IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Wednesday the 30th day of September, 2015
Filed on 11.11.2011
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.364/2011
Between
Complainant: - Opposite party:-
Smt. Sathi Sri. Shibu
D/o Parameswaran Achari Palliveedu, Vadackal
Valuchira Veettil Alappuzha
Vadackal, Alappuzha (By Adv. G. Sunilkumar)
(By Adv. V. Mohandas)
O R D E R
SMT. JASMINE D. (MEMBER)
The facts of the complaint in short are as follows:-
The complainant who is a maiden has 5 cents of land in Alappuzha West Village. An amount of Rs.75,000/- was allotted to her as per EMS building scheme to construct a residential building of 25 sq. feet. The complainant constructed the basement of the said residential building by engaging labourers for daily wages and she has spent a total amount of Rs.25,000/- for the said construction while so the opposite party approached the complainant and assured that he will construct the said building for Rs.75,000/- including plastering of walls and floors, roofing providing doors and windows etc. As per the said assurance given by the opposite party the complainant entrusted the work to the opposite party. The opposite party assured to complete the construction work of the said residential building for an amount of Rs. 75,000/- The opposite party has collected a total amount of Rs.1,00,932/- from the complainant on different dates. But the building remains uncompleted even though he collected an amount of Rs.1,00,932/- from the complainant. The opposite party has not done the plastering on the back side of the house also instead of roof tiles he put sheet and that too not in proper resulting in heavy leakage during in rainy season. The complainant could not stay in that building. Further the opposite party has taken away some building materials which was purchased by the complainant without her consent. Even though the opposite party has collected an amount of 1,00,932/- from the complainant, the construction of the said building was not completed. The acts of the opposite party caused much mental agony and financial loss to the complainant. The complainant has also sent a lawyer’s notice to the opposite party on 16.8.2011, but no positive response, the complainant was filed this complaint alleging deficiency in service on the part of the opposite party.
2. The version of the opposite party is as follows:-
The petition is not maintainable. The complainant did not come under the definition of consumer as defined under the Consumer Protection Act. There is no consumer relationship between the complainant and the opposite party. There is no contract to be enforced between the parties and the document produced along with the petition is forged document. The opposite party was requested to supervise the construction by helping as a labourer for erecting a building in the property owned by the complainant. Opposite party supervised the construction with utmost sincerity and dedication and an amount of Rs.3932/- was outstanding to be paid by the complainant and the complainant is bound to pay the amount to the opposite party and the opposite party never undertook that the work will be completed by specifying a quantum of estimate. The complaint is lacking bonofides and may be dismissed with compensatory costs.
3. The complainant was examined as PW1and documents were marked as Exts.A1 to A4. Opposite party was examined as RW1. Advocate Commissioner was examined as CW1 and the
commission report was marked as Ext.C1. Expert commissioner was examined as CW2 and the report was marked as Ext.C2. Heard the counsel for the parties.
4. Considering the allegations of the complainant and contentions of the opposite party, the Forum has raised the following issues:-
1) Whether the complainant is entitled to get Rs.25,000/- from the opposite party?
2) Whether the opposite party is liable to pay compensation and costs to the complainant?
5. Points 1 and 2:- The case of the complainant is that as per the Government’s EMS Building Scheme an amount of Rs.75,000/- was granted to the complainant to construct a house. The complainant constructed the basement of the said building by engaging labourers for daily wages and she had spent a total amount of Rs.25,000/- for the construction. Thereafter the opposite party assured to complete the work of the said residential building for Rs.75,000/- including plastering of inner and outer walls , flooring, roofing and also provide the doors and windows of the said building, and as per the said assurance given by the opposite party the complainant entrusted the work to the opposite party. The opposite party has collected a total amount of Rs.1,00,932/- from the complainant instead of Rs.75,000/-. But the work remains uncompleted. Also the roofing was not properly done resulting in heavy leakage causing harm to the walls and she could not stay in that house. The complainant sustained much mental agony and hence filed this complaint seeking refund of the excess amount collected by the opposite party along with compensation and costs.
