ORDER

SRI.H.R. SRINIVAS, PRESIDENT

1.     This is the complaint filed by the complainant against the Opposite Party (herein referred to as OP) under Section 12 of the Consumer Protection Act, 1986 for the deficiency of service in not completing the building entrusted to OP by paying substantial amount as per the agreement and for refund of and to direct to pay the entire loss which he has suffered along with his family members, medical expenses of Rs.5,00,000/-, legal expenses and other reliefs as the commission deems fit.

2.     The brief facts of the complaint are: Complainant wanted to construct the house i.e 2^nd and 3^rd floor over the existing house to an  extent of 700 sq. feet. OP being a small time civil contractor in the same locality got himself introduced along with his (complainant’s) brother and agreed to get the 2^nd and 3^rd floor civil work executed for an amount of Rs.10,00,000/- and they entered into an agreement of construction on 23.06.2017 with details of the schedule material specification and the facilities to be provided to the said building, and further agreed to complete the construction within four months from the date of commencement.

3.     It is contended that even after receiving Rs.2,72,790/- over and above the agreed amount, OP left the work unfinished without informing him.  Further he tried to contact the OP to know his whereabouts but OP never responded. He was put into lot of  inconvenience due to non-completion of the work and he had to pay the installments to the bank from which he had availed the loan.  They had to lodge a complaint before the Banasawadi police station and also got a valuer to evaluate the work done by the OP and remaining work to be carried on. The son of OP, one Sri.Arun Pandian attacked his brother Tony with an Iron rod for which they had to make a complaint to police and has to incur expenses towards treatment.  In view of this, there is deficiency in service on the part of OP who did not complete the civil work contracted, though received the money in excess and left unfinished.  For which, he had to spend more money to complete the building.  OP promised before the police that he would pay back the complainant Rs.2,00,000/- in two installments. Inspite of it, did not pay the amount and hence there is deficiency in service on the part of OP and prayed to allow the complaint.

4.     Upon the service of notice, OP appeared before the commission and filed his version contending that, he entered into an agreement of construction on 23.06.2017 with the complainant.  It is his contention that the amount agreed that is, Rs.10,00,000/-, the contract value, is only for the construction to an extent of 700 sq. feet in the 2^nd floor only.  For the 3^rd floor construction, a further agreement was entered into on 25.11.2017 wherein complainant agreed to pay Rs.5,18,000/- for construction of four square RCC building in the 3^rd floor, but the same was not signed by the complainant. 

5.     He has denied having received Rs.2,72,790/- an excess amount and that he left the construction unfinished. Also denied that the complainant tried to contact him over the phone, but has admitted that there was a complaint against him by the complainant.  It is contended that, complainant filed a false compliant against him and that he is a poor contractor eaking out his livelihood by undertaking contact works.  The original agreement was to construct a 2^nd floor only for Rs.10,00,000/- and as the complainant requested him to construct the on the 3^rd floor, he agreed to do it for an extra amount and total cost of construction of both the building was Rs.14,50,000/-. Whereas, he received from the complainant just Rs.8,99,900/- and complainant is still due Rs.5,00,100/- only.  He is ready to do the remaining work of electrical, plumbing, tileing and carpentry and complete the building provided the complainant pay him Rs.5,00,100/-.

6.     There was a criminal case foisted against him by the complainant and that he has obtained anticipatory bail. This complaint is filed with ulterior motive by the complainant by suppressing material facts .  There is a civil dispute between him and the complainant and hence this commission has no jurisdiction to try this complaint and matter to be referred to civil court for adjudication. The younger brother of the complainant one Tony is a local muscle man who did not allow the complainant to pay the remaining amount to complete the work. He is instrumental in the whole affair. In view of this, prayed the commission to dismiss the complaint.

7.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1. Whether the complainant has proved deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO 1: In the Affirmative

POINT NO 2 : Partly in the affirmative

                      For the following.

REASONS

POINT NO 1:

9.     Upon perusing the complaint, version affidavit evidence, documentary evidence, it becomes clear that complainant entered into an agreement of construction with OP wherein OP in clear and unequivocal terms on 22.06.2017 agreed to get the house of the complainant i.e. on the 2^nd floor and on the 3^rd floor get constructed to the extent of 700 Sq. feet with all the requirement of the house for Rs.10,00,000/-. The same is very clear in para 2 of the said agreement at page 2. 

10.   It is the specific case of the complaint that OP though received extra amount of Rs.2,72,719/-, for the incomplete work carried out left without informing him and it was not possible for him to contact over the phone as he was not receiving the said phone calls, for which he had to make a complaint to the police who called him where OP executed an undertaking that he will refund the said Rs.2,00,000/- in 2 installments. Inspite of it he failed.

