Date of Filing : 12.07.2018
Date of Disposal : 27.03.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., B.L., ......MEMBER-I
THIRU.P.MURUGAN, M.Com, ICWA(Inter), B.L., ......MEMBER-II
CC. No.28/2018
THIS MONDAY, THE 27th DAY OF MARCH 2023
Mr.N.P.Aravinda Babu,
S/o.V.Palanisamy,
No.T 133, Osian Chlorophyll,
Devi Parasakthi Nagar,
Porur 600 116, Thiruvallur District. ……Complainant.
//Vs//
1.Vivo Dezigns Private Limited,
No.20, Swaminathan Nagar,
Old Mahabalipuram Road,
Thaiyur, Kelambakkam, Chennai 603 103.
2.Mr.Arunachalam Govindan alias Arun,
Manaing Director,
Vivo Dezigns Private Limited,
having office at
No.20, Swaminathan Nagar,
Old Mahabalipuram Road,
Thaiyur, Kelambakkam,
Chennai 603 103. …..opposite parties.
Counsel for the complainant : Mr.S.Muthukumaravel, Advocate.
Counsel for the opposite parties : M/s.VAT Legal.
This complaint is coming before us on various dates and finally on 17.03.2023 in the presence of Mr.S.Muthukumaravel counsel for the complainant and M/s.VAT Legal counsel for the opposite parties and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. S.M. LATHA MAHESWARI, PRESIDENT
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties with regard to the deficiency in service committed by the opposite parties in carrying out the interior works for the complainant’s house along with a prayer to direct the opposite parties to pay a sum of Rs.5,00,000/- for gross deficiency in service committed by them in doing the interior project works, to pay a sum of Rs.5,00,000/- towards compensation for the unfair trade practice for not utilizing the agreed materials, to pay a sum of Rs.8,00,000/- towards the cost of completion of the projects, to pay a sum of Rs.1,00,000/- for the inordinate delay in handing over delivery and to pay a sum of Rs.10,000/- towards cost of the complaint.
Summary of facts culminating into complaint:-
The complainant has purchased a house in the month of January 2017 and decided to do interior in it. When the opposite party approached the complainant for interior works the complainant paid a sum of Rs.1,00,000/- as advance for the project in February 2017. Initial discussions between both the parties agreed for overall budget of Rs.36,00,000/- and assured that the opposite party would complete the project within September 2017. Upon the complainant’s request the details of the quote along with terms and conditions was sent on August 2017 through email. The opposite party had specifically mentioned the brand names of the materials to be used in the project which was also used to calculate the overall project cost. However, the complainant noticed that the quote shared in the email was Rs.45,00,000/- which was much higher than the agreed budget and also the time schedule was extended to October 2017. The complainant has objected for the same but since the project was in mid-way by that time, the complainant has no other option and was forced to agree the revised cost and the time schedule. The opposite party assured that there would not be any further payments on any heads and promised to complete the project work by October 2017 but the same was not done within the said time. Project went upto January 2018 and in the very same month the opposite party had claimed additional costs of Rs.6,50,000/- as tax inspite of agreeing Rs.45,00,000/- as overall budget. The complainant has paid Rs.46,00,000/- till date though he was in agreement for the same. As on January 2018 approximately 80% of works were only completed inspite of several extensions. The opposite party had failed to complete the project within agreed time though the original completion date was September 2017. Because of the delay the complainant was forced to move-in to the apartment on 26.01.2018 amidst pending works. After moving-in the complainant had noted several defects in the interior works, the completed works were actually incomplete and the complainant was put to shock to note down that there were more than 100 defects which were not small defects. It was a gross deficiency in service and moreover the complainant also noted that there were several deviations from the original contract and the opposite party had committed an unfair trade practice by not using the agreed materials but the opposite party has utilized very low quality materials. The opposite party used commercial plywood for kitchen cabinets instead of Marine/boiled water protected plywood, used low quality glasses instead of Saint-Gobain, used low quality kitchen appliances instead of Ebco or equivalent and used low quality paint instead of Asian premium emulsion or Nippon Matex/Satin Glo as committed in the agreement etc. Within a few days complainant’s laptop damaged because of the water leakage from the AC output which was improperly fixed and hence the opposite party was bound to pay the charges for the laptop. After several requests the opposite party has visited the complainant’s house on 12.04.2018 and admitted the poor quality of the service due to lack of workman ship from Vivo Dezigns, Vivo Dezigns have not one any quality checks for the work done in the complainant’s apartment. The 100 + defects and incomplete work were reported to Vivo Dezigns on multiple occasions by the complainant. On the same day 12.04.2018 the opposite party has admitted through an email that defects and pending works would be fixed only if the complainant pays the last payment. It was admitted that once the escalation of Rs.45,00,000/- has been agreed by the complainant and the opposite party has assured that there may not be any further payment on any other heads, the question of further payment doesn’t arise and even as per the agreement clause the question of last payment will arise only when the complainant has given a satisfactory completion of project work. The project was not completed within the assured time or with the reasonable time and even today the project was not completed which shows that there is deficiency in service and unfair trade practice. