Karnataka

Chitradurga

CC/16/2018

Dr. Umamasheshwarappa - Complainant(s)

Versus

Smt. Khairunisa and another - Opp.Party(s)

Ps. Satynarayana Roa

04 Oct 2018

ORDER

COMPLAINT FILED ON:03/02/2018

DISPOSED      ON:04/10/2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

C.C.NO:16/2018

 

DATED: 4^th OCTOBER 2018

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc., MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	Dr. P. Umamaheshwarappa, S/o Late Putta Naik, Age: 43 Years, Sri. SevalalSadana, Behind APMC Market Yard, Vedavathi Nagar, Hiriyur town, Chitradurga.   (Rep by Sri.P.S. Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	1. Smt. Khairunnisa, Cook Helper,   2. Shaju, Painter, Both are R/o Urdu School, Behind APMC Yard, Ward No.3, Vedavati Nagar, Hiriyur.   (Rep by Sri.T. Shivakumar, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay Rs.25,000/- with interest @ 12% p.a, Rs.25,000/- towards mental agony and pain, Rs. 5,000/- towards costs and such other reliefs. 

2.      The brief facts of the case of the above complainant are that, he is the owner of house building situated at Vedavati Nagar, Hiriyur and OPs are the service providers by doing painting work.  They are the neighbourer of complainant and as such, they approached the complainant for financial assistance of Rs.25,000/- to meet their family necessity and urgent needs to run the petty business.  The OP No.2 has agreed to do the paint work of the complainant’s house by receiving labour charges.  The complainant has paid an amount of Rs.25,000/- by way of cash on 05.05.2017, but the OPs have not commenced the painting work as assured.  So the OPs are default in performing their part of contract, it shows the negligence on their part.  It is further submitted that, the OPs have promised to do the painting work and OP No.1 has given crossed A/c payee cheque bearing No.711913 dated 05.05.2017 for Rs.25,000/- belongs to State Bank of Mysore, Hiriyur Branch to be encashed in the last week of July 2017 if failed to do the painting work.  But, the OPs failed to do the painting work.  Thereafter, the complainant has presented the above said cheque for encashment, the same has been returned with an endorsement “insufficient funds”.  In this regard, many verbal talks were took place and thereafter, the OPs have agreed to repay the amount with nominal interest, but failed to pay the same.  Then the complainant got issued legal notice to the OPs on 26.12.2017 calling upon the OP No.2 to finish the paint work but, the OPs failed to do the same.  The cause of action for this complaint arose when the OPs have received the amount from the complainant and the legal notice issued which is within the jurisdiction of this Forum and hence, prayed for allow the complaint.

3. After service of notice, Sri.T. Shivakumar, Advocate appeared on behalf of OPs and filed version.  According to the version filed by the OPs that, they have admitted that, the amount has been received from the complainant and further admits that, the OP No.2 has agreed to do the paint work of complainant’s house and the remaining averments made in the complaint are denied as false, concocted and created story and the complainant is put to strict proof of the same.  According to the OPs, the complainant has paid a sum of Rs.25,000/- on the basis of interest @ 5% p.m.  Further it is stated that, this Forum has no jurisdiction to entertain this complaint.    If the OP No.2 issued the cheque in favour of the complainant, the complainant is at liberty to file a complaint before the jurisdictional Court u/Sec.138 of N.I Act and hence, prayed for dismissal of the complaint.

4.      Complainant has examined himself as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-3 were got marked and closed his side.  OPs have not come forward to examine any witness and not produced any documents to disprove the case of the complainant.

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

 

1. Whether the complainant proves that, the OPs have committed deficiency in service for non-returning of the amount received from the complainant or to finish the paint work and entitled for the relief as prayed for?

              (2) What order?

7.      Our findings on the above points are as follows:-

          Point No.1:- Partly in affirmative.

          Point No.2:- As per final order.

REASONS

8.      It is not in dispute that, complainant is the owner of house building situated at Vedavati Nagar, Hiriyur and OPs are the service providers by doing painting work.  OPs are the neighbourer of complainant and as such, they approached the complainant for financial assistance of Rs.25,000/- to meet their family necessity and urgent needs to run the petty business, as against the same, the OP No.2 has agreed to do the paint work of the complainant’s house by receiving labour charges.  The complainant has paid an amount of Rs.25,000/- by way of cash on 05.05.2017, but the OPs have not commenced the painting work as assured or refund the amount received.  The complainant has requested the OPs so many times but, they never come forward to do the paint work and finally the complainant has legal notice.  The Advocate for OPs has taken a contention that, the OPs have received the amount on interest basis and accordingly they have paid 5% interest every month to the complainant.  But, the OPs have not produced any documents to show that, they have received the amount on interest basis.  After service of notice, the OP No.1 and 2 appeared before this Forum and agreed to return the amount to the complainant and OP No.2 has paid Rs.4,000/- and Rs.3,000/- in all a sum of Rs.7,000/-.  Once the amount has been paid by the OPs, it clearly shows that, the OPs have admitted the facts of the complaint.

9.   We have gone through the entire documents, affidavit and W/A filed by the complainant.  According to the facts of the complaint, the complainant is the owner of house situated at Vedavati Nagar, Hiriyur.  The OPs are the neighbourer.  As per the documents produced by the complainant, it clearly shows that, the OPs have received the amount of Rs.25,000/- from the complainant.  The OPs have also appeared before this Forum and agreed to return the amount received from the complainant.  The OPs have accepted the facts narrated in the complaint.  Therefore, this Forum comes to the conclusion that, the OP No.2 is a painter agreed to do the painting work of the complainant’s work by receiving the amount, but failed to do so.  After filing of the complaint, the OPs agreed to return the amount and paid a sum of Rs.7,000/- in two times.  After the said payment, the OP No.2 has filed an application u/Sec.151 of CPC stating that, this Forum has no jurisdiction to entertain this complaint.  Once the OPs accepted about the receiving of amount from the complainant and paid the part of amount, the question of considering the IA does not arise.  Hence, complainant is entitled for the remaining amount.   Accordingly, this Point No.1 is held as partly affirmative to the complainant.    

10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.

It is ordered that the OPs are hereby directed to pay a sum of Rs.18,000/- to the complainant within 30 days from the date of this order.

It is further ordered that, the OPs are hereby directed to pay Rs.5,000/- towards mental agony and Rs.3,000/- towards cost of the proceedings to the complainant. 

It is further ordered that, the OPs are hereby directed to comply the above order within 30 days from the date of this order.

(This order is made with the consent of Member after the correction of the draft on 04/10/2018 and it is pronounced in the open Court after our signatures)         

 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainants:

 

PW-1:  Complainant by way of affidavit evidence.

 

Witnesses examined on behalf of OP:

 

-Nil-

 

Documents marked on behalf of Complainants:

01	Ex-A-1:-	Legal Notice dated 26.12.2017
02	Ex-A-2:-	Postal receipt and acknowledgement
03	Ex-A-3:-	Cheque dated 05.05.2017

 

Documents marked on behalf of OPs:

-Nil-

 

MEMBER                                                   PRESIDENT

Rhr**