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 18th day of November 2009 C.C.160/2009 C.H.Nasreen ‘AKTHAR’ Kannookkara, Complainant P.O.Thana Suresh, Proprietor of Associated Engineers & Architects, III Floor, Super Bazar, Kannur 1. Opposite party O R D E R Sri.K.Gopalan, President This is a complaint field under section 12 of consumer protection Act for an order directing the opposite party to pay a sum of Rs.3, 46,100/- to the complainant with 12% interest and cost of these proceedings. The facts, in brief of the case are as follows: The opposite party has undertaken to remodel the old house of the complainant on actual cost basis. The consideration for the service of the accused was fixed to Rs.50, 000/- with a stipulation to complete the work within one year. Accordingly the opposite party received a sum of Rs.8, 50,000/- from the complainant on different dates to meet the cost of construction. After receiving the amount opposite party changed his attitudes towards the complainant. He had delayed the execution of the work for reasons one or the other. During the period of work done, the opposite party received a sum of Rs.35, 000/- from the complainant as his remuneration. When the complainant persistently demanded to complete the work as agreed, the accused stopped the work. Later the matter was talked over and he had issued cheques for 1 lakh each towards return of the excess advance amount and agreed that the volume of work executed can be measured and assess the value within a month. Accordingly Sri.M.M.Mhd.Farooque, superintending Engineer, PWD (Rtd) had taken measurement of the executed work and assessed it to Rs.4, 80,000/- which was mutually agreed by the complainant and thereby the excess amount received by the opposite party was arrived to Rs.3, 70,000/- out of which he has issued two cheques for Rs.1 lakh each as stated above. The balance amount due is Rs.1, 70,000/. Out of this sum of Rs.1, 70,000/- the opposite party had issued a cheque No.000023 for Rs. 1 lakh. Out of the three cheques, the cheque No.203375 for Rs.1 lakh was paid by the opposite party and taken back the cheque from the complainant. The cheques 203372 and 000023 were returned unpaid due to insufficient funds in the account of the opposite party and accordingly criminal prosecution is pending against him. The notices were issued demanding him to make the payment but the same returned with the endorsement as “addressee left the place without any instruction”. Thus the total amount due is Rs.2, 70,000/-. The opposite party willfully refused to provide his service as agreed. He has received a sum of Rs.35, 000/- from the complainant as consideration for his service. Therefore, as per the contract the opposite party is bound to provide his service and perform his obligation with perfection. Dropping the very execution of the work is deficiency in service. Hence this complaint. Notice was sent to opposite party but the same returned with an endorsement “left the place”. Publication was allowed for service and on production of the same serving of notice was recorded and opposite party called absent and set exparte. Thereafter the complainant filed chief affidavit and marked Exts.A1 to A12. The main question to be decided is whether there is any deficiency on the part of opposite party and if so whether complainant is entitled to get the remedy as prayed in the complaint. Complainant filed chief affidavit in lieu of chief examination and adduced evidence in tune with the pleadings. The case of the complaint is that he has entrusted the work of remodeling of his house to opposite party agreeing to undertake the construction work as a whole on actual basis. The opposite party received a sum of Rs.8, 50,000/- from the complainant to meet the cost of construction. The consideration for the service of the opposite party was fixed to Rs.50, 000/-with a stipulation to complete the work within one year. During the period of work done he received Rs.35, 000/- out of Rs.50, 000/- as his consideration. The opposite party delayed the work and ultimately stopped the work and left the place. The matter was talked over and he had agreed to return the excess amount received by him. Sri.M.M.Mhd.Farooque, superintending Engineer, PWD (Rtd) had taken measurement of the executed and assessed it to Rs.4, 80,000/-. This was accepted by both parties and agreed to return the excess amount received by opposite party Rs.3, 70,000/-. Out of the three cheques issued complainant received only payment of Rs. 1 lakh and the other cheques bounced for want of money in the