IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

O R D E R

1. This complaint filed by Smt. Odiyanda Rathi Meenakshi w/o. Somanna, resident of Madapur Village, Somwarpet Taluk, Kodagu District against the opponent Raju. H.P. s/o. Fakeera Poojari,  resident of Chandanamakki, Hangal Village, Somwarpet Taluk to direct him to pay Rs.50,000/- for physical assault, Rs.50,000/- for mental agony and damages of Rs.3,00,000/- and also cost of this proceedings.

2. The complainant owns house and site Karekodu bearing block No.73 situated at Madapur Village.  The complainant had intention to construct two storied building adjoining to old house in block no.73. The opponent Mr. Raju H.P. has approached the complainant stating that he is building contractor and ready to build a two storied RCC building.  Accordingly an agreement was entered between the complainant and opponent on 07/02/2017 and price per square feet is Rs.35/- towards construction charges.  On the day of agreement entered between the complainant and opponent the later had received Rs.50,000/- from the complainant and the agreement was drafted by Sri.H.C. Nagesh, Advocate.

3. It is further averred in the complaint that according to the terms of agreement the complainant has purchased building materials as per the list prepared by the opponent namely Iron rods worth Rs.2,10,000/-, cement worth Rs.85,000/- and jelly stones worth Rs.86,400/-.  The opponent has told the complainant to pay Rs.26,000/- to Jaffar Khan owner of pickup Jeep who was to pay EMI of the said vehicle.  On 08/02/2017 the complainant has paid Rs.24,000/- to Harish Kumar friend of the opponent to pay the wages of servants. 

4. That on 09/02/2017 the opponent has collected Rs.10,000/- from the complainant to pay the expenses of the lunch to the coolies.  The opponent has did work in the site of the complainant for 14 days and there after he did not continue the building construction work.  The opponent was taking the labours to other place for construction work and he did not heed to the words of the complainant to complete her building construction work immediately.  When the complainant requested the opponent to finish the construction work as early as possible the opponent has brought his friend Haneef and others and got assaulted her and caused bleeding injuries.  The husband of complainant after coming to know the incident has shifted her to Government Hospital, Madikeri for treatment.  Even after discharge from the hospital the opponent did not continue the construction work hence, this complaint.

5. The opponent after the service of notice put in appearance and filed written version contending that earlier the complainant had filed CC No.16/2018 against him and after filing written version she withdrew the same to rectify the defects crept therein.  Therefore, this complaint is not maintainable.  The next contention of opponent is that the complaint is barred by limitation.

6. It is the case of opponent that the complainant did not provide building materials on time as such his labours were wasting time without work for want of building materials.  The complainant use to pick up quarrel with this opponent as and when he use to demand the supply of building materials and amounts to pay wages to the labours.  The complainant has not paid Rs.50,000/- on the day of agreement dated:07/02/2017.  The complainant has not paid any amount to the opponent as alleged in the complaint.  The building construction work was stopped due to irresponsible behavior and conduct of the complainant.  The said Haneef is not friend of opponent and this opponent is no way concerned to the physical assault on the complainant.  There is no deficiency in service on the part of opponent and on the contrary the opponent has suffered loss as such the complainant is liable to pay Rs.35,000/- as compensation. 

7. The complainant filed her affidavit in lieu of evidence and got marked exhibits P1 to 11 documents.  The opponent H.P. Raju filed his affidavit in lieu of evidence.  The complainant and opponent has submitted their written arguments in the form of affidavits and the points that would arise for determination are as under;

1. Whether the complainant proves that the act of opponent stopping further construction work of the building amounts to deficiency in service?

2. Is complainant entitled to the relief sought for?

3. What order?

8. Our findings on the above points is as under;

• Point No.1:- In the Affirmative
• Point No.2:- In the partly Affirmative
• Point No.3:- As per final order for the below

