Maj. Gen. S.P. Kapoor, Member:
1. This is an appeal against the order of the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum-II, for short), dated 11.6.2004 in Complaint Case No. 521 of 2000: Smt. Shakuntala Rani v. Sh. Bharat Yadav.
2. Briefly the complaint is that the complainant purchased a single storey House No. 3070, Sector 40-D, Chandigarh. She hired the services of the O.P. i.e., Sh. Bharat Yadav, a building contractor to do renovation of the existing building and for making additional construction on it in the shape of new stairs from within the drawing room and construction of 24x12 feet ceiling area on the 1st floor. As per understanding of both parties, renovation included dismantling of some walls and stairs fixing of marble, granite and tiles at specified places, improvement of bathroom including sanitation work and electricity works. The 1st floor construction consisted of two rooms and bathroom in addition to covered area of 12x24 feet. There was only an oral agreement and the complainant was to pay Rs. 75,000/- as labour charges in addition to supply of material. The work was to be completed within 4 months. During ongoing renovation work the complainant pointed out many defects in the work being done but was assured by the O.P. that all the defects will be rectified before completion of the main work. The work, which started on 25.5.1999, had not been completed till December 1999. On retirement from service the complainant shifted to the house on 1.12.1999 when the work was still in progress. After about one month the O.P. stopped work and told her that the job had been completed but there was work still to be done and also there were defects to be rectified and the same were pointed out by the complainant to the O.P. but the O.P. refused to remove the defects and do further construction work. It is averred that from 25.5.1999 till 30.11.1999 the complainant paid a total of Rs. 84,500/- in various payments of Rs. 500/- to Rs. 15,000/- whereas the contract was only for payment of Rs. 75,000/-. Dissatisfied with the work the complainant got the work done examined by a professional, who pointed out the following defects in the construction for rectification:
â(i)Â Cracking of the tile-terracing on the roof.
(ii)Â Cracking of marble at some places due to uneven filling of the surface underneath.
(iii) Breaking of granite and marble in the bathroom during work.
(iv)Â Wrong cutting and fixing of sink and water taps on the counters in the bathrooms.
(v)Â Wrong construction of stairs which is a major irreparable damage.
(vi)Â No slopes in bathrooms floor.
(vii)Â Faulty fixing of marble and granites.
(viii) Faulty plastering in drawing room and bedrooms.
(ix)Â Faulty cutting of roof.
(x)Â Faulty sanitation work and material loss connecting almost all the taps and flushes to one overhead tank whereas there are two overhead water tanks. Supplying of water in bathrooms as well as kitchen through only one geaser fitted in the bathroom.
(xi) Faulty electrical work at some places.â
which amounted to a loss of Rs. 60,000/- in terms of labour and material. The complainant has filed this complaint carving for the payment of Rs. 95,000/- as compensation for deficiency in service which includes Rs. 60,000/- as the cost of repairs of bad work done, Rs. 25,000/- for mental harassment and Rs. 10,000/- as cost of litigation.
3. On the other hand the O.P. states that he is a simple workman doing the work of a mason. He has denied any dealing with the complainant and avers that he worked in the house at the instruction and instance of Smt. Ranjana, Municipal Councillor, Municipal Corporation, Chandigarh, who happens to be the daughter of the complainant. He completed the work as per the instruction of Smt. Ranjana, under her supervision. He has denied any deficiency or discrepancy in work completed by him. He has further alleged that Rs. 1,34,470/- due to him and other co-labourers are still unpaid by Smt. Ranjana, aforesaid. Payment of Rs. 84,500/- has been denied by the O.P. It is further averred that he being the leader of the labourers has been falsely implicated in this case. He has also stated that he and other labourers have already filed a civil suit in the Court of learned Civil Judge, Chandigarh for recovery of Rs. 1,34,470/- as labour charges from Smt. Ranjana and this civil suit is still pending and hence this complaint is not maintainable.
4. The complainant in her rejoinder has stated that the Civil Suit against her and her daughter was filed after the O.P. had been served in this complaint case.
5. In view of the pending of civil suit, by its order dated 12.5.2003 learned District Forum-II stayed further proceedings in the complaint case till the disposal of the aforesaid civil suit. However, this Commission directed the learned District Forum-II to proceed with the complaint case in accordance with law and in the light of the observations made by the Honble Supreme Court in the case of Dr. J.J. Merchant and Others v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714=1986-2002 Consumer page 6792 (NS).
