DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  12^th day of January, 2023

Present      :   Sri. Vinay Menon V.,  President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 01/01/2019    

     CC/3/2019

V.Pradeep,

S/o. Vasudevan,

G21, Thiruvonam,

Gandhi Nagar, Chandranagar (PO),

Palakkad – 7                                                               -           Complainant

(By Adv. N.Rajesh)

                                                                                    Vs

S.Kumaraswamy,

S/o. R. Subramanian,

21/91, Sreenarayana Nagar,

Coimbatore Road, Palakkad.                                     -           Opposite party             

            (By Adv.M/s. Anoop Chembath & Vanitha G.)

O R D E R

By Sri. Vinay Menon V., President

1. Abridged pleadings in the complaint are that the complainant handed over balance construction work of his residential building to the opposite party. Cost of the work comes to Rs. 18,00,000/- as per the terms and condition of the agreement entered into between the complainant and the opposite party. Since the work was not completed within the agreed period, the complainant had to fly down to India on a couple of occasions. He also had to file police complaint. Complainant had to complete the extra works expending Rs. 1,20,000/-. Non-completion of construction of the residential building by the opposite party has caused the complainant heavy losses and mental pain and agony. Complainant sought for the extra amount he had expended and compensation and other incidental reliefs.
2. Opposite parties filed version and repudiated the complainant’s allegations. O.P. claims that there was only a contract for personal service and hence this complaint was not maintainable. The entire works were carried out by father of the complainant who had been overseeing the work. The complainant has not paid an amount of Rs. 1,00,000/-

due to the opposite party out of the agreed amount of Rs. 18,00,000/-. Complaint filed before the Police was closed upon finding the same to be false. He sought for dismissal of the complaint.

3. The following issues arise for consideration:  

1. Whether the relationship between the complainant and the opposite party is based on a contract for personal service?
2. Whether the complainant has proved that the opposite party had failed to complete the works as agreed upon?
3. Whether there is   deficiency in service/unfair trade practice on the part of the opposite party?

4.         Whether the complainant is entitled to any of the reliefs sought for?

5.         Reliefs, if any?

4.         Evidence comprised of documents marked as Exhibits A1 to A5 on the part of complainant. Father of the complainant/Power of Attorney Holder of the complainant was examined as PW1. OP marked Exhibits B1 to B3. There was no oral evidence on the part of the opposite party.

            Issue No.1

5.         The opposite party has, in his version, raised a contention that the complaint is not maintainable as the opposite party has not provided any services as contemplated under the Act since the agreement was only a contract for personal service and there existed only a master- servant relationship.

6.         Ext. A1 is the agreement entered into between the complainant and the opposite party. The 1^st  and 2^nd  recitals are as follows.

            “WHEREAS the First party is a contractor in the business of constructing, building, repairing and developing houses and buildings.

            WHEREAS, the Second Party approached the First party to complete the construction of partially built residential structure ………………………………………………………………. as per the below terms and conditions.”

            Para 1, in Part C of Ext. A1 is reproduced below:

“1)       The second party will pay an advance amount of Rs. 4,00,000/- to the first party prior to the start of the work. The first party agrees to commence the work immediately after receipt of the amount;”

In Ext. A1, 1^st party is the opposite party and the second party is the complainant.  The aforesaid recitals reveal that the opposite party is a contractor specializing in construction of buildings and that the second party has agreed to pay him amounts for construction of the residential building. Nowhere in Ext. A1 can it be seen that the contract was one for personal service. Ext. A1 does not contemplate a ‘Control-by-Master’ situation by the complainant over the opposite party. Having a control over the work of opposite party by the complainant cannot be equated to be the same as having control over the opposite party.

7.         Hence on this count, the contentions of the opposite party fail. There is no master -servant relationship between the complaint and the opposite party and there is no contract for personal service.