opposite party’s account. Complainant has to pay Rs.2,70.000/-. Ext.A1 is the true copy of the cheque No.203372 dt.15.12.08. Ext.A2 true copy of the cheque returning memo issued by CICO Bank, Kannur branch shows that the same has been returned on the ground marked Funds insufficient. Ext.A2 is the legal notice to opposite party called upon to pay the cheuqe amount Rs.1, 00,000/- within 15 days of the receipt of the notice. Ext.A4 acknowledgement shows that the opposite party has received the notice Ext.A5 true copy of the another cheque reveals opposite party has issued another cheque on 10.2.09 and the Ext.A6 memo reveals that the same has been returned on the ground marked” exceeds arrangements”. It is evident that the above said two cheques were returned up paid. Ext.A9 the true copy of the agreement reveals the fact that the opposite party has agreed to pay the complainant Rs.2, 00,000/- within one month. Ext.A9 clearly reveals that opposite party issued cheque No.203372 dt. 7/12/08 forRs.1, 00,000/- and cheque No.203375 dt.15.12.08 to the complainant. Ext.A1 is the first cheque which has been returned by cheque return memo Ext.A2. But the second cheque shown in the agreement 203375 has been paid by the opposite party. Complainant admitted that Rs.1, 00,000/- paid by the opposite party and taken back the respective cheque NO.203375. The agreement executed on12.11.08 and two cheques were issued towards the excess amount and further agreed as per Ext.A9 that”F\n \½Ä X½n-ep-ff IW-¡p-IÄ ]-d-ªp- XoÀ¡p-¶-Xn-te-¡mbn CXp-hsc \S¶ hoSp ]Wn-bp-sS hme-vyq-th-j³ \½Äc-p-t]À¡pT kzo-Im-c-y-\mb Hcp F³Pn-\n-b-sd-sImWSp- sN-b-bn¸n¨p- A-Xp-{]-Im-c-ap-ff skänÂsaâp Hcp amk-¯n-\-I-T- XoÀ¡m-sa¶p k½-Xn-¨n-cn¡p¶p. The valuation report Ext.A10 endorsed, with detailed valuation based on measurement the total valuation of structure comes up to Rs.4,80,000/-. The Engineer stated in his report that on his inspection of the site along with the owner of the building he could find the building work so far completed at ground floor includes a new well , car porch and spiral staircase in place of old one demolished . In addition to this some extension of rooms to the already existing building are also seen structurally completed. He further stated that “Ground floor concrete slab are seen extended by simply joining with new concrete slab which could have been avoided considering the future structural problems such as leakage also. Car porch beam is seen hanging without proper seating on wall support and this would be altered immediately before further loading to the structure. In the first floor only two bed rooms with toilets on are completed up to lintel level”. This report places a picture of the work carried out by the opposite party which needs no further explanation to find the negligence and deficiency on the part of opposite party. Complainant has submitted his affidavit fully supporting his case. Taking in view the facts stated in the complaint supported by the evidence and also keeping in view the conduct of the opposite party in not contesting the case we are satisfied that the opposite party has not only failed to provide the requisite services for which his service was duly hired but also indulged in unfair trade practice virtually amounting to cheating. We, therefore, allow this complaint and direct the opposite party to refund a sum of Rs.2,70,000/- as the sum due to the complainant as excess amount together with Rs.10,000/- as compensation for the agony and hardship Caused to complainant. and the cost of litigation. In the result, the complaint is allowed directing the opposite party to pay Rs.2,70,000/-(Rupees Two lakh seventy thousand only) as the sum of due to complainant together with Rs.10,000/.- (Rupees Ten Thousand only) as compensation for the agony and hardship caused to the complainant and also as the cost of litigation . Opposite party is liable to parry the amount within one month from the date of receipt of this order, failing which the Complainant is entitled to execute the order in accordance with the consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Cooy of the cheque Rs.1,00,000/- A2.Copyof cheque return memo A3 &4. Copy of the lawyer notice and returned notice. A5.Copy of the cheque for Rs.1,00,000/- A6.copy of the cheque return memo A7 & 8.Copy of the notice and returned notice. A9.Copy of the agreement A10.Copy of report with Account A11.Photographs A12.Bill for photographs. Exhibits for the opposite party: Nil Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur,
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