6. Analysing the complaint on merits, from the evidence on record the learned District Forum-II has held that the O.P. is only a labour contractor and not a building contractor and at best the complainant can be held as a consumer hiring/availing the labour supplied by him. It also observed that there is no written contract even though the alleged contract amount is as huge as Rs. 75,000/-. Also it has observed that the scope of work as mentioned by the complainant is very vague and thus the terms and conditions of the alleged oral contract are entirely vague and non-committal and it is, therefore, held as void under Section 29 of Contract Act. In the words of learned District Forum âthe complainant has failed to prove the precise terms, conditions, quantum and extent of the alleged services hired by her, which is surely fatal to her causeâ.
7. Discussing next the alleged payment of Rs. 84,500/- to the O.P. the learned District Forum has observed that even though it is alleged that this amount was paid in sixteen bits there is no receipt of any amount on record and the O.P. has denied receipt of any amount. Since the affidavit of the complainant and the O.P. get scored off. The learned District Forum has observed that no balance of evidence is left on the side of the complainant. The learned District Forum has further observed that the two leaves of a diary of the Complainant of January, 1999 having notes about some payments made to the O.P. cannot be treated as âBooks of Account under Section 34 of the Evidence Act and, therefore, this document is inadmissible as evidence.
8. The learned District Forum has also observed that the complainant has failed to explain the circumstances under which she paid Rs. 84,500/- to the O.P. even though the contracted amount was only Rs. 75,000/-. It has also been observed that Cheque No. 783678, dated 31.3.2000 for Rs. 14,000/- allegedly paid to the O.P. also does not stand scrutiny. The case of the complainant is that Rs. 84,500/- was paid to the O.P. from 25.5.1999 to 30.11.1999 whereas this cheque is dated 31.3.2000. Also it is not proved that this cheque was given to the O.P. and that he has got it encashed. In view of the learned District Forum this cheque could possibly have been prepared to pay the labour charged allegedly not paid but later the cheque was never delivered to the O.P. but it to an extent proves the case of the O.P. that the complainant has made him no payments. The learned District Forum-II concluded that the complainant has failed to prove the alleged payment of Rs. 84,500/- to the O.Ps.
9. It has also been observed by learned District Forum-II that the complainant has omitted the usual step of serving a legal notice prior to filing the complaint.
10. Discussing deficiency of service, if any, the learned District Forum observed that the O.P. is only a labour contractor and hence cannot be held liable for alleged deficiencies/discrepancies in construction/renovation. Analysis the evidence placed on record the learned District Forum observed that Sh. Harbhajan Singh, Government Contractor though has listed the deficiency/defects in the work, yet he has not filed any affidavit nor is there anything on record to suggest that Sh. Harbhajan Singh, aforesaid, rectified the defects and the complainant made any payments to him. The learned District Forum also held that photographs filed with the complaint were inadmissible as evidence under Section 62 of the Evidence Act as the photographs are not primary evidence which are negatives and the negatives have not been produced nor the affidavit of the photographer has been placed on record.
11. Finally learned District Forum-II also observed that even though the O.P. in his written statement has pleaded that he only had direct dealing with Ms. Ranjana Shahi, daughter of the complainant. No affidavit of Ms. Ranjana Shahi, denying this has been filed.
12. In view of the foregoing analysis of the complaint learned District Forum held that there is no deficiency in service or unfair trade practice on the part of the O.P. and, therefore, dismissed the complaint.
13. Aggrieved by this order the complainant has filed this appeal. The appeal having been taken on board, the record of the complaint case was summoned from District Forum-II and notice was issued to the respondent. Mr. Kamal Sehgal, Advocate appeared on behalf of the appellant/complainant whereas Sh. Bharat Yadav, respondent/O.P. appeared in person.
