SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service as regards to delayed completion of house construction by the Opp.Party are the allegations arrayed against the Opp.Party.
2. Complainant, in order to construct a building on his own land situated and village-Kajala,Po/Ps:-Kendrapara contacted OP who is a mason-cum-contractor to complete the construction of the house covering an area of 950 sqft.. A Memorandum of understanding(MOU) was signed between complainant and OP on dt.16.04.10 @ Rs.90/- per each sqft. of the concrete roof. In the said agreement time of completion and payment schedule was mentioned. It is stated in the complaint petition that OP violating the MOU did not complete the construction work as per agreement(MOU) dtd.16.04.10 for which complainant had to spend Rs.6000/- unnecessarily. The construction work was delayed for 75 days and OP had taken Rs.1,04,850/- (Rupees One lakh four thousand eight hundred fifty)only for concrete roof measuring 1165 sqft.. Such delayed completion of construction work gave financial loss by way of damage of materials, payment of unnecessary house rents. It is further stated for the delayed completion of the construction work complainant is entitled for compensation. When complainant requested the OP to adjust the compensation amount OP threatened to leave the construction work unfinished. As there was no other alternative complainant complied the undue demand of the OP. It is further stated in the complaint petition that OP had taken time of six month w.e.f. dt.30.12.10 to pay the unnecessary expenditure till dt.01.07.11 OP did not pay any amount and requested to allowed some time for the purpose. When OP did not pay the amount complainant issued an Advocate’s notice on dt.27.12.13 through Regd.Post with AD, in response to the said Advocate’s ‘Notice’ OP met the concerned advocate on dt.10.01.14, in presence of the complainant and requested allow him another six months to pay the entire compensation amount, but again OP failed to comply the same for which the complaint before this Forum and prayed this Forum to direct the OP to pay an amount of Rs.75,319/- as per the schedule ‘B’ of the complaint and it is further revealed from the complaint petition that the final cause of action of the instant case arose dt.10.01.2014 and on all subsequent dates when OP did not keep his word to pay the compensation amount.
3. Upon ‘Notice’ OP appeared through his Ld. Counsel and filed written statement into the dispute denying the allegations alleged against him in the complaint and challenged the maintainability of the complaint. OP submitting the facts states that OP is a local masson and complainant was an outsider and complainant to construct his house approached the OP to take the charge of the construction work and a Memorandum of understanding(MOU) was executed between the complainant and OP on dtd.16.04.10 with reflecting the mode of payment and time of completion of the construction work. In the MOU it was agreed between the parties to complete the work within six months, though the same was not iron-jacket condition. Further the MOU reveals that any disputes regards to the work and payment will be resolved through amicably. It is also revealed from the written statement that due to latches in the part of complainant by not supplying the construction materials, the work was delayed for two months. The plastering works of the building was stopped from dt.16.11.10 to 01.12.10 on the instruction of the complainant. The said works were completed by dtd.30.12.10. As per the MOU dtd.16.04.10 the complainant has paid the remuneration/wages towards the works of the OP. It is revealed from the written statement that an MOU was signed on dtd.30.12.10(Annexure-D). After completion of the assigned construction work OP alongwith three assistants constructed the boundary wall, latrine tank, ladder room from dt.15.01.13 to dt.20.02.13 and cost of the total construction charges of Rs.34,500/- is pending on the complainant and to avoid the said construction charges complainant has foisted a false case against the OP. It is also revealed from the written statement that OP received an Advocates’ ‘Notice’ on January,2014 being sent by Sri Bimbadhar Pallai,Advocate,Kendrapara and the Advocate’s notice contains only 2(two) sheets of plain papers. After receipt of notice of form OP understood the ill-intention of the complainant and the OP has never meet the concerned Advocate Sri Bimbadhar Pallai as averred in the complaint petition. Written statement reveals that complainant is a Scheduled Caste person and OP to maintain his livilihood by working and getting wages/remuneration. The complaint is barred by law of limitation and is not maintainable as per the provisions of C.P.Act,1986. Hence, the complaint be dismissed with cost.