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.5,00,000/- for gross deficiency in service committed by them in doing the interior project works, to pay a sum of Rs.5,00,000/- towards compensation for the unfair trade practice for not utilizing the agreed materials, to pay a sum of Rs.8,00,000/- towards the cost of completion of the projects, to pay a sum of Rs.1,00,000/- towards for the inordinate delay in handing over delivery and to pay a sum of Rs.10,000/- towards cost of the complaint.
The crux of the defence put forth by the opposite parties:-
The budget for interior works was fixed and agreed for a sum of Rs.36,00,000/- in the month of May 2017 and the completion date of the project was agreed to be September 2017 was denied. The budget cost towards the project was for a sum of Rs.24,60,000/- to Rs.36,00,000/- for the interior work and Rs.4,30,000/- to Rs.8,00,000/- towards civil work. Complainant had sought for other civil works also which includes kitchen wall break, bathroom removal, plumbing and electrical work, flooring the kitchen premises, connecting the top floor door to the hallway in a contemporary style, stair case handrail fixing to suit the final interior and stair case correction wherein a guidance budget apart from the interior work budget (Rs.36,00,000/-) was fixed ranging from Rs.8,60,000/- to Rs.16,00,000/-. The averment of the complainant that he had paid a sum of Rs.1,00,000/- as advance on lump sum basis was denied. In fact the complainant had made the payments on three installments. The complainant had paid Rs.25,000/- on 27.01.2017, Rs.50,000/- on 04.02.2017 and Rs.25,000/- on 05.03.2017. The stipulated date of delivery agreed by both the complainant and the opposite parties was subject to the fact that the builder of the house handed over the house to the complainant and thereafter handing over of the house from the complainant to the opposite parties. In the present case the handing over of the property by the builder was only on 18.06.2018 and the opposite parties were able to start the civil work only from 27.06.2017. Hence the complainant himself had delayed for a period of 6 months for the interior work to be started. Under these circumstances, the allegation of the complainant that there has been delay in handing over has to be negated. The complainant and the opposite parties were in deliberation for various reasons including that of design review process which resulted in the complainant seeking for removal of existing stairs on the 13th the floor and to add the same with spiral glass stairs. The same resulted in seeking opinion on structural engineering with the builder. Final approval of the same was given by the complainant and his builder on 01.08.2017. Until such specific period the opposite parties had provided design layouts, project approvals for demolition and new structures apart from providing design with respect to kitchen, foyer and living room. The allegation of the complainant that he had to pay an additional sum of Rs.6,50,000/- was with reference to the tax, duty that needs to be paid by the Government. There was no delay on the side of the opposite parties. In fact the PDI of the builder was scheduled on 18.06.2018 and civil work had started only on 27.06.2017. Though initial discussions were made from January 2017, the opposite parties could not start the work unless and until the house was handed over to the complainant and in result the same being handed over to the opposite parties. The opposite parties had diligently worked once the house was handed over to them by the complainant on 27.06.2017. The opposite parties had visited the residence of the complainant on 12.04.2018 but denied the allegation of defects. The first draft for the kitchen and living room was presented on 03.04.2017. Since there were many discussions between both the parties the opposite parties had received the first approval only on 01.08.2017. The complainant had approved the design of the canopy wall only on 06.11.2017 which clearly emulates the delay was only by the complainant. It was also admitted by the end of November 2017 the complainant had also sought for extra work which includes but not limited to modifying the door, grill design and implementation of wood work etc and hence design and execution of the work could be started only in the month of December 2017. Under these circumstances, the allegation of the complainant that the delay was due to the act of the opposite parties was baseless. Thus they sought for the complaint to be dismissed.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to Ex.A7. On the side of opposite parties proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B7. Report filed by the Advocate Commissioner was marked as Ex.C1 as Court document.
