Sri. K. Gopalan: President<br /> This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay a sum of Rs 1,00,000/- as compensation together with the cost of this proceedings.<br /> The averments in the complaint in brief are as follows: Complainant is a handicapped person and is the owner of the bus. He availed loan from Sreeram Investment, Chennai. As per agreement dated 27.12.2003 opposite party was entrusted with the new chassis of the bus of the complainant to build brand new bus body of latest fashion with first quality materials. The main condition in the agreement was to finish the work within 20 days and to hand over the bus to complainant. It was also stipulated to use good workmanship and materials for the body building. Being the consideration and old bus bearing registration no.KL B 806 of complainant was given as per the agreement dated 27.12.2003. The opposite party did not finish the body building in time and not handed over the bus within the stipulated 20 days period and thereby committed grave dereliction of duty and deficiency of service. It was only on 25.2.2004 handed over the bus finishing the work. Thus there was 31 days delay . The complainant suffered a loss of Rs 1,500/- per day due to this deficiency of service on the part of opposite party and thus opposite party is liable to pay Rs 6,500/- to the complainant. Even on 25.2.2004 the work was found not completely finished . Again after a lot of discussion , the bus was reentrusted to opposite party for body partition behind dirver’s seat and the bus was returned on 23.3.2004 only. Thus there is a loss of Rs 9000/- due to this delay. Opposite party illegally charged Rs 1,500/- for this defect clearing work also On inspection of bus it was found several defects in the workmanship and materials. So also the spare parts worth Rs 15,000/- entrusted to opposite party as was received on receipt of chases were not returned by opposite party. The complainant suffered huge mental pain and sufferings. Apart from this on 13.2.2004 the opposite party trespassed into the residence of this complainant and forcefully took registration certificate of bus 13/K 8918 sale papers and 2 signed blank cheques. A criminal case in this regard is filed before C.J.M. Court Thalassery as CC 101/2004. The cause of action arose on 5.1.04 when the chassis was handed over to opposite party, on 27.12.2003 the agreement date and the day, consideration bus and amount, was handed over to opposite party. Complainant prays for an award of compensation of Rs 1,00,000/-.<br /> Persuant to the notice opposite party made appearance and filed version as counter. Subsequently opposite party became absent and set exparte. The contention of the opposite party in brief are as follows: The complainant has suppressed important facts before the Forum. As per the agreement l27.12.2003 the complainant entrusted the opposite party to purchase a chassis of TATA 1510 at the expense of the complainant and build a body of the bus at the expensed of the opposite party within 20 days from the date of purchase of chassis . The consideration of the said agreement was that the bus bearing no.KL 13 B 806 of 1994 model which sold to opposite party. As per agreement the insurance amount pertaining to the new bus had to be paid by the complainant to the opposite party. After executing the aforesaid agreement, the complainant and opposite party entered into another agreement on 5.1.2004 by which the opposite party resold the bus to the complainant for a sum of Rs 3,30,000/-. On the date of the aforesaid agreement, the complainant paid Rs 1000/- as advance and balance amount of Rs 2,25,000/- to be payable on 7.1.2004 and RS 25,000/- on 10.12.2004 and the balance amount within 75 days from the date of agreement. The opposite party is bound to build the body within 20 days from the date of purchase of the chassis. The chassis was purchased on 9.1.2004 and the opposite party built the body within 20 days and the period was further extended for 5 days by the complainant as he wanted scorpio model frontage for his bus. The body was built on 4.2.04 and the same was informed to complainant. AT that time the complainant was in Andra Pradesh in connection with his business. The complainant took delivery of the bus from the opposite party on 8.2.04 after satisfying all the requirements in the light of the agreement dt.27.12.03. The opposite party denies that the bus was returned to opposite party again on 17.3.04. It is false to say that the complainant has suffered a loss of Rs 1500/- per day. The materials used by the opposite party is of standard quality and the complainant never complained when he took delivery of the bus. The painting of the bus was done in the presence of the complainant and the material also used as per his request. Opposite party denies the averments that the complainant entrusted 6 items to the opposite party and the same has not returned. No such items entrusted with the opposite party. After delivering the bus, the complainant has to pay Rs 1,52,500/- to the opposite party and he never paid the amount to the opposite party. The complainant is liable to return Rs 1,52,500/-to the opposite party for the work he has done. The opposite party also denies that he has trespassed into the house of the complainant and forcefully took the R.C, sale papers and two signed blank cheques. The complainant has produced only the agreement dated 27.12.03 and concealed the other agreement dated 5.1.2004. This opposite party has documents to prove the case. Hence prays to dismiss the case.<br /> On the above pleadings the following issues have been taken for consideration.<br /> 1. Whether there is any deficiency in service on the part of opposite party?