P.Q. Barkathali : President
This is an appeal filed by the opposite party in CC.118/09 on the file of CDRF, Kannur under section 15 of Consumer Protection Act challenging the order of the Forum dated, February 29, 2012 directing the opposite party to refund Rs.1,50,000/- along with a compensation of Rs.10,000/- and a cost of Rs.1000/-.
2. The case of the complainants as testified by the 2nd complainant and as detailed in the complaint before the Forum in brief is this:-
The complainant entrusted the opposite party with the work of the construction of upstair portion of his house at the rate of Rs.700/- per sq.ft. for a total area of 973 sq.ft. for a total amount of Rs.6,50,000/-. Complainant paid total amount of Rs.5,50,000/- but the opposite party did not complete the work within the stipulated period. Mediators interfered and fixed the cost of the work done by the opposite party as Rs.3,45,476/-. Second complainant was compelled to complete the work by spending Rs.2,50,000/-. In the presence of mediators opposite party agreed to pay Rs.3,04,109/- to the complainant which he failed to do. Therefore complainant filed the complaint for refund of that amount.
3. The opposite party in his version contended thus before the Forum. Complainant paid already Rs.5,00,000/- to the opposite party. The opposite party had completed the work by spending Rs.6,81,000/-. The complainant did not pay the balance amount to him. It is not correct to say that any mediation took place. Opposite party never agreed to pay Rs.3,45,476/- to the complainant.
4. PWs 1 to 4 were examined and Exts.A1 to A16 were marked on the side of the complainant. No evidence was adduced by the opposite party before the Forum. On an appreciation of evidence the Forum found that complainant paid Rs.5,50,000/- to the opposite party, that the cost of the work done by the opposite party comes to Rs.4,00,000/- and directed him to refund the said amount of Rs.1,50,000/- to the complainant. Opposite party was also directed to pay compensation of Rs.50,000/- and cost of Rs.1000/-. Opposite party has now come up in appeal challenging the said order of the Forum.
5. Heard both the counsels.
The following points arise for consideration:-
1. Whether the opposite party received any excess amount from the complainant and if so whether complainant is entitled to refund the same?
2.Whether the impugned order of the Forum can be sustained?
6. The opposite party questioned the maintainability of the complaint before the Forum. By a detailed order in I.A.284/09 on February 23, 2010 the Forum found the complaint is maintainable which has become final as the opposite party has not chosen to challenge the same by filing any appeal against that order.
7. The case of the complainant is that he entrusted the work of the upstair residential house to the opposite party at a cost of Rs.700/- per sq.ft. for a total area of 973 sq.ft. that the total cost of work comes to Rs.6,50,000/-, that opposite party received Rs.6,49.589/-, but he has done the work worth Rs.3,45,476/- only and that opposite party did not refund the excess amount of Rs.3,04,109/-.
8. The opposite party contended that he received only Rs.5,00,000/-. But Ext.A12 to A14 the e-mail messages issued by the opposite party to the complainant shows that he has received Rs.5,50,000/- from the complainant. The opposite party contended that he had completed the entire work. But the complainant examined PWs 2 and 3 who mediated the matter. It is proved by their evidence that the opposite party did not complete the work and that in their presence PW4 the building consultant estimated the cost of work done by the opposite party has Rs.3,45,476/-, Ext.A10 is his report. It is clear from the above that opposite party has not completed the entire work upstair portion of the house of the complainant and the Forum found that PW4 did not value some of the work done by the opposite party which will comes to Rs.50,000/-. Thus the opposite party has received Rs.5,50,000/-, but done the work with Rs.4,00,000/-. Therefore Forum is perfectly justified in directing the opposite party to refund Rs.1,50,000/- to the complainant. Forum has also directed the opposite party to pay compensation of Rs.10,000/- and cost of Rs.1000/-. We find no ground to interfere with the said finding of the Forum.
In the result we find no merit in this appeal and the same is hereby dismissed with a cost of Rs.5000/-.