By. Sri. A.S. Subhagan, Member:
This is a complaint preferred under section 12 of the Consumer Protection Act 1986. The complaint is instituted by the Complainant through his wife, as the complainant is abroad.
2. Facts of the complaint in brief:-
The Complainant prepared a plan to construct a house for him and decided to construct it stage by stage. For this the Complainant entered into a contract to construct the foundation and compound wall, with the Opposite Party, on 26.10.2018. In the contract, it was agreed that all the materials required for the construction of the foundation of the house and compound wall should be brought to the work site by the Opposite Party and to complete the work before 20.03.2019 utilizing the workers of the Opposite Party. It was also agreed that the Complainant should pay Rs.4,00,000/- as consideration to the Opposite Party. On the basis of this agreement, the Complainant had given the total consideration of the contract in instalments on different dates to the Opposite Party. But the Opposite Party did not complete the work of the foundation of the house and delayed to start the construction work of the compound wall. Consequently, the Complainant forwarded an advocate notice to the Opposite Party demanding to complete the work. After this the Complainant through his wife filed a petition to Meenangady Police on 31.05.2019. Appearing before the Police Station, the Opposite Party agreed to complete the work immediately and went away, but not completed the work till date nor has done any work after this. As the Opposite Party did not complete the work, the Complainant could not initiate the next stage of the construction of the house. The Opposite Party has played unfair trade practice and laches to complete the work which has caused financial loss, mental agony, unnecessary expenses and loss of time to the Complainant. The non-completion of the work by the Opposite Party even after receipt of the full accepted consideration is not fair and cannot be accepted. Due to the frequent rise in price of the materials and rise in the rate of labour charges, the Complainant is forced to suffer excess expenditure. As the Opposite Party is not willing to complete the remaining work, the Complainant is in a situation to complete the work by another person. Hence this complaint with prayers to direct the Opposite Party to refund the contract price of Rs.4,00,000/- that the Opposite Party has already received, pay Rs.5,00,000/- as compensation and pay a reasonable cost of this complaint.
3. The complaint was registered and notice was served on the Opposite Party for appearance. The Opposite Party appeared before the Commission and filed version.
4. Contents of version in brief:- The Opposite Party admitted that he had agreed to carry out the work for Rs.4,00,000/- and he had received the full amount from the Complainant. All other contentions of the Complainant are denied by the Opposite Party. According to the Opposite Party, all other allegations are untrue and fabricated. According to him the land for construction is more than fifteen metres distant from road. As the land was slum in nature both parties to the contract had agreed to plant coconut pillars on earth and the husband of the Complainant had agreed to pay the balance amount before completion of the work as the coconut pillars were with a length of above 12 feet and as the area came to 1400 Sq.ft on measurement. The work was carried out in the presence of the husband of the Complainant. The contention of the Opposite Party is that he was forced to stop the work after reaching 90% of the work as the Complainant denied payment of the cost for the excess work done that was why the Opposite Party could not complete the work. The return wall was constructed in the presence of the Complainant. So as to make the return wall fixed, about 300 tipper load of gravel sand was used. More work than for the amount given by the Complainant had done there. Due to the slum nature of land, the Opposite Party has suffered huge loss in this contract. So there has been no laches from the part of the Opposite Party but it is happened from the part of the Complainant. It was agreed to complete the work stage by state on payment of contract price and not in the time period as per the complaint. There were no conditions as such. Hence the Opposite Party prays before the Commission to dismiss the complaint directing the Complainant to pay Rs.1,50,000/- being the cost of excess work done, compensation of Rs.50,000/- and cost of the complaint.
5. Affidavit was filed by the Complainant. Ext.A1 to A4 and Ext.C1 were marked from his side and he has examined as PW1. Affidavit was also filed by the Opposite Party and he was examined as OPW1 and the complaint was heard on 26.08.2022.
6. Commission perused the complaint, version, affidavits, documents marked and the oral depositions of both the parties and on the basis of this, we raised the following points for consideration:-
(1). Whether there has been any unfair trade practice/deficiency in
service from the part of the Opposite Party…?
