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P. Semith, Civil Engineering Consultant v/s M.K. Muhamed Asharaf

    First Appeal No. 574 of 2018

    Decided On, 02 September 2021

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. T.S.P. MOOSATH
    By, JUDICIAL MEMBER & THE HONOURABLE MRS. A. BEENAKUMARI
    By, MEMBER

    For the Appellant: Mary Mathew, Sheebanath, Advocates. For the Respondent: ---------



Judgment Text

T.S.P. Moosath, Judicial Member

The opposite party in CC.No.05/2013 of the Consumer Disputes Redressal Forum, Kannur, in short, the District forum has filed the appeal against the order passed by the District forum by which he was directed to pay Rs. 50,000/- as compensation and Rs. 5,000/- as costs to the complainant.

2. The averments contained in the complaint are in brief as follows. The complainant who was working abroad entrusted the construction work of his house to the opposite party. An agreement dated 08.03.2010 also was executed for the said purpose. As per the terms of the agreement the opposite party has to complete the work within six months. The complainant had paid more than Rs 7,32,500/- to the opposite party no.1 but he failed to complete the work. Thereafter the opposite party had agreed and assured that the entire work including floor tiling, roof tiling and plastering work will be completed before 15.04.2012. But he had not completed the work. Moreover, the work done by the opposite party was through unskilled workers with inferior quality. The complainant had spent more than Rs 4,00,000/- for rectification of plastering and tiling works. As per the agreement the total area to be constructed was 2093 sq.ft., but the opposite party constructed only 1949 sq. ft. Thereby he had received an excess amount of Rs. 50,000/- from the complainant. The rectification work was done only (after the exparte order passed on 13.06.2013) during August-September 2013. There is deficiency of service on the part of the opposite party. The complainant has suffered much hardships, mental agony, loss of money and time. Hence the complaint.

This case was once disposed in favour of the complainant. Thereafter as per the order in Appeal No.518/2013 this Commission remanded the matter for fresh disposal.

3. The opposite party filed version raising the following contentions. The opposite party had agreed to construct the structural work of house having an area of 2093 sq.ft @ 400 and one plan was prepared and as per the direction of the complainant another plan for an area of 1990 sq.ft. was prepared. Thus the opposite party agreed to construct the structural work of the house having an area of 1990 sq.ft for a total sum of Rs 7,00,000-. Due to laches on the part of the complainant the work commenced only after a lapse of 4 months. Another 41 days also lapsed due to death of relative of the complainant. So the opposite party could not complete the structural work within the stipulated period of six months. During that period the cost of materials and labour charges become hiked. For the plastering work done, an amount of Rs 60,000/- and for the tile work Rs 10,000/- along with another sum of Rs 22,000/- are still due from the complainant. This is an experimental complaint to evade such payment to the opposite party. There is no deficiency of service on the part of the complainant and complaint may be dismissed with cost.

4. Subsequently an amendment petition filed by the complainant was allowed after considering the counter and hearing of the opposite party. Additional version denying the allegations was also filed by the opposite party.

5. On the side of the complainant PW1 and PW2 were examined and Exts.A1 to A7 were marked. The opposite party was examined as DW1 and Exts.B1 & B2 were marked on his side. Considering the evidence adduced by the parties and hearing both sides the District forum has passed the impugned order. Aggrieved by the order passed by the District forum the opposite party has filed the appeal.

6. Heard. Perused the records.

7. Ext.A1 shows that the original agreement between the complainant and the opposite party was for the construction of the house having an area of 2093 sq.ft at the rate of Rs 350 per sq.ft. . According to the complainant he paid Rs 7,32,500/-. But the area of the house constructed is only 1949 sq.ft. So he is entitled to get back Rs 50,000-. It is the case of the complainant that subsequently he had entrusted the plastering works and tiles works with the opposite party. But he has not completed the works and the works done by him were not good, since works were done by unskilled workers. So, he has spent Rs 4,00,000/- for rectification of those works. So the complainant is demanding that amount from the opposite party along with Rs 3,00,000/- as compensation for the mental agony and sufferings to him. Alleging deficiency in service on the part of the opposite party the complainant has filed the complaint.

8. The opposite party filed version raising contentions. According to him amounts are due to him from the complainant and to avoid the payment of the said amounts the complainant has filed the complaint with false allegations.

