Abhijeet Mitra vs Rana Chandramohan Singh

THIS appeal, under Section 15 of Consumer Protection Act, 1986, is directed against the order dated 22.6.2004 in Complaint No. 226/2002 by District Consumer Disputes Redressal Forum, Durg (hereinafter called the ''District Forum'' for short) directing that the appellant shall construct the boundary wall and shall execute the flooring work and repair the cracked pillars of the dairy of the complainant failing which he shall pay to the complainant/respondent Rs. 31,200 with interest @ 6% per annum. It was also directed that cost of Rs. 500 shall also be paid by the appellant to the complainant.

INDISPUTABLY the complainant/respondent Rana Chandramohan Singh runs a dairy at Rajnandgoan. The opposite party/appellant herein is a contractor and undertakes building work. It is also not in dispute that, complainant/respondent with an intention to make certain construction in his dairy, contacted appellant Abhijeet Mitra, who submitted an estimate dated 15.11.2000 for the work to be executed. The complainant thereafter directed the appellant to execute the work. It is also not in dispute that the complainant paid to the appellant total amount of Rs. 50,020 by cheque as detailed below: Amount (Rs.) Date 20,000 27.1.2001 16,000 14.2.2001 9,000 20.2.2001 The complainants grievance was that the construction carried out by the appellant was sub -standard and not up to the mark. The pillars raised on bricks and the sheets were also not properly fitted and instead of GI sheets asbestos sheets were fitted and parapet wall was not constructed over the sheets resulting in damage thereto. It was also averred that the boundary wall was not constructed and the well was not dug as per the agreement. The complainant further averred that though full amount of construction was paid by him to the appellant yet the appellant did not rectify the defects in construction and did not do the work stipulated between the parties. Hence, after serving notice dated 13.6.2002, he approached the District Forum and filed the complaint claiming compensation on account of sub -standard construction and omission to construct boundary wall, etc. as detailed above.

THE complaint was resisted by the appellant/contractor. It was averred that though he had advised that construction should be made on column basis but the complainant did not accede to his advice and directed that construction should be on boulder basis. It was also averred that the complainant told the appellant/contractor that since the dairy was likely to be shifted to a different location outside the city a strong construction was not necessary and that specification in the quotation submitted by the appellant/contractor need not be adhered to and that the said quotation was obtained only to secure loan from the bank. It was also averred that the complainant himself told appellant/contractor that he does not wish to get a well dug or get the flooring work executed. It was also averred that the complainant asked the appellant/contractor to execute certain other work which was executed by the appellant/contractor. Thereafter, the appellant submitted a bill dated 14.2.2001. In pursuance thereof and after feeling satisfied about the construction work the complaianant/respondent issued a cheque for Rs. 16,000 on 14.2.2001. It was also averred that since the complainant had got executed additional work from the appellant, the latter demanded the balance amount which was paid by the complainant by cheque. The said amount of Rs. 20,429.20 was paid by the complainant by cheque dated 30.4.2001, which however bounced due to shortage of funds, for which the appellant launched proceedings under Section 138 of Negotiable Instruments Act. It was averred that in order to avoid the consequences of such proceeding, the complainant had filed the complaint against the appellant.

DISTRICT Forum in the impugned order, recorded a finding that in view of admission made by the appellant in his written version, it is clear that he did not execute the work as per specifications and that it was sub -standard and not upto the mark. And that he also did not construct the boundary wall and flooring and did not dig well as per the estimate. Learned Counsel for parties were heard. Record and impugned order perused.

AS already noticed, indisputably the construction of the dairy was undertaken by the appellant. It is also not in dispute that the appellant submitted an estimate dated 15.11.2000, marked as Annexure -I, by the District Forum. As already pointed out full amount of Rs. 50,020 as per the said estimate was paid to complainant by cheques, as detailed in para 2 of this order. According to the complainant/respondent, the work executed by appellant was sub -standard and that the appellant also did not execute the flooring work, boundary wall and did not dig the well. The contentions in substance of the appellant in the above context were that the work was executed as desired by the complainant, and that the complainant in fact got executed additional work which was not covered within the estimate. Therefore, he cannot be blamed for sub -standard work, as he executed the work as per the wishes of the complainant.

