By. Sri. Chandran Alachery, Member:-
The complaint is filed Under section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite party to pay Rs.40,000/- as compensation or to cure the defects in the painting work already done by the opposite party with some other painting workers with satisfaction of complaint.
2. The complaint's case in brief as follows:- The complainant entered in to an agreement with opposite party to carry out the painting works in the house of the complainant on 24.08.2011. As per the agreement, the total consideration is fixed as Rs.1,32,500/- including labour and material. The opposite party already received Rs.1,30,300/- from the complainant but not completed the work as per conditions of agreement. The work done by the opposite party is of low standard. There is colour fade and stiff out the painted areas, sit out portion is not painted and so many other defects. The complainant on many occasions approached the opposite party and demanded him to cure the defects and complete the work, but the opposite party did not acted upon. The complainant have no other way but to approach this Forum for redressal of his grievances.
3. On receipt of the complaint, Notice was issued to the opposite party and opposite party appeared before the Forum and filed version. In the version, the opposite party contended that there is no contract or agreement executed between the opposite party and the complainant. The opposite party denied the averment in the complaint that the painting work of complainant is given to the opposite party for a sum of Rs.1,32,500/-. Moreover, opposite party denied the signatures in the agreement, handwriting and contents of agreement. The allegation that the opposite party had collected Rs.1,30,300/- from complainant is also denied by opposite party. The averment that the painted portion is untidy and some portions are colour fade etc...are denied. The opposite party contented that he had not purchased any painting material for the painting work of complainant. The opposite party contented that the very route of the case is that there is a vehicle transaction between the opposite party and complainant. The opposite party is a coolie worker and the opposite party had some painting works on daily coolie basis at the house of complainant. The opposite party along with some other painters have done the work and the materials are purchased by complainant. The opposite party among other painters have done the work for a daily coolie of Rs.450/- per day. In the vehicle transaction, the complainant is not co-operating with opposite party for changing the Registration Certificate in the name of opposite party. Moreover, the complainant is demanding more sale price for the bike and withheld the painting coolie payable to the opposite party to the tune of of Rs.10,000/-. Some one mediated the issues but not solved. So the complaint is filed only to escape from the liability.
4. On going through the complaint, version, documents of both parties, the Forum raised the following points for consideration:-
1. Whether there is deficiency of service from the part of opposite party?
2. Relief and Cost.
5. Point No.1:- The complainant in addition to complaint, filed proof affidavit and filed documents which are marked as Exts.A1 to A4. Ext.A1 is the Agreement entered into between the complainant and opposite party. Ext.A2 is the Registration details of the vehicle KL 12 A 1028, Ext.A3 is the Petition Receipt and Ext.A4 is the details of amount accepted by the opposite party from the complainant. The complainant is examined as PW1 and Complainant's witnesses are examined as PW2 and PW3. PW1 stated that an agreement entered into between him and the opposite party for painting work and opposite party already accepted Rs.1,30,000/- towards the work. But opposite party not completed the work. The work already done by opposite party is having so many defects. PW2 is an attesting witness in the agreement and PW2 categorically stated that he had signed the agreement entered into between the complainant and opposite party as a witness. Further, he stated that the opposite party had accepted towards the work a sum of Rs.1,30,000/- and the opposite party did not complete the work. The work already done by opposite party is full of complaints. PW3 is another attesting witness in the agreement. PW3 stated that he had signed Ext.A1 agreement in the presence of complainant and opposite party. In the cross-examination of PW3 nothing is brought out against the complainant. In the cross-examination of PW2, it is brought out that the PW2 is working as a Driving School Instructor in a Driving School Institution in which the complainant is also one of the owners. So we feel that PW2 is an interested witness. The evidence of PW1 and PW3 corroborates each other. The opposite party filed proof affidavit and opposite party is examined as OPW1 and Opposite party's witness is examined as OPW2. OPW1 stated that he never entered into an agreement to do painting. He never accepted Rs.1,30,000/- towards the work. OPW1 stated that he had done some painting work at the house of complainant in coolie basis under one Mr. Aji. OPW1 stated that he had done some painting work along with some other painting workers and the coolie was paid by Mr. Aji and complainant. OPW1 stated that the complainant sold one motorcycle to