(2). If so whether the Complainant is entitled to get the refund of
Rs.4,00,000/- being the contract price paid by him to the opposite
Party…?
(3). Whether the Complainant is entitled to get compensation..?
(4). Whether the Complainant has the right to get cost of this
complaint…?
7. Point No.1:- It is the admitted fact that there was a contract between the Complainant and the Opposite Party for the construction of foundation and compound wall of a house for the complainant. The contract price was Rs.4,00,000/- which was fully received by the Opposite Party. The allegation of the Complainant is that the Opposite Party, though received the consideration in full, did not complete the work. On the other hand the Opposite Party contents that extra work was done due to the reasons stated in the version for which the Complainant had agreed to pay additional cost of construction but the Complainant did not pay it as agreed upon. The Opposite Party also contents that non completion of the contracted work was not because of his fault but it was because of the Complainant who insisted to make changes in plan and to do extra work. According to the Opposite Party he had agreed to complete the work stage by stage but no specific period of completion was fixed in the contract. No stipulated period was specified in the contract and the allegation of the Complainant in this regard is false. The Opposite Party also contents that he has done total works costing Rs.5,50,000/-. That is, he has done extra work for Rs.1,50,000/- in addition to the contract price of Rs.4,00,000/- and he has lost Rs.1,50,000/- for which he seeks direction from the Commission to the Complainant to pay Rs.1,50,000/-, being cost of extra work done, compensation of Rs.50,000/- and cost but the Opposite Party has admitted in oral evidence that (1) no provision was made as to the payment of extra money in the agreement, (2) the square feet area of work was not stipulated in the agreement shown to me (3) Extra work was done as told by the Complainant, (4) There are no evidence to prove this etc.. So, the contentions of the Opposite Party will not stand as there are no substantiating evidences. In oral deposition the Complainant has admitted that he had agreed to make extra cost of work to the Opposite Party. According to the Complainant (1) only 40% of the work was done by the Opposite Party; (2) the area of foundation was increased as per oral agreement; (3) he had not agreed to pay extra amount (4) the deposition of the Opposite Party that he has done work above Rs.4,00,000/- is false etc..
8. On going through Ext.A1, which is the agreement produced we see that no period and date of completion of the work to be done is specified and no area of the foundation work nor any length and height of the compound wall is mentioned in it. The Complainant’s allegation is that the contract price was Rs.4,00,000/- and the entire amount was received and not completed the work by the Opposite Party. The Opposite Party claims that he has done work costing Rs.5,50,000/-. On analysing the Commission Report the Commissioner has pointed out that the area of work of the proposed building as per the plan is 1303.35 square feet and the area of the present measurement of the work is 1434 square feet but the work is not completed. From the Commission report it is revealed that the Opposite Party has done some additional area of work but it is incomplete. And the rate per square feet is not seen recorded either in the agreement, plan or in the Commission Report. In the Commission report what amount of work in rupees is completed, has not been recorded. No estimate of the work is produced before the Commission as evidence either by the Complainant, Opposite Party. No evidence in this regard is seen even in the report prepared by the Commissioner. So we have no substance or evidence before us to decide as to the cost of work done by the Opposite Party on the work site of the Complainant. So we have no other option than to dismiss the complaint as there is no sufficient evidence. Therefore, the Complaint is liable to be dismissed. So, Point No.1 is decided as such.
9. Point No.2 to 4:- As the Complaint is liable to be dismissed there is no question of consideration of Point No.2 to 4.
In the result, the Complaint is dismissed without cost.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 15th day of September 2022.
Date of Filing:-08.11.2019.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Jafar. P. K. Coolie.
Witness for the Opposite Party:-
OPW1. Sekharan. M. S. Kettu Pani.
Exhibits for the complainant:
A1. Building Construction Agreement. Dt:26.10.2018.
A2. Copy of Lawyer Notice. Dt:16.05.2019.
A3. Postal Receipt.
A4. Receipt issued from Meenangady Police Station. Dt:31.05.2019.
C1. Commission Report. Dt:22.01.2020.
Exhibits for the Opposite Party:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