IT may be noticed in the above context that the appellant has submitted a bill dated 14.2.2001 (Annexure -II) whereafter a cheque of Rs. 16,000 dated 14.2.2001 and cheque for Rs. 9,020 dated 20.2.2001, were issued in his favour by the State Bank, towards the loan taken from the said bank, by the complainant. The bill (Annexure -II) mentions the work executed by the appellant. Though the complainant alleges that boundary wall was not constructed but the said bill clearly shows that boundary wall of 4" thickness up to the height of 8'' from ground level admeasuring 800 ft. in length has been constructed. It may be noticed that as per estimate (Annexure -I), the boundary wall was to be constructed only upto 5'' height; while it appears that the boundary wall was constructed up to a greater height of 8''. It was submitted by the learned Counsel for the appellant that the complainant was satisfied with the work executed by the appellant and it was after more than one year four months, that he chose to file the complaint after the avove bill dated 14.2.2000 was submitted and payment thereof was made to the appellant. It was submitted that had the boundary wall not been constructed or the said work not executed as per the bill (Annexure -II) the complainant would have stopped payment of the said bill by the bank in pursuance of the loan obtained by him. The complainant does not appear to have done so. In the above context it may also be noticed that some photographs have also been filed on record which clearly go to show that the boundary wall was constructed in the dairy. In view of above the grievance of the complainant that boundary wall was not constructed, does not appear to be borne out from the material placed on record. Learned Counsel for the appellant contractor also submitted that the work was executed as per the wishes of complainant and after completing the work, the bill as per Annexure -II, was submitted by the appellant to the complainant. In the said bill, no amount has been charged for digging a well. It was further submitted by the appellant that the complainant himself did not wish that a well should be dug. In the circumstances the well was not dug at all and no amount was charged in that regard, as would be evidenced by the bill (Annexure -II). We find the contention as above to be justified. As also pointed out earlier that, if the complainant had any objection regarding work shown in the bill, he would not have permitted payment to be made by the bank by cheques dated 14.2.2001 and 20.2.2001.

IN view of above, it cannot be said that the complainants grievance regarding non -digging of well and non -construction of boundary wall is well founded. It further appears from the contentions raised by the appellant in his written version that some additional work was got executed by the complainant from the appellant for which a cheque dated 30.4.2002 for Rs. 20,429.20 was given and since the said cheque was not honoured, litigation between the parties is pending in that regard. It appears that thereafter the complainant issued notice dated 13.6.2001, in view of the dispute as above having arisen between the parties. However, it may be also noticed at this stage, that the appellant himself has admitted that he did not execute the flooring work and the work was not executed as per the specifications, though his explanation in this regard is that it was done as per the wishes of the complainant. However if that was so, the appellant would have been well advised to obtain the consent in writing of the complainant. He has not done so.

IN the foregoing circumstances, though the appellant cannot be absolved from his liability for having executed sub -standard work, but it is also clear that the fault does not lie solely at his door. He cannot be burdened for not digging of the well or for non -execution of the flooring work for which he had not charged in the bill (Annexure -II). However, in the face of admission by the appellant himself that the work executed by him is sub -standard and not as per specification, he appears to have committed deficiency in service to that extent. That being so, it is clear that he should be directed to pay compensation to the complainant for the sub -standard work. It may be noticed in the above context that the total construction was estimated to be for Rs. 50,020. Considering the nature of construction and in view of admission of sub -standard work having been executed by the appellant, it appears just and proper in the circumstances of the case to award compensation of Rs. 10,000 to the complainant. Accordingly, the appeal is partly allowed. The impugned order is modified and instead thereof, it is directed that the appellant shall pay to the complainant compensation of Rs. 10,000 (ten thousand) with interest @ 9% per annum from the date of complaint. Appellant shall also pay to the complainant cost of this litigation including that of the complaint as well as this appeal, which is quantified at Rs. 1,000 (one thousand) only. Appeal partly allowed.