State Consumer Disputes Redressal Commission
Vinod Karnuji Gaikwad vs Hiruchand Kisanji Surtekar, on 5 December, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH AT NAGPUR
5 TH FLOOR, ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES, NAGPUR-440 001
First Appeal No. A/07/920
(Arisen out of Order Dated null in Case No. of District None)
1. VINOD KARNUJI GAIKWAD
SINDESWARI NAGAR,WARD 64,
CHIKLI LAYOUT, BEHIND
MEHARDHAM MANDIR, NAGPUR
Vs.
Hiruchand Kisanji Surtekar,
203, Jai Ganga Maa Housing Society
R/o Narsala, Tah.Kuhi, Dist.Nagpur.
BEFORE:
Hon'ble Mr.S.M. Shembole PRESIDING
MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER
PRESENT:
Adv.Solat
......for the Appellant
Adv.Riyazuddin
......for the Respondent
ORDER
PER SHRI S.M.SHEMBOLE, HONBLE JUDICIAL MEMBER... 1 1. Challenge in this appeal is the judgment and order dated 24/09/2007 passed by District Consumer Forum, Nagpur in CC No.16/2007 allowing the complaint directing the appellant/opponent to pay an amount of Rs.46,850/- to the complainant/ Respondent towards cost of incomplete work and also Rs.1000/- towards cost of the proceeding etc.
2. Feeling aggrieved by the impugned judgment and order, the original opponent has filed this appeal.
3. Brief facts giving rise to this appeal are that on 18/1/2005, the complainant/Respondent had entered into an agreement with the Appellant/Ori.Opponent for construction of house on his plot No.203, at Mouza Narsala Survey No.156, Tah.Kuhi, Dist.Nagpur and the Opponent had agreed to construct the house for Rs.1,85,000/-. (For the sake of brevity, the appellant is hereinafter called as Opponent and Respondent as Complainant).
4. As per the agreement, the construction was to be completed on or before 18/4/2005. Thereafter, the Opponent received amount of Rs.181000/- from the complainant from time to time, but failed to complete the construction work as agreed. Therefore, on 7/6/2005, complainant issued notice asking the opponent to complete the construction work. On receiving notice, the opponent promised to complete the work and also received Rs.4000/- but he failed to do the work as promised.
5. Thereafter, the complainant got inspected the construction work through Civil Engineer and by notice dated 5.19.2995, claimed amount of Rs.2 lacs for loss sustained to him etc. As the Opponent/appellant failed to comply the notice, the complainant/Respondent has filed complaint before the District Consumer Forum, Nagpur.
claiming amount of Rs.2 lacs.
6. Despite service of notice, the Opponent remained absent and hence, forum, by ex parte judgment and order dated 10/3/2006, partly allowed the complaint and awarded compensation of Rs.49,850/-.
7. Feeling aggrieved by the impugned judgment and order, the original opponent had preferred appeal before this commission. On hearing both the sides,the same appeal came to be allowed and the matter was remanded to the District Consumer Forum for deciding the matter on merit on hearing both the sides.
8. Thereafter, Opponent/appellant appeared before the District Consumer Forum, Nagpur and resisted the claim by filing written version contending interalia that the complaint is not maintainable under Consumer Protection Act, as there is no relation between the parties as service provider and consumer. Further it is contended that the complainant himself committed breach of contract by changing the house construction plan and payment of the additional amount etc.
9. Thereafter, on hearing both the sides and considering the evidence on record, the District Consumer Forum, Nagpur held that the complaint is maintainable and the Opponent himself committed breach of contract failing to complete the construction work as agreed. In keeping with this findings, the District Forum partly allowed the complainants claim directing the appellant/opponent to pay an amount of Rs.46,850/- to the complainant/ Respondent towards cost of incomplete work and also Rs.1000/- towards cost of the proceeding etc.
10. Feeling aggrieved by that judgment and order, the opponent has filed this appeal.
11. We heard counsel for both the parties, perused the copy of judgment and order and other documents produced on record.
12. Mr.Solat, Adv.for the appellant submitted that the Opponent is a poor labour and not a builder as averred by the complainant. According to him, since the appellant is not a builder, he is not a service provider and the complainant is not a consumer etc. But he has fairly conceded that there was agreement between the parties and the Opponent has executed the deed of agreement dated 18/5/2005. He also did not dispute that the opponent received an amount of Rs.1,85,000/- from the complainant from time to time. Moreover, he has fairly conceded that the construction work remained incomplete. But he disputed the inspection report showing the incomplete work to the tune of Rs.1,77,000/- as shown in the inspection report. According to him the inspection was done in the absence of Opponent, and, therefore, same can not be accepted.
13. Per contra, Adv.Riyazuddin for the Respondent/complainant submitted that though the inspection was carried out in the absence of the appellant, it was accepted by the appellant and by accepting the inspection report, he had agreed to complete the construction work receiving the balance amount of Rs.4000/- on 5.7.2005. He has also produced the original deed of agreement as well as the receipt of payment of Rs.4000/- dated 5.7.2005. This receipt is not disputed by the appellant. However, it is submitted by Adv.Solat that the same receipt is prior to the inspection report and, therefore, according to him, the opponent has not agreed to complete the construction. However, he has fairly conceded that this receipt dated 5.7.2005 is after receipt of notice dated 7.6.2005. Therefore, when the opponent has received the amount of Rs.4000/- after receipt of notice, it will have to be considered that the appellant had agreed to complete the work by receiving amount of Rs.4000/-.
14. Considering all the above undisputed facts, though the appellant/opponent is not a registered contractor/builder or service provider, since there was contract between the parties, the District Forum has rightly held that the complainant is a consumer and the appellant/opponent is a service provider and, therefore, the complaint is maintainable.
15. Moreover, considering the undisputed facts about receipt of amount by the opponent after receipt of notice, the District Forum has rightly held that there was compromise between the parties, and after compromise the opponent had agreed to complete the construction. But he did not complete the construction. Further, the forum, considering the affidavit of Civil Engineer Mr.Niyaz Ahmed rightly held that the remaining construction work is to the tune of Rs.49,850/- Moreover, considering the admitted facts about the cost of white wash @3000/- and cost of Kadappa stone worth Rs.5000/- which is done by the appellant, the District Consumer Forum has rightly deducted the same amount from the cost of remaining construction work. Therefore, we find no infirmity or illegality in the impugned judgment and order. Hence the appeal deserves to be dismissed. However, on perusal of the copy of impugned judgment and order, it reflects that the District Forum committed error in deducting amount of Rs.3000/- only instead of Rs.8000/- though it has observed that the appellant himself has carried out the kadappa stone work of Rs.5000/- and white wash of Rs.3000/-. Therefore, the appeal will have to be partly allowed.
Hence the order ORDER
1) Appeal is partly allowed and the Impugned judgment and order is
2) modified as under.
The opponent shall pay to the Respondent an amount of Rs.41,850/-
towards cost of remaining work and amount of Rs.1000/- towards cost of proceedings with interest @6% p.a. w.e.f. 10/11/2007.
3) No order as to cost.
4) Delivered on 05/12/2011.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER