KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.1391/99 JUDGMENT DATED:22/8/08 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER SRI.M.K.ABDULLA SONA : MEMBER P.C.Sreenivasan, S/o Chathu, Plavida Constructions, Near Po;ular Automobiles, : APPELLANT Chalakudy, South Junction, Thrissur (By Adv.K.N.Chandrababu) Vs 1. Raveendran, Iykaraparambil, Muringoor-Thekkumuri, Muringoor. : RESPONDENTS 2. Lovely, W/o.Raveendran, Iykaraparambil, Muringoor JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER By the order dated 8/4/99 the opposite party in OP.No.825/97 is under directions to pay to the complainant a sum of Rs.15,200/- with 12% interest from 18/7/97 with compensation of Rs.10,000/- and cost of Rs.1,000/-. It is aggrieved by the said directions that the opposite parties have come up in this appeal calling for the interference of this commission as to the correctness and sustainability of the order of the forum below. 2. The case of the complainants in short is as follows: The complainants entrusted the modification of their house to the opposite party and they have paid a sum of Rs.74,000/- to the opposite party. It is the allegation that the construction was defective and that though the opposite party was requested to rectify the defects it was not done by the opposite party and hence the lawyer notice was issued which was refused by the opposite party. The complaint was filed praying for directions to the opposite party to refund an amount of Rs.15,200/- received in excess with interest from 18/7/97 with compensation and costs. 3. The opposite party entered appearance and filed version, denying the allegations of the complainant. The opposite party submitted before the Forum that he had given only some technical advice in the construction of the building and it was to avoid the repayment of the advance paid by him towards the rent of the building taken by him that the complaint was filed and that there was no deficiency on his part and he prayed for the dismissal of the complaint with cost. 4. The evidence adduced consisted of the oral testimony of the complainant and opposite party as PW1 and DW1 and Exts.A1 to A5. The Commission report filed was marked as Ext.C1. 5. The learned counsel for the appellant vehemently submitted his arguments based on the contentions taken in the version as well as the grounds urged in the memorandum of the present appeal. According to him there was no agreement between the appellant and the respondent regarding the construction of work as alleged by the complainants/respondents. He has also argued that no evidence was tendered by the complainants to show that the opposite party had done the work for the complainants. It is his very case that the opposite party had only prepared plan and estimate after the construction of the work for availing a loan by the complainant. It is his further case that the Forum has passed the order on presumptions and assumptions. He has also submitted before us that the evidence of the opposite party has not been properly appreciated by the Forum below. 6. On hearing the arguments of the learned counsel for the appellant and on perusing of records we find that though the complainants have alleged many defects there is no proof to support their case. Of course there is a Commission report which shows that there are certain defects in the construction of the building. But the complainant has thoroughly failed in establishing that the work was done by the opposite party himself. The opposite party has tendered evidence as DW1 wherein he has denied the construction of the building except the fact that he has prepared the plan and estimate. In the re-examination he has also stated that if he does a work there will be an agreement for the construction and without such agreements he is not in the habit of entering in to any construction work. He has also stated that the plan and estimate prepared were after the completion of the work by the complainant which is not contra vested. The complainant has also not examined anybody else to support his case that the opposite party had been entrusted the work and the work was done by the opposite party himself. There is also no evidence to show that any amount has been paid to the opposite party. In the absence of clinching evidence it is not proper to saddle with any liability on the opposite party even though there is a pleading that there was deficiency of service on the part of that person. 8. We find that the opposite party has denied the allegations and even though he has been thoroughly cross examined, nothing is brought out to discredit the contentions of the opposite party. The Forum has ordered to refund a sum of Rs.15,200/- and compensation of Rs.10,000/- on the finding that in Ext.C1 report the Commissioner has pointed out a number of defects to the building. But as the complainant has failed in establishing the case that the construction was done by the opposite party; Ext.C1 report will not be of any help to the complainant. We find that the Forum has not appreciated the case in its entire facts and circumstances. In the result we allow the appeal and the order dated 8/4/99 of the CDRF, Thrissur in OP 825/97 is set aside. In the nature and circumstance of the case the parties are directed to suffer their respective costs. S.CHANDRA MOHAN NAIR:MEMBER VALSALA SARANGADHARAN : MEMBER M.K.ABDULLA SONA : MEMBER Pk. | 
