V.V. Jose : Member
This appeal is filed by the opposite parties in CC.No.171/2012 in the CDRF, Pathanamthitta.
2. The case of the complainant in the above CC in brief is as follows.
3. The complaint was filed by Sri.Thomas Mathew as the power of attorney holder of Sri.Philip Mathew. On May 2011 complainant entrusted the interior work of his new building to the opposite parties, who carrying on business of interior decoration under the name and style œ Civic Interiors . In pursuance of the mutual agreement complainant paid an amount of Rs.25000/- to the opposite parties, on a promise to start the carpentry work by early November. They started the work on 27.11.2011. The workers were North Indians, who are not capable of doing carpentry work. Complainant provided free accommodation to the workers on the request of opposite parties. Complainant paid Rs.25000/- again on request of the opposite party. The work done was defective and negligent, as no supervision, resulted in wastage of costly wood. In the middle of work, few of the carpenters will leave and after few days a new batch will come. The new batch wasted much wood trying to adjust with the unfinished work. Opposite parties quoted a rate of Rs.1300/- for door shutters and Rs.500/- for window panels. On 17.01.2012 the opposite party e-mailed a bill of Rs.55013/-. Complainant paid Rs.25,000/- as a bank transfer. After receiving the same the opposite party withdraws from the work. When contacted over phone, promised to send workers to complete. Believing on this promise the complainant took leave from the employer and came down to Kerala. As there was no positive response from the opposite party, he entrusted the work to a third party. This act of the opposite party is a clear deficiency in service, which caused financial loss and mental agony. Hence this complaint for getting Rs.3, 55,000/- from the opposite parties with 18% interest along with cost and compensation.
4. Opposite parties entered appearance and filed its version with the following contentions. They denied any agreement as alleged in the complaint for doing carpentary work. Second opposite party is only the wife of the 1st opposite party and have no relation with any business of the 1st opposite party. There was a talk between the complainant and opposite party regarding the interior work of the new building. As per the version, the opposite party sent experienced carpenters for rectifying the defects already occurred in the carpantry work done by the complainant. Even though the complainant did not provided good at atmosphere for workers, they completed the carpentry work. The intention of the complainant was to collect the design of the interior work. After obtaining the design he completed the work engaging some other workers. There is no deficiency in service on the part of opposite party and prayed for a dismissal.
5. Evidence of this complaint consists of proof affidavit filed by the power of attorney holder of the complaint and Ext.A1 marked was the power of attorney. The complainant was not cross examined. In fact there is no representation for opposite party at that stage. Opposite party has also not adduced any evidence.
6. According to the Forum complainant failed to adduce any documentary evidence supporting their contentions regarding the agreement, payments and the expense met by him for his journey. He also failed to bring any evidence to show the poor workmanship of the workers and the loss and damages of materials supplied.
7. On the other side, even though the opposite parties filed its version. They have not turned down to the subsequent proceedings of the case. They also have not produced any documents or cross examined the power of attorney holder of the complainant.
8. It is seen that an affidavit was filed by a witness named Mr.Hari Kumar, to show that the remuneration paid to the third party to complete the work and the damages of loss of wood entrusted will come to Rs.100000/-. But he was not examined or crossed.
9. From the facts and circumstances of the case, the Forum Below finds no reason to disbelief the allegations raised by the complainant. They are inclined to accept the allegations of the complainant and claims partly and found that the opposite parties have committed deficiency in service to the complainant and opposite parties are liable also. In the result, the complaint was allowed by the Forum directing the opposite parties to return Rs.75000/-, amount collected by the opposite parties along with compensation of Rs.25,000/- and cost of Rs.1000/- to the complainant within 15 days from the date of receipt of this order, failing which complainant is allowed to realize the whole amount with 10% interest from today till the realization of the whole amount.
10. Aggrieved by the above order the opposite party preferred this appeal on the following grounds. The main contention in the appeal is the question of jurisdiction, claiming that they were not carrying any business within the jurisdiction of the Forum. Further the appellants contends that they were not entered any agreement with the complainant to conduct any specific work for him. As per the terms, appellant only cured some defects in the earlier work done by the complainant, by using experienced workers of the appellant, and all of them are not North Indian Workers. They also contended that at the time of evidence the counsel was laid up. The Forum below, denied the chance of cross examining the power of attorney holder of the complainant.
11. Heard. The counsel of the appellant argued that the appellants are carrying business of interior decoration under the name and style œ Civic Interiors . In May 2011 appellant cured some defects of carpentary work done by the respondents for his new residence. The curing works almost completed. The respondents claimed a payment of Rs.75000/-.The respondents denied the balance of payment and made allegations of work done not up to the mark. Hence complainant is in the Lower Forum. Appellants / opposite parties entered appearance and filed their version. No documents of agreement or payment were not produced. Complainant not seeked for any commission to assess the work done. Without assessing the work done, the Forum Below reached in a conclusion. The Forum Below denied the opportunity to cross examine the power of attorney holder of the complainant, as the counsel of the opposite party was laid up and which was submitted in the Lower Forum. Actually the attempt of the complainant was to obtain the design of the interior work. After getting the design, he went back and done the work by some other carpenters, and sought for setting aside the order of Lower Forum.
12. We have carefully gone through the grounds of appeal and arguments canvassed by the counsel of the appellant which does not appear to be convincing. Regarding the territorial jurisdiction of the Forum Below, though the opposite party belongs to Trichur the work was carried out at Kozhencherry. We have no doubt the complaint will lie in the Forum below.
13. Another contention of the learned counsel of the appellant is that they were denied opportunity to cross examine the complainant perse is not correct. We have gone through the order sheet and it appears that the Forum has noted there was no representation for opposite party more than once. Opposite party has not earnestly resisted the case of the complainant. Opposite party also has not initiated to adduce any evidence to support or prove their alleged contentions.
14. However on perusal of the facts and circumstances of the case we find the complainant was also very casual in conducting the case. Other than the power of attorney no documents are seen produced or marked. Regarding the payment of Rs.25,000/- on different occasions no documentary evidence is produced. But the opposite party in their version has not challenged or opposed the payments and receipts of the said sum, which would leads us to safety conclude that the sum was paid and received by opposite party. It is very curious to note that the complainant paid the amount on three different occasions, while the work was ongoing. If there was any strong dissent or disagreement with regard to the quantity and quality of work, complainant would have refused subsequent payments .Hence it is to be presumed that some work was going on, may not be as promised or expected. The Forum Below, while ordering the refund of amount considered all these aspects. But Forum Below granted compensation to a tune of Rs.25,000/-, according to us, is without any basis. The value of work carried out by the opposite party is not appears to have considered by the Forum below and hence according to us granting of compensation, and refund of entire amount paid will not go together. So we are not inclined to award the compensation. In the facts and circumstances of the case we therefore modify the order of the Lower Forum to that extent.
In the result, the appeal is partly allowed directing the opposite party to pay Rs.75000/- and cost of Rs.1000/- to the complainant within 15 days of receipt of this order, failing which the complainant is allowed to realize the said amount with 10% interest till realization from the date of the order of the Lower Forum.