the opposite party and do not co-operated for the changing of Registration Certificate. The complainant then repossessed the vehicle demanding more amount from opposite party. Due to that vengeance, this false complaint is made. Opposite party produced Registration Certificate particulars, insurance etc of the vehicle and marked as Exts.B1 to B4. Ext.B4 is a copy of complaint filed by the opposite party before the police with respect to the theft of vehicle. In the version of opposite party, the opposite party stated that the complainant withheld the coolie payable to the opposite party and now a sum of Rs.10,000/- is due to him. Moreover, the opposite party stated in version that the complainant filed this complaint only to escape from the said liability. In the version, the opposite party also stated that he is a coolie worker and his coolie is Rs.450/- per day. In the cross-examination of opposite party, opposite party stated that he had done painting work in the house of complainant along with some other painters under one Mr. Aji the coolie was paid to him by one Mr.Aji and complainant. So the statement made in version and the statements made in cross-examination is entirely different. If daily coolie is paid by one Aji and complainant to the opposite party, how the daily coolie is accumulated to Rs.10,000/-. So there is contradictory statements made by the opposite party as against his version. The opposite party did not give any explanation to that effect. Moreover, according to the opposite party the route cause of the complaint is with respect to a vehicle transaction between the complainant and opposite party. The opposite party produced Ext.B1 to B4 to prove it. But the complainant totally denied such a transaction. Usually, a vehicle transaction will be entered into by executing an agreement either in stamp paper or in plain paper. But here, no such agreement is there between them. Possessing of vehicle, using it nearly for 10 months and theft of vehicle etc...are not proved by opposite party beyond doubt. In the cross-examination of OPW2, the OPW2 deposed before the Forum that “I do not know exactly whether there is a vehicle transaction between the complainant and opposite party and I had only hearing information and I did not see the vehicles documents”. On the contrary, the complainant produced Ext.A3 document a complaint lodged before police against opposite party to prove that the opposite party had taken away the Registration Certificate Book of complainant without his permission or knowledge. So by analysing these evidences of complainant and opposite party the Forum found that the opposite party failed to prove his case beyond doubt but complainant had proved his case beyond doubt. The Forum feels that the opposite party is hiding something.
6. Here in this case, the complainant did not take steps to examine the house with an Expert Commissioner to prove the extent of painting work completed, up to what extent the painting area is damaged, how much area the work to be completed etc... The prayer in the complaint is that to complete the painting work and in order to cure the mistakes a sum of Rs.40,000/- is required to depute another person. Since there is no exact data before the Forum with respect to the required amount for the completion of painting work, the Forum feels that awarding half of the prayer amount will be just and proper in this case since deficiency of service from the part of opposite party is proved. As per prayer, directing the opposite party again to complete the work with the help of other persons will create further problems among the opposite party and complainant so that prayer cannot be allowed.
7. So the Forum found that there is deficiency of service from the part of opposite party in doing the painting work in the house of complainant as per the terms of agreement. Point No.1 is found accordingly.
8. Point No.2:- Since Point No.1 is found in favor of complainant, the complainant is entitled to get cost and compensation and the opposite party is liable to compensate it. The Point No.2 is decided accordingly.
In the result the complaint is partly allowed and the opposite party is directed to pay Rs.20,000/- (Rupees Twenty Thousand only) to the complainant to complete the painting work as per the terms of agreement and also directed to pay Rs.2,500/- (Rupees Two Thousand and Five Hundred Only) as cost of the proceedings. The opposite party is directed to pay the above amounts to the complainant within 30 days from the date of receipt of this Order. The complainant is entitled to get 12% interest for the whole amounts thereafter.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 27th day of June 2014.
Date of Filing:06.09.2012.
PRESIDENT :Sd/-
MEMBER :Sd/- MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
PW1. Ramachandran. Complainant.
PW2. Vinod Kumar. Driver.
PW3. Sasidharan. Coolie Worker.
Witness for the Opposite Party:
OPW1. Vijayan Opposite Party.
OPW2. Aji. Painter.
Exhibits for the complainant:
A1. Agreement. Dt:24.08.2011.
A2. Registration details of Vehicle.
A3. Petition Receipt. Dt:26.06.2013.
A4. Details of amount accepted by opposite party.
Exhibits for the opposite Party.
B1. Registration Certificate of Vehicle.
B2. Insurance Document.
B3. Pollution Under Control Certificate.
B4. Copy of Police complaint.
Sd/-
PRESIDENT, CDRF, WAYANAD.