14. Mr. Kamal Sehgal, Advocate was not present on 20.9.2004 i.e., the date fixed for hearing and he submitted written arguments dated 21.9.2004. It has been submitted by the appellant that the learned District Forum-II has gone wrong in holding the O.P. as a labour contractor and not as a building contractor. It has been further submitted that building contracts are normally oral and the finding of learned District Forum that it cannot record definite finding whether the contract has been faithfully executed or not is erroneous. It has been further stated that even the O.P. has admitted having executed the work of mason, marble fixing, electricity and painting and a labour contractor normally does not indulge in so many works. As regards payments of Rs. 84,500/- it has been submitted that diary of the complainant is a clear evidence of sixteen payments amounting to Rs. 84,500/- as having been made. It has been further stated as to how could the labour work without any payment having been made till filing of the complaint. It has been further stated as to how could the labour work without any payment having been made till filing of the complaint. It has been also argued that whereas the complaint was filed in 2001 the civil suit has been allegedly filed in 2001 for which no notice has been received by the appellant/complainant so far. The next argument is that the letter dated 8.9.2000 placed on record clearly proves that the O.P. is a building contractor and not a mere labour contractor. Referring to Para 8 of the written statement it has been argued that defects in construction/renovation have been accepted by the O.P. which according to him were due to unsatisfactory spray of water. It has also been stated that the learned District Forum has not correctly appreciated the photographs filed by the appellant/complainant. Finally it has been argued that the role of the daughter of the appellant has been wrongly stressed by the learned District Forum.
15. Mr. Bharat Yadav, respondent submitted that he is not a building contractor and the impugned order is fair, just and legal and it should be upheld.
16. We have perused the record on the file of the case, the impugned order and have gone through the written submissions of the appellant. The controversy really is as under:
(a) Is the respondent/O.P. a building contractor?
(b) Was there any contract between the appellant and the O.P. for renovation and construction of House No. 3070, Sector 40-D, Chandigarh?
(c) How much payment, if any, has been made to the O.P/respondent?
(d) Has any defect/deficiency in the job done been proved? and is the respondent/O.P. responsible for the same?
17. Letter dated 8.9.2000, placed on record by the complainant is from Private Construction Labour Contractors Union and it mentions Sh. Bharat Yadav as a âContractor. It is quite clear from this letter that Mr. Bharat Yadav at best belongs to the fraternity of labour contractors and is not a building contractor. It is not the case of the complainant that there was any deficiency in the provision of labour by the O.P. We agree with the view of the learned District Forum-II on this matter that the O.P. is only a labour contractor and not a building contractor.
18. Coming to the second issue of existence of a contract, there is nothing on record to prove any contract between the appellant and the respondent. It is agreed by both that there is no written contract. The appellant alleges an oral contract and the respondent has denied the same. Even the terms and conditions of the alleged oral contract are entirely vague and unspecific. The appellant has failed to prove the precise terms, conditions, quantum and extent of the alleged services and, therefore, we hold that the alleged oral contract is not enforceable in law.
19. The surest way of confirming a payment is the receipt given by the receiver of the payment. In this case there is no such receipt. All 16 payments are alleged to have been made from 25.5.1999 till 31.11.1999 and in cash. The only proof presented for the payment are the two pages of a diary of the complainant which neither indicates any dates nor does it have even the signatures of the complainant let alone that of the O.P. In its present form it can hardly be admissible as evidence under Section 34 of the Evidence Act. Though there is a mention of Cheque No. 783678, dated 31.3.2000 for a sum of Rs. 14,000/- drawn in favour of Mr. Bharat Yadav yet there is nothing on record to prove that the cheque aforesaid was ever paid to the respondent/O.P. and that he encashed the same. From the material placed on record, in our considered view the complainant has failed to lead any credible evidence to prove any payment let alone payment of a sum of as big as Rs. 84,500/-.
20. So far as the deficiency in the said job is concerned, the same is attempted to be proved by filing some photographs attached with the complaint. These photographs have no evidentiary value, as the same is secondary evidence and not the primary evidence. The primary evidence in support of the photographs are the negatives. The negatives are also required to be proved by the photographer who took the photographs and develop the negatives by filing his affidavit. In the instant case all this evidence is lacking. Apart from it, there is no evidence led on record to show that Sh. Harbhajan Singh had any receipt for payment of Rs. 46,707/-.
21. In view of the foregoing discussion, we are of the view that learned District Forum-II has analysed all the facts of this complaint case in great detail and has taken a very legal, just and fair view and, therefore, its order is just, fair and legal and it needs no interference. Consequently, we uphold the impugned order. The appeal is dismissed with parties left to bear their own costs of litigation.
Copies of this order be sent to the parties free of charges.