4. Heard the arguments advanced by the Ld. Counsels for the parties, perused the documents,affidavits, notes on argument and citations filed into the case. The admitted fact of the dispute is that by virtue of a written Memorandum of understanding(MOU) on dt.16.04.10 between complainant and OP where OP was entrusted to complete the construction work within six months alongwith details modes of payment to the OP. It is also admitted fact that OP has received an amount of Rs.1,04,850/- towards construction charges. Before discussing the facts and merits of the case OP raised the maintainability of the dispute on the grounds of limitation. Sect.24-A of C.P.Act,1986 and challenging the status of the complainant as a ‘Consumer’ and further challenging the definition ‘service’ which the present OP is excluded. In support of his claim OP filed number of decisions reported in 2003(3) CPR-195 of SCDRC, UT, Chandigarh, 2002(2)CPR 433 SCDRC,Tamil Nadu and decision of our own State Commission reported in 2004(1) CPR 411 in case of Ajaj Kumar Sahgal-Vrs-B.M.,UllCo Pvt.Ltd. and decision reported in 2011(1) OLR(CSR)-390 of our own State Commission in case of Seven Hills Ests.Ltd.-Vrs-Smt. Purnima Patanaik. All these citations are related to Sec.24-A of C.P.Act,1986. It is the case of the OP that the present dispute is barred by limitation as per the provisions of C.P.Act,1986. As per the C.P.Act a complaint has to be filed within 2(two) years from the date of cause of action. Ld. Counsel for OP submitted that there is no cause of action as the alleged delayed construction of work was completed by dt.30.12.10 and OP has received an amount of Rs.1,04,850/-(Annexures). The plea of complainant’s advocate’s notice January,2014 and meeting between the concerned Advocate, complainant and OP,same is denied by the OP. Ld. Counsel for complainant draw our attention to para-18 of the written statement, where the OP himself retriates that the ancillary work of the building was completed by OP and his staff on dtd.20.02.13 and complainant to avoid the balance payment of Rs.34,500/- has foisted this false case. Considering the submissions we gone through the case record and it is seen that the dispute is filed before this Forum dt.27.01.15 and as per the OP the cause of action continues by way of constructing ancillary work and outstanding dues till dt.20.02.13. Hence, as per the C.P.Act the complaint is well within the time limit of C.P.Act,1986.
5. The second point raised by the OP on the grounds of maintainability that the present complaint can not be treated as a ‘consumer’ and the OP equally can not be treated as a ‘service provider’. In support of his claim he cited a decision of own State Commission reported in 1996(1)OLR(CSR)-16 in case of Executive Engineer(R&B) Division,Dhenkanal-Vrs-Bidyadhar Sahoo. According to our opinion this decision is not befitting to the present proceeding. The decision cited by the OP reveals that where a ‘contractor’ claims to be a ‘consumer’ whichaccording to the Hon’ble State Commission does not avail any service from the appallent-Executive Engineer. So the complaint is not maintainable. In the instant case the OP is the service provider. Further, the OP filed a synopsis where it is observed the ‘theka’ for construction work is not maintainable before this Forum. The details of the citations does not placed before this Forum for its proper appreciation, hence no judicial consideration can be taken of.
6. Before arriving into a legal conclusion on this point, we must discuss the difference between ‘contract of personal service’ and ‘contract for personnel service’. In C.P.Act,1986 Section 2(1)(o) of the Act clearly defines that ‘contract of personal service’ is excluded from the definition of ‘service’. ‘Contract of personal service is only applicable in case of ‘master’ ‘servant’ relationship which is excluded from the definition of ‘service’. But in the instant case there is no such relationship exists between complainant and the OP which can not be treated as a ‘master’ ‘servant’ relationship rather as per the MOU dtd.16.04.10 the relationship between complainant and OP can be treated as ‘contract for personal service’ which is well within the purview of C.P.Act,1986 and MOU executed between the complainant and OP on dt.16.04.10 reflects that complainant ‘hires’ the service of the OP by way of labour, skill and etc. with certain terms and conditions of payment.
7. Now the question before us that whether the MOU executed between the parties on dt.16.04.2010 can be treated as an agreement/contract. On scrutiny of the MOU dtd.16.04.10 it is observed that both the parties have put their signature on their free will and without any coericion stipulating the condition of payment, time limit to complete the boulding construction. Thus, the MOU signed on dt.16.04.10 is a valid agreement when it is admitted document of the parties.
8. Next whether the ‘House construction’ articities fall within the ambit of the C.P.Act,1986. In this regard a citation of Hon’ble National Commission is followed in case of “Skipper Bhawan(22 Barakhamba Road)FlatBuyers Association(Regd.)-Vrs- Skipper Sales (Pvt.) Ltd. And another in original petition No.16 of 1991 decided on dt.18.01.1995 reported in Supreme Court and National Commission,Consumer Court cases, published by Indian Law House,Pg-1070),Vo.2,Edition-2012 In the said decision the Hon’ble National Commission relying on the decision in case of Jaina Properties Pvt. Ltgd.-Vrs-Mrs. Kavita Kataria,(1994) II CPJ (CP) (NCDRC) clearly opined that ‘Housing Construction’ activities is the inclusive part of the definition of ‘service’ contained in Sec.2(1)(o) of the C.P.Act.
