State Consumer Disputes Redressal CommissionVinod Karnuji Gaikwad vs Hiruchand Kisanji Surtekar, on 5 December, 2011STATE 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 
        
       
      
       

 
      
     
    
     

 
    
   
    
     
     
       
       
       

 ORDERPER 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 underConsumer 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 
       

                                               
                   ORDER1)    
      Appeal is partly
      allowed and the Impugned judgment and order is2)    
      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