O R D E R

Sri. George Baby (President):

This complaint is filed U/S 12 of the Consumer Protection Act.1986 by the complainant against the opposite parties for getting certain reliefs through this commission.

            2. The case of this complainant in briefly as follows :-

The complainant had entered in to an agreement with opposite party for the renovation of his buildings. The agreement was on 05.12.2017. According to the terms of the agreement the opposite party bound to complete the renovation work within 70 days from the date of agreement. So for this complainant had paid Rs. 6,00,000/- (Six Lakhs only) to the opposite party in pursuance of the agreement between them. The opposite party had abandoned the renovation works on 02.05.2018 without completing the same. After that the complainant many times  contacted the opposite party and requested him to complete the renovation works as per the terms and conditions of the agreement dated 5.12.2017. But the opposite party was not ready for that.  The Major renovation works were pending and the same caused much hardship to the complainant and his other family members.  According to the complainant the opposite party had completed the work worth Rs. 4,00,000/- (Four Lakhs only) and opposite party  had excessively collected an amount of Rs. 2,00,000/- (Two Lakhs only) from  him. The non-completion of the renovation works within the time frame is deficiency in service of the opposite party and the excessive collection of amount of Rs. 2,00,000/- is the unfair trade practice of the opposite party. The opposite party’s acts caused much mental agony and distress to the complainant. Hence this complaint is to return the excess amount collected by the opposite party, compensation cost etc.

3. The commission entertained the complainant and issued notice to the opposite party for appearance. The opposite party appeared through  his  counsel and filed version. The main contentions of the opposite party is as follows:-

 The complaint is not maintainable either in law or on facts. The agreement between the complainant and the opposite party made On .05.12.2017 is admitted. The agreement is for the completion of renovation works on the basis of the supplied plan with agreed rate of Rs. 1,800/- per square feet. It is mentioned in the agreement that the plan is the part of the agreement and the works should be completed within 70 days. In the agreement it is specifically mentioned that the complainant is bound to pay the charges of the additional works and also noted that if any of the reason beyond the  control of the opposite party work is delayed the complainant is bound  to extend the above mentioned time frame  of 70 days for completions.  The opposite party had commended the renovation works of building in the month of December 2017 and completed certain works as per the agreement and in addition to that the opposite party had done some other works which has not mentioned agreement. The complainant had paid only Rs. 4,50,000/- to the opposite party for the work done by him and denied the payment of Rs. 6,00,000/-.The opposite party had completed the works more than that and according to him he has completed the works worth Rs.8,00,000/-. The complainant has made default in payment of the extra works done the opposite party. Subsequent to that the complainant and the opposite party made alterations in this regard, and the opposite party demanded this interventionsof others for assessing the actual works done by him and its payment. The allegation that the opposite party had abandoned the works On02.05.2018 without any probable reason is not correct. The complainant  was forcibly restrained the opposite party from carrying out the works on 18/08/2018. The complainant had not settled the accounts so far. When the work was stopped the opposite party had collected certain materials such as p-sand, metal, cement packets granites, and tiles at the site. The opposite party had completed major works on the basis of the agreement. The opposite party is not liable to pay any amount to the complainant as claimed.  The opposite party pray to dismiss the complainant with his cost.

                       4. During the pendency of the proceeding the opposite party died and his legal heirs were  impleaded as additional opposite parties 2 to 4. Additional opposite parties approached through the same counsel of the I^stopposite party and filed separate version. Which is in the same tune of the version of the I^st opposite party. The contents adopted  by the additional opposite parties  2 to 4 are very same of the contentions of the I^st opposite  party.

              5. We peruse the complaint version and records before us and we framed the       following issues for considerations.

1. Whether the I^st opposite party had committed any deficiency in service against the complainant ?
2.  

             3.  Whether the complainant is entitled to get compensation and cost from the

opposite parties.