R E A S O N S

9. Point No.1 to 3:- The complainant and opponent in their affidavit evidence and written arguments have reiterated the averments made in the complaint and written version.  The opponent has not disputed the fact that he entered into an agreement with the complainant for construction of RCC building in the site belonging to her bearing block No.73 situated within the limits of Madapur.  Further the opponent has not disputed execution of exhibit P1 written agreement dated 07/02/2017.  Exhibit P1 is drafted by Sri.H.C. Nagesh, Advocate and it bears the signature of complainant and opponent.  The terms and conditions of exhibit P1 are that the complainant shall provide building materials to construct RCC building in block no.73 and the opponent has agreed to construct at the rate of Rs.35/- per square feet. It is stated that on the day of execution of exhibit P1 the opponent has received Rs.50,000/- from the complainant.  After centering work the opponent is entitled for the amount for the work done after deducting advance amount as per measurement.  The opponent shall make endorsement on the back of exhibit P1 as and when he receives amount from complainant.  Though there is clear recital in exhibit P1 for receipt of Rs.50,000/- in the presence of Mr, H.C. Nagesh, Advocate who drafted the agreement the opponent how dare enough to deny the contents of the agreement for receipt of the amount as advance. As already observed that the opponent has not denied the execution of exhibit P1 on 07/02/2017.
10. The complainant marked exhibit P3 bill issued by Vinaya Steel and Alloys, Kushalnagar dated 10/02/2017 for purchase of TMT bars and other materials for Rs.1,21,688/-.  Exhibit P4 is bill issued by OLV Hardware for purchase of steel and other materials.  Exhibit P11 invoice dated 10/02/2017 for purchase of JSW cement worth Rs.85,000/-.  The complainant produced exhibit P8 two photos which show that the further construction of the building is stopped by the opponent.  These photos indicate that the opponent has constructed two sides of the wall which constructed with bricks and cement and raised three pillars.  The opponent in the written version, affidavit and argument has not disputed discontinuing the construction work.  The opponent contention is that he discontinued the construction work since the complainant was not providing building materials.  The documents produced by the complainant indicate that she has purchased TMT bars, cement etc., and the storage of building materials can be seen in exhibit P8 photos.  Therefore, there is no force in the defence of opponent that he discontinued the construction work for want of building materials.

11. The complainant produced exhibit P2 FIR registered by Somwarpet Police on 03/03/2017 in Crime No.38/2017 against one Haneef and seven others on her complaint for the offence under Sections 143, 324, 504 read with 149 Penal Code.  According to the averments of exhibit P2 FIR Mr. Haneef and others have made physical assault on the complainant on 28/02/2017 at about 1 p.m. when the complainant protested the act of Haneef and others for making trespass and made attempt to knock down a RCC pillar.  The complainant further produced exhibit P9 six photos which indicate that the complainant has sustained bleeding injury below the right knee and injuries on the other parts of the body.  The complainant has not placed convincing evidence to show that the opponent has supported Mr. Haneef to make physical assault on her.  Therefore, the complainant has failed to prove that the opponent has abetted Mr. Haneef to make physical assault on her and suffer injuries.

12. The earlier complaint filed by complainant is said to have withdrawn after filing written version by the present opponent.   The earlier complaint was not decided on merits as such there is no bar for the complainant to file second complaint on withdrawing earlier complaint.  The complaint filed by the complainant is within period of limitation since the cause of action has arisen to the complainant to file her complaint the day on which the opponent has discontinued the construction work.  The complainant marked exhibit P10 copy of complaint dated 19/02/2018 addressed to the Superintendent of Police, Madikeri.  It is averred in exhibit P10 with regard to agreement entered between her and the opponent for construction of RCC building in her site on 07/02/2017 and receipt of the amount as narrated in the complaint.  It is stated that the opponent and his sister’s sons have been giving life threat to her when she asked to complete the construction work in the month of May, 2017. The complainant under exhibit P10 prayed the S.P Madikeri to give protection to her and take necessary action against the opponent.  This complaint has been filed on 25/09/2018.  The limitation period for filing complaint as per section 24A of the Consumer Protection Act is two years from the date of cause of action.  According to the averments of exhibit P10 complaint addressed to the S.P Madikeri the cause of action has arisen in the month of February and May, 2017.  Therefore, the complaint is within the period of limitation.

13. On perusal of exhibit P8 photographs the opponent has constructed two side walls and raised three pillars.  It shows that the opponent has discontinued the construction work though there was sufficient building materials like sand, iron rods and cement to continue the construction work as such the act of opponent amounts to deficiency in service.  On account of the act of opponent the construction work was stopped and the building materials stored by the complainant being wasted and damaged.  Therefore, the opponent is liable to compensate the complainant for the loss of building materials.  That apart the complainant has to undergo mental pain due to incomplete construction of the house since 19/02/2017.  The opponent shall liable to pay Rs.30,000/- towards mental agony and Rs.1,00,000/- as compensation for the loss and damage of building materials stored at the site.  The complainant is not entitled for compensation for the alleged physical assault for the reasons stated in the preceding paragraph.  For the forgoing discussion, we proceed to pass the following;

O R D E R

1. The complaint filed by Smt. Odiyanda  Rathi Meenakshi w/o. Somanna is partly allowed directing the opponent to pay sum of Rs.1,30,000/- to the complainant with interest at the rate of 10% per annum from 01/03/2017 till realization.
2. It is further ordered that the opponent shall liable to pay a sum of Rs.10,000/- as cost of this proceedings within two months from the date of order.  Otherwise it carries interest at the rate of 10% per annum from the date of filing complaint till payment.
3. Furnish copy of order to the complainant and opposite party at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 16^thday of MARCH, 2019)

                                                      (C.V. MARGOOR)

                                                          PRESIDENT 

                                                    (M.C. DEVAKUMAR)

                                                             MEMBER