BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 134/2003 Filed on 25.03.2003
Dated : 16.05.2011
Complainant :
Rajeswari, D/o Sarojini Amma, Aparna Mandiram, Kottakughal, Koovalassery, Maranalloor, Neyyattinkara.
(By adv. V.J. Jayakumar Abraham)
Opposite party :
Shinulal, S/o Susheela, Kizhakkumkara Veedu (Valiyancode), Pallotukonam, Maranalloor, Neyyattinkara.
(By adv. P. Satheesh Kumar)
This O.P having been heard on 25.03.2011, the Forum on 16.05.2011 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
The facts of the case are as follows: On 17.09.2002 opposite party executed an agreement with the complainant by which he has agreed to construct a concrete building measuring 1200 sq. ft. for a total cost of Rs. 4,80,000/- and obtained an advance amount of Rs. 1,59,500/- for the same and further he had received an amount of Rs. 25,000/- on 27.10.2002. As per the agreement the construction will be completed within four months from 17.09.2002. He had agreed that cement, sand and steel will be used as per the standard approved by such works by the PWD. It is further agreed that the windows and doors of the building would be framed in wood of standard quality. The opposite party instead of completing the work within the stipulated time constructed the structure of the ground floor only and abandoned the work thereby causing a loss of Rs. 1,00,000/- to the complainant. The opposite party has not mixed the cement and steel as per the ratio approved for the construction. The cement blocks were prepared without mixing the adequate quantity of cement and hence the block used were of substandard quality and are easily breakable. The opposite party being a contractor has not used the building materials properly which resulted deficiency in service to the complainant and has caused a loss of more than Rs. 1 lakh. As the opposite party abandoned the work, he sought the help of a retired PWD Engineer and got assessed the total value of construction effected by the opposite party. He has assessed that the total cost of the work done will come to Rs. 89,775/- only. As the complainant found that she was cheated by the opposite party she filed a complaint before the Judicial First Class Magistrate Court-Kattakada and on the basis of that complaint the Malayinkeezh Police registered a crime case as Crime No. 32/03 under Sec. 420 IPC against the opposite party as accused. The act of the opposite party is one of unfair trade practice and the complainant is a consumer. The complainant entrusted the work with the opposite party for the purpose of constructing a residential building for the use of the complainant and her family by raising loans for interest. The everlasting ambition of the complainant to have a place to board for her family is now shattered by the illegal act of the accused. The complainant is entitled to get Rs. 1 lakh as the excess amount received by the opposite party. Hence the complainant filed this case for getting Rs. 1 lakh as the excess amount received by the opposite party and for compensation and other consequential reliefs.
Opposite party filed version contending the entire allegations. He denied the allegation that he has not completed the structure of the ground floor within stipulated time and abandoned the work and thereby causing a loss of Rs. 1 lakh to the complainant. Actually the opposite party continued the work without delay. The opposite party mixed the cement, sand and steel as per the ratio approved for the construction of such work by the PWD. The cement blocks were prepared by the opposite party mixing the adequate quantity of cement and hence the cement block used were of standard quality. The opposite party submitted that the complainant threatened the opposite party when he continues the work. The opposite party sought the help of a retired PWD Engineer and got assessed the total value of construction. He has assessed that the total cost of the work done will come to Rs. 2,02,582/-. There was no fault on the side of opposite party and no excess amount was received by the opposite party. The opposite party denied the allegation that the complainant suffered a loss of Rs. 1 lakh. No mental agony or financial loss was suffered by the complainant as alleged. Hence he prayed for the dismissal of the complaint.
In this case complainant has filed proof affidavit and he has produced 8 documents. Opposite party has filed one document along with version, but not marked.
Points to be ascertained:
Whether there is deficiency in service or unfair trade practice from the side of opposite party?
Whether the complainant is entitled to get the reliefs as sought for?
Points (i) & (ii):- The case of the complainant is that as per the agreement the opposite party has not finished the construction work within stipulated time and he used poor quality of materials and that building materials were not properly used and for that reason he has suffered a loss of more than Rs. 1 lakh. Since the building work has not completed, the complainant is now residing at a rented house. In connection with this matter he has filed a criminal case against the opposite party before JFMC, Kattakada. The opposite party denied all these allegations. He submitted that he has done the work properly. As per Ext. P7 agreement total amount fixed for the construction of the building was Rs. 4,80,000/-. The opposite party obtained an amount of Rs. 1,84,500/- till 27.10.2002. As per the agreement the construction will be completed within 4 months from 17.09.2002. As per the documents produced by the complainant, before the agreed period the complainant has filed police complaint against the opposite party that he has not done the work for the obtained amount which is Rs. 1,84,500/- and he has not used proper quality of building materials etc. As per the agreement the work will be completed within 17.01.2003 and the complainant will pay the balance amount to the opposite party. But in this case before that period, the complainant complained against the opposite party before police authorities. As per Ext. P5 document dated 22.12.2002, the complainant alleges that as per the estimate of the Engineer the opposite party has done the work for Rs. 89,775/-. But the opposite party received an amount of Rs. 1,84,500/- till the date. The complainant has produced the valuation certificate as Ext. P6 and as per this certificate the value of the building is Rs. 97,807/-. As per Ext. P3 estimate produced by the complainant total estimate of construction work completed was Rs. 89,775/-. Ext. P2 and P4 are the documents relating to the criminal case. In this case the opposite party has also produced an estimate report prepared by M. Kamaludeen, retired PWD Assistant Engineer. As per this report opposite party has completed the work for an amount of Rs. 2 lakh. During the pendency of this case before this Forum, this Forum appointed an expert commissioner as per the application of the complainant to ascertain the total cost of work done by the opposite party. After assessing the construction cost, the expert commissioner filed report before this Forum which is marked as Ext. C1. As per this report the net amount for the work so far executed by the opposite party is estimated to Rs. 1,87,312/-. And on going through the report we can find that the work done by the opposite party is in a proper way. From this report we find that the allegations raised by the complainant against the opposite party is not correct. The opposite party has done the work as per the agreement and he has done the work as per the amount which he has received. In this case the complainant has no case that she has paid the entire amount as per the agreement and within that period the opposite party has not completed the work. On going through the entire evidence, we find that there is no cause of action for filing this case against the opposite party. There is no deficiency in service or unfair trade practice from the side of opposite party. Hence the complaint is dismissed.
In the result, the complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16th day of May 2011.
Sd/- BEENAKUMARI. A : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
S.K. SREELA : MEMBER
jb
O.P. No. 134/2003
APPENDIX
I COMPLAINANT'S WITNESS :
NIL
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of the agreement
P2 - Copy of the complaint.
P3 - Copy of elevation (existing) under construction certificate
issued by Neyyattinkara Executive Engineer (Building sub
division)
P4 - Copy of Final Report produced by Kerala Police before the
Judicial First Class Magistrate Court, Kattakkada.
P5 - Copy of letter addressed to Sub Inspector of Malayinkeezhu
police station dated 22.12.2002
P6 - Copy of letter dated 05.09.2003 issued by the Sub Inspector of
Police, Malayinkeezhu.
P7 - Original agreement.
P8 - Rent agreement dated 06.04.2006.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
V COURT EXHIBIT
C1 - Commission Report dated 30.01.2004.
Sd/-
PRESIDENT