9. Ext.A1 agreement between the parties was for doing structural works of the building. In Ext.A3 Expert Commissioner has reported that structural works were subsequently completed. DW1 deposed that the area of the building constructed by him is 1990 sq.ft instead of 2093 sq.ft and he is entitled to get amounts at the rate of Rs 350/- for the area of 1990 sq.ft. So he is entitled to get Rs 6,96,500/- (1990x350). Exts.A1 and A2 are the records containing the endorsement of the payments of the amounts by the complainant to the opposite party which shows that the amount paid by the complainant is Rs 5,85,000/- only. DW1 also stated that the payment of Rs 2,50,000/- was for the plastering and tiles works which were subsequently entrusted with him by the complainant. As per Ext.A3 commission report the area of the building constructed is 1949 sq.ft. Calculating at the rate of Rs 350/- per sq.ft., the opposite party is entitled to get Rs 6,82,150/-. The complainant paid only Rs. 5,85,000/- to opposite party. As found by the District forum the complainant has to pay an amount of Rs. 97,150/- to the opposite party. So, the claim of the complainant that he is entitled to get back Rs 50,000/- from the opposite party is baseless.

10. It is the case of the complainant that subsequently he entrusted the plastering works and tile works with the opposite party and he has not completed the works and further the works done by the opposite party was with unskilled workers. So, he has to spend Rs 4,00,000/- for rectification of those works. Admittedly those works were done after the passing of the exparte order by the District forum on 13.06.2013. It is to be noted that in the original complaint there was no prayer to direct the opposite party to pay Rs 4,00,000/- to him and the complainant has subsequently amended the complaint to direct the opposite party to pay Rs. 4,00,000/- stating that he had spent that amount for the rectification works. Admittedly for those works, materials were supplied by the owner and the agreement is regarding the labour charge only. The amount paid to the opposite party by the complainant is Rs. 2,50,000/-. After deducting the aforesaid amount of Rs. 97,150/-, which the opposite party is entitled to get from the complainant for the structural work done, the balance amount with the opposite party for other works is Rs 1,52,850/- only. The expert commissioner reported that the plastering works were not satisfactorily completed. No proper levelling is done on all surface. It is reported by the commissioner that the plastering works were over and the tile works were to be completed. The complainant has not adduced any evidence regarding the renovation works done by him, regarding the plastering works. Regarding the tile works the claim of the complainant is that he had removed the tiles laid by the opposite party and he had laid new tiles. To prove those facts, the complainant has examined PW2, who alleged to have done the tile works. PW2 deposed that himself and two other workers worked for 15 days for removing the tiles and laying new tiles. But he has not stated anything about the area of the tile work done by him. PW2 admitted that there is no document with him to show that he had worked for the complainant and he had received wages from the complainant. As found by the District forum on a perusal of Ext.A4 series bills it can be seen that it does not contain the name of the person who purchased the articles. Considering all these facts the District forum found that the complainant is not entitled to get any refund of the amount from the opposite party for those works. Admittedly the complainant has not filed any appeal challenging the finding and order of the District forum. In the appeal, even though some advocate stated that he has filed vakalath for the respondent, no vakalath is seen filed and there was no representation for the respondent when the appeal was taken for hearing.

11. In Ext.A3 report it is stated by the commissioner that the plastering works were not satisfactorily completed. No proper levelling is done on all surface. It is also reported by the expert commissioner that due to lack of expertise in laying the tiles, it is seen sunk in some places and pointing works were not done properly. Based on Ext.A3 report the District forum found that there was deficiency in service on the part of the opposite party. It is to be noted that the opposite party has not filed any objection to the report of the commissioner and he has not taken any steps to examine the commissioner to prove that the report of the commissioner regarding the plastering works and tile works was not correct. We consider that there is no ground / reason to interfere with the finding of the District forum that there is deficiency in service on the part of the opposite party.

12. The District forum directed the opposite party to pay Rs 50,000/- as compensation and Rs 5,000/- as costs to the complainant. The District forum might have fixed the amount of Rs. 50,000/- on the basis of Ext.A3 report that approximately an amount of Rs. 50,000/- is required to finish the work by the complainant as per the agreement. The commissioner might have made such a report on the notion that opposite party had received Rs 2,50,000/- for those works. As stated above, an amount of Rs 97,150/- was due to the opposite party from the complainant regarding the structural works of the building done by him. After deducting that amount from Rs. 2,50,000/- the amou

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nt with the opposite party was only Rs 1,52,850/-. Considering all these facts we consider that the compensation and costs ordered by the District forum are on the higher side and those have to be reduced to Rs 25,000/- and Rs. 2,500/- respectively. We do so. So the order passed by the District forum is to be modified to that effect. In the result, the appeal is partly allowed. The order passed by the District forum is modified as: the opposite party is directed to pay Rs. 25,000/- as compensation and Rs. 2,500/- as costs to the complainant. Parties are directed to suffer their respective costs. At the time of filing of the appeal the appellant has deposited Rs. 27,500/-. The respondent / complainant is permitted to obtain release of the said amount, on filing proper application, to be adjusted / credited towards the compensation and costs ordered, as above. Appellant is permitted to obtain release of the amount of Rs.10,000/-, deposited by him before the District Forum as per the order of this Commission in I.A. No. 1099/2018 (stay petition), on filing proper application before the District Forum.
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