IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 30th day of June, 2011
Filed on 04.07.05
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member)
in
C.C.No.102/2005
Between
Complainant:- `Opposite Party:-
Sri.R.Raveendra Nathan, Sri.Sugathan K Panicker,
Ram Nivas, Proprietor, Rachana Builders and Mannancherry.P.O., Architects, Rachana Pattanakkad,
Mannancherry, Alappuzha. Cherthala – 688 531.
(By Adv.K.S.Hariharaputhran) (By Adv.C.S.Ullas)
O R D E R
SRI.JIMMY KORAH (PRESIDENT)
The complainants’ case is as follows: - The complainant entered into an agreement with the opposite party for the purpose of executing the extension work of the complainant's residential building. As per the agreement, the complainant had to pay the opposite party an amount of Rs.4,35,506.50/- (Rupees four lacs thirty five thousand five hundred six and fifty paise only) for the same. In the mean time, an additional work was entrusted to the opposite party, and for the same the complainant was liable to pay another Rs.72,000/- (Rupees seventy two thousand only). The complainant paid off the entire amount. In addition to this, the opposite party availed another amount of Rs.45,330.90/- (Rupees forty five thousand three hundred thirty and ninety paise only) from the complainant. Strangely still, the opposite party does not complete the work as agreed. To complete the left over work, the complainant has to spend a further amount of Rs.1,42,000/-(Rupees one lac forty two thousand only). The opposite party also procured an amount of Rs.30,681.18/- (Rupees thirty thousand six hundred eighty one and eighteen paise only) from the complainant on the pretext of supervision, sand filling charges etc which were all, actually the parts and parcel of the original agreement. In short, the opposite party got hold of an amount of Rs.2,18,015.08/- (Rupees two lacs eighteen thousand fifteen and eight paise only) from the complainant in excess. The opposite party inflicted mental agony to the complainant. Further the opposite party committed deficiency of service. Got aggrieved on this, the complainant approached this Forum for compensation and other relief.
1. On notice being sent, the opposite party appeared before this Hon'ble court, and filed version. The opposite party contends that the opposite party has expended out the entire amount the complainant tendered to him for the purpose of the agreement between the complainant and the opposite party. According to the opposite party, the opposite party has not agreed to carry out any additional work nor has received any amount extra. The complaint is not maintainable. The opposite party’s service is not deficient. The complaint is false and frivolous. The same is to be dismissed with cost, the opposite party asserts.
2. The complainant’s evidence consists of the testimony of the complainant himself as PW1, and the documents Exbts. A1 to A11 marked. The commission Report was marked as Exbt.C1. Except filing version, the opposite party has let in no evidence.
3. Taking into account, the contentions of the parties the issues that come up before us for consideration are:-
(1) Whether the complaint is maintainable?
(2) Is the service of the opposite party is deficient?
4. Before delving deep into the merit of this case, we feel that it is necessary to give a short account of its preliminary premise. The complainant had approached this Forum praying for issuing a direction to the opposite party to provide damages for the deficiency of service and mental agony the opposite party meted out to the complainant. Though notice was sent, the opposite party failed to turn up before the Forum, and the predecessors of this Forum, on 4th May 2006 had been constrained to allow the complaint exparte. Thereafter, the opposite party approached the Hon'ble Kerala State Consumer Disputes Redressal Commission, and the matter has been remitted back to this Forum vide order dated 26th November 2009 for fresh disposal. The opposite party, as have earlier observed, turned up and initially raised the question of maintainability of the complaint before this Forum. This Forum, on the said question, arrived on a conclusion vide order dated 30th June 2010 that the complaint is maintainable on the ground that the complainant has specifically alleged deficiency of service, and as such there exist a prima facie case as to the same.
5. Now, going down to the merit of this case it appears that the complainant has come before this Forum with the case that the opposite party has abandoned the work in the middle and availed excess amount from the complainant as against the stipulation in the material agreement. In this manner, the opposite party committed deficiency of service and inflicted mental agony on the complainant. In this context, the immediate short question to be looked into is whether there is deficiency of service on the part of the opposite party. We carefully perused the pleadings, submissions, arguments and other materials placed on record by the parties. It appears that admittedly, the complainant entrusted the extension work of his residential building to the opposite party. On a closer scrutiny of the entire materials, the crucial aspect that draws our notice is that the complainant has no specific case that the work the opposite party executed is in any way defective. We meticulously went through the Exbt. Cl commission Report. Nowhere thereof in the commission Report there is anything to suggest that the work executed by the opposite party is imperfect. The Exbt. C1 commission Report throws light only on different sort of works that were left uncompleted or so abandoned. Seemingly, the complainant seeks recovery of the excess money the complainant tendered to the opposite party. In our view, leaving behind the entrusted work half way can never be deemed as deficiency of service but noticeably, only a breach of contract. In the instant case, the complainant has nothing to prove that there is deficiency of service on the part of the opposite party. As have been already observed, in as much as nothing has been brought out to show that there is infirmity in respect of the work the opposite party executed, we regret, we are unable to accept the case of the complainant.
6. Coming down to the issue of mental agony, it is worthwhile to bear in mind that the work entrusted to the opposite party was mere an extension work of the complainant's residence. All along the work and thereafter, the complainant has been residing uninterruptedly in the material building. In this context, the complainant contention that the opposite party inflicted mental agony to the complainant does not inspire confidence in the mind of this Forum. In the wake of afore elaborated facts and findings, we are of the considered view that the complaint must fail.
In what we have discussed hereinabove, the complaint is liable to be dismissed and is dismissed. In the facts and circumstances of the case, parties are left to bear with their own costs. We, with particular emphasis, observe that the complainant is at liberty to pursue the appropriate remedy by way of institution of civil suit or otherwise if any available in law.
Pronounced in open Forum on this the 30th day of June, 2011.
Sd/-Sri. Jimmy Korah
Sd/-Sri. K. Anirudhan
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
CW1 - Sivaprasad.P (Court Wirness)
PW1 - R.Raveendra Nathan (Witness)
Ext. C1 - Commission Report
Ext. A1 series - (a) Cash Receipt dated, 10.09.04,
(b) Cash Receipt dated, 08.04.04,
(c) Cash Receipt dated, 17.04.04,
(d) Cash Receipt dated, 13.03.04,
(e) Cash Receipt dated, 28.01.04,
(f) Cash Receipt dated, 25.12.03,
(g) Cash Receipt dated, 06.03.04,
(h) Cash Receipt dated, 26.02.04,
(i) Cash Receipt dated, 05.02.04,
(j) Cash Receipt dated, 27.09.04
Evidence of the opposite party:-
RW1 - Sugathan K Panicker (Witness)
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