Points for consideration:-
Whether the complaint as filed could be tried before this commission as the complaint allegations are based upon contractual terms and conditions?
If maintainable whether the complaint allegations with regard to the deficiency in service committed by the opposite parties in carrying out the interior works for the complainant’s house has been successfully proved by the complainant by admissible evidence?
To what reliefs the complainant is entitled?
Point No.1&2:-
The following documents were filed on the side of complainant in support of his contentions;
Copy of payment details was marked as Ex.A1;
Copy of Terms and Conditions was filed as Ex.A2;
Cost escalation mail dated 03.08. was marked as Ex.A3;
100 + defects email by complainant dated 12.04.2018 was marked as Ex.A4;
Reply by opposite parties admitting the 100+ defects dated 12.04.2018 was marked as Ex.A5;
Legal notice issued by the complainant was marked as Ex.A6;
Acknowledgement card for proof of delivery was marked as Ex.A7;
The following documents were filed on the side of opposite parties in support of their defence;
High level budget specification sent to the complainant by the opposite parties was marked as Ex.B1;
Payment of Rs.1,00,000/- in 3 payments by the complainant to the opposite parties was marked as Ex.B2;
Glass work quote sent to th complainant by the opposite parties was marked as Ex.B3;
Email communications sent to the complainant and the opposite parties was marked as Ex.B4;
Consolidated final bill sent to the complainant by the opposite parties was marked as Ex.B5;
Screenshot of Whatsapp communication sent to the complainant and the opposite parties was marked as Ex.B6;
Section 65B Affidavit was marked as Ex.B7;
Advocate Commissioner’s Report dated 13.10.2022 was marked as Ex.C1;
Heard both learned counsels and perused the material evidences produced by them. The crux of the oral arguments adduced by the learned counsel appearing for the complainant is that though initially the interior works was fixed at a cost of Rs.36,00,000/- as quoted by the opposite parties later it was revised to Rs.45,00,000/-. Further, against the admitted period for completion i.e., October 2017 the opposite parties completed the project only in January 2018 that too only 80% work was completed at the time of handing over. Also many defects were found like low quality materials were used, deviation in the design shown in 3D view and actually done, low quality of paint etc. Though the complainant had paid the increased price under assurance that no further payment would be asked under any other head the opposite parties did not adhere to the terms and demanded extra amount. The opposite parties also failed to produce the bills of the materials used for the project which creates suspicion. The project was not completed within the assured time that to with 100 plus defects the house was handed over. The report of the commissioner clearly shows the defects and that the product used for the interior design work is not upto the satisfaction as per the schedule. The Rs.1,00,000/- advance paid in lump sum by the complainant was not agreed by the opposite parties.
