IMPORTANT POINT
Separate Agreement – Complainant would submit that no separate agreement was executed, since the opposite parties had agreed to carry out the construction as per the rate agreed in Exhibit A1 with respect to the construction of the first floor.

ORDER

Ajith Kumar D., Presiding Member—This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 by the opposite party in C.C.No.343/2015 on the file of

the Consumer Disputes Redressal Commission, Alappuzha (the District Commission for short).

2. On 26.06.2017 the District Commission had allowed the complaint and directed the appellant to refund Rs.3,74,707/- (Rupees Three Lakhs Seventy Four Thousand Seven Hundred and Seven only) to the complainant being the excess amount received along with interest @8% per annum and Rs.3,000/- (Rupees Three Thousand only) as costs.

3. The allegations contained in the complaint in short are stated below:

The complainant and the opposite party had entered into an agreement for the construction of a building with a plinth area of 743sq.ft. @Rs.1,150/- per sq.ft. The proposed construction is the extension of a shop room and the said work was finished. Subsequently, the opposite party had agreed to construct the first floor of the building at the rate fixed for the earlier construction. Complainant had paid a total sum of Rs.15,00,000/-(Rupees Fifteen Lakhs only). The opposite party delayed the construction by raising an additional demand for completing the work. Now the complainant is staying in a rental premises since the opposite party had failed to complete the construction of the residential building. There is deficiency in service. Hence, the complainant would seek for a direction to the opposite party to refund the excess amount received along with compensation.

4. Opposite party had entered appearance and filed a version stating that he never agreed to construct the building as per the rate fixed for the ground floor. He had put up the structure which is having 1273.1sq.ft. and the remaining work to be carried out by spending Rs.1,15,000/-(Rupees One Lakh Fifteen Thousand only). His case is that an amount of Rs.6,64,100/-(Rupees Six Lakh Sixty Four Thousand One Hundred only) has to be realised from the complainant. There was no deficiency on his side. He would seek for the dismissal of the complaint.

5. On the side of the complainant PWs 1 and 2 were examined. Exhibits A1 to A4 were marked. An expert commissioner was deputed who filed Exhibit C1 series report. He was examined as CW1. For the opposite party RWs 1 and 2 were examined.

6. In the appeal memorandum it is contended that the District Commission went wrong in fastening liability on the appellant who has performed his part for more amount than the amount received from the complainant. The District Commission ought to have dismissed the complaint. The District Commission ought to have found that the report filed by the expert commissioner was incomplete as no plan was appended along with it. The District Commission ought to have found that the dispute involved in this case could not be decided unless the number of additional pillars, columns and beams erected by the opposite party and the cost incurred for the same is ascertained. The District Commission went wrong in ascertaining the value of work done on the basis of the Delhi Area Building and not the rates prevailing in Kerala at that point of time. The District Commission ought to have rejected the report of the expert commissioner on the sole ground that the pillars were neither ascertained nor measured. The District Commission ought to have drawn adverse inference on the complainant as she has not brought the approved plan and estimate though admitted in evidence about such documents and expressed her readiness to cause production of the same.

The District Commission went wrong in discarding the oral evidence given by the opposite party in cross examination that a sum of Rs.6,64,100/-(Rupees Six Lakh Sixty Four Thousand only) was due to him towards the construction cost. The appellant would seek for setting aside the order passed by the District Commission.

7. Heard counsel for both sides. Perused the records received from the District Commission.

8. The