IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 28th day of April, 2023.
Filed on : 04.07.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. C.K.Lekhamma, B.A.L,LLB (Member)
In
CC/No.161/2022
between
Complainant:- Opposite parties:-
Seenath Muhammad Kunju Smt. Lubina.A
D/o Muhammad Kunju W/o Nahas
Muhammad Kunju Manzil Sajina Manzil, Near Salim Stores
Zacharia Ward, Alappuzha South of Rubber Factory,
(Adv. Bijily Joseph) Head Post Office, Alappuzha
(Adv. Anil.S)
O R D E R
C.K.LEKHAMMA(MEMBER)
1. Brief facts of the complainant’s case are as follows:-
The case of the complainant is that on 28.1.2022 the opposite party received an amount of Rs.5 lakhs from the complainant and handed over her house bearing No. AMCW 43/376. The agreement was for 11 months and the house was taken for the residence purpose of the complainant and her family. At that time the opposite party promised to do certain renovations such as removing the old floor and laying floor tiles, constructing new sealing and taking water connection etc. However, said promises were not fulfilled. Further, on 1.6.2022 another agreement was executed for 7 months after accepting Rs.5 lakhs. The agreement was that the house would be vacated after the said period and the opposite party would repay the Rs. 5 lakhs without interest to the complainant. The complainant alleged that the promise for renovation was not fulfilled the complainant and her family suffered more inconvenience and the said act of opposite party amounts to a deficiency in service hence the complaint is filed for realizing an amount of Rs.1 lakh as compensation.
2. Version of the opposite party in short is as follows:-
The opposite party denied the entire allegations in the complaint and contended that there is no consumer-service provider relationship between the parties. Moreover, the dispute is that of civil in nature. Therefore, this Commission has no jurisdiction. Further the disputed house and premises belongs to the opposite party. She rented it to the complainant. But the complainant has given the said house on rent to her brother without the permission of the opposite party. Before giving the house for mortgage certain maintenance was done such as after cementing the entire floor red oxide was applied, new doors were fitted, windows were repaired, the house was whitewashed, the pipe connection was taken etc. For that opposite party spent about Rs.1 lakh. The opposite party has not caused any loss or damages to the complainant. So there is no need to give compensation to the complainant. Since the complaint constantly harassed the opposite party, a police complaint was filed by the opposite party. Based on said complaint the complainant was warned. For the above-mentioned reasons, the complaint is to be dismissed.
3. Points that arose for consideration are as follows:-
1. Whether opposite party committed deficiency in service? If so what is the quantum of compensation?
2. Reliefs & cost?
4. From the side of the complainant PW1 to PW4 were examined and Ext. A1, A2, C1&C1(a) were marked. Opposite party-adduced evidence as RW1 Exits. B1&B2 were marked. Heard both sides.
5. Point. No. 1
As per the order in I A. No. 316/2022 we have already found that the complainant is a consumer. It seems that the opposite party has not filed an appeal against the said order. Hence it is confirmed that the complainant is a consumer.
The complainant alleged that a mortgage deed, Ext. A1 was executed by the opposite party in favour of the complainant on 28.1.2022 on the belief that the disputed building and the premises belonging to the opposite party. The agreement was for 11 months and the house was taken for the residential purpose of the complainant. Based on the agreement Opposite party accepted an amount of Rs.5 lakhs from the complainant and handed over the house with a promise of conducting certain maintenance work. But opposite party failed to do so. Further, on 1.6.2022 Ext.A2 agreement was executed for 7 months after accepting Rs.5 lakhs. Since the agreement for renovation was not fulfilled said act of the opposite party amounts to deficiency in service. But the opposite party denied the said allegations.
Admittedly, the disputed house was handed over to the complainant for her residential purposes. It is averred in the complaint that there was an oral agreement between the parties for doing some renovation in the disputed house. On perusal of Ext.A1, mortgage deed dt.28.1.2022 it was between the complainant and PW3. It is come out in evidence that at the time of Ext.A1 PW3 was the owner of said building. PW3 deposed that her house was sold to the opposite party but as the Opposite party was not in a position to pay the entire sale amount, as per the request of the opposite party Ext.A1 executed in favour of the complainant and the dealings were between the complainant and the opposite party. Further deposed that the opposite party requested 3 months for executing the sale deed. It seems that after effecting sale Ext.A2 was executed by the opposite party in favour of the complainant. On perusal of Ext. A1& A2 agreements there is no clause for alleged renovation of the disputed house. In other words as per the terms in Ext A2 after the period the amount is paid back without any interest and the house is to be vacated without any damage. Ext. B2 series of photographs produced by the opposite party shows the condition of the building at the time of handing over it to the complainant. But she failed to prove that B2 series photographs are of the disputed house. Moreover, opposite party pleaded that before handing over the building and premises, she had executed certain renovation work in the building such as doing the floor work and putting in red oxide, repairing the windows and fitting a new door, whitewashing the building, taking the pipe connection etc. However, Ext. C1 report &C1( a) photographs pointed out certain damage on the floor, flush tank etc.PW2, the commissioner also pointed out that there is no PWD water connection but it is pointed out that there is a water tank and pipe connection. However nothing is on record that the opposite party had undertaken to do the specific work as alleged in the complaint. The learned counsel for the complainant pointed out that the opposite party has not denied the pleading of oral agreement in the complaint. The case of the complainant is that at the time of mortgage deed the opposite party had undertaken to do the alleged renovation in the building but she did not do that. It is pertinent to note that Ext.A2 was executed during the pendency of such a serious allegation and was executed about six months after Ext A1 but is not inclusive of such terms and conditions. Moreover we have already found that Ext.A1 was executed by Pw3. So a genuine doubt that why the complainant took the same building again as per Ext. A2 agreement and continued to live in the same building without mentioning anything about the maintenance of the building in the terms of said agreement. In above circumstances, we cannot believe the entire allegations levelled in the complaint. As per Ext. B1 dt.6.1.2023 the complainant received Rs.5 lakhs from the opposite party and agreed to vacate the disputed building on 15.1. 2023. It is come out in evidence that the complainant vacated the building accordingly. Considering the evidence as such we find that there is no reliable evidence to substantiate the allegation of the complainant and hence we are of the view that the complaint is devoid of any merit.
6. Point. No. 2:-
In the result , the complaint is dismissed. No order as to cost.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 28th day of April, 2023.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Zeenath Muhammad Kunju (Complainant)
PW2 - Sujashameer(witness)
PW3 - Sindhu. K . Viswambharan(Witness)
PW4 - A.R. Kamarudhin(wintess)
Ext.A1 - copy of Agreement
Ext.A2 - pledge Agreement
Ext.C1 & C1(a)series - Report & photographs
Evidence of the opposite parties:
RW1 - Lubina.A (Witness)
Ext.B1 - Receipt
Ext.B2 series - photos
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
