IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 20th day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 68/2012 (Filed on 22.03.2012)
Between:
Eminence Public School,
Pandalam, Rep. by its-
Supervisor Suji Baby,
Eminence Public School,
Pandalam.
(By Adv. A.C. Eapen) …. Complainant
And:
Sunil kumar,
Nellickal House,
Priya Lane,
Aluva – 1.
(By Adv. George. K. Mathew) …. Opposite party
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite party for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant is a reputed English Medium School represented by its Supervisor Suji Baby. The Management of the complainant school decided to construct a Basket Ball Court for the students studying in the school. Opposite party is a contractor who engaged in the construction of Basket Ball Courts. The complainant and opposite parties entered into a contract with regard to the construction of the Basket Ball Court in the premises of the school for a total construction cost of ` 5,81,520. As per the contract, opposite party has agreed to complete the work within 45 days from the date of payment of advance amount. Accordingly on 23.08.2011 complainant paid ` 2,50,000 to opposite party as advance. Thereafter opposite party has received ` 2,58,520 from the complainant in different stages. The balance amount due to opposite party on completion of the work is only ` 73,000.
3. On 19.11.2011, opposite party sent a notice to the complainant demanding ` 40,000 for starting the works remained i.e. post works including acrylic board, court lining, painting and marking, fixing of pressure release ring. The total cost including materials for the said work was ` 1,49,500 as per the estimate tendered by the opposite party. But the complainant is liable to pay only ` 73,000 on successful completion of the work, which means opposite party had received ` 76,500 in excess from complainant for the work he did not completed. For that complainant filed a petition before Pandalam Police and also sent a notice for the satisfactory completion of the work. Accordingly opposite party appeared before Pandalam Police and agreed to complete the work to the satisfaction of the complainant. Accordingly opposite party completed the work except the court painting work. Opposite party agreed the court painting also in his quotation and agreement. But he did not complete the court painting work. Moreover some cracks are appeared in the surface of the court because of the poor quality in the work. It is absolutely deficiency in service of the opposite party. Owing to the poor quality of work of the opposite party, the complainant suffered a huge loss of ` 3,00,000. Opposite party is liable to complete the work, the court painting work and he is liable to cure the defects in the work executed by him.
4. Complainant is entitled to get rectified the defect like cracks formed on the surface of the court and to get painted the court at the cost of the opposite party. Owing to the deficiency in service of the opposite party, the basket ball team of the school cannot perform their efficiency in the court. Hence this complaint for directing the opposite party to complete the Basket ball court painting as agreed and to cure the defect like cracks formed on the surface of the court within a specified time or to pay ` 3,00,000 with a compensation of ` 1,00,000 and cost.
5. Opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts. Opposite party admitted the agreement with the complainant for the construction of a basket ball court, but there is no agreement to complete the work within 45 fays from the date of payment of advance amount. The estimate submitted by the opposite party accepted by the complainant only stipulated the details of the costs incurred. However no written contract was made in this respect. Opposite party is engaged in the construction of basket ball courts for the last more than 12 years and he had not suffered any unsavory experience like the present. He so far completed the construction of more than 45 basket ball courts in the state.
6. The statement that on 23.08.2011 the complainant had paid ` 2,50,000 to the opposite party is not correct. The amount of ` 2,50,000 was paid in different instalments. The statement that further ` 2,58,520 was paid to the opposite party is not correct. The amount of ` 2,50,000 was also paid in different instalments. The balance amount due to the opposite party is not ` 73,000 as stated by the complainant, but it is ` 81,520. It is with ulterior motive not to give the said amount to the opposite party, the complaint is filed by the complainant.
7. Opposite party admitted that they issued a notice to the complainant demanding immediate payment of ` 40,000. Opposite party was constrained to do so on the reluctance on the part of the complaint in making prompt payment. When the notice was sent, an inadvertent mistake had crept in stating that the amount due was ` 73,000 instead of ` 81,520. This is well understood from the compromise between the complainant and the opposite party before the Pandalam Police. The notice was sent by the opposite party after stacking all the materials for the completion of the work. The allegation that the opposite party had received ` 76,500 in excess from the complainant for the work he did not complete is absolutely false. The opposite party had sent the demand notice after stacking all the materials for the post works as stated in the estimate. The police intervention had culminated in the execution of an agreement between the complainant and opposite party which show that an amount of ` 80,840 is due from the complainant. On arrival of the said agreement, the opposite party had completed the construction of the basket ball court as agreed, fit for use as certified by the basket ball coach, whose name prominently appeared in the agreement arrived at between the complainant and the opposite party on 08.12.2011.
8. The statement that opposite party has completed the work except the painting work is false. It can be seen from the quotation that the painting and marking mentioned therein are only with regard to three point line, centre circle line, free throw and outlining etc. and not painting the entire area. The amount quoted therein is ` 6,000. The extent of the court is 6542. sq. ft. It is strange to contend that the painting work is not over. The allegation that some cracks have appeared on the surface of the court and the court is damaged due to poor quality of work is absolutely false. The construction is perfect. There is no deficiency in service as alleged by the complainant and no loss has sustained to the complainant as claimed therein. Hence opposite party canvassed for the dismissal of the complaint with his cost.
9. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
10. Evidence of the complaint consists of the oral deposition of PW1, CW1, DW1 and DW2 and Exts.A1 to A8, C1 and C2 and B1 to B3. After closure of evidence, both parties were heard.
11. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant’s supervisor filed proof affidavit along with certain documents. He was examined as PW1 and documents produced were marked as Exts.A1 to A8. Ext.A1 is the estimate for the cost of construction issued by the opposite party. Ext.A2 is the notice issued by the opposite party to the complainant. Ext.A3 is the notice issued by the complainant’s counsel to opposite party dated 07.12.2011. Ext.A4 is the postal receipt of Ext.A3. Ext.A5 is the acknowledgment card of Ext.A3. Ext.A6 is the copy of notice dated 04.01.2012 sent by the complainant to opposite party. Ext.A6(a) is the postal receipt of Ext.A6. Ext.A6(b) is the acknowledgment card of Ext.A6. Ext.A7 is the authorization letter issued by the Management of the School to Mr. Suji Baby, the complainant. Ext.A8 is the estimate including materials and labour charges for the construction of a Basket Ball Court.
12. Advocate Commissioner was examined as CW1 and 2 documents were marked as Exts. C1 and C2. Ext.C1 and C2 are the mahazar and report of the advocate commissioner.
13. In order to prove the opposite party’s contention, opposite party and one witness adduced oral testimony as DW1 and produced certain documents which are marked as Exts.B1 to B3. Ext.B1 is the copy of compromise petition signed by both parties before the police in connection with the construction of Basket Ball Court and it was marked through PW1. Ext.B2 is the certificate issued by the Basket Ball Coach Sebastian. P.J. Ext.B3 is the fitness certificate of Basket Ball Court issued by Rajan David another Coach.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record. Complainant’s case is that, opposite party entered into a contract with him for the construction of a Basket Ball Court. He has not completed the work and there by there is a breach of contract. Opposite party received ` 76,500 in excess from the complainant for the work he did not complete and had done poor quality work. Hence this complaint for completing and curing the defects in the works with compensation.
14. Opposite party’s contention is that complainant has not paid ` 81,520 as agreed, though he completed the work without any fault. This complaint is filed with an ulterior motive for not giving the amount. It is seen that the total amount for the construction of basket ball is ` 5,81,520. On a perusal of Ext.A1 to A3, it is revealed that complainant has not paid the balance amount of ` 73,000 as per agreement. Opposite party also admitted that by different instalments he received ` 5,08,520 (2,58,520 + 2,50,000). Therefore the balance amount due is ` 73,000 (5,81,520 – 5,08,520). But opposite party claimed ` 81,520 as due from complainant. In Ext.B1 the due amount is stated as ` 80,840. But opposite party failed to establish with cogent evidence the way in which he reached the amount of ` 81,520. Hence we cannot accept opposite party’s claim of ` 81,520 instead of ` 73,000.
15. It is pertinent to note that as per Ext.C2 mahazar, opposite party has not completed the entire work with perfection. Opposite party neither filed any objection nor taken any step to set aside. Ext.C1 and C2 report. Therefore Ext.C1 and C2 report were unchallenged. Ext.B2 and B3 are certificates issued by two Basket Ball Coaches. There is no close observation in Ext.B2 and B3. Therefore it did not support the contention of opposite party. Hence we rely on Exts.C1 and C2 in which the true facts were brought before the Forum.
16. From the overall facts and circumstances and the available evidence on record, we come to the conclusion that opposite party has not done the work of Basket Ball Court properly. It is not only a breach of contract but also a deficiency of service. Though complainant claimed exorbitant amount as relief, the same was not allowable for want of evidence and also found that complainant has not paid the balance amount of ` 73,000. Therefore, this complaint can be allowed with modifications:
17. In the result, complaint is allowed as modified, thereby opposite party is directed to complete the work as per Ext.A1 agreement. Opposite party is also directed to rectify the defects pointed out in Ext.C2. Complainant is directed pay the balance amount of ` 73,000 to opposite party on completion of the works and the rectification of the defects. Opposite party is further directed to comply this order within 30 days from the date of receipt of this order. In the event of non-compliance of this order by the opposite party, complainant is allowed to rectify the defect and the remaining work, if any, and if the cost exceeds ` 73,000, complainant is allowed to realize the excess amount from the opposite party. In the nature and circumstances of this case, no order for cost and compensation.
Declared in the Open Forum on this the 20th day of November, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Suji Baby.
Exhibits marked on the side of the complainant:
A1 : Estimate for the cost of construction issued by the
opposite party.
A2 : Notice dated 19.11.2011 issued by the opposite party
to the complainant.
A3 : Copy of Advocate Notice sent by the complainant
dated 07.12.2011.
A4 : Postal receipt of Ext.A3.
A5 : Acknowledgment card of Ext.A3.
A6 : copy of Advocate Notice dated 04.01.2012 sent by the
complainant to opposite party.
A6(a): Postal receipt of Ext.A6.
A6(b): Acknowledgment card of Ext.A6.
A7 : Authorization letter issued by the Management of the
School to Mr. Suji Baby, the complainant.
A8 : Estimate for the cost of construction issued by the
opposite party.
Witness examined on the side of the opposite party:
DW1 : Sunilkumar. N.B.
DW2 : Sebastian. P.J.
Exhibits marked on the side of the opposite party:
B1 : Copy of agreement dated 08.12.2011.
B2 : Copy of certificate dated 14.12.2011 issued by
Sebastian. P.J. Basket Ball Coach.
B3 : Copy of fitness certificate dated 14.12.2011 issued by
Rajan David.
Court Witness:
CW1 : Indu. G. Pillai.
Court Exhibits:
C1 : Report dated 11.06.2012 prepared by Indu.G.Pillai,
Commissioner Advocate.
C2 : Mahazar prepared by Indu.G.Pillai, Commissioner
Advocate dated 04.06.2012.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Suji Baby, Eminence Public School, Pandalam,
(2) Sunil kumar, Nellickal House, Priya Lane,
Aluva – 1.
(3) The Stock File.
