DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 11^th day of August, 2023

Present  : Sri.Vinay Menon V., President

             : Smt.Vidya A., Member                

              : Sri.Krishnankutty N.K., Member        Date of filing:          13/12/2022

     CC/253/2022

 1.   Sunil Gopinathan,

   S/o Gopinathan. K.P,

   Krishna House No.42

   Ganapathi Kovil Road,

   Ramanathapuram,

   Palakkad – 678 001.                                               

 2.   Dr. Krishna Sunder

       W/o Sunil Gopinathan.K.P

       Krishna House No.42

   Ganapathi Kovil Road,                                           

   Ramanathapuram,                                                  -              Complainants

   Palakkad – 678 001.      

   (By Adv.Kiran.G.Raj.A)            

V/s

      Irshad                                                                     

      S/o Salim P.A,

      Managing Director,

      Off Spring Designs

      Panampilly Nagar,                                                        -        Opposite party    

      Kochi – 682 016.     

      (Ex-parte)                          

O R D E R 

By Smt.Vidya A., Member

 1. Pleadings of the complainant in brief.     

          The Complainants approached the opposite party, who is an interior designer for doing interior design for their newly owned flat in Ramanathapuram, Palakkad. The opposite party submitted a quotation dated 15/08/2022 for an amount of Rs. 14,00,000/- and the complainants entered into an agreement with him on 26/08/2022. As per the agreement, the project has to be completed within 55 days from the date of commencement of work  ie on 20/10/2022.

          The opposite party received Rs. 10,000/- as token advance on 20/12/2021 for providing interior design patterns and Rs.30,000/- on 15/08/2022, Rs.20,000/- on 20/08/2022 as advance amounts.

         As per the payment terms in the quotation, the complainants paid the remaining amount of Rs. 2 Lakhs on 26/08/2022 and Rs.4,40,000/- on 01/09/2022 and completed the payment of Rs. 7 Lakhs which is 50 % advance of the total amount of Rs.14,00,000/-.

          After accepting this money, the opposite party had only supplied a few aluminium channels worth Rs.10,000/- approximately. The opposite party did not submit a final plan for their flat even after their repeated demands. The opposite party used to forward different site plans and images which are not suitable for the flat and concept of the complainants. Even after 55 days from the date of agreement, the opposite party did not start the work. After repeated requests, the opposite party forwarded a rough plan for the LED light setting at the ceiling and instructed the complainants to start electrical work and promised to start the work after the completion of that. The complainants contacted the opposite party after the completion of the electrical work, but the opposite party continued to say excuses of financial issues and shortage of workers.

          Till the date of complaint, the opposite party has not taken any initiative to act as per their agreement. Now the opposite party is not even responding to the complainant’s queries. Due to the inordinate delay made by the opposite party, the complainants are in a position to hire individual workers at their personal cost to complete the electrical, plumbing, painting and the plastering work which would otherwise have been accomplished by the builder. Due to the deficiency in service/unfair trade practice from the side of the opposite party, the complainants have suffered huge financial loss. Further, the complainants have to spend huge amount to complete the interior design work which is made complicated by the opposite party. So they approached this Commission.

1. To direct the opposite party to refund Rs. 7 Lakhs being the advance amount paid by them.
2. To pay Rs. 3,50,000/- towards compensation for discomfort, mental agony and financial loss caused to them.
3. To pay Rs. 2 Lakhs towards additional expenses needed to complete the work.
4. To pay 12% interest for the amounts payable together with cost of the litigation.
5. Other incidental reliefs which the Commission finds fit and proper to grant.

2. Complaint was admitted and notice was issued to the opposite party. Even after the receipt of notice, the opposite party; did not appear or file their version. So their name was called in open court and was set ex-parte.

3. Complainant filed an application IA 614/22 for the appointment of an Advocate Commissioner with the assistance of an Expert commissioner to inspect and report the matter. The application was allowed and the Advocate Commissioner and Expert visited the site and filed reports. Complainant filed proof affidavit and Exts. A1 to A6 were marked. Complainant filed 3 cheques which is marked as series along with Ext.A5. Adv.Commissioner’s report is marked as Ext.C1 and Expert’s report is marked as Ext.C2.  Evidence closed and heard.

