DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 27th day of October, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member
Date of Filing: 08/11/2021.
CC/193/2021
Jothiprakash.R
S/o.Raman V,
Opp.Kendriya Vidyalaya, Kanjikode,
West (PO),Palakkad-678 623.
( Party in person ) - Complainant
Vs
Vinu K.P,
Nice Ferrocement Works,
Vallapuzha, Pattambi,
Palakkad-679 336. - Opposite party
(BY Adv. M Ramadas)
O R D E R
By Smt.Vidya A., Member
Pleadings of the complainant in brief.
- The complainant contacted the opposite party through Whats App and the opposite party agreed to do Ferrocement works in complainant’s house. The opposite party visited the construction site on 25th September 2021 and measured out the area for work as 613 sq.ft and fixed the cost as Rs 75/- per Sq.ft. The opposite party calculated the total amount of construction in his diary, showed it to the complainant and the contract was agreed for a total amount of Rs.45,975/-.
The opposite party started works on 25.10.21. The complainant’s supervision and instructions were needed for the entire work. The slab in the work area was not fitted properly and they rectified it by joining the slabs. They were not careful in their works. First installment of the agreed amount Rs.15, 000/- was transferred to the opposite party through bank. After the payment of 2nd installment of Rs.15,000/- the complainant agreed to pay the balance amount after the completion and measuring of the entire work.
But the opposite party demanded payment after 3 days and the complainant refused to pay it as it was against their agreement. Finally the complainant had to pay Rs.16,000/-. Thus the opposite party received Rs.46,000/- from the complainant without completing the works of the book shelf and bedroom as agreed.
After that the opposite party and his workers did not come for the work. On measuring out, the constructed area was found to be only 412 sq.ft instead of the agreed area of 613 sq.ft. The complainant contacted the opposite party and intimated these matters. But there was no response from the opposite party and finally informed that he is not going to complete the balance work.
The opposite party has collected an excess amount of Rs.15,075/- (the cost of non-constructed area of 201 sq.ft). The conduct of the opposite party in collecting excess amount without completion of the agreed works caused mental agony and financial loss to the complainant.
So this complaint is filed for getting a compensation of Rs.45, 000/- and cost of the litigation from the opposite party.
- After admitting complaint, notice was issued to the opposite party. Even though the opposite party appeared, he did not file version and so he was set ex parte. Later the opposite party filed 2 IAs, IA 314/22 to set aside the ex parte order and IA 315/22 to condone the delay in filing the version along with version. IA 314/22 was dismissed as the Commission has no authority to set aside an ex parte order. IA 315/22 was also dismissed on the same ground. The opposite party filed IA 316/22 to cross examine the complainant and in view of the order in IA 314/22, that IA was dismissed as being defunct.
- Complainant filed proof affidavit and Ext.A1 & A2 (both series) were marked in evidence. Evidence closed and heard.
- The main points to be considered in this case are
1) Whether the complainant had succeeded in proving that the opposite party did
not complete the work as per their agreement?
2) Whether the opposite party had received an excess amount of Rs.15075/-
from the complainant?
3) Whether there is any Deficiency in service on the part of opposite party?
4) Whether the complainant is entitled to the reliefs claimed?
5) Reliefs, if any as cost and compensation.
5. Points No.1 & 2
The complainant’s grievance is that the opposite party failed to complete the work as per their agreement. He contends that the opposite party after visiting the site of construction, and measuring out the area, agreed to execute ferrocement works in his house. He agreed to do work in an area of 613 sq. ft for an amount Rs.75/- per sq.ft. The total amount agreed for construction was Rs.45,975/-.
6. The complainant made 2 initial payments of Rs.15,000/- each and agreed to pay the balance amount after the completion of entire work. But he was forced to pay another Rs.16,000/- on opposite party’s demand even before completing some agreed works in the bed room and book shelf. Thus the opposite party had received a total amount of Rs. 46,000/- from the complainant and after that he did not come for the work. When the complainant measured out the constructed area, it was only 412 sq.ft instead of the agreed 613 sq. ft. So the complainant’s contention is that the opposite party had received an excess amount Rs.15,075/- including the area for which no work is done.
7. The complainant did not produce any documents showing the payments made by the complainant to opposite party or the receipts issued by the opposite party for the payment. He did not take out the assistance of an expert Commission to find out the actual constructed area, its cost, defects in the construction, in completed works and approximate cost for completing the works. The complainant himself has measured out the constructed area and produced some measurements written in a paper and the copy of it is marked as Ext A2 series. The agreement between the parties as per the complainant is a page of the diary in which the opposite party has noted the area for construction and cost. He produced the photocopy of that page from which it is not possible to find out the agreed area of each portion and the amount needed for construction. It is indecipherable.
The complainant also produced the photocopies of the photographs showing incomplete works which is marked as Ext A1 series. From that also it is not possible to identify the exact work done or the works to be completed. Further the complainant did not mention the defects in the construction in his complaint. He only complained about the fitting of slabs in work area.
So the complainant has not succeeded in proving that the opposite party received excess payment and did not complete the agreed works.
Points No. 1 & 2 are answered accordingly. From the available evidence, we cannot conclude that there is Deficiency in service on the part of opposite party.
Points 3 to 5 are decided accordingly.
In the absence of an expert report showing the measurements of the constructed area, its cost, incompleted works and the approximate cost for completing the work. we are not inclined to allow the prayer in the complaint.
In the result, the complaint is dismissed.
Pronounced in open court on this the 27th day of October, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1(Series)- Photographs of the works done.(copy)
Ext.A2 (series)-Photocopies showing actual measurements taken by the complainant and details of agreement between the parties.
Exhibits marked on the side of the opposite party : NIL
Witness examined on the side of the complainant :-Nil
Witness examined on the side of the opposite party:-NIL
Cost : NIL.
