Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows.  The complainant is working in Abudabi.  He appointed his father as the power of attorney holder to conduct this case.  The complainant entrusted the opposite party to construct a building in his property comprised in resurvey No.346/2/21 having an extent of 7 Are in Eanathimangalam Village on 08/01/2016.  The complainant and the opposite party arrived in terms to construct the building and the opposite party made to believe that he would hand over the key on February 2017.  The opposite party agreed to construct the whole building for a construction cost of Rs.72,00,000/-.  The opposite party agreed to take necessary permit from local authorities with a final plan.  On 08/01/2016 he issued a cheque for an amount of Rs. 3,00,000/- to the opposite party for the said construction.  The complainant contented that he paid a total amount of Rs.72,00,000/- to him.  It is contented that on 06/06/2016 the opposite party sent a draft agreement to the complainant stating that an amount of Rs.73,75,000/- is the contract amount for the said construction instead of Rs.72,00,000/-.  The opposite party had given assurance to the complainant that he would complete all civil works, carpentry works, Electrical works, Plumbing works, Fabrication works, Glass works, Painting works and all other works mentioned in the approved plan when the complainant come back from Abudabi.  It is contented that in the agreement the nature of work, name of wood to be used for doors and windows Ceramic tiles etc. are explained in detail.  According to the complainant he paid a sum of Rs.66,75,000/- to the opposite party for this purpose.  It is contented that though he received that much of amount he completed the work for only Rs.39,10,300/-.  According to the complainant even from the very beginning of the said construction work, the construction was going on slow level and in a defective way.  A level variation of the roof, non-construction of lintel and sunshade, the non-designing of a pergola, non-erection of cub boards and kitchen slab non-execution of steel railing non-completion of plumping and electrical works etc. are the deficiency of work or service on the side of the opposite party.  The mediators intervened at this time and ultimately the opposite party demanded a further payment so that he was constrained to agree for further payment of Rs.15,90,000/- and entered an agreement on 28/09/2017 with the opposite party.  It is contented that after the execution of the subsequent agreement the complainant made payment to the opposite party.  On 30/10/2017 the complainant sent a letter to the opposite party through his email calling up on the opposite party to give the full details of the payment given by the complainant.  In pursuance of the said email letter, on 30/10/2017 the opposite party has given a reply to the complainant along with an excel sheet containing six items.  It is contented that the opposite party claimed the completion of 90% of the work agreed as per the agreement.  According to the complainant the opposite party spend only Rs.50,00,000/- for the said construction but he paid Rs.66,75,000/- to the opposite party.  It is contented that the complainant has to spent Rs.25,00,000/- for the completion of the remaining works as mentioned above.  It is contented that as per above calculation the complainant is entitled to get back Rs.16,75,000/ (66,75,000-50,00,000) from the opposite party with 12% interest.  Hence, the complaint to realize a sum of Rs.16,75,000/- along with 12% interest, compensation, cost etc. etc. from the complainant. 

          3. The complainant also filing the statement of account as follows.

          1. Total Cost of the Construction

             as per the agreements, date 08/01/2016.         :         Rs.73,75,000/-

          2. Advance amount received by the opposite

              Party on 08/01/2016.                                      :         Rs.3,00,000/-

          3. Amount received by the opposite party

              On 04/04/2016.                                              :         Rs.20,00,000/-

          4. Amount received by the opposite party

              16/06/2016.                                                    :         Rs.15,00,000/-

          5. Amount received by the opposite party on

              01/08/2016.                                                    :         Rs.5,00,000/-

          6. Amount received by the opposite party on

              15/11/2016.                                                    :         Rs.2,00,000/-

          7. Amount received by the opposite party on

              15/11/2016.                                                    :         Rs.10,00,000/-

          8. Amount received by the opposite party on

              24/04/2017.                                                    :         Rs.1,90,000/-

          9. Amount received by the opposite party on

             28/04/2017.                                                     :         Rs.4,85,000/-

      10. Amount received by the opposite party on

             01/06/2017, and encashed on                         :         Rs.2,50,000/-

      11. Amount received by the opposite party on

             28/09/2017.                                                     :         Rs.2,50,000/-  

______________________________________________________________________________                   

            Total Amount Received by the opposite

  Party till 28/09/2017                                      :         Rs.66,75,000/-

      12. Percentage of work completed by the

             Opposite party                                                   :         70%

      13. Average Cost of 70% of the total Work

STATEMENT OF ACCOUNTS-B

1. Excess Amount received by the opposite party     :         Rs.16,75,000/-
2. Compensation for the mental agony and

Hardships and loss due to hike in cost:Rs.3,25,000/-

______________________________________________________________________________

Total amount to be realized by the

Complainant (A+B), Form the opposite party              :         Rs.20,00,000/-

          4. This Forum entertained the complaint and issued notice to the opposite party for appearance.  Though this Forum issued notice to the opposite party the said notice was returned with an endorsement ‘absent’ to this Forum.  Therefore the complainant has taken substitute step against the opposite party by publishing the notice through paper publication.  The complainant produced the paper publication before this Forum on 06/08/2018.  On that date the opposite party called absent and case posted to 13/08/2018 for declaring ex parte against the opposite party.   At last on 13/08/2018 this Forum declared ex parte against the opposite party.  

          5. On the basis of the complaint, and records before us we framed the following issues for consideration. 

          1. Whether the opposite party committed any deficiency in service  

             against the complainant?       

