G.Anbalagan vs T.V.RAMASAMY

THIS appeal has been preferred against the order of the District Consumer Disputes Redressal Forum at Pondicherry dated 21st day of September, 1998 made in Complaint No. 127 of 1998. The opposite party against whom the District Forum allowed the complaint, though in excess of the original claim has preferred the present appeal.

WE have heard Mr. N.K. Perumal, learned Counsel appearing for the appellant and Mr. S. Ameerudeen, learned Counsel appearing for the respondent. For convenience, the parties will be referred as arrayed before the District Forum below.

The complainant instituted the Complaint No. 127 of 1998 alleging deficiency of service in respect of the contract entered between the parties. The complainant moved the District Forum seeking for the following directions : (i) to pay Rs. 1,35,000/- being the balance amount paid; (ii) to pay Rs. 50,000/- as compensation and for deficiency in service; and (iii) to reimburse the rent at the rate of Rs. 2,000/- per month from June, 1998 till date of payment.

THE Forum below on a consideration of the respective case of the parties framed the following two points for consideration : (1) Whether there is any deficiency of service on the part of the opposite party and could be held liable for the same ? (2) Whether the complainant is entitled for all or any of the reliefs prayed for ?

Before the Forum below, the complainant produced Exs. C1 to C9, while the opposite party produced Ex. R1. A Commissioner has been appointed, who had submitted his report Ex. F2.

ON the first point, on a consideration of Exs. C1 to C8 as well as Ex. F2 the Forum below rendered a finding that the valuation of the incomplete structure as exist by the Commissioner is fair and the total cost of the incomplete construction on the basis of PWD rates was arrived at Rs. 93,483/- as against the value claimed by the opposite party at Rs. 2,92,448/-. The difference sum of Rs. 1,35,000/- being the excess payment made by the complainant was ordered to be refunded. The Forum below had considered the terms of the agreement for construction, area of construction agreed on both the floors, the rate agreed to between the parties and after considering the terms and conditions, when the respective parties were not agreeable with respect to the cost of construction already put up, the Commissioner was appointed. The Assistant Engineer P.W.D. (North) Buildings Sub-Division, Union Territory of Pondicherry was appointed by the Forum below for assessing the value of the construction with the consent of either parties. The said Commissioner after inspection, took measurements and arrived at the cost of construction so far put up by the opposite party at Rs. 93,483/-. Though the complainant claimed the value of the construction at Rs. 40,517/- the opposite party claimed the value at Rs. 2,92,448/-, for valid reasons, the Forum below accepted the independent report submitted by the PWD Engineer and arrived at the cost of incomplete construction so far put up by the opposite party at Rs. 1,35,000/-. It has been made out that the complainant had paid Rs. 2,05,000/- and the said total payment has been substantiated by the complainant as seen from the vouchers/acknowledgements filed by the complainant. As there is deficiency in the service on the part of the opposite party as the opposite party failed to complete the construction within the stipulated period as per the standards, the Forum below directed the opposite party to refund the sum of Rs. 1,35,000/-.

HAVING found that the value of the construction arrived at by the Commissioner is acceptable, it would not be proper and it would be unjust to strike a via media while arriving at the value of the existing construction put up by the opposite party. It is true that the complainant had valued the existing construction at Rs. 40,517/-, while the opposite party had valued the cost of the existing construction at Rs. 2,92,965/-. Both the parties have taken an extreme stand with respect to the value of the construction. Thereafter only the Commissioner was appointed, who had valued the cost of construction at Rs. 93,483/- as seen from Ex. F2. In the absence of challenge to the Commissioner''s report by either party and the Commissioner being an independent expert engineer employed in the PWD Department, it would be fit and proper for the Forum below to have accepted the said report and the Commissioner''s valuation should have been accepted as the total cost of existing construction viz. Rs. 93,483/- instead of striking a via media, which is neither just nor according to law.

CONCEDINGLY, the complainant had paid Rs. 2,05,000/- only. The Forum below had awarded Rs. 30,000/- as interest to the payment made and arrived at the total figure. The Forum below had ignored the amount invested by the opposite party from time to time in putting up the construction which comes to Rs. 93,483/- as seen from Ex. F2 report. Therefore, it is obvious that the opposite party had also utilised substantial portion of the amount entrusted to him. Hence it would be legally unsustainable to add Rs. 30,000/- to the sum of Rs. 2,05,000/- under the head of interest and proceed as if the complainant had paid Rs. 2,35,000/-. It would not be just to award interest in a transaction like this. Hence while accepting the Commissioner''s report of the construction as to the cost of existing constructions as Rs. 93,483/- and holding that the total amount paid by the complainant to the opposite party being Rs. 2,05,000/-, we hold that the excess payment, paid by the complainant to the opposite party comes to Rs. 1,12,017/-. If at all, the complainant is entitled to get refund, he is entitled to Rs. 1,12,017/- and not Rs. 1,35,000/-. The conclusion of the Forum below in this respect has to be modified. Though various other contentions have been advanced, being a Consumer Disputes Redressal Forum and when there are disputed questions, it would not be proper for the Forum below to have gone into the disputed question. At any rate, the excess payment made by the complainant to the opposite party is Rs. 1,12,017/- which amount the complainant is entitled to get back. In fact the appellant fairly admitted the liability but only disputed the quantum.

On the second point, the Forum below awarded Rs. 1,00,000/- as compensation, while the complainant himself had claimed Rs. 50,000/- as compensation towards the deficiency in service, loss of rental income and various other heads. The loss of rental income cannot be agitated before the Forum below and what could be claimed is only compensation for deficiency caused in the service, if there is a breach of contract, the complainant should have approached the Civil Court seeking for appropriate remedies.

IN the present case, there is delay and short-fall as a result of deficiency in service. Therefore, the complainant had sustained loss consequent to the abandonment of the construction by the opposite party and as a result of the delay, it is fairly stated that the complainant has to incur more expenditure in completing the construction as the cost of cement, labour, steel and other construction materials have increased. It is true as against the estimated cost, the complainant had to spend atleast 30% to 40% more and for this as well as for mental agony and deficiency, it would be just and proper to award Rs. 50,000/- in all as has been claimed by the complainant in the complaint itself and to this limited extent, the award of compensation by the Forum below on the second point has to be modified. Normally, when there are disputed questions of fact, the Forum below should have referred the parties to a comprehensive civil suit instead of entertaining a complaint. At this stage, if the parties are referred to a Civil Court, it would cause hardship and the complainant will be prejudiced much rather than the opposite party and, therefore, we have decided to order for reimbursement of the excess payment alone made by the complainant and also award a fair compensation of Rs. 50,000/- in all for the deficiency as well as the loss caused for the delay in the construction and escalation of building materials.

IN the foregoing circumstances, the appeal is allowed in part. In the result, while modifying the order passed by the District Forum, we direct : (i) the opposite party (appellant) herein to pay Rs. 1,12,017/- with interest at 12% per annum from 1.1.1998 till date of payment; (ii) to pay a sum of Rs. 50,000/- with interest at 12% from 21.9.1998 the date of the order of Forum below in all towards the compensation under all heads and the same shall be paid within 60 days. (iii) the parties shall bear their respective costs in this appeal. Appeal partly allowed.