6. Complainant filed proof affidavit and documents Exts.A1 to A4 were marked. Ext.A1 is the copy of pass book issued from the Alappuzha District Co-operative Bank.
Ext.A2 is the statement, Ext.A3 – Advocate Notice dated 16.8.2011 and Ext.A4 is the postal receipt. In Ext.A1 shows that an amount of Rs.75,000/- was transferred to her a/c. Ext.A2 shows the details of amount given to the opposite party on various dates. Ext.A3 is the copy of legal notice which was sent to the opposite party and Ext.A4 is the postal receipt. No documents were marked from the side of the opposite party. The highlighting point alleged by the complainant is the opposite party collected an excess amount of Rs. 25,932/- from her. Also the work remains uncompleted. Further the roofing of the said building was not properly done. In order to find out whether the opposite party has collected any excess amount from the complainant, we have to see whether there was an agreement to construct the building for Rs.75,000/-. Admittedly there was no written agreement between the parties. According to the complainant there was only an oral agreement to construct the building for Rs.75,000/-, but the opposite party denies the said oral agreement. No cogent or concrete evidence was produced by the complainant to prove that the opposite party has agreed to construct the building for Rs. 75,000/- Further the expert commissioner in his report (Ext.C2 report) stated that the said construction will cost an amount of Rs.1,02,293/- excluding the basement. So we can’t say that the opposite party has collected an excess amount of Rs. 25,932/- from the complainant. So we can’t direct the opposite party to refund an amount of Rs. 25,932/- to the complainant as prayed for.
7. The next point to be considered is that whether the opposite party is liable to pay compensation and cost to the complainant. In order to find out this we have to see whether the opposite party has committed any deficiency in service and for that. We have to peruse the complaint, version, proof affidavit filed by the parties, oral testimony of the parties and witnesses and all other documents including Exts.C1 and C2 reports. According to the complainant the work remains uncompleted also the roofing was not properly done resulting heavy leakage during rainy season causing harm to the walls and the complainant could not stay in the house. Her allegation is further strengthened by Ext.C1 Advocate commission report. In Ext.C1 report is it stated that plastering of outer wall is not completed, plastering was not done in two sides of the outer walls of the said house, also there was a gap of two inches in between the sheets used for roofing. Further it was stated there were cracks on the walls. This is further strengthened by the oral testimony of CW2. The expert while cross examination deposed that the work is incomplete, plastering was not done in some portion. Ext.A2 statement shows that a total amount of Rs.97,000/- was received by the opposite party from the complainant. According to the complainant the balance amount to be paid shown in Ext.A2 was also paid by the complainant. According to the complainant, Ext.A2 is written by the opposite party in his own hand writing. So from the documents, it is clear that after accepting an amount of Rs.1,00,932/-, the opposite party has not completed the work. The complainant proved her allegation by supporting evidence. Therefore we are of the considered opinion that opposite party has committed deficiency in service and the complainant is entitled to get compensation and cost from the opposite party. In the light of above discussions, the complaint is allowed accordingly.
In the result, the complaint is allowed. The opposite party is directed to pay an amount of Rs.25,000/- (Rupees twenty five thousand only) to the complainant towards compensation for the mental agony and inconvenience. The opposite party is further directed to pay an amount of Rs.2000/- (Rupees two thousand only) towards costs of this proceedings to the complainant. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 30th day of September, 2015.
Sd/- Smt. Jasmine D (Member)
Sd/- Smt. Elizabeth George (President)
Sd/- Sri. Antony Xavier (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Sathi.J. (Witness)
Ext.A1 - Copy of the pass book
Ext.A2 - Statement
Ext.A3 - Legal notice
Ext.A4 - Postal receipt
CW1 - Shiv Sankar.S (Witness)
CW2 - G. Baladevan (Witness)
Ext.C1 - Advocate commission report
Ext.C2 - Expert commission report
Evidence of the opposite party: - Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by: - pr/-
Compared by:-
