BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 30^TH DAY OF AUGUST 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1.        This complaint has been filed by the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Refund a sum o Rs.19,33,083/- along with interest at the date of 18% p.a., from the date on which the delivery of services was to be completed.
2. Pay the complainant a sum of Rs.10,00,000/- towards damages for the suffering, mental trauma, and anguish caused on account of the deficiency of service.
3. Pay the cost of issuance of the legal notice dated 10.11.2021 of Rs.10,000/-
4. Pay the cost of this present complaint of Rs.1,000/-
5. Pay the litigation expenses for the present complaint of Rs.40,000/-.
6. Grant such other relief.

2. The brief facts of the complaint are as follows:

The complainant having entered into an agreement dated 19.12.2020 with the OP for an interior designing service of her house paid Rs.17,12,174/- under four invoices dated 13.10.2020, 11.11.2020, 16.12.2020 and 05.02.2021 and complainant also paid an additional amount towards electrical and granite work i.e., in all Rs.19,33,083/-.

3. It is further case of the complainant that at the request of the OP, the time was extended for completion of the work from 60 days.  But OP neither completed the work nor refunded the amount to the complainant.  Therefore complainant got completed interior decoration work with the help of third party by paying Rs.16,14,000/- and occupied her apartment on 17.10.2021.

4. It is further case of the complainant that the OP had completed only 10% of the work entrusted to it.  Thereby OP is liable to refund Rd.19,33,083/- and Rs.10,00,000/- as damages. The OP is also liable to pay Rs.10,000/- towards cost of the legal notice and Rs.40,000/- towards litigation expenses.  Despite legal notice dated 10.11.2021, OP failed to refund the amount. Hence this complaint.

5. In response to the notice, OP appears and files version.  The OP admits agreement and payment of the amount paid by the complainant.  But OP contends that the penalty clause is only in respect of pending work and not for the whole work.  The OP has carried out the work to the tune of Rs.12,00,000/-.  The complainant admits that the balance of 10% of the work is also completed by the OP.  The OP has not aware of entrustment of work by the complainant to the third party and complainant paying Rs.16,14,000/- to complete the entire design work and moved to the apartment.  He admits that due to shortage of the raw materials and other reasons it was not able to complete the work.  Therefore, OP requests to dismiss the complaint.

6. The complainant filed her affidavit evidence and relies on 18 documents.  Despite opportunity granted, the OP failed to file affidavit evidence.  Heard the arguments of advocate for the complainant only.  No argument is advanced on behalf of the OP.
7. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

8. Our answer to the above points are as under:

       Point No.1:- Affirmative in part

      Point No.2:-  Affirmative in part

       Point No.3:- As per the final order.

                                REASONS

9. Point No.1 AND 2:   Even though OP appears through its counsel and filed version, but failed to file affidavit evidence.  The  say OP remains only a version without any evidence.

10. The complainant in order to support his contention in the complaint relies on her affidavit evidence and 18 documents.  We carefully perused the affidavit evidence and documentary evidence of the complainant.  It is admitted by both the parties that there was an agreement between the complainant and OP to carry out the entire work of the apartment of the complainant on 19.12.2020, but OP could not complete the work for the reasons stated by it.  But OP does not dispute the receipt of in all Rs.19,33,083/-.  According to the OP, it carried out the work to the tune of R.12,00,000/-, but OP has not substantiated this fact by means of an evidence that it has carried the work of the complainant to the tune of R.12,00,000/-. In the absence of any evidence on behalf of the OP. It is hard to believe that OP carried the work to the tune of Rs.12,00,000/- in the apartment of the complainant.

11. Even though complainant seeks for refund of entire amount of rs.19,33,083/-. According to the complainant in her complaint as well as in her affidavit evidence, that the OP had carried out only 10% of the work.  This admission clearly indicates that the OP carried out the work in the apartment of the complainant to the tune of 10% only.  When the complainant admits that OP carried the work only 10% of the entrusted work, if this 10% is taken into consideration, the complainant should have asked for refund of Rs.17,39,775/- after deducting 10% of the amount paid.

