D.O.F:22/07/2019
D.O.O:30/11/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.147/2019
Dated this, the 30th day of November, 2022
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Dr.Thamban Valappil, aged 58 years,
S/o Ambunhi
Resident of Palakat House,
Opp. Patena Bus Stop, : Complainant
P.O.Nileswar, Kasaragod District
(Adv: V.Mohanan)
And
Suresh.B, aged about 50 years,
Earth Work JCB Contractor,
S/o Kannoth Narayanan,
Narayana House, Manikoth, : Opposite party
P.O.Manikoth, Ajanur village,
Kasaragod District.
(Adv:K.Rajeevan)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 (as amended)
The facts of the case in brief is that the complainant who is employed abroad, entrusted the work of digging and levelling the rocky lay out of his 60 cents land, with the opposite party, as per a verbal agreement, while he was in his locality in June 2018. The levelling of the land was intended for the purpose of construction of his residential house and for minor agriculture and plantation. The opposite party agreed to complete work by crushing all the bigger rocks into small/tiny pieces. The total contract amount was fixed was Rs.2,00,000/-and the payment was agreed to be done periodically on verifying the stages of progress of work at the rate of not less than Rs.25,000/- on each stage of work by contacting over phone. The opposite party agreed to complete the work at the earliest by using two powerful JCB or Hitachi earth movers. The first payment of Rs.25,000/- was made by the complainant as advance at the time of agreement. Thereafter the complainant had to leave the country in connection with his employment. The opposite party started the work but he failed to do the work as per the agreement. The work was done using only one JCB, instead of 2 JCB or Hitachi earth movers as against the agreement. Instead of crushing all the bigger rocks in to small/tiny pieces as agreed, the opposite party was hiding the bigger rocks underneath and cover them with soil. This was noticed by family members of the complainant during their visits and also by their neighbours. When the complainant confronted with the opposite party over phone, the opposite party was very apologetic and promised to complete the work as per the contract. The opposite party arranged one more small JCB for work. Even after that also there was no much change. In spite of all these the complainant was paying money to the opposite party with a hope that the work would be completed soon. The opposite party was doing work with the JCB of one Gopalan and he started to complain regarding the non-payment of his rents and all to the complainant. It further complicated the situation. The complainant confronted the opposite party about all these issues and finally asked to stop the work, as he violated all the terms and condition of the contract. The opposite party has received a total amount of Rs. 2,00,000/- including the advance amount of Rs.25,000/- The opposite party, taking advantage of the physical absence of the complainant, committed grave breach of contract and service deficiency, due to which the complainant suffered great mental agony and stress apart from monetary loss. The complainant caused to send a lawyers regd. notice to opposite party calling upon him to return the amount of Rs.2,00,000/- together with a compensation of Rs.1,50,000/- , to which the opposite party issued a false reply and the contents of the same are denied . There after he lodged a complaint dated 19.05.2019 before the SHO Nileshwar in this regard but since he was abroad he could not follow up further on that.
Hence this complaint is filed for a direction to the opposite parties to pay Rs.2,00,000/- with interest, along with Rs.1,50,000/- as compensation and costs.
The opposite party entered appearance through his counsel, who filed written version.
As per the version of the opposite party the complaint is false frivolous, vexatious, and not maintainable in law. The opposite party admit the oral agreement with the complainant for constructing the rocky land. But he denies all other contentions in the complaint. It is submitted that the work was started on 29.06.2018. As per terms of the agreement the complainant should pay Rs.25,000/- at the end of every week of working tenure. The opposite party’s friend Gopalan was present at the time of execution of the agreement and he was contracted by the complainant. When the work was partly completed to the half of its total volume, the complainant sent Rs. 2,00,000/-on 29.06.2018,08.07.2018,16.07. 2018 and on 30.07.2018. Thereafter when the work was proceeded with engaging all the machineries available, message has been received by the opposite party to stop the work on 12.08.2018.
The schedule of work done is as follows:
Suresh-JCB-JS81 Breaker-133 hours X Rs.1300/- =Rs.1,72,900/-
Gopalan- JCB-JS81 Breaker-364 ½ hours X Rs.1300/- =Rs.4,73,850/-
JCB bucket- 41 hours X Rs.1000/- =Rs. 41,000/-
Tipper - 8 days X Rs.5000/- =Rs. 40,000/-
Grand total =Rs.7,27,750/-
Therefore the complainant is liable to pay Rs.5,54,850/-, being the balance amount to the opposite party.
There is no deficiency of service on the part of opposite party. The complainant is not entitled to any relief and the complaint is liable to be dismissed.
The Complainant filed proof affidavit in Iieu of chief examination and documents as Ext.A1 to Ext. A4 are marked. He was cross examined as
PW1. The Ext.A1 is a copy of the Regd. notice dated 04.05.2019, Ext.A2 is the postal A/D card, Ext A3 is the Reply notice. Ext.A4 is the copy of the complaint dated 19.05.2019 submitted to CI of Police.
