D.O.F:18/07/2019
D.O.O:19/07/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.138/2019
Dated this, the 19th day of July 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Noorul Ameen.N
Nalakath House : Complainant
Neelambam, Thrikaripur- 671310
And
Vinod.K.P
S/o. Raghavan
Maniyanodi – Pekkadam : Opposite Party
Thrikaripur – 671310
(Adv: Sudeep Gangan.O.M)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The case of complainant is that he entrusted his house construction work with opposite Party by way of an oral agreement. As agreed orally, charges fixed at Rs.30/- on ground floor and Rs.40/ for upstairs concrete works. But opposite Party collected charges at Rs 35/- on ground floor and 45/- for upstairs. Thereby opposite Party collected a sum of Rs. 58570/- in excess than agreed. Both agreed for measurement opposite Party failed to honour his commitment. Complainant say there is negligence and deficiency in service of charging excess amount than agreed. Complainant seeks relief of refund of the difference in amount and compensation.
2. The opposite Party filed written version. Opposite Party denied collection of any excess charges than agreed. As per opposite Party house construction is completed and Rs. 15,000/- is still overdue for payment to opposite Party. When opposite Party approached complainant with a demand for amount due, the Complainant raised his complaint thus dispute still unresolved. As per opposite Party no amount is due by him.
3. The complainant has produced copy of some whatsapp exchanged chats. Complainant filed chief affidavit through his sister, cross examined as Pw1 by opposite Party. The opposite Party did not adduce any evidence.
4. As per rival contentions following points arise for considerations they are:-
a) Whether complaint is maintainable at law?
b) Whether complainant entitled for claim amount?
c) Whether there is any deficiency in service? And complainant is entitled for compensation? If so for what reliefs?
5. In vibha Bakshi Gokhale Vs Gruhashilp constructions 10 may 2019 – it is held that.
2019 2 CPJ 108 2019 6 SCC 489 consumer protection Act 1986 – section 2 (1) (G), 2(1) (0) and 23 Real Estate – Booking of residential flat – deficiency in service on part of Builder – consumer complainants should not be dismissed on technical grounds. Thus complaint is maintainable at law.
6. Facts remains that there is no written agreement between the parties to prove actual rate agreed to by them for the work. Measurements are seen to have been made by Padmanabhan. But he is not examined as a witness in the case
7. Pw1 sister of complainant is examined for on behalf of complainant. In cross examination suggestion is made to Pw1 that charges fixed is at 35 and 45 respectively denied by Pw1. Since no oral evidence from opposite Party, oral evidence given by complainant stands un rebutted. There is nothing to disbelieve the case of complainant relating to charges paid at excess since no contra evidence is available in the case. But still complainant should have examined independent witness Padmanabhan.
8. In any event complainant occupied the house after completion of its construction. Considering the nature of job, its usual charge running in the field charges at the rate opposite Party is liable to refund Rs. 58576according to complainant. In any event there is no complaint by opposite party claiming any amount from complainant and no set off as counter claim. Considering the rival contentions, evidence made available, rate chargeable for the works, this commission holds that opposite Party is liable to refund a sum of Rs. 25,000/- as excess charges to the complainant and complainant is entitled to recovery the same from opposite Party. Thus issue No.1 is thus found in favour of complainant.
9. With regard to claim of compensation, commission finds that there is a case where there is no deficiency in service in house construction and only grivence relates to collection of excess charges, claim for compensation is hereby rejected. But complainant entitled for cost of the case fixed at Rs.3000/-.
In the result complaint is allowed in part. Opposite Party is directed to pay Rs. 25,000/- (Rupees Twenty Five thousand only) to the complainant and Rs.3000/- (Rupees Three thousand only) as cost of the proceeding within 30 days of the receipt of the order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Witness Examined
Pw1- Shameema.N
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