12. Even though complainant asserts and deposed that she carried out entire work by paying Rs.16,14,000/- to the third party. Complainant has failed to substantiate this fact by producing the documentary evidence.  Even presuming for the sake of argument that the complainant carried out the work with the help of 3^rd party by paying Rs.16,14,000/-. In the absence of documentary evidence, at the most the complainant is entitle to only Rs.17,39,775/- from the OP.

13. We carefully perused Ex.P1 to P18 which are not in dispute.  Ex.P1 is the copy of the agreement dated 19^th December 2020 between the complainant and OP.  Later on both the parties have entered into another agreement dated 22.01.2021 as per Ex.P2.  The further correspondence at Ex.P3 indicates that the OP had addressed a letter dated 5^th March 2021 seeking 15  days time to complete the work due to delay in supply of products.  In ex.P4, the OP had sought 15 days from 25.03.2021, but despite lapse of this time, the OP failed to complete the work.  Even though OP had not disputed the receipt of Rs.19,33,083/-, but ex.P5 and P6 indicate that the complainant has made payment of in all Rs.19,33,083/- to the OP.  Ex.P7 I the photos indicate that OP had carried out part work by dumping the raw materials.  However the complainant called upon the OP to refund Rs.19,33,083/- + delay in compensation.  Even though OP promised to refund the amount, but OP has not specifically spelled out how much amount OP was liable to refund the amount to the complainant.

14. It is settled preposition of law that the admitted facts need not be proved.  Even though OP admits receipt of Rs.19,33,038/- from the complainant, but complainant admits in the complaint and in the affidavit evidence that the OP carried only 10% of the agreed work.  Under such circumstances, the complainant is entitled to only refund of Rs.17,39,775/- against Rs.19,33,038/-.

15. There were correspondences between the complainant and OP as per Ex.P9 to P14 including legal notice.  The OP neither responded to the legal notice nor made any efforts to refund at least the balance amount to the complainant.  Even though complainant relied on Ex.P16 order of the first Additional District Consumer Commission, passed against one Mr.Sudeep, Proprietor, present OP concern.  In the above case also there was an agreement between the parties to carry the entire work to the tune of Rs.15,98,243/-, but complaint was allowed directing the OP to refund Rs.8,32,419/-.

16. It is pertinent to note that the complainant has not whispered date of completion of only 10% of work.  Under such circumstances, the complainant is entitled to refund of Rs.17,39,775/- with interest at 9% p.a., as compensation.  The complainant seeks Rs.10,00,000/- as compensation and cost of litigation including legal notice of Rs.50,000/-.  When we are awarding interest at 9% p.a., from the date of payment of Rs.17,39,775/- till realization, the complainant is not entitled to compensation in the absence of date of carrying of only 10% of work. Therefore, it is proper to award 9% interest on balance amount of Rs.17,39,775/- from 05.02.2021.  The cost of litigation is quantified at Rs.15,000/-.  Accordingly we answer point No.1 and 2.

17. POINT NO.3: In view of the discussion referred above, the OP is liable to refund Rs.17,39,775 /- with interest at 9% P.A., from 05.02.2021 till realization and also liable to pay cost of Rs.15,000/-.  It is proper to impose time limit on the OP to comply this order and in case of failure to comply order within time limit the OP is liable to pay interest at 12% p.a., on 17,39,775/- after expiry of time limit. In the result, we proceed to pass the following;

O R D E R

1. The complaint is Allowed in part.
2. OP is directed to refund Rs.17,39,775/- with interest at 9% p.a., from 05.02.2021 till realization and Rs.15,000/- towards cot of litigation.
3. OP should comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a., on R.17,39,775/- after expiry of 60 days from this date till payment.
4. Furnish the copy of this order to both the parties.
5. Return the extra documents to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^th day of August, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

• NIL -

HAV*