DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 27^h day of February 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                          Date of filing:  06/01/2014

              : Sri.V.P.Anantha Narayanan, Member

(C.C.No.07/2014)

K.Sivasankara Menon,

S/o Rugmini Amma,                                                    -        Complainant

Residing at Siva Sakthi,

Pulachithra Desham,

Vaniyamkulam Amsom,

Vaniyamkulam PO,

Ottapalam Taluk – 679522.

 (By.Adv.P.N.Balagopalan)

 V/s

Vinod Kumar,                                                         -        Opposite parties

S/o Krishnankutty,

Chettithodi Veed,

Chalavara (PO),

Ottapalam Taluk – 679 505

(By Adv.Ragesh.N)

O R D E R

Smt.Suma.K.P. Member

          The above complaint is filed claiming a total amount of Rs.1,13,500/- and a cost from the opposite party who is a building contractor.  The case of the complainant is that he entrusted the casting work of concrete roof slab for the 1^st floor of his existing building @ Rs.40/-per square feet as per an oral agreement dated. 28.08.2013. The materials such as iron, cement, metals, sand, required for concreting was to be supplied by the complainant.  The centering work and the casting of the roof slab including beams with the materials supplied by the complainant was to be done by the opposite party.  The complainant here in is also a contractor and so some of the materials required for casting was available with him.  But as per the oral agreement the materials such as bamboo, wood and plants, runner etc, required for slab concreting was to be brought by the opposite party.  But, when the work was started the opposite party told that bamboo, wood and plants, runner etc, available with him are not sufficient and so demanded Rs.20,000/- for buying the same.  Accordingly on 05.09.2013, Rs.20,000/- was paid.  Even after that there was shortage, so the complainant was compelled to give 30 GI sheets and 60 bamboos to the opposite party to complete the work.  After a delay of 1 ½ months, the opposite party completed only the casting work of the roof slab of the 1^st floor.  But several remaining work to complete it were not carried out.  More over the work done was of very poor quality.  When the supports and planks were removed, it was seen that the entire roof slab was slopping towards south east for about 10 cente meter.  The iron rods inside the beams were seen exposed as there was no proper filling up concrete.  The top portion of several pillars were found damage due to rough handling.  In short, all these have adversely effected the strengthened and durability of the roof slab and also the entire building.  An amount of Rs.81,500/- is needed to set right the defects.  Even though the opposite party promised to set right the defects, he did not keep up the promise.  When the accounts were verified on 01.12.2013, it was found that the opposite party has collected an excess amount of Rs.19,000/- from the complainant.  The opposite party was convinced about this excess payment and so he assured that he will remove his materials from the side, only after paying this amount to the complainant.  But that was not done.  Meanwhile the opposite party caused to file a false complaint through his worker, Sunil kumar before the Ottappalam Police against the complainant.  Actually the Sunil Kumar had no connection with the complainant.  The matter was enquired by the police and it was referred subsequently the very same Sunil Kumar filed a false complaint against the complainant before Judicial 1^st Class Magistrate Court, Ottapalam and it was sent to police for investigation.  It was also enquired and was referred as false.  50 Kilos of iron roll became waste due to the fault of the opposite party in not taking proper measurements.  The complainant has thereby sustained a loss of Rs.3,000/- as its cost including transportation.  The complainant caused to issue a lawyer notice dated.16.12.2013, demanding amounts.  The actual damage was not assessed then and so only a lesser amount was shown in the lawyer notice.  No prompt reply was sent by the opposite party.  He sent a reply notice after filing of this complaint alleging false contentions.  Hence this complaint was filed claiming a compensation of total amount of Rs.1,35,000/- from the opposite party. 

          Opposite party entered appearance upon notice from the Forum and filed version contending the following.  The case of the opposite party is that all the averments in the complaint is false.  There was no oral agreement between him and the complainant.  He has not accepted any amount from the complainant.  He is only a worker under one Mr.Sunil Kumar who is alleged to have entered in to contract between the complainant.  He is only a worker under the said Sunil Kumar.  He is not liable to pay any amount to the complainant.  The complaint is bad for non jointer of necessary party.  Hence it has to be dismissed with the cost of the opposite party. 