                     6. When the complaint was posted for trial the complainant had filed proof affidavit in lieu of his chief examination and Exebit.A1,A1(a) A2 and C1 commission report marked through him Ext. A1 is the original agreement dated 05.12.2017 made between the complainant and the I^stopposite party, Ext. A1(a) is the reverse side of the I^st page of Ext. A1 which showing the payment through the cheque  and its acknowledgement from 03.12.2017 to 31.03.2018. Ext. A2 is the certificate of payment issued from central Bank of India,Kalanjoor Branch complainant was examined as PW1.  Even though many postings were given to the opposite parties for the conduct of the case, nobody was appeared or represented for them after filing the version.  After the completion of the evidence we heard the complaint, opposite parties called absent on that day.  Hence case posted for orders.

        13. Point No. 1 & 2:- For brevity and sake of convenience we would like to consider Point No. I and II together.  The case of PW1 is that he had entered into an agreement with the opposite party for the renovation of his old building.  The terms and conditions of the agreement was reduced in to writing on 05/12/2017.  The said agreement is marked as Ext. A1. When we go through the content of Ext. A1 it is seen that all the contentions raised by the PW1 with regard to Ext. A1 is correct.  The time mentioned for the completion is 70 days from the date of execution of agreement.  PW1 stated that he had clearly adhered with the provisions of Ext. A1 and paid Rs. 6,00,000/- to the 1^st opposite party for the renovation works and the payment were effected through his cheques.  In the written version of OP1 and as well as the version of others the opposite parties contended that the 1^st opposite party had accepted only Rs. 4,50,000/- from the complainant and not received Rs. 6,00,000/- as alleged by the complainant.  In this context the learned counsel appearing for the complainant invited our attention to Ext. A1(a) and Ext. A2.  Ext. A1(a) is sufficient enough to prove the payment of Rs. 6,00,000/- to the 1^st opposite party through cheque bearing no. 016302 to 016307.  The learned counsel argued that the entire payment in Ext. A1(a) is acknowledged by additional OP4 and he has acknowledged the same by putting his signature.  The learned counsel again inviteour attention to Ext. A2 and argued that the amount mentioned in the cheque bearing no. 16302 was paid to Mrs.Sheeja who is the 2^nd additional opposite party in this case.  The learned counsel argued that Ext. A1(a) and Ext. A2 not only prove the payment of Rs. 6,00,000/- to the opposite parties but also prove the involvement of additional opposite parties to this case.  From Ext. A1(a) and Ext. A2 it is crystal clear that the complainant had paid Rs. 6,00,000/- to the opposite parties.  The opposite parties have not a case that they have other financial transactions with the complainant.  In this context we have taken the contentions of the complainant as more probable that he had paid Rs. 6,00,000/- to the opposite parties for the renovation works of his building.  The term mentioned in Ext. A1 for the completion of renovation work is mentioned as 70 days from the date of execution of agreement dated: 05/12/2017.  The specific allegations of PW1 is that the opposite party had abandoned the construction works on 02/05/2018 without any valid reason.  The opposite parties have not a case that they had completed the renovation works as per Ext. A1.  Nothing has been brought out in evidence to disprove the contention of PW1 that the opposite party had abandoned the works on 02/05/2018.  The learned counsel argued that Ext. A1 is with regard to the renovation works of the residential building of the complainant and hence considering the context of the case on hand time is the essence of the contract.  We found some force in such argument.  As the subject matter is related with the renovation of a residential building normally the occupier of the building expect time bound completion of renovation works.  Definitely the inordinate delay in completion and subsequent abandonment without the fulfilment of the terms of agreement is clear deficiency in service and unfair trade practice.  Main and important allegation of PW1 is that even though he had paid Rs. 6,00,000/- to the 1^st opposite party had completed the works only worth Rs. 4,00,000/-.  While we are evaluating such contentions we go through Ext. C1 commission report.  Ext. C1 commission report was prepared by Adv. Santhya T Vasu and she was assisted by an engineer named Mr. M.T. Varghese.  In this elaborate report the engineer specifically noted all the matter in detail and reported that the cost of the works performed by the opposite party is valued at Rs. 4,80,678/- only.  The said cost includes the contractor’s profit also.  In that situation we can safely came to a conclusion that the 1^st opposite party is excessively collected an amount of Rs. 1,19,322/- (6,00,000-4,80,678) from the complainant in  relation with the renovation works.  The engineer in his report it is clearly stated that further Rs. 4,38,202/- is necessary for the completion of the remaining works and also reported that during this period about 15% of price escalation caused to the materials and labour cost.  The commissioner’s Ext. C1 report remainunchallenged.  From the overall undisputed evidence of PW1, it is clear that the opposite party had not completed the renovation works of the building within the time frame mentioned in Ext. A1 and without fulfilling the terms of contract he had abandoned the works by excessively collected an amount of Rs. 1,19,322/- from the complainant and the same is clear deficiency in service and unfair trade practice from the part of the opposite parties and hence the point no.  1 & 2 found in favour of the complainant.