11.   It is the contention of OP that after the 1^st agreement they entered into 2^nd agreement but for various reasons no signature was affixed to the said agreement which is marked Ex.R3 wherein, in the 2^nd para of page 2, it is mentioned that: Rs.10 lakhs is for constructing 400 sq. feet in respect of the 2^nd floor by providing all amenities for residential house and Rs.5,18, 000/- for four square building on the 3^rd floor with agreed rate of Rs.1,42,000/- per /sq. feet. The terms and conditions have been mentioned therein. Since the said agreement has not been signed by any of the parties no evidentiary value can be assigned to it. 

12.   It is not in dispute that the complainant lodged a complaint before the police against OP and they registered a case for which OP and his son obtained anticipatory bail from the criminal court. Further it is to be noted here that as per the averments made by the complainant OP left the job as it is, in half way and absconded.  According to complainant Op could not be traced and he had to get the estimation of work done by OP as on that particular date. Ex P2 is the said estimate given by one G Aravind Kumar, Interior design, Architecture Engineering, planning immovable property, valuator, wherein, he had stated that the work done by the contractor i.e. OP in respect of the 2^nd floor is Rs.4,82,407.40 and in respect of the 3^rd floor, Rs.3,69,904.79 total Rs.8,52,312.19.  He has also filed another estimate wherein the work to be carried out from 22.11.2017 onwards i.e. balance work yet to be done by contractor stating that the total value of the building Rs.12,72,790/- of which the contractor has done the work is to the extent Rs.8,52,812/-, and the total amount required to complete the remaining work by the contractor is Rs.4,20,478/-.

13.   There is no material placed by the complainant to show that he has paid Rs.10,00,000/- to the OP as agreed under the agreement. Whereas, OP upon the complaint lodged by the complainant before the police, agreed that he will pay Rs.2,00,000/- towards balance of the work pending in two installaments as per Ex-P1. Again in the reply notice issued to the notice sent by the complainant he has categorically stated that he has received only Rs.8,99,900/- from the complainant and there is still Rs.5,00,100/- due from the complainant and there is pending civil works in the building such as plumbing, electrical, carpentering, painting and tiles works and that he is ready to complete the work provided complainant paying Rs.5,00,100/-. Further he has contended that the Banaswadi police forcibly took his signature and forced him to pay Rs.2,00,000/- to the complainant.

14.   As already discussed there is no evidence placed by the complainant to show that complainant has paid Rs.10,00,000/- to the OP, whereas OP himself has admitted in the reply notice Rs.8,99,900/- (Ex R5).  In the estimate prepared by the independent architecture as per Ex P2, the work done by the contractor was Rs.8,52,312/- when this is taken into consideration there is an excess payment of Rs.47,588/- to the work carried out by the OP. In view of this, we hold that there is deficiency in service on the part of OP in not completing the work agreed upon by him as per the agreement and also as per the inspection and estimate given by the architecture. Hence we answer POINT NO.1 IN THE AFFIRMATIVE, that there is deficiency in service on the part of OP.

POINT NO.2:

15.   Further OP has to refund Rs.47,588/- being the excess amount received against the work carried out by him.  OP has to refund the same  along with interest at 12 % per annum on the said amount from the date of the complaint till the payment of the entire amount. Further OP is directed to pay Rs.5,000/- towards damages for mental agony, physical hardship and Rs.5,000/- towards cost of the litigation and we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The complaint is partly allowed with cost.
2. OP is hereby directed to pay a sum of Rs.47,588/- to the complainant along with interest at 12% per annum  from the date of complaint  till payment of the entire amount.
3. Further OP to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards the litigation expenses to the complainant..
4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 16^th day of February 2022)

MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the building construction agreement entered with OP.

Ex P2: Copy of the estimates for the work.

Ex P3: Copy of complaint to the ACP Banaswadi.

Ex P4: Copy of the notice issued to OP.

Ex P5: Copy of the Tax notice.

Ex P6: Copy of the receipt for purchasing materials (19 Nos.)

Ex P7: Balance of work done complainant by spending money.

Ex P8: Copy of the complaint to the police, Banaswadi.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Loganathan A for OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the letter written by OP to the Inspector of Police, Banaswadi Station.

Ex R2 & R3: Copy of the material cum labour building contract agreement .

Ex R4: Copy of the order passed in Crl. Misc. No.7026/2018 before the LX Addl. City Civil and Sessions Judge, Bangalore.

Ex R5: Copy of the complaint given by OP to the commissioner of police, Bangalore

MEMBER                PRESIDENT

RAK*