Karachi Education Society vs SH. H.S.RAO

THE Karachi Education Society, a public charitable trust filed this complaint against the opposite party; the Builder. It is alleged in the complaint that the complainant hired the services of opposite party for the construction of his school building. THE con tract was to demolish the existing construction and to make the new construction. It appears from the allegations that the complainant found that they have made payment to the opposite party but the O.P. have not completed the construction within the stipulated period. THE complainant, therefore, terminated the contract of the opposite party by notice dated 25.10.91 and claimed back the excess payment of Rs. 4,87,387/-, Rs. 2,85,500/- as compensation for the loss and Rs. 1,00,285/- towards the interest at the rate of 16% p.a.

A notice u/Sec. 13(2) of the Consumer Protection Act, 1986 (C.P. Act) dated 3.1.92 was sent to the opposite party by registered post with acknowledgement due. The said notice was received by the opposite party on 1.2.92. The postal acknowledgement is on record. Despite the notice from this Commission, the opposite party failed to appear on the appointed day i.e., on 4.3.92 and, therefore, this Commission proceeded ex-parte against the opposite party. The allegations made in the complaint were verified by the complainant on oath by filing an affidavit of Shri Sachanand Israni dated 10.3.92. Shri Sachanand Israni is member of the Managing Committee of the complainant and is fully acquainted with the facts and circumstances of this complaint. Similarly, one Vishnu Shahane, another member of the managing committee of the complainant society who was entrusted the construction work of the school building also filed his affidavit dated 10.3.1992 confirming the allegations made in the complaint. Another affidavit had been filed by Shri Ramesh Butani on behalf of the complainant who filed the complaint. He also verified all the allegations made in the complaint on affirmation. Shri Ravindra Nene, an Architect engaged by the complainant society also filed its affidavit as regards the correctness of the measurement of the work done by the opposite party and the costs of the construction. In his affidavit, the Architect has stated that the 5th bill raised by the opposite party was certified by him. Besides the aforesaid evidence of affidavits the complainant has filed on record the details of dues to the contractor as per the advance paid. A copy of the notice issued to opposite party dated 12.7.91 through Shri Joshi, Advocate of complainant, as regards the claim in question is also placed on record. The complainant also placed in record Ex. 4 and 5, the summary sheet of the work done of the school building. At Annexure 2, the assessment of steel consumed on the basis of R.C.C. work done. There is again a copy of another notice dated 25.10.91 sent by Shri Joshi, Advocate to opposite party on behalf of the complainant claiming the loss to the tune of Rs. 3,88,807/- with Rs. 100/- as costs.

In view of the unchallenged evidence of complainant placed on record, duly supported by affidavits and documents we find no reason to disbelieve the claim of complainant. From the aforesaid evidence, it is clear that there has been deficiency in the service of the opposite party while rendering the service of the construction of the school building. We also find that the complainant has been put to loss due to the negligence of the opposite party.

THE complainant has claimed Rs. 4,07,287/- towards the over paid amount to the opposite party. In our view, the complainant is entitled to refund of the said amount since opposite party has not discharged his duty in the matter of construction of the school as per the agreement. THE complainant has also claimed Rs. 2,85,500/- as compensation for the loss caused to the Society due to the price rise and Rs. 1,07,285/- towards the interest on the total amount of over payment and the compensation at the rate of 16% p.a. In our view the complainant is not entitled to get the compensation of Rs. 2,85,500/- for the loss caused to the society due to the price rise. THEre are variety of factors which caused the rise in price and the opposite party cannot be blamed solely for the price rise. Consequently, the payment of interest over the amount of compensation does not arise. However, we find that the complainant is entitled to receive the compensation for the deficiency in the service of the opposite party by not completing the construction work as per the stipulation. In our view, it would meet the ends of justice if the complainant is awarded interest at the rate of 16% p.a. over the amount of Rs. 4,07,287/- from January, 1990 till the date of payment. Hence, we pass the following order : ORDER THE opposite party shall refund to the complainant Rs. 4,07,285/- together with interest at the rate of 16% p.a. from January 1990 till payment. Complaint allowed.