4. Points to be considered in this case are

1. Whether the opposite party failed to perform his part of the agreement as alleged by the complainant ?
2. Whether there is any deficiency in service on the part of the OP ?
3. Whether the complainant is entitled to the reliefs sought for ?
4. Any other reliefs.

5.  Point No.1     

Complaint averment is to the effect that complainant entered into an agreement with the opposite party on 26/08/2022, for doing interior design work in complainant’s newly owned flat in Ramanathapuram, Palakkad for an amount of Rs.14 Lakhs. As per the agreement, this work has to be commenced on 29/08/2022 and it has to be completed within 55 days from that date. ie on 20/10/2022.

On the basis of that, the complainant made payments amounting to a total of Rs. 7 Lakhs on different occasions. Hence the complainant had fulfilled his part of the agreement and paid 50 % of the total amount.

6.      Complainant produced 6 documents which were marked as Ext.A1 to A6. Ext.A1 is the ‘Quotation’ dated 15/08/2022 issued by “OFF SPRING DESIGNS” (opposite party) to the complainant. Ext. A2 is the “Interior design Agreement” entered into between the complainant and the opposite party on 26/08/2022.   

From the terms of the Agreement Ext.A2, “ The project will commence on 29/8/2022 and will take 55 days to complete.” Further     “ if the second party doesn’t complete the above mentioned work as per the quotation within the stipulated time mentioned in the agreement, the second party is liable to return the full amount advanced by the first party with an interest at the rate of 6 %. If the first party lags payment on time, the second party can realize the balance amount with an interest at 6%.”

7.      Complainant paid Rs. 7 lakhs ie 50% of the total agreed amount of                         14 lakhs. Inorder to prove this, he produced Bank Account statements showing the payment which is marked as Ext.A3 (series)

                   A3(a) shows payment of Rs.10,000/- as  Token advance to opposite party. A3(b) shows payment of Rs.30,000/- on 15/08/2022. A3(c) shows payment of Rs.20,000/- on 20/8/2022. A3(d) shows payment of Rs.                       2 Lakhs on 20/08/2022 and A3(c) payment o Rs.4,40,000/- on 1/9/2022.

8.      Complainant’s grievance is that even after receipt of this amount, the opposite party did not take any initiative to supply the materials as per the quotation and to start work by submitting the final plan. After repeated requests, the opposite party has forwarded a rough plan for the LED light setting and instructed the complainant to start the electrical work. Even after completion of electrical work, the opposite party did not act as per their agreement.

9.      Inorder to prove his contention, Expert Commissioner and Advance Commissioner were appointed. As per Ext.C1 and Ext.C2, reports some PVC conduit pipes of approximate 20 mm diameter and aluminium channels were available in the site. This material is used for hanging the ceiling material from the bottom portion of the slab. Further the Expert Commissioner noticed the following defects in the Electrical design submitted by the opposite party. “There are so many electrical points in the ceiling (Around 30 points). Fall ceiling hanging in an aluminium channel. So chance to collapse the structure due to heavy load which is comes under the light erection time and also providing lot of lights in the single points cause to overload.” The expert commissioner noted the complication made by the OP with respect to the electrical patterns and the cost of                   re-working the same.

                   As per that “So many vertical cutting in wall it comes improper planning for the electrical pattern.” Reworking cost is assessed as-For plastering Rs.25,000/-(including material and labour)

Painting Rs. 25,000/- (including material and labour)

10.    As answer to the query no(5) to note down the structural changes made in the property as per the online instruction given by the opposite party and the complaints associated it in the present and future, the expert commission stated that the OP did not consider the structural parts of the property. Vertical cutting caused structural damage to the property and the whole structure respectively.

11.    Hence the complainant had successfully proved that the OP failed to perform his part of the agreement. Point No.1 is decided accordingly.

12.    points 2 to 4

          In view of the findings in point No.1, there is deficiency in service on the part of the opposite party in not completing the work as per their agreement even after receipt of half of the total agreed amount. The OP is bound to compensate the complainant for that. The acts of the OP had caused mental agony and financial loss to the complainant.

