 by this Forum, no steps is seen taken for the same by the complainant. The burden is on the part of the complainant to establish deficiency in service on the part of the opposite party, which the complainant has miserably failed in this case. Hence this Forum is of the view that, without the report of an expert commissioner, we cannot ascertain the allegations levelled against the opposite party in the complaint. In the light of the above, the complaint is dismissed. No order as to costs. <br /> 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.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th May, 2008.<br /> <br /> G. SIVAPRASAD, <br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K.SREELA : MEMBER <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No. 444/2003<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Ramachandran Nair<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - True copy of agreement dated 08.10.2002.<br /> P2 - True copy of receipt dated 05.09.2002.<br /> P3 - True copy of details of extra work.<br /> P4 - Copy of advocate notice dated 18.09.2003.<br /> P5 - Postal acknowledgment dated 23.08.2002.<br /> III OPPOSITE PARTY'S' WITNESS :<br /> NIL<br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> NIL<br /> <br /> <br /> PRESIDENT<br />