IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 29th day of March, 2010
Filed on 17.12.08
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member)
in
C.C.No.311/08
between
Complainant:- Opposite Party:-
Sri.Sivankutty, Sri.T.K.Sunil,
Ambady, S/o Karunakaran,
Seaview Ward, Thekkekunnamthara,
Alappuzha. K.R.Puram.P.O., Cherthala.
(By Adv.R.Francis Xavier) (By Adv.V.M.Arunkumar)
O R D E R
SRI.JIMMY KORAH (PRESIDENT)
The case of the complainant is as follows:- The complainant was contemplating on renovating his residence. On coming to make out this, the opposite party who is a contractor approached the complainant and insisted him to entrust the proposed work to him. Consequently, on 11th February 2008 the complainant and opposite party entered into an agreement as to the construction of the particular portion of the existing building. The opposite party prepared a plan and the area was estimated around 500 Sq. feet. The amount charged was Rs.950/-(Rupees nine hundred fifty only) per square feet. As per the opposite party's assurance and the agreement between the parties, the planned work was to be completed within six months from the date of the agreement. In line with the agreement, the complainant paid an amount of Rs.1,00,000/-(Rupees one lac only) to the opposite party on the very date of the agreement. The agreement stipulated that the complainant had to give another Rs.l,00,000/-(Rupees one lac only) when the lintel-level-work is completed. The balance has to be paid only after the completion of the entire work. Notwithstanding the agreement, the opposite party commenced the work too late violating the stipulations in the agreement. Even after commencing the construction work, the opposite party dropped the same half-way on several occasions. The complainant was constrained to pursue and persuade the opposite party to get the work resumed over again. In the meantime, the opposite party on 17th April 2008 procure an amount of Rs.35,000/-(Rupees thirty five thousand only) and an amount of Rs.65,000/-(Rupees sixty five thousand only) on 22nd May 2008 from the complainant. Thereafter, once again, the opposite party abandoned the work in the middle. After a short while on 29th July 2008 the opposite party approached the complainant and impressed upon him that he was short of sufficient funds and availed an amount of Rs.50,000/-(Rupees fifty thousand only) from the complainant. The opposite party moved the work a little and left the scene. Despite the complainant all-out efforts, the opposite party never turned up to finish the construction. Though he availed a total amount of Rs.2,50,000/- (Rupees two lac fifty thousand only), the opposite party carried out the work only for a lesser amount. The commission and omission of the opposite party caused enormous agony and financial loss to the complainant. There is deficiency of service on the part of the opposite party. Got aggrieved on this the complainant approached this Forum for compensation and other relief.
1. On notice being sent the opposite party turned up, but did not make it a point to file version. The opposite parties were set ex-partie.
2. The complainant’s evidence consists, filed proof affidvit and the documents Exts. Al to A9 were marked. The expert commission report was marked Ext. C1.
3. Bearing in mind the contentions of the complainant the questions come up for consideration before us are:-
(a) Whether there is any violation of agreement on the part of the opposite party?
(b) Whether the complainant sustained deficiency of service and mental agony at the hands of the opposite party?
(c) Whether the complainant is entitled to the relief sought for in the complaint?
4. We went through the materials put on record by the complainant. The complainant duly produced the agreement and the statement of account from the concerned bank that support rather substantiates the complainant case. This Forum on complainant's request appointed an expert commissioner and the report was promptly produced before this Forum. We anxiously perused the pleadings, the expert commission report and other documents brought on record by the complainant. There is no dispute that the complainant has come with the case that the opposite party abandoned the work midway on availing surplus amount from the complainant. Thus it is clear that the complaint in question does not relate to the defect in construction, but it is obviously in respect of breach of contract. It is well settled in law that when the dispute is in respect of breach of contract, it does not constitute consumer dispute as envisaged by the provision of Consumer Protection Act. Obviously, the complainant has approached this Forum for refund of the excess amount the complainant conferred to the opposite party. For the same, the complainant ought to have pursued the ordinary remedy by way of institution of a civil suit. However, we are of the view that leaving behind the entrusted work half way must have inflicted untold mental agony to the complainant. On this aspect, we hold that there is service deficiency on the part of the opposite party. As we have already observed, the opposite party was neither keen on filing the version nor to rebut the evidence let in by the complainant. Needless to say the complainant's evidence stands unchallenged and we have no course open but to accept the evidence of the complainant to the effect that the work was disposed of without being completed.
In the result, the opposite party is directed to pay an amount of Rs.25,000/-(Rupees twenty five thousand only) to the complainant as compensation for the mental agony the opposite party inflicted to the complainant.
Complaint stands disposed accordingly. No order as to cost.
Pronounced in open Forum on this the 29th day of March, 2010.
Sd/-Sri. Jimmy Korah
Sd/-Sri. K. Anirudhan
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
Proof affidavit in lieu of position
Ext. C1 - Commission Report
Ext. A1 - The original Agreement dated 11.02.2008
Ext. A2 - The list of Items given by the opposite party
Ext. A3 - The Voucher dated, 17.04.2008 for an amount of Rs.35,000/-
Ext. A4 - The Voucher dated, 22.05.2008 for an amount of Rs.65,000/-
Ext. A5 - The Receipt dated, 29.07.2008 for an amount of Rs.50,000/-
Ext. A6 - The copy of the Advocate Notice dated, 10.11.2006
Ext. A7 - The Acknowledgment Card
Ext. A8 - The Statement of Account dated, 06.02.2010
Ext. A9 - The copy of Bank Pan Book
Ext. A10 - The Advocate Notice dated, 09.02.2007
Evidence of the opposite party:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
