Complaint filed on: 20-02-2010<br /> Disposed on: 27-07-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.367/2010<br /> DATED THIS THE 27th JULY 2010<br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> <br /> SRI.GANGANARASAIAH., MEMBER<br /> <br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> <br /> Complainant: - <br /> Smt. Gangamma w/o. Govindaiah, <br /> Aged about 32 years,<br /> No.4, 9th Cross, <br /> Near Sri Shanimahatma temple, <br /> Laggere extension, Peenya post, <br /> Bangalore-560 058 <br /> <br /> V/s<br /> <br /> Opposite party: - <br /> Sri Thangavelu s/o. Krishnappa,<br /> Aged about 42 years, <br /> Building contractor, <br /> No.U-51, 1st Main Road,<br /> C-block, Swathantra palya, <br /> Sri Ramapuram, <br /> Bangalore-560 021<br /> <br /> <br /> O R D E R<br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> Grievance of the complainant against the opposite party [hereinafter called as OP for short) in brief is, that she entered into construction agreement with the OP for construction of her house of 6 sq ft at Rs.75,000/- per sq. ft, which is inclusive of materials and labour. The OP used the construction materials for construction which are not approved by her, he has used low quality materials and done the construction work worth of Rs.2,35,000/- so far and received Rs.1,15,000/- in excess and stated she is due Rs.83,000/- only to the OP towards construction cost. The OP without completing construction is demanding further payment but not done the work fully. Hence a police complaint was also filed but was of no use. The OP demanding further payment has stopped work and is harassing her and prayed for awarding of damages Rs.2,00,000/- against the OP for deficiency in his service. <br /> <br /> 2. OP has appeared through his advocate and filed version contending that, this forum has no jurisdiction to entertain the complaint and complainant is not a consumer. That he is only a contractor doing construction contract work but the complainant did not provide architectural support in construction. The complainant without engaging service of any expert civil engineer or structural engineer asked him to proceed with construction work and he has done construction under supervision of the complainant. He has made best efforts to do good work and used quality materials jointly selected by himself and the complainant construction is now at plasting stage and denying that the complainant has paid him Rs.3,50,000/- and has stated that the complainant has paid him only Rs.3,34,090/-. The complainant wanted him to complete the construction work without asking for further money. That he himself is a poor man, without further payment he could not proceed with the work. Therefore because of non-payment of further payment, he stopped the work and because of economic recession cost of materials and labour has gone up and therefore denying any deficiency has submitted for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant filed an application under section 13 (1) (4) of Consumer Protection Act for appointing an expert for inspection of the building and to submit his report. The counsel for the OP submitted no objection for allowing the application, accordingly the application was allowed and when we took up the complaint or hearing to appoint an engineer proposed by the complainant as expert, the counsel for the OP suggested the name of another expert and in the course of hearing the complainant and the counsel for the OP agreed to appoint both the engineers as suggested by both of them to jointly inspect the building and submit their report as to the progress of the building made so far total amount spent and the balance amount required for completing the construction, and case was posted for issue of warrant and awaiting report. But thereafter the OP did not take any interest in paying expert’s fee and filing memo of instruction and therefore on the step taken by the complainant, warrant was sent to the expert of the complainant. The expert after inspection submitted his report. But the OP did not peruse the matter. On the receipt of expert report on behalf of the complainant, the case was posted for objection if any, the complainant submitted no objection whereas the counsel for the OP has not filed objections to expert report. <br /> <br /> 4. Thereafter the case was posted for the complainant’s affidavit who has filed affidavit evidence but the OP despite opportunity has not filed his affidavit evidence. The complainant alongwith the complaint has produced a copy of construction agreement, copy of quotation, copy of the complaint given to the police against the OP and some photographs showing the stage of the house. The OP has not produced any documents. We have heard the complainant who is in person neither the OP nor his advocate appeared therefore they are taken as heard and the complaint is posted for orders. <br /> <br /> 5. On the above contentions following points for determination arise.<br /> 1. Whether the complainant proves that OP has caused deficiency in his service in receiving excess money and not completing the construction of house?<br /> 2. To what reliefs, the complainant is entitled to?<br /> <br /> 6. Our findings are as under:<br /> 1. Answer Point No.1: In the affirmative <br /> 2. Answer Point No.2: To see the final order<br /> <br /> <br /> <br /> REASONS<br /> 7. Answer on Point No.1: As could be seen from the version of the OP, he has admitted to had entered into the construction agreement to construct a house for the complainant. The complainant has produced a copy of the agreement and stated that the OP had agreed to construct 6 sq. ft of house at an estimated cost of Rs.4,50,000/-. The OP has not denied this fact. The OP has admitted in his version that he has received a total sum of Rs.3,34,090/- and denied receipt of Rs.3,50,000/- as alleged by the complainant. With this allegation of the complainant and the admission of the OP, it was not possible to reach to any conclusion as to extent of work so far done, the total amount that was spent on that construction and whether the amount paid by the complainant is excess than the work done by the OP. In order assertion these materials facts, both the parties preferred to have assistance of experts but the OP despite had chosen to avail service, but later on kept silence. The expert appointed at the instance of the complainant after inspection of building has submitted detailed report stating that the work hitherto done by the OP is estimated at Rs.2,41,400/- and further stated that in order to complete the remaining work considering the present market value has stated minimum of Rs.2,35,000/- is required. The OP has not denied this nor opposed it. The Op has also not cared to appear and file his affidavit evidence. Therefore on the basis of admission of the OP regarding total amount he has received and finding no dispute over the report of the expert. We have no hesitation to hold that the OP has received excess amount than the work he has done. Therefore if he had done the work by showing progress and asked for balance payment, the complainant would not have hesitated to pay the balance construction cost, but the OP without showing needed progress in the work when demanded further payment the complainant has rightly refused to pay and therefore the OP has caused deficiency in his service by stopping the construction work.<br /> <br /> 8. The complainant in his complaint has prayed for awarding damages of Rs.2,00,000/- against the OP in he having not completed the construction. We also find no reasons to discard the report of the expert. Considering the plea of the OP that, he is a small and poor contractor and also the financial status of the complainant and taking into consideration the remaining work, we find that if we award damages of Rs.2,00,00/- against the OP in he having had not completed the construction would meet the ends of justice. Awarding of this amount is justified because of raise on the cost of construction materials and the labor charges. If the OP had done the work within the schedule time it would not have caused extra burden on both side, but because of the delay caused by the OP the complainant is required to pay more for the same work, with this, we answer point no.1 in the affirmative and pass the following order: <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> Complaint is allowed. OP is directed to pay damages of Rs.2,00,000/- to the complainant within 60 days from the date of this order. Failing which, he shall pay interest at 10% per annum from the date this order till the date of payment. <br /> <br /> OP shall also pay cost of Rs.1000/- to the complainant. <br /> <br /> Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this the 27th July 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT <br /> <br /> <br /> <br />