That apart OP in his written statement averred that he was working as a masson on remuneration/wages basis. But the MOU signed on dt.16.04.10- and the receipt dtd. 30.12.10 clearly reflects that the OP has undertaken the construction of the house building in a total basis which includes skill, other labour charges, materials etc..
9. Now the facts of the case are that complainant engaged or hired the service of the OP with an written agreement on dt.16.04.10 to complete the construction work of his building within six months of the date of execution of the agreement. OP delayed the construction of the building for which complainant sent an Advocate’s notice by regd.post and a meeting was arranged in the Advocate’s office to short out the disputes, but all went in vain. Such delayed construction of the building resulted financial loss to the complainant. Complainant in support of his claim filed an attested Xerox copy of MOU dtd.16.04.10, copy of the Advocate’s notice, affidavit of Sri Bimbadhar Pallai, Advocate, Kendrapara and attested money receipts showing the purchase of materials and payment of house rent to the land-lord by the complainant. On the otherhand OP resisted the allegations and submitted that due to latches of the complainant by providing materials in time and for other reasons the construction work started after 2(two) months of date of execution of the MOU. Further the construction work was delayed during plastering work for installation of iron grill, door frames etc. and amount of Rs.34,500/- is pending on the complainant for ancilliary construction charges. It is further case of OP that though he has not received the Advocate’s notice sent by the complainant, but said envelope contains only plain papers, and at no point of time the OP was attended the meeting in Advocate’s residence and assured to pay the compensation for delayed construction of the complainant’s building. In support of his claim OP filed attested Xerox copy of MOU dtd.16.04.10 and Xerox copy of receipt which is marked as Annexure-I.
10. Considering the submissions and documents it appears to us that complainant entrusted OP to construct his building by way of the MOU on dt.16.04.10 and a payment of Rs.1,04,850/- on dtd.30.12.10 has received by the OP as per construction charges in both the documents, complainant and OP has put their signatures. On deciding the delay for construction of building complainant files Affidavit of Sri Bimbadhar Pallai, Senior Advocate,Kendrapara and serve money receipts showing payments for purchase of materials and house rent payment receipts to the landlord of complainant. On the otherhand though OP submits that the delayed completion of construction work caused due to non-supply of materials by the complainant in time. Further, the pending amount of Rs.34,500/- to be paid by the complainant to the OP for construction of latrin,tank, boundary wall, ladder room is still to be received by the oP through the said work has been completed on dt.20.02.13. Further to complete the work OP took the assistance of three persons to complete the work. But to substantiate his case OP has not filed a single scrap of paper to convince this Forum, even not a counter affidavit to the affidavit filed by Sri Bimbadhar Pallai,SeniorAdvocate,Kendrapara.In regards to Annexure-I filed by parties OP gives weightage by submitting that as per the Annexure the work has been completed in due time where the complainant has put his signature. In perusal of Annexure-I it is seen that not a single sentence has been mentioned regarding reasons for delayed completion of building construction and payment of compensation or pending outstanding etc. caused due to delay of construction, rather it is a money receipt showing the payments for completion of work. The affidavit in para-4 reveals that OP appeared on dt.05.01.14 and a meeting was convened dt.10.01.14 where it was decided that OP will pay the compensation amount to the complainant within six months. According to our opinion it was the duty and burden of proof on the OP to establish that latches has been committed from the side of the complainant. But no such proof is presented before this Forum. Further, it is clear that the allegation of complainant is for delayed of construction of work is for only 75 days, which according to us is not a great delay. The delay on part of the OP either emotionally hurts the complainant or a unknown clash between the parties. The compensation claimed by the complainant for delayed of construction work is for 75 days. According to us the delay is not an extra-ordinary delay for which the compensation prayed for is in very higher side. As per our aforesaid observation, relying on the MOU and affidavit of Advocate the complainant deserves some sympathy of this Forum.
Having observations reflected above, it is directed that the OP will pay an amount of Rs.2000/-(Rupees Two thousand)only as compensation for financial loss and mental agony along with Rs.500/-(Rupees Five hundred)only for cost of litigation. The OP will pay the ordered amount within one month of receipt of this order.
Complaint is allowed in part on contest.
Pronounced in the open Court, this the 30th November,,2015