13.    1^st complainant in his proof affidavit has stated that after filing of this complaint, opposite party approached the complainant to settle the matter. Based on their discussions and considering the financial crisis faced by the opposite party, a termination of agreement dated 26/12/2022 was made and on behalf of that, the OP had submitted 4 cheques to settle the amount of Rs. 7 lakhs along with Rs.30,000/- as legal expenses. As per that if the OP fails to act as per the termination agreement, he is bound to repay the balance amount with 9 % interest from 26/8/2022 along with cost, damages and other loss. Further, it is specifically stated that the 1^st complainant will withdraw all the cases only if the 2^nd party perform the repayment as per the terms and conditions of the agreement executed on 26/12/2022. The 1^st OP submitted the following cheques in the name of the 1^st complainant.

1. An amount of Rs. 2,00,000/-  payable on 15/01/2023 by cheque No.10592704 of Federal Bank.
2. An amount of Rs.2,00,000/- payable on 15/02/2023 by cheque No.10592705, of Federal Bank.
3. An amount of Rs.2,00,000/- payable on 15/03/2023 by cheque No.10592706.
4. Amount of Rs.1,30,000/- payable on 25/03/23 by cheque No.10592707.

As per the settlement, the repayment starts from 15/1/23 and will complete on 25/3/2023. Afterwards the OP requested the complainant not to submit the first cheque for collection due to financial difficulties. Complainant waited for some time and presented the cheque on 21^st January, but cheque  bounced due to insufficient funds.

14. Complainant produced the termination agreement dated 26/12/2022 entered into between the 1^st complainant and the OP which is marked as Ext.A4. Ext.A5 is the cheque return memo with the cheque No.592704. Other cheques.

       for Rs. 2 lakhs   dated 15/2/2023,

        for Rs. 2 lakhs   dated 15/3/2023,

for Rs. 1,30,000/-  dated 25/3/2023,

were marked as Ext.A5(b) to A5(d)

15.    Later on, the opposite party had made 3 transactions towards the account    

     of the 1^st complainant.

1. Rs.85,000/- on 31^st January
2. Rs.50,000/- on 13^th March
3. Rs.20,000/- on 13^th March

     The OP had submitted cheque’s for Rs.7,30,000/- and paid                                      Rs. 1,55,000/- on different occasions. As per the agreement the OP is bound to repay the balance amount of Rs.5,75,000/- with 9% interest.

                   In the result, the complaint is allowed. We direct the opposite party to refund Rs. 5,75,000/- being the advance amount together with 10% interest from 26/12/2022 till realization.

(2).  To pay Rs.50,000 being the re-working cost estimated by the expert for plastering and painting.         

  (3).   To pay Rs.50,000/- as compensation for the deficiency in service on the part of the opposite party, Rs.25,000/- for the mental agony suffered by the complainant and Rs.15,000/- as cost of the litigation.

 The above amounts are to be paid within 45 days of receipt of this order, failing which the opposite parties are liable to give Rs.250/- as solatium  per month or part thereof till the date of payment.

   Pronounced in open court on this the 11^th day of August, 2023.

Sd/-

                                                                                      Vinay Menon V

                                          President

Sd/-

     Vidya.A

                   Member   

APPENDIX

Documents marked from the side of the complainant:

Ext.  A1: Quotation Print out dated 15.08.2022.

Ext.  A2: Agreement dated 26.08.2022.(Original)            

Ext.  A3: Fund transfer receipts printouts, (5 pages, series)

Ext.  A4: Termination Agreement dated 26.12.2022

Ext.  A5: Cheque Bounce memo with the cheque No.592704, dated 21.01.2023

Ext.  A6: Adhar Card of the opposite party(Adhar No.491484485490)

Documents marked from the side of opposite parties: Nil

Court Documents.

Ext. C1: Final report of Advocate Commissioner, Sri. Seby.P.Shaji   

             dated14.02.2023.

Ext.C2 : Expert Commissioner’s Report.

Witness examined from the complainant’s side: Nil

Witness examined from the opposite parties side: Nil

Cost: 15,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.