8.         This complaint is maintainable before this Commission.

Issue No.2

9.         The building was to be completed within 6 months after commencement and handover of the premises, subject to payment of amounts by the complainant. Extra work amount was received by the opposite party on 03/06/2017, as can be seen from the reverse of first page of Ext. A1. Complaint was filed on 01/01/2019.  Version repudiating the complaint pleadings was filed on 04/09/2019. But the complainant had not taken out an Expert Commissioner to prove his contentions. 

                        On 07/10/2022, when the complaint was posted for further evidence of the complaint, an application was filed as I.A 472/22 seeking appointment of an Expert Commissioner. This I.A. was dismissed by order dated 03/11/2022 as being highly belated.

10.       It is a matter of common-sense and prudence that, in the facts and circumstances of the case, wherein the fact to be proved is the valuation of the works carried out by the opposite party during the period of 2017, prompt and timely appraisal by a Commission is required. It is true that the complainant can file a complaint within 2 years from the date of arising of the cause of action. But this period will not preserve the sanctity of evidence that is subject to wear and tear with the passage of time. Delay will not behove well for the case of the complainant. 

                        Thus the complainant has failed to prove his case by taking out an expert commissioner in a timely meticulous manner.

11.       It would also be prudent to sieve through the available documentary evidence to take stock if the work was completed as per agreement.

Part C of Ext. A1 relates to payment. Payment Schedule is as stated below:

It is not seen that the Stage V payment is effected. But a payment of Rs. 20,000/- is seen made for extra works. An appreciation of the schedule above would show that the complainant had effected payments till Final works stage (Stage IV). Stage IV payment covering “Final Work Stage” was made on 29/04/2017 and 13/05/2017 by paying Rs. 2,00,000/- twice, totaling to Rs. 4,00,000/-. There was no demur whatsoever on the part of the complainant in effecting this payment.

Thereafter some extra works were carried out, for which an amount of Rs. 20,000/- is seen paid on 03/06/2017. Obviously, this Rs. 20,000/- was not made for any works stated in Clause 2 of Section C of Ext. A1. Some other works, as contemplated in Clause 3 of Section C of Ext. A1, were carried out.

12.       Hence it is seen that the complainant has not effected payment of Rs. 1,00,000/-. What led to non-payment and incidental matters are not pleaded in detail or brought up for the purpose of evidence. As to the nature of works carried out by payment of Rs. 1,20,000/- is also not pleaded.

The complainant has failed to prove that the extra works allegedly carried out for Rs. 1,20,000/- was the same works that was contemplated under Ext. A1 for the opposite party to carry out.

Even PW1 is not aware, if any documents exist in this regard or whether they were produced.

13.       As to why the complainant caused payments till the “Final Works Stage” (Stage IV), if works were unduly delayed or was not satisfactory is not stated anywhere.

14.       Evidently, complainant has failed to prove his case.

            Issue Nos. 3

15.       Resultantly, we hold that there is no deficiency in service on the part of the opposite party.         Complaint stands dismissed.

Issue Nos. 4 & 5

16.       The complainant is not entitled to any of the reliefs sought for. In the facts and circumstances of the case, the parties are directed to suffer their respective costs.

Pronounced in open court on this the 12^th   day of  January, 2022.  

                                                                              Sd/-                                                                                                   

                                                                                             Vinay Menon V

                                                      President

                                                             Sd/-

   Vidya.A

                       Member        

         Sd/-                                                                   Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1   -   Copy of construction agreement

Ext.A2  –   Copy of complaint dated 21/4/2018

Ext.A3  -    Copy of lawyers notice  dated 19/4/18

Ext.A4  -    Copy of lawyers notice in reply to Ext.A3

Ext.A5  –   Original Power of Attorney dated 31/10/19 

Exhibits marked on the side of the opposite party:

Ext.B1 –  Same as Ext.A3

Ext.B2 –  Postal receipt  dated 19/4/18

Ext.B3 –  Original of Ext.A4

Court Exhibit:  Nil

Third party documents:  Nil

 Witness examined on the side of the complainant:

PW1 – K.Vasudevan

Witness examined on the side of the opposite party:  Nil

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.