On the other hand, the learned counsel appearing for the opposite parties argued that it is not true that Rs.36,00,000/- was quoted but Rs.45,00,000/- was quoted for the entire interior works along with civil works. Though it was agreed that the interior works would be completed in September 2017 the delay was caused due to the delay of handing over the building to the opposite parties by the builder. The builder who constructed the building was different from the opposite parties. With regard to the allegation of the complainant that the opposite parties claimed an additional sum of Rs.6,50,000/- was false as it was paid towards tax and as per the condition 17 of the terms and conditions the opposite parties had clearly intimated the tax liability of the complainant. The civil work started only on 27.06.2017 after the builder handed over and the structural changes was approved by the builder only during first week of August. The alleged defects were due to nonpayment of money as per the schedule and poor usage of the premises by the complainant from date of occupation till date. The first draft for kitchen and living room was presented on 03.04.2017 since then there were many meetings between the complainant and the opposite parties and the opposite parties received the approval on 01.08.2017. Till that time the opposite parties were coordinating with the builder for structural changes based on the request made by the complainant with reference to removal of existing stairs and modifying the same to spiral glass stairs. Until this time the opposite parties were involved in designing the kitchen, the foyer and living room. The complainant approved the design of canopy only on 06.11.2017 which clearly shows that the delay was on the part of the complainant. By the end of November 2017 the complainant sought for some extra work modifying the door, grill design and implementation of wood work etc. and hence the work could be started only in December 2017. Under these circumstance the delay was caused due to opposite parties is false allegation. Normally the building would be handed over only after completion of the entire work, but believing the words of complainant that he would clear the outstanding dues and shall allow minor works to be completed by the opposite parties, the complainant was given occupation of the premises on a good will gesture. Still the complainant has a due amount of Rs.10.8/- lakhs to be paid by the opposite parties. Thus stating that the delay was caused due to the delayed delivery of the builder of the house (OSIAN BUILDERS) to the opposite parties, delayed approval of the designs by the complainant and the builder the opposite parties prayed for the dismissal of the complaint.
On appreciation of the entire materials and evidences the two main grievances raised by the complainant is that delay in completion of interior work and defective work in the interior design by the opposite parties against the agreed terms in contract.
For the delay in handing over the opposite parties had raised a specific defence that they himself were given delivery of the building to carry out the interior works only belatedly by the builder and hence the builder is only the person responsible but he was not made as a party to the proceedings. Further, the opposite parties stated that the approval was given by the complainant and the builder only on 01.08.2017 and until that time several other works were carried out by the opposite parties. The opposite parties also had stated that the complainant was continuously changing the designs and a detailed quote was given on 03.08.2017. The opposite parties were not intimated about the structural change at the time of entering into contract and only during the work were carried out the complainant came up with new ideas and the opposite parties had to heed to their demands and hence there was change in the amount quoted. Further, the aspect that the Advocate Commissioner had inspected the premises only after five years of completion of work was also to be taken into account as the opposite parties had filed objections to the same stating that the complainant did not maintain the structure there would be normal wear and tear which could not be attributed to the work done by the opposite parties. On going through the complaint averments and defence statements it is evidently seen that the issue involved requires elaborate evidence as it consists of complicated facts, which necessarily entails leading of copies evidences. In the said facts and circumstances when complaint was filed based on the contract entered between the parties with respect to materials used, design approved and made, incomplete works, defective works, balance to be paid to the opposite parties, delay in handing over and change in the quotation etc., we are of the view that the consumer complaint could not be adjudicated before this commission in a summary manner were elaborate trial procedure could not be followed and complainant has to approach the appropriate civil forum to redress his grievances.
Point No.3:-
As we have decided that the matter could not be decided before this commission we did not dwell into the merits of the case and the same is left open to be decided by the appropriate Forum.
In the result, the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27th day of March 2023.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 ................ Copy of payment details. Xerox
Ex.A2 .................. Terms and Conditions. Xerox
Ex.A3 03.08.2017 Cost escalation mail. Xerox
Ex.A4 12.04.2018 100+defects email by complainant. Xerox
Ex.A5 12.04.2018 Reply by opposite parties admitting the 100 + defects. Xerox
Ex.A6 19.04.2018 Legal notice by the complainant. Xerox
Ex.A7 ............. Acknowledgement card. Xerox
List of documents filed by the opposite parties:-
Ex.B1 …………….. High level budget specification sent to the complainant by the opposite parties. Xerox
Ex.B2 ……………… Payment of Rs.1,00,000/- in 3 installments by the complainant to the opposite parties. Xerox
Ex.B3 …………….. Glass work quote sent to the complainant by the opposite parties. Xerox
Ex.B4 …………….. Email communications sent to the complainant and the opposite parties. Xerox
Ex.B5 ……………. Consolidated final bill sent to the complainant by the opposite parties. Xerox
Ex.B6 …………….. Screenshot of Whatsapp communication sent to the complainant and the opposite parties. Xerox
Ex.B7 ………….. Section 65 B Affidavit. Xerox
List of documents filed by this commission:-
Ex.C1 13.10.2022 Advocate Commissioner’s Report. original
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MEMBER-II MEMBER –I PRESIDENT