          Complainant filed an application for appointment of expert commissioner.  Since no counter was filed in the application (IA 84/2014) the application was allowed. Commissioner inspected the property and filed a detail report along with rough sketch.  Complainant and opposite party filed objection to the commissioner’s report.  Complainant filed another application for amendment of the complaint regarding the cost of repairs and compensation by stating that complainant has claimed only an approximate amount and only after examination by an expert, complainant came to know about the actual amount.  IA was heard and application was allowed with a direction to pay the additional court fee.  Amendment was carried out and the opposite party filed additional version to the amended complaint.  Complainant filed application as IA 70/2015 to summon Superintendent of Ottapalam Taluk, Govt Hospital to produce certain documents relating to the treatment of Mr.Sunil Kumar IA was dismissed vide separate order.  Complainant filed chief affidavit and also filed application seeking permission to examine two witnesses.  Witness was present and documents were produced.  Opposite party filed application as IA 2760/2015 seeking permission to cross examine the complainant.  Expert commissioner was examined as CW1.  Ext.A1 to A7 was initially marked.  Subsequently two more documents were produced on 05.01.2016 and it was marked as Ext.A8, A9, A10 series & A11.  The commissioner’s report and plan was marked as C1 & C1 (a).  Complainant was examined as PW1 and expert commissioner was examined as CW1.  The opposite party also filed chief affidavit and was examined as DW1.  Ext.B1 series was marked from the side the opposite party.  Evidence was closed and the matter was heard. 

The following issues that arise for consideration are.

1. Whether there is an agreement executed between the complainant and the opposite party?
2. Whether there is any deficiency of service from the part of opposite party?
3. If so, what are the relief and cost?

Issues No.1, 2 & 3

We had perused the documents and affidavits as well as the evidence tendered by the parties before the Forum.  The complainant has given evidence regarding the oral agreement between him and the opposite party and also the details of the damages sustained by him due to the poor quality of the work done by the opposite party.  The expert commissioner has given a detail report and has also shown separately the amount required for each repair work.  The expert commissioner has stated in his report that the opposite party admitted before him that it was he who has done the work.  The complainant had stated that a complaint was filed by him against the opposite party and Sunil Kumar before the JSCM Court, Ottapalam and is now pending.  He had also stated that the owner and driver of the lorry in which the materials were forcefully taken from the site by the opposite party has given statements to the police to the effect that the opposite party was the contractor.  It has also proved before the Forum that Sunil Kumar was hospitalized during the relevant period at which the work was being done.  The counsel for the opposite party states that the statements recorded under section 161 of the CRPC shall not be used any purpose other than what is stated therein - such portions can be used only for contradiction and for explaining such contradiction, as per section 162 of the code.  Since, the opposite party had denied the execution of oral agreement, the burden of proof of the execution of the agreement is upon the complainant.  The opposite party had also raised a plea of non jointer to the above complaint.  The said Sunil Kumar was alive at the time of filing of this complaint.  The complainant ought to have impleaded him in the complaint or should have examined him as an independent witness to prove that the agreement was executed between him and the opposite party.  The expert commissioner has deposed that the opposite party admitted before him that it was he who has done the work. From the above statement it cannot be inferred that agreement was executed between the complainant and the opposite party.  Since the agreement executed between the parties is an oral agreement, the Forum is also in dark with regard to the terms and conditions stipulated in the agreement.  From the above discussions it is clear that the complainant has failed to prove that the agreement was executed between him and the opposite party.  In the above circumstances, we cannot attribute deficiency of service on the part of the opposite party.  Issue No.1 is answered accordingly.  In view of the above observations it is not necessary to consider the rest of the issues.

Hence the complaint is dismissed without cost. 

Pronounced in the open court on this the 27^th day of February 2018.

   Sd/-

                  Shiny.P.R

                   President 

                        Sd/-        

                   Suma.K.P

                    Member

     Sd/-

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          series  -  Copy of lawyer notice dated.16.12.2013 sent by Complainant’s

                      advocate to  the opposite party – acknowledgement card & postal

                      receipt

Ext.A2          series  -  Photographs and CD of the complainants building

Ext.A3          -  Photo copy of complaint filed by the complainant in Ottapalam Police

   station against the opposite party

Ext.A4          -  True copy of First Information Report of the Sub Inspector of Police,

              Ottapalam Police Station dated.02.04.2014

Ext.A5          -  copy of Stay order passed by the Hon’ble High Court of Kerala

Ext.A6          -  Photographs and CD of the complainants building

Ext.A7          -  Reply dated.04.01.2014 given by opposite party advocate to Complainant’s

             advocate       

Ext.A8          series -  Certified copies issued by CJM Court, Ottapalam (12 pages)

Ext.A9 series -  Certified copies issued by CJM Court, Palakkad (32 pages)

Ext.A10 series - Copy of medical records issued by Taluk Head Quarters Hospital,

                       Ottapalam

Ext.A11 -  Dr.C.A.Mathew issued a letter to the complainant dated.24.10.17                                            

Exhibits marked on the side of Opposite parties

Ext.B1 series -  Copy of registered letter sent by opposite party advocate to the

                      complainants advocate

Commissioners Report

Ext.C1 -           Expert Commissioners report dated.23.05.2014

Ext.C1 (a)     -  Sketch of the complainants house

Ext.CW1       -  Ramakrishnan

Witness examined on the side of complainant

PW1   -  Sivasankara Menon

Witness examined on the side of opposite party

DW1   -  Vinod Kumar

Cost   

           Nil