                           14.Point No. 3 :-The entire evidence convinced us that the opposite party had committed clear deficiency in service and he had excessively collected Rs. 1,19,322/- from the complainant.  For determining the compensation connected with the matter of a construction it is necessary to go through the expert opinion contained in Ext. C1.  The commissioner engineer categorically mentioned the defects of the works performed by the opposite party.  Similarly he is reported that further Rs. 4,32,202/- is necessary for the completion of remaining works.  The engineer further reported that 15% of the price escalation happened during these periods on material and labour charges.  While fixing the compensation, we think all these matters have to be taken into account.  It has come out in evidence that the opposite party had not completed the works properly and there occurred delay in completion of the works which ultimately lead to the additional burden to the complainant and in that situation the complainant is entitled to get fair compensation and cost of the proceedings from the opposite parties.  Point No. 3 is also found in favour of PW1.

                                    In the result we pass the following order.

            (1) The opposite parties 2 to 4 are directed to refund an amount of Rs. 1,19,322/-

(Rupees One Lakhs Nineteen Thousand Three Hundred and Twenty Two only)

to the complainant with 6% interest from the date of the complaint i.e.,

                 15/09/2018.

(2) The opposite parties 2 to 4 are also directed to pay an amount of Rs.

50,000/- (Rupees Fifty Thousand only) to the complainant as compensation with

                6% interest from the date of receipt of this order.     

(3) It is further order that the opposite parties 2 to 4 are directed to pay an amount

of 10,000/- (Rupees Ten Thousand only) as cost to the complainant.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 27^th day of August, 2021.      

                                                                                                                           (Sd/-)                                                                                 

                                                                                                                       George Baby,

                                                                                                                           (President)

Smt. N. ShajithaBeevi (Member-I)   :  (Sd/-)

Sri.NishadThankappan (Member-II) :(Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1: SanjivGangadharan

Exhibits marked on the side of the complainant:

A1: original agreement dated 05.12.2017.

A1(a) : Reverse site of the I^st page of Ext. A1 which showing the payment through the

cheque  and its acknowledgement from 03.12.2017 to 31.03.2018.

A2: certificate of payment issued from central Bank of India, Kalanjoor Branch.

Witness examined on the side of the opposite parties: Nil

Exhibits marked on the side of the opposite parties: Nil.

Court Exhibit:

C1: Commission Report

Copy to:-(1) SanjivGangadharan,

                        V.K.G Villa,Kudutha,Kalanjoor P.O,

                       Konni – 689694.

(2) Suresh Chandran,

Represented by its Proprietor,

Surya Construction,Kalanjoor,

Surya Bhavan,

Parayamkode,Kalanjoor. P.O,

Konni – 689694.

(3) SheejaChandran,

Parayamkode, Kalanjoor P.O,

Konni – 689694.

4.             Parayamkode, Kalanjoor.P.O,

Konni – 689694.

(5) SoorajChandran,

Parayamkode, Kalanjoor.P.O, Konni – 689694.

(6) The Stock File.