(Passed on 14.09.2015)

Per Mr B A Shaik, Hon’ble Presiding Member

1.      This appeal is preferred by the original complainant against the order dtd.24.07.2001, passed in consumer complaint No. 246/1997 (New) by Addl. District Consumer Forum, Nagpur, by which the complaint has been partly allowed with a direction to the opposite party  (for short O.P.) to pay to the complainant Rs.82,286/- towards the work left incomplete by the O.P. and also to pay him compensation of Rs.3,000/- for mental agony and cost of Rs.500/- and complainant has been also directed to pay to the O.P. Rs.16,325/- towards additional work done by the O.P.

2.      The learned advocate of the complainant Mr S S Murthy submitted that the complainant has preferred this appeal feeling aggrieved by the direction given to the complainant to pay to the O.P. Rs.16,325/- towards the alleged additional work done by the O.P. He submitted that neither there was such agreement in between both the parties to carry out any additional work nor the Commissioner appointed by the Forum has specified the details of the additional work regarding which cost of Rs.16,325/- is saddled on the complainant. He also argued that as the O.P. is a service provider, the Forum below erred in giving direction to the complainant i.e. a consumer to pay Rs.16,325/- to the O.P, which is a service provider. Thus, according to him the remedy available to the O.P. is to approach to Civil Court for getting any such amount of alleged additional work. He, therefore, requested that the direction given under Clause No.4 of the impugned order to the complainant to pay to the O.P. Rs.16,325/- may be set aside.

3.      The notice was issued to the respondent by this Commission, but it was returned un-served with postal endorsement as “Left”. Therefore, with the permission of this Commission, the complainant published that notice in local newspaper of which one issue is placed before us. We have found from that the notice has been duly served to the O.P. by way of paper publication. He remained absent. Therefore, we have proceeded exparte against the respondent.

4.      We have also perused the papers of the original record of the complaint produced before us by the complainant.

5.      It is seen that an agreement was entered into both the parties for making civil and electrical construction in the house of the complainant. It is the case of the complainant that though he paid full amount of Rs.50,000/- towards cost of that work, work specified in the complaint by him was left incomplete by the O.P. Therefore, he filed consumer complaint before the Forum praying that direction be given to the O.P. to complete the said work.

6.      The O.P. resisted the complaint.  The case of the O.P. in brief is that the actual transaction was made about the carrying out the work in between the complainant and Shri Kamal Sarda for total cost of Rs.50,000/-. However, the O.P. was asked to carry out extra work not indicated in the contract, which was incidental, necessary and compulsory to get over ensuing  problems while performing the job work in a better way and satisfactory. The O.P. asked payment for extra work but the complainant did not respond. Therefore the O.P. requested that complaint may be dismissed.

7.      The Forum below after hearing both the parties passed the aforesaid order. The O.P. has not challenged the said order by filing appeal before this Commission under which direction is given to him to pay to the complainant Rs.8,286/- towards the work left incomplete by him and to pay him compensation of Rs.3,000/- towards mental agony and cost of Rs.500/-.

8.      The only question involved in the present appeal is whether the direction given under the impugned order to the complainant to pay Rs.16,325/- to the O.P. towards additional work is sustainable under law. In our view, no such direction can be given when it was not agreed between the parties that any such expenses incurred by O.P. for carrying out incidental, necessary or compulsory work if done will have to be reimbursed by payment of cost to the O.P. Moreover, the Commissioner appointed for inspection of the site has not given the details of said additional work. He has also not opined that expenses incurred by O.P. for any such additional work was incidental, necessary and compulsory to get over ensuing problem as alleged by O.P. We find that in the absence of any agreement of about claim of costs for such type of additional work, and in the absence of any evidence about carrying out said additional work, the Forum below  erred in giving the direction to the complainant to pay Rs.16,325/- to the complainant. Therefore said direction needs to be set aside and the liberty is to be given to the O.P. to approach to the Civil Court for claiming any such amount from the complainant.

ORDER

i.        The appeal is allowed as under.

ii.       The direction given under Clause No.4 of the impugned order to the complainant to pay to the opposite party Rs.16,325/- is set aside.

iii.      No order as to cost in appeal.

iv.      Copy of the order be furnished to both parties free of cost.