The opposite party also filed proof affidavit in lieu of chief examination and was cross examine as DW1. Another witness Gopalan also examined as DW2. No document is produced from the side of opposite party.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any service deficiency or unfair trade practice on the part of the opposite party
2. If so what is the relief ?
For convenience, both the above issues are discussed together. The specific case of the complainant is that he entrusted the work of digging and levelling the rocky lay out of his 60 cents land, with the opposite party, as per a verbal agreement. The levelling of the land was intended to construction of his residential house and for minor agriculture and plantation. The opposite party agreed to complete work by crushing all the bigger rocks into small/tiny pieces. The total contract amount was fixed was Rs.2,00,000/-and the payment was agreed to be done periodically on verifying the stages of progress of work at the rate of not less than Rs.25,000/- on each stage of work by contacting over phone. The opposite party agreed to complete the work at the earliest by using two power full JCB or Hitatchi earth movers. The complainant paid the entire amount of Rs.2,00,000/- but the opposite party failed to do the work as per the agreement.
The opposite party admit the oral agreement with the complainant for constructing the rocky land. But he denies all other contentions in the complaint. It is submitted that the work was started on 29.06.2018. As per terms of the agreement the complainant should pay Rs.25,000/- at the end of every week of working tenure. When the work was partly completed to the half of its total volume, the complainant sent Rs. 2,00,000/- on 29.06.2018, 08.07.2018 16.07.2018 and on 30.07.2018. Thereafter when the work was proceeded with engaging all the machineries available, message has been received by the opposite party to stop the work on 12.08.2018.The opposite party submit that he has completed the work for a value ofRs.7,27,750/-. There fore the complainant is liable to pay Rs.5,54,850/-, being the balance amount to him.
Here regarding the evidence, the basis of the complainant’s case is an oral agreement. Even though both parties admit the execution of such an agreement, they are not agreeing on the terms and conditions. As per the complainant, the total amount agreed to be paid for the completion of work is Rs.2,00,000/- ,where as the opposite party argue that as per the agreement the complainant should pay Rs.25,000/- at the end of every week of working tenure. According to the complainant, he has paid the entire amount of contract Rs.2,00,000/- but the opposite party didn’t complete the work as agreed. Even though the opposite party has done some works, it was not use ful for the purpose and as per the agreement and hence he told to stop. According to the opposite party, he has done more than half of the volume of the work agreed to be completed but in the middle it was stopped by the complainant with an intention to avoid payment of balance amount. He submit that the complainant is liable to pay an amount of Rs. 5,54,850/-, towards the balance for the work done.
Here it is pertinent to note that it was the complainant, who firstly raised the issue. He issued a lawyers Regd. notice dated 04.05.2019. There after he filed a police complaint 19.05.2019, but it had no follow ups, since he was abroad and not at station. Subsequently, he filed this consumer complainant on 22.07.2019. It is true that the opposite party caused to issue a Lawyer’s reply to the Regd.notice. But, in spite of a huge amount of Rs. 5,54,850/- in due from the complainant , as per his version, no step is taken by the opposite party to recover the amount, till date. The opposite party has no such case and no evidence for pendency of any such complainant before any authority for the recovery of such an amount from the complainant.
So the genuineness of the claim of the opposite party is doubtful. It can be inferred that the claim of the opposite party is only a clever backlash to the complainant’s case.
Under the facts and circumstances of this case this commission is of the view that there is negligence and service deficiency on the part of the opposite party, due to which the complainant suffered mental agony and hardships, apart from monitory loss. But regarding the quantum of damages, there is no reliable evidence. Admittedly an amount of Rs.2,00,000/- is paid by the complainant and that amount is received by the opposite party. It is also admitted that opposite party has started the work and completed to a certain extent. Neither of the party took steps to obtain an expert commission report to ascertain the quantity and quality of the work done. Therefore it is not fair to order the refund of the entire amount paid without reliable evidence.
But the complainant is entitled for compensation for mental agony and hardships suffered by him, due to the negligence and service deficiency on the part of the opposite party. This commission holds that an amount of
Rs. 50,000/- will be a reasonable compensation in this case.
In the result the complaint is allowed and the opposite party is directed to pay Rs.50,000/- (Rupees Fifty thousand only) to the complainant, towards compensation and Rs.5,000/- (Rupees Five thousand only) as cost.
The time for compliance is 30 days from receipt of the copy of this judgment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibit
A1- Copy of the Registered notice dtd:04.05.2019
A2- Postal A/D card
A3-Reply notice
A4- Copy of the complaint dtd:19.05.2019
Witness Examined
Pw1- Dr.Thamban Illath Valappil
Pw2- A.K.Gopalan
Dw1- Suresh.B
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
