IN THE CONSUMER DISPUTES REDRESSAL FOURUM, KASARAGOD <br /> CC.No.153/05<br /> Dated this, the 23rd day of April 2008.<br /> PRESENT<br /> SRI.K.T.SIDHIQ : PRESIDENT<br /> SMT.P.REMADEVI : MEMBER<br /> SMT.P.P.SHYMALADEVI : MEMBER<br /> <br /> Mohammed, <br /> S/o.Bappidi Ahamed,<br /> Bappidi House, Fort Road, Kasaragod. } Complainant<br /> <br /> T.M.Nawas,<br /> S/o. T.N.Kunhi, <br /> Mogral.Po, Kasaragod.Dt. } Opposite party<br /> <br /> O R D E R <br /> SRI.K.T.SIDHIQ, PRESIDENT<br /> <br /> The case of the complainant is as follows.<br /> Complainant during the construction of his house entrusted the work of interior decoration, interior design, curtain, furniture, lighting fittings, interlock, kitchen design, cupboard etc with opposite party for Rs.5,00,000/-(Rupees five lakhs) by an oral contract. As per contract the work should have been completed within 4 months using best quality materials. But Opposite party failed to do the work within the time stipulated and the materials used were poor they became decayed and lost it’s qualities. Though a lawyer notice was caused the same was returned as ‘unclaimed’. Therefore this complaint claiming Rs.5,00,000/-(Rupees five lakhs) on different counts.<br /> 2. Notice to opposite party was issued. Opposite party was present on 23-12-2005. Hence the case posted for version. But he remained absent during next postings. Hence he was called absent and set exparte. Later he filed a petition to set aside the exparte order and the same was allowed and subsequently he filed the version. According to Opposite party only the labour contract was entrusted. There was no contract fixing a consideration of Rs.5,00,000/-(Rupees five lakhs). The work has to be completed within 4 months. The materials were supplied by the complainant and only the labour work was given to him by contract. There was shortage of teak brought by the complainant. Hence Opposite party compelled to finish some items by combination of teakwood and plywood as per suggestions of complainant. There was no delay in finishing the work. The delay for post ponment of house warming was due to marble workers who kept work pending since their labour charges were not paid in time. There was no deficiency in the service rendered by him to the complainant.<br /> 3. The evidence in this case consists of Exts A1 & A2 lawyer notice and copy of undelivered notice and the affidavit of complainant and PW2 who supervised the house construction and the affidavit of DW!, the opposite party PW1, PW2& DW1 faced cross examination. Before filing the opposite party’s version as per the petition of the complainant the former Members of the Forum inspected the house of the complainant and the work done by Opposite party. They filed the report which is marked as Ext.C1.<br /> 4. Here the points to be considered are:<br /> i) Whether there was an agreement for works fixing consideration of<br /> Rs.5,00,000/- as alleged by the complainant?<br /> ii) Whether there was any deficiency in the service rendered by the <br /> Opposite party to the complainant?<br /> iii) What relief as to order and costs?<br /> For convenience points (i) and (ii) are discussed together.<br /> <br /> 5. The complainant examined as PW1 and deposed in tune with the complaint PW2 his house construction supervisor deposed that he was present when the work was entrusted to the Opposite party and as per contract Opposite party has to use teak wood for works. But Opposite party used country wood. In cross examination PW2 stated that he had seen the payments made by complainant to Opposite party and the last payment of Rs.1,00,000/-(Rupees one lakh) was on the same day of house warming.<br /> 6. A common man in ordinary circumstances will not allow to fix low quality materials or wood repugnant to the contractual terms to use high quality materials or wood, if he paid or propose to pay the entire amount as stipulated. Here the complainant allowed to fix articles made up of low quality materials and paid the balance of Rs.1,00,000/-after fixation as deposed by PW2. Had the complainant been dissatisfied on the work or materials used by Opposite party then he would not have been paid the said balance amount. So the say of the opposite party that the complainant allowed combination of teak and plywood is more probable so also the case that there was no contract for Rs.5,00,000/- to do the works using high quality materials or wood.<br /> 7. Opposite party filed affidavit in line with his version. According to him only the labour work was entrusted to him by contract. The materials were supplied by the complainant. According to him only the labour work was entrusted to him by contract. The materials were supplied by the complainant. According to Opposite party only Rs.1,07,000/- was paid and the balance Rs.1,55,000/- is pending payment. Complainant agreed to pay the amount after house warming but he did not pay. Hence he used to visit complainant’s house daily demanding the balance against which complainant filed police complaint alleging harassment by Opposite party. It is also the say of the Opposite party that from police station complainant agreed to settle the balance and pay the amount in the form of a cheque. But he did not pay the sum and filed this complaint. But in cross-examination Opposite party deposed that he had not seen the house of the complainant after house warming. This statement cuts the very root of the contention of the Opposite party that his daily visit to complainant’s house for the balance amount became a harassment to complainant which was the cause of action for the police complaint and this complaint. <br /> 8. From the facts narrated above it is clear that complainant and Opposite party are suppressing and distorting many material facts and approached the Forum with unclean hands. Even though the legal maxim falsus in uno falsus in omnibus has no application in India, we can not accept the evidence of both sides. Here the dependable available evidence is Ext.C1. In the said report it is noted that 10 kitchen cabinet doors were fallen from it’s frame. This occurred in a short span of time say hardly 11/2 years after the works done by Opposite party. This may be occurred due to the poor workman ship on the part of OP for which he is liable to compensate the complainant.<br /> 9. Point.No.(iii) Basing on the above discussions we partly allow the complaint and direct the Opposite party to pay the lumpsum amount Rs.20,000/-(Rupees twenty thousand only) to complainant for effecting the necessary repair works and also towards the compensation for his mental agony and sufferings. The Opposite party shall also pay Rs.2500/- towards cost of proceedings. Time for compliance of the order is 2 months from the date of receipt of the copy of the order. Failing which complainant cane initiate further steps U/s 25& 27 of the CP Act against Opposite party.<br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Exts.<br /> A1. Unclaimed letter<br /> A2. Dt.1-9-05 copy of lawyer notice<br /> C!, Commission report<br /> PW1.Mohammad<br /> PW2.BM.Abbas<br /> DW1. Nawas.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> Pj/<br /> <br /> <br /> <br /> <br /> <br />