          2. Regarding relief and cost?

          6. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of his chief examination and examined as PW1.  Thought PW1 marked Ext.A1 to A20 in his favour.  Ext.A1 is a power of attorney dated 17/04/2018.  Ext.A2 is the orginal tax receipt dated 11/12/2017.  Ext.A3 is the copy of Cheque dated 08/01/2016.  Ext.A4 is the cash receipt dated 08/01/2016.  Ext.A5 is the receipt dated 04/04/2016.  Ext.A6 series are SBI statement of account dated 02/01/2016 to 31/08/2017.  Ext.A7 is the copy of cheque no.450049 dated 16/06/2016.  Ext.A8 is the copy of cheque no.450050 dated 16/06/2016.  ExtA9 series are the copy of work contract agreement dated 08/01/2016.  Ext.A10 is the colour copy of cheque No.450059 dated 15/11/2016.  Ext.A11 is the receipt dated 28/04/2017.  Ext.A12 is the cheque No.450066 dated 28/04/2017.  Ext.A13 is the orginal estimate written by the opposite party.  Ext.A14 is the original 2^nd agreement dated 27/09/2017.  Ext.A15 is the receipt dated 28/09/2017.  Ext.A16 is the courier envelop.  Ext.A17 is the cheque No.450071.  Ext.A18 is the letter dated 30/10/2017.  Ext.A19 is the Excel sheet.  Ext.A20 series are 18 photos of the said house.  This Forum appointed an expert commissioner to ascertain the present status of the building as per I.A.51/2018 of this Forum.  The commissioner he who ascertained the fact as directed and filed a commission report before this Forum.  The said commission report is marked as Ext.C1 series though PW1. 

          7. Point No.1&2: For the sake or convenience we would like to consider Point No. 1&2 together.  When the complainant’s power of attorney holder his father in law was examined as PW1 he deposed more or less as per the tune of his complaint.  In order to substantiate the contention of PW1 he produced and marked Ext.A1 to A20 in his favour.  Ext.A1 dated 17/04/2018 is a power of attorney executed by the original complaint in favour of PW1.  Ext.A2 to A17 are cheques on different dates and receipts on different dates to show the remittance of amount in favour of the opposite party.  Ext.A18 and A19 are letter dated 30/10/2017 issued by the opposite party to the complainant and Excel sheet respectively.  Ext.A20 series are 18 photographs of different areas of the said house.  When PW1 is examined before this Forum the commission report is also marked as Ext.C1 series.  PW1 deposed that he has no objection with regard to Ext.C1 series before this Forum.  It is to see that the evidence adduced by the complainant’s power of attorney holder as PW1 is unchallengeable since the opposite party is declared ex parte in this case.  When we peruse the evidence adduce by PW1 we can see that the PW1 proved the payment of consideration for the construction of the building with cogent and convincing evidence.  He succeed to produce the cheque issued in favour of the opposite party and to substantiate the issuance of the cheque he produced the receipt of acceptance of the said cheque.  According to the calculation of the complainant we can see that the opposite party has received a sum of Rs.66,75,000/- from the complainant.  According to the expert commission report as Ext.C1 series the total cost of the construction is Rs.39,10,300/-.  If we calculated the difference it may come to Rs.27,64,700/-.  It is to be understood that the complainant limited the claim of relief as Rs.20,00,000 lakhs for the purpose of  pecuniary jurisdiction.  On the basis of the evidence adduced by PW1 along with Ext.C1 series we can believe PW1 and find that the case is allowable.  The opposite party as a service provider of the complainant he is bound to build the building construction as per the agreement executed between the parties.  It is to be noted that though he received the excess amount from the complainant he was failed to construct the building construction with the agreed quality and quantity.  If so we can come to a clear conclusion that the opposite party committed deficiency in service against the complainant.  Therefore we found Point No.1&2 in favour of the complainant. 

                   8. In the result we pass the following orders.

1. The opposite party hereby directed to refund Rs.20,00,000/- (Rupees Twenty Lakhs Only) to the complainant with 10% interest from the date of receipt of this order.

2. The opposite party is also directed to pay a compensation of Rs.10,000/- (Rupees Ten Thousand Only) and cost of Rs.5,000/- (Rupees Five Thousand Only) to the complainant with 10% interest from the date of receipt of this order. 

                      Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 25^th day of September, 2018.

                                                                                             (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                           (President)

Smt. Sheela Jacob (Member)  :  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Babukutty George.

Exhibits marked on the side of the complainant:

A1 :  Power of attorney dated 17/04/2018.

A2 :  Original tax receipt dated 11/12/2017. 

A3 :  Copy of Cheque dated 08/01/2016. 

A4 :  Cash receipt dated 08/01/2016.

A5 :  Receipt dated 04/04/2016.

A6 series : SBI statement of account dated 02/01/2016 to 31/08/2017. 

A7 : Copy of cheque no.450049 dated 16/06/2016.

A8 : Copy of cheque no.450050 dated 16/06/2016.

A9 series : Copy of work contract agreement dated 08/01/2016.

A10 : Colour copy of cheque No.450059 dated 15/11/2016. 

A11 : Receipt dated 28/04/2017. 

A12 : Cheque No.450066 dated 28/04/2017. 

A13 : Original estimate written by the opposite party.

A14 : Original 2^nd agreement dated 27/09/2017.

A15 : Receipt dated 28/09/2017.

A16 : Courier envelop. 

A17 : Cheque No.450071.

A18 : Letter dated 30/10/2017. 

A19 : Excel sheet. 

A20 series: 18 photos of the said house.

Witness examined on the side of the opposite parties:Nil.

Exhibits marked on the side of the opposite parties:Nil.

Court Exhibits:

C1 : Commission Report.

                                                                                         (By Order)

Copy to:-

1. BabuKutty T.George,

S/o. Late T.Mathai George, Thompil House, Azhoor,

Pathanamthitta - 689546.

2. Vino Bastian,Proprietor R.V Designs/R.V Associates,​Cheruvathoor House, Muthukadu P.O, Perambra, Kozhikkode. (Set Ex parte on 13/08/2018)       
3. The Stock File.