DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 22nd day of May 2010 .
Present : Smt. H. Seena, President : Smt. Preetha G. Nair, Member : Smt. Bhanumathi.A.K, Member
C.C.No.56/2008
M. Krishnan Nair S/o. Kizhakkeppattu Paru Amma Ullanur, Thrithala Ottappalam Taluk Palakkad . - Complainant (Adv. Ullas.P. Sudhakaran) V/s
1. Velayudhan S/o. Ayyappan Cholekkavil, Ullanur Thrithala, Ottappalam Taluk Palakkad (Adv. U. Muhammed Musthafa) 2. Rajeev S/o. Velayudhan Cholekkavil, Ullanur Thrithala, Ottappalam Taluk Palakkad. - Opposite parties (Adv. U. Muhammed Musthafa) O R D E R By Smt. Seena.H, President
The complaint in brief: The complainant and opposite parties entered into an agreement for effecting repairing work of the complainant's house and the consideration was fixed as Rs.14,000/- The renovation work as per the agreement includes removing existing brick masonry, tiled roofing including rafters and reapers of old portico, constructing new Portico with side walls by Laterite Masonary till and above beam, R C C work of beam, lintel and sunshade, concreting and plastering floor and laying R C C main slab over newly constructed Portico. Complainant paid an amount of Rs.7,500/- in total on various dates. The opposite parties had agreed to complete the work on or before 08/03/2008. The allegation of the complainant is that opposite parties failed to execute the work in time. Further the work - 2 - completed is also defective. The side walls of the portico, constructed by the opposite parties, are not in straight line and there is a level difference also. The sun shade constructed is not high enough from the ground level. The height of the entrance of Portico is also not sufficient. Due to defective construction there is a gap of 2 ½ inches between the old wall and the newly constructed wall. In spite of repeated requests the opposite parties did not rectify the defects and complete the work. Complainant was always ready to perform his part. Complainant and his family members were compelled to live in the uncompleted house. Complainant sent a notice to the opposite parties directing them to repay the excess amount of Rs.4,500/- received from the complainant along with Rs.75,000/- as compensation. Opposite party filed reply stating untrue facts. Hence the complaint.
Opposite parties filed version contending the following.
The main contention raised by the opposite parties is that the complaint is not maintainable before the Forum, since the work undertaken by the opposite parties falls under the head contract of personal service and thus not coming under the purview of the Consumer Protection Act. Opposite parties admits receipt of Rs Rs.7,500/-. but contented that opposite parties has already effected the repairs for the said amount. The balance work could not be completed only because of the non-co operation of the complainant. Hence no deficiency in service on the part of the opposite parties.
The evidence adduced consists of the affidavits of both parties. Exhibits A1 and A2 marked on the side of the complainant. Commissioner examined the site of the complainant and the report is marked as Exhibit C1.
Issues for consideration are: Whether service rendered is a contract of personal service or contract for personal service
2. Whether there is any deficiency in service on the part of opposite parties? 3. If so, what is the relief and cost complainant is entitled to?
- 3 - Issues 1
The main contention of the opposite parties is that the complaint is not maintainable before the forum since service rendered will come under the head “contract of personal service”. It is true that, as per Sec 2(1)(0), contract of personal service is specifically excluded from the definition of service. Contract of personal service stems from a master servant relationship which is totally different from a technical relationship. In this particular case repairing work of the complainant's house is entrusted with the opposite parties, by way of an agreement. Complainant is a layman and opposite party being an expert in the field decides what to do the work and how to do with regard to the house. If that be the case, it will come only under the head contract for personal service. Hence the first point is decided in favour of the complainant.
Issues 2 & 3 Complainant has taken out an expert commission and the report is marked as Exhibit C1. Commissioner has noted any major defects with respect to the building. The only defects noted is with respect to the projection of newly constructed wall from the old building and that the sunshade is not having sufficient height. Even though major defects were not noted, in view of the above findings of the commissioner, we are of the view that complainant is entitled for some compensation in respect of the defects noted.
In the result complaint partly allowed. Opposite parties are directed to pay complainant an amount of Rs.3,000/- as compensation and Rs.500/- as cost of the proceedings. Order to be complied within one month form the date of receipt of order failing which the amount shall carry interest at the rate of 9% per annum from the date of order till realization.
Pronounced in the open court on this the 22nd day of May, 2010.
- 4 - PRESIDENT (SD)
MEMBER (SD)
MEMBER (SD) APPENDIX Date of filing : 05/04/2008 Witness examined on the side of Complainant Nil Witness examined on the side of Opposite party Nil Exhibits marked on the side of the complainant Ext. A1 – Agreement of opposite parties
2. Ext. A2 – Copy of agreement dated 19/03/2008 Exhibits marked on the side of the opposite party Nil Forums Exhibits Nil
Commissioners Report C1 – Dated 24th September 2009 Costs
| | HONORABLE Smt.Preetha.G.Nair, Member | HONORABLE Smt.Seena.H, PRESIDENT | , | | 
