DOF.7.3.2011 DOO.30.3.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 30th day of May 2011 CC.NO.85/2011 Kallan Mani, Indeevaram, P.O.Eranholi, Thalassery Complainant (Rep.by Adv.M.K.Prakash) Ratnakaran.V.J, Kallullakandi Hosue, P.O.Nirmalagiri, Thokkilangadi, Kuthupramba Opposite party O R D E R Sri.K.P.Preethakumari, Member This is a complaint filed under section12 of consumer protection Act for an order directing the opposite parties to pay a sum of `41,000/- as compensation with cost of this proceedings. The case of the complainant in brief is that he had entrusted the opposite party to provide landscaping in the courtyard and for replanting the lawn grass with quality Korean grass and to plant other necessary flowering and garden plants during October 2010 for an amount of `16000 and had executed the work. `5000 was paid in advance and balance was paid after the work. The opposite party assured the complainant that the lawn grass will be completely grown like sheet within 3 months. But the opposite party has executed the work with inferior quality and the surfacing of the lawn was not scientifically done, the surface was not made even, not treated the soil before planting the grass so as to prevent the growing of weeds. Consequently weeds were grown more fertile than grass. The matter was informed to the opposite party and once he came and removed the weeds. After two weeks weeds grown to cover the lawn grass. The opposite party failed to plant the flowering and other plants as agreed. Even though the opposite party agreed to rectify the defect and replant the lawn grass he has not done so and there after he started to evade the call made to his mobile phone. The lawn on the front side of the house of the complainant now has ugly appearance and there is no lawn at present. The esthetic beauty of the house has been diminished to a great extend due to the improper landscaping, unscientific leveling and poor plantings of grass etc. so the complainant estimate the loss sustained to him as `25000 over and above the amount of `16000 paid to the opposite party. The complainant issued a registered lawyer notice to the opposite party on 21.12.2010 to rectify the defect of to repay the amount received by him from the complainant. Even though he had received the notice he had neither replied for it nor complied the demands of the complainant. Hence this complaint. Upon receiving the complaint, notice was issued to the opposite party and he had received the same. But he has not turned up before the Forum and hence he was called absent and set exparte. The evidence in this case consists of the chief affidavit filed by the complainant in lieu of chief examination and Exts.A1 to A4. The complainant has filed the chief affidavit in tune with his pleadings. The documents produced by the complainant are photographs of the lawn 4 in numbers, C.D of the same, copy of the registered lawyer notice and the acknowledgement card. The chief affidavit along with the documents substantiate the case of the complainant that due to the deficiency of service of the opposite party weeds were grown more fertile than the grass in the lawn made by him. The Ext.A1 series photo shows that the lawn has full of weeds instead of grass. More over there is no other flowering and garden plants are seen in the photos. According to the complainant this is due to the inferior quality of work done by opposite party and has not provided proper treatement before planting the grass. The complainant admits that he has paid `16000 altogether for the lawn work. So it is clear that the materials used for preparing the ground for planting of grass is still there and it is seen that only the grass and flowerings plants have to be replanted. So the complainant has to replant only the grass and other plants. The opposite party had incurred some amount for preparing the soil for planting grass. So we assess that the complainant is entitled to get back only `10,000 along with a cost of `500. So the opposite party is liable to return `10,000 to the complainant for the deficiency committed by opposite party along with `500 as cost and order passed accordingly. In the result, the complaint is allowed directing the opposite party to return `10,000 (Rupees Ten Thousand only) received by him from the complainant along with `500 (Rupees Five hundred only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant can execute the order as per the provisions of consumer protection Act. Sd/- Sd/- President Member Smt.Jessy, Member Against the findings rendered, I am having different opinion in the above case. Merely because the opposite party is an exparte, Forum has a duty to see that a prima-facie case is made out and proved by the complainant. Here to prove the relationship and the nature of work undertook by the opposite party as alleged by the complainant is not supported by any documents. Moreover no voucher or receipts is seen produced by the complainant to substantiate his contention that he had paid `16,000 to the opposite party for conducting the garden work. It is also pertinent to note that the date on which the complainant paid the advance amount to the opposite party and started the work is not seen mentioned in the complaint. The complainant alleges that opposite party undertook to complete the work with in 3 months but it is seen that complainant issued a notice with in two months. If the complainant is having dissatisfaction towards the work done by the opposite party and opposite party has not planted sufficient flowering plants as engaged he need not pay the balance amount. Here it is seen that complainant without any hesitation paid the balance amount to the opposite party. That shows opposite party has performed his work to the satisfaction of the complainant at the first instance. More over the complainant has not adduced any positive evidence or taking out any commission to prove the nature of damaged sustained to the complainant and the quantum of compensation that he is entitled there from. The plot of land in which the gardening work was conducted is not properly identified and the ownership over the same by the complainant is not proved. Ext.A1 photos cannot be accepted as evidence without producing the negatives and prove the same by positive evidence. Ext.A2 CD is having no veracity at all. There is no basis for the finding that the complainant is entitled to get `10,000 as damages from the opposite arty. Hence I am of the view that the above complaint is only liable to be dismissed. Sd/- Member Having been accepted the majority opinion, the complaint allowed and order passed accordingly. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Photographs A2.CD A3.Copy of the lawyer notice sent to OP A4.Postal AD Exhibits for the opposite parties: Nil Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