<br /> 2. Whether the complainant is entitled for the remedy as prayed in the complaint?<br /> 3. Relief and cost.<br /> The evidence consists of the chief affidavit of complainant and Exts. A1 & A2 and Ext. C1. <br /> ISSUES 1 to 3:<br /> The complainant Gangadharan, a handicapped person is the owner of the bus KL 13 /K-8918. Ext. A2 proves that he is the owner. Ext. A1 executed on the 27th day of December 2003 is the agreement between Gangadharan and Ashraf by which opposite party Ashraf was entrusted to build the body of the bus. As per the agreement the opposite party at his expense has to build the body within 20 days from the date of purchase of the chassis. The complainant alleges that opposite party did not build the body of the bus in time and the bus was handed over with a delay of 31 days. The opposite party contended in his version that the complainant and opposite party entered into an agreement on 27.12.2003 and as per the agreement the complainant entrustd to purchase a chassis at the expense of the complainant and build a body of the bus at the expense of the opposite party within 20 days from the date of purchase of chassis. The consideration of the said agreement was the bus KL.13 B 806 of 1994 model sold to opposite party Ext. A1 contains thus”<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Thus the opposite party received consideration for the body building and as per terms of agreement opposite party has to deliver the bus on running condition to complainant in time. Ext. A1 specifically states thus” <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Complainant alleged that opposite party did not build body of the bus in time and did not hand over the same within the stipulated time but with a delay of 31 days. Complainant also alleged that the opposite party handed over the bus without completing the full work. Complainant stated in his chief affidavit that for completion of work the bus was again returned to opposite party on 17.3.2004. It was handed over back on 23.3.2004. It is stated that this time complainant suffered a loss of Rs 9000/- and opposite party charged Rs 1500/- out of condition. Complainant further alleged that opposite party has used inferior quality material for building the side shutter and the paint used was also inferior quality. Complainant further alleged that the steel belt fixed on platform was old and rusted one taken from old bus. In chief affidavit the complainant also stated that 6 items of article namely 1 front grill , 1 front bumber, 2 numbers kaul, 1 grear leaver boot, 1 electric horn, 1 electric flasher and batter main switch etc which costs Rs 15000/- has not been returned by the opposite party at the time of handing over the bus. There is no reason to disbelieve the complainant. The commissioner’s report revels that the opposite party has used cheaper materials for construction of body building. Ext. C1 the report of the Commissioner states thus:<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> The commission report proves that the opposite party has used qualitatively inferior materials for the body building . Oppoiste party contended that he has evidence including documentary evidence to prove his contention but he did not even produce a single document with the version. Opposite party contended that the complainant and opposite party entered into another agreement on 5.1.2004 by which the opposite party resold the bus to the complainant for Rs 3,30,000/-. Opposite party also contended that after delivering the bus the complainant has to pay Rs 1,52,500 to the opposite party. But no such document produced before the Forum for which opposite party has given an explanation that the complainant has concealed the agreement dt. 5.1.2004. There is no evidence to this effect.<br /> The complainant with the support of Exts. A1, A2 and Ext. C1 and by chief affidavit could succeed to prove his allegations be true. Ext. C1 report of the commissioner alone is sufficient to establish deficiency on the side of the opposite party. The loss complainant sustained by inferior quality of materials, the cost of materials that was not returned, mental pain and sufferings etc cannot be discarded. Hence we have no hesitation to hold that there is deficiency in service on the part of opposite party and we are of opinion that the complainant is entitled for a sum of Rs 30,000/- as compensation with interest at the rate of 6% p.a. from the date of order till the date of payment and a cost of Rs 1000/-. The issues 1 to 3 are found in favour of complainant. The opposite party is liable to pay a sum of Rs 30,000/- with interest @ 6%p.a. from the date of order till the date of payment and RS 1000/- as cost of this proceedings. Order passed accordingly.<br /> In the result, the complaint is allowed directing the opposite party to pay a sum of Rs 30,000/-( Rupees thirty thousand only) to the complainant with interest@ 6% p.a. from the date of order till the date of payment and a sum of Rs 1000/- ( Rupees one thousand only) as cost of this proceedings within one month from the date of receipt of this order failing which the complainant is allowed to execute the order against the opposite party under the provisions of the Consumer Protection Act<br /> <br /> Sd/-MEMBER Sd/- MEMBER Sd/-PRESIDENT<br /> APPENDIX <br /> Exhibits for the complainant<br /> A1.Photo copy of the agreement dt. 27.12.2003 executed between the complainant and the opposite party. <br /> A2. Photo copy of the R.C. KL13/K 8918<br /> Exhibits for the opposite party – NIL<br /> Exhibits for the court<br /> C1. Commission report submitted by K.J.Marydas<br /> Witness examined for the complainant-NIL<br /> Witness examined for the opposite party – NIL<br /> Forwarded/ by order <br /> SENIOR SUPERINTENDENT<br /> <br />