IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 25th day of February 2010 CC/149/2006 N.V.Shabeer, ANUGRAH, Kodiyeri Amsom PAH.T.C.K.Khalid, ANUGRAH, Near Arabic College, Complainant Paral, Thalassery. (Rep. by Adv.K.Viswan) Sunil Kumar @ Sunil, Chirammal House, Kuthuparamba Amsom, Naravoor Desom Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay Rs. 2, 00,000/- as excess amount extracted and Rs.1, 00,000/- as compensation together with cost of the proceedings. The case of the complainant in brief is as follows: “the complainant proposed to construct a house building as per building permits No.BA.165/04-05 issued by the local authority. He made arrangements to make construction of 13 items as detailed such as construction of four bath room, work area having 26.71 Sq.m, concrete, wall doors and windows, plastering, affixture of tiles, Marble flooring, Construction of roof with tiles, construction of boundary wall, affixture of 3 grills, inter lock on court yard, laying late rite stone etc. Opposite party agreed to perform aforesaid work for a total cost of Rs.3, 65,000/-. He delivered Rs.50, 000/- each on 10.11.2004 and 15.11.2004 by way of cheque to opposite party. On the date of agreement opposite party has accepted Rs.1, 00,000/- and endorsed accordingly. Complainant is liable to pay Rs.3, 65,000/- on completion of the work. Opposite party in total received Rs.3, 00,000/- from the complainant towards construction. However, the opposite party did not complete the work and unilaterally withdrawn from the construction. The cost of work done by opposite party is only less than Rs.1, 00,000/-. The opposite party is liable to complete the work within 6 months from 22.11.2004. The construction of the roof was not proper and due to its defect there is leakage of roof. Hence the complainant constrained to make repairs and it incurred Rs.15, 000/- for the complainant. It is due to deficiency in service on the part of opposite party. Complainant issued lawyer notice opposite party replied alleging utter falsehood. Hence this complaint. In pursuance of the notice opposite party entered appearance and filed version in the form of counter statement. Opposite party contended that the agreement produced with the complaint is a concocted document. Opposite party did not undertake to perform any work on the basis of any agreement. There is no such legally existing agreement. Since the agreement is indistinct and sanity it has to be rejected. This opposite party is undertaken to perform only those items 1 to 7 completely. Fixing of closet and shower in two bathrooms in the first item remains balance to be completed. Work of other bath rooms completed. Concrete work of item No.2 work area with an extra room on the same for the use of keeping fire wood. That amount is not yet paid by the complainant. The 9th item construction of roof with tiles happened to be stopped due to tumultuous interference of complainant. Tiles were laid but complainant objected uproaring that laying was wrong. Opposite party was compelled to remove all the tiles as directed by the complainant. Thereafter complainant directed to spot the work and thereby opposite party stopped the work. Opposite party has completed all the work entrusted to him. He has also done extra work. The work discontinued due to the direction of complainant telling opposite party not to come for work and not as alleged in the complaint. The second item of work done itself reveals that there is no agreement between the opposite party and complainant. The statement that opposite party has done the work for only one lakh is not correct. Complainant paid Rs. 2 lakh by installments and at last he obtained a receipt with the signature of opposite party. This opposite party has not signed any agreement. Opposite party is not liable to perform the agreement since it is a fabricated document. Complainant is liable to give Rs.50, 000/- in the account of extra work done by the opposite party. Hence prayed to dismiss the complaint accepting the version. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite Party? 2. Whether the complainant is entitled for the relief as prayed in the Compliant? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1, and Exts.A1 to A7, Exts.C1 and C2. No documents produced or marked on the side of opposite party. Issue Nos. 1 to 3 Admittedly opposite party undertook certain work of complainant. The case of the complainant is that he has entrusted the work item No.1 to 13 in the agreement A7. Opposite party contended that no agreement has been executed between complainant and opposite party. Anyhow he admitted that he has undertaken to perform item No.1 to 7 and 9 shown in the list. The work listed in the agreement includes as follows: 1. Construction of four bathrooms 2. Work area having 26.71 Sq.m 3. Concrete 4. Wall 5. Doors and Windows 6. Plastering 7. Affixture of tiles 8. Marble flooring 9. Constreuction of roof with tiles 10. Construction of Boundary wall 11. Affixture of 3 grills 12. Interlock on court yard 13. Laying laterite stone Though execution of agreement denied by the opposite party he has admitted that the work in the item No.1 to 7 and No.9 has been undertaken by him to be done. Further case of the complainant is that he is liable to pay Rs.3,65,000/-on completion of the construction work but opposite party has already accepted Rs.3,00,000/- in total. The first point to be discussed is whether there is an agreement between complainant and opposite party with respect to the construction work. Opposite party contended that there was no such agreement. Ext.A7 is the agreement and opposite party denied his signature in the agreement. Complainant has not taken much interest to prove the agreement even if it is disputed by the opposite party. It can be seen that there are two witnesses in the agreement. But complainant has not taken steps even to examine those witnesses as a genuine attempt to prove the agreement. Hence Ext.A7 agreement stands not proved. However opposite party has undertaken certain work to b e done. Ex ts.C1 and C2 report of the advocate Commissioner and the expert reveals that the cost of the work done by the opposite party comes to Rs.2, 05,007/-. The case of the complainant is that the cost of the work done by the opposite party is only below Rs.1, 00,000/-. The report ext.C2 also stated that there is no defect noted in the work already carried out. The only defect pointed out by the expert is that the work of the bathrooms in the upper portion is not completed. Opposite party admitted this fact in his version. Opposite parties case is that he has received Rs.2, 00,000/- only and he has done work with more Rs.2, 00,000/-. The report of the expert reveals that he has done the work more than Rs.2, 00,000/- and no defect noted in the work already carried out. Hence the contentions of complaint that the work done by the opposite party is worth of less than Rs.1, 00,000/- and the work carried out suffers defects are not sustainable. Complainant further says that he has paid Rs.3, 00,000/- to opposite party. But complainant has not produced any documents to show that opposite party has received Rs.3, 00,000/-. Ext.A1 and A2 are the documents produced by the complainant to prove the payments. These cheques were issued only Rs.50, 000/- each. Hence complainant is failed to prove the payment of Rs.3, 00,000/- On going through the evidence and perusal of records we are under the impression that the complainant failed to prove his case establishing deficiency in service on the part of opposite party. Hence we hold that complainant is not entitled to get any relief as prayed in the complaint. In the result, the complaint is dismissed. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the cheque bearing Nos. 385755 and 56 A3.Copy of the agreement executed by OP A3.Copy f the lawyer notice sent to OP A54AD card A5.Reply notice A6.Power of attorney A7. Agreement executed by OP Exhibits for the opposite party: Nil Exhibits for the court C1, C2.Commission reports Witness examined for the complainant PW1.Khalid Witness examined for the opposite party DW1.K.Sunil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
