R. VIJAYAKUMAR, MEMBER.
This is a complaint filed U/s. 12 of the Consumer Protection Act.
The complainant is filed for realizing Rs.4,72,128/- as the loss suffered by the complainant, compensation for mental agony Rs.2,00,000/- and cost.
The complainant’s case is that the opp.party committed deficiency in service by defaulting in the wood polishing work on teak wood paneling as part of the housing construction work of the complainant.
Briefly stated facts of the complaint is that the complainant and the opp.party entered into an agreement on 7.6.2009 regarding the polishing work on teak wood paneling as part of the housing construction works of the complainant. Though the opp.party executed the work, it was defective. On 3.3.2010 the opp.party executed a document in favour of the complainant assuring to cure the defects and default committed by him in the conduct of the polishing work on teak wood paneling committed by him. Though the opp.party executed work for curing defects and bad polishing over the paneling and defective finishing in the wood joints were not cured. The defective polishing from his side in mixing the polish and applying the same over the teak wood paneling totally caused demeaning the value of the teak wood paneling. The opp.party used polishing materials for Rs.1,66,979/- and also the opp.party received Rs.3,05,150/- as labour charges. Due to the defects caused by the opp.party the whole polishing have to be removed by erasing and fresh polishing have to be done. So again the complainant has to purchase the polishing materials for Rs.1,66,978/- and also have to spend Rs.3,05,150/- more towards labour charge. Since the removing work is additional work to be done before commencing the re-polishing works . For the defect curing works and for the materials required the complainant again need to spend Rs.4,72,128/- or more for which the opp.party is solely responsible and he is liable to pay this much amount and compensation to the complainant. Due to the defective works done by the opp.party, the complainant suffered loss of Rs.4,72,128/-. The acts of the opp.party caused much mental agony and irreparable economic loss to the complainant and the opp.party is liable to compensate.. Though the opp.party executed another agreement for the said purpose of re polishing he willfully evaded to perform his work. The complainant is not in a position to occupy the floor due to the utter deficiency in service committed by the opp.party and the complainant suffered loss of Rs.4,72,128/-. This amount has to be realized from the opp.party. The complainant is entitled to realize the above said amount of Rs.4,72,128/- and compensation of Rs.2,00,000/- as cost from the opp.party. Hence the complaint.
The opp.party filed version denying all the averments and allegations contained in the complaint. Opp.party never executed any agreement, written or oral with the complainant at any point of time regarding the service for consideration as stated in the Section 2[1][d] of the Consumer Protection Act 1986. The complainant has not hired or availed any service for consideration from the opp.party. On 3.3.2010, the opp.party not executed any such agreement as stated in the paragraph No.3 of the complaint. . The opp.party has not worked for complainant from 7.6.09 and not executed any agreement on 3.3.2010 for works to be done for curing the defects, in favour of complainant and opp.party never committed any defects or default in his work by causing bad polishing over the paneling and defective finishing in the joints. The opp.party is expert in the work of polishing and he has been working in the field of painting and polishing for the last several years without any complaint. The allegation that the opp.party made defect in mixing the polish and applying the same over the teak work paneling totally caused demeaning the value of teak wood paneling is utter false. The opp.party has not committed any defects in mixing and applying of polish in his works till now. The statement that due to the defects committed by the opp.party, the complainant suffered much mental agony and huge economic loss is utter false. The opp.party never offered such service to the complainant and the complainant never hired or availed any service from the opp.party and so the question of deficiency of service is not existing in this case The statement that the complainant again need to be spend Rs.4,72,128/- is utter false hence denied. Mrs. Sheela, the wife of the complainant approached the complainant and offered a polish work on wood paneling and other wood items in her house for the rate of Rs.65/- per square feet and the same was agreed by the opp.party. The polishing work was started on 7.6.09 and on that day itself she was obtained signature on a blank stamp paper worth of Rs.50/- and two white papers The opp. party finished his work of the first room on 30.6.09. Mr. Sheela has seen the finished work of the opp.party and she was appreciated the complainant. In the month of November 2009, she was also obtained the signature on blank signed stamp paper worth Rs.50/- from the opp.party. On 20..2..2010, the whole work was finished. The complainant was also convinced that the balance amount of Rs.1,50,800/- was due to the opp.party. Mrs. Sheela tried to evade from the payment of balance amount of Rs.1,50,800/- to the opp.party. The opp.party was locked in the room by Mrs. Sheela and she was also forcefully obtained the signature on stamp paper of worth Rs.50/-. The opp.party was released from her house at about 8 p.m. After this incident the Sheela frequently harassing the opp.party and threatened him to be killed by them, if the above said incident flashed. The opp.party was submitted a complaint before the Kollam East Police on 15.3.2010. After filing this police complaint, against Mrs. Sheela by opp.party, the complainant filed this complaint with evil motive and evade from the payment of Rs.1,50,800/- to the opp.party. The complaint is liable to be dismissed. The complainant has no cause of action for this complaint and as such is not entitled to any reliefs.
The points that would arise for consideration are:
1. Whether there is any deficiency in service from the part of opp.party?
2. Compensation and corsts.
From the side of the complainant PW.1 to 3 examined. Exts.P1 to P5 marked.
The expert commission report was marked as C1.
The opp.party has no oral or documentary evidence.
Heard both sides.
Points 1 and 2
The 1st contention of the opp.party is that the complainant is not a consumer under Section 2[1][d] of the Consumer Protection Act. Opp.party never executed any agreement with the complainant and the complainant did not hired or availed any service for consideration. The opp.party’s case is that the Mrs. Sheela, wife of the complainant approached the opp.party offering polish work and had obtained signature in blank stamp paper worth Rs.50/- . The work was finished satisfactorily and hence allowed to continue the work remaining in the other portions of the house and she had obtained signature in another blank stamp paper worh Rs.50/- also. After finishing all the works on 4.3.2010 when the opp.party approached Mrs. Sheela for getting balance amount due Rs.1,50,800/- she tried to evade from the payment. The opp.party was locked in a room by Mrs. Sheels and she was forcefully obtained another signed stamp paper on 15.3.2010. This complaint is filed after the opp.party filed a petition before SI of Police, East Police Station, Kollam. Exts.P1,P2 and P3 are the documents produced by the complainant to prove that there are periodical agreements between the complainant and opp.party. Even though it is submitted in the version that Exts. P1 to P3 are fabricated documents and signature was obtained from the complainant in stamp paper forcefully, the opp.party could not succeed in proving that the said documents are fabricated. Hence the evidence as per Ext.P1 to P3 stands unimpeached. PW.1 deposed in his oral testimony that Ext.P1 and P3 were drafted in this hand writing . All the 3 stamp papers were purchased in the name of the opp.party Even though the authenticity of Ext.P1 to P3 was challenged by the opp.party, the opp.party himself relied on that documents. While in cross examination, the learned counsel for opp.party put the question “ P1  II para bnse condition {]Imcw BZyw Hcp apdn-bn-emWv polishing work \S-¶Xv?” The learned counsel relying on Ext.P1 put further question that “Ext.P1  work  Fs´¦nepw defect Im 10% retention XpI aS¡n \ÂInà F¶mWv hy-hØ” If it is true that the wife of the complainant Mrs. Sheela had forcefully obtained the complainant’s signature in the 3 blank stamp papers, what prevented the opp.party from filing petition before Police officials previously and from taking actions against the complainant We could not find bonafides in the statements of the opp.party that the Ext.P1 to P3 are fabricated documents and the statement is unbelievable also
The learned counsel for the opp.party argued that the opp.party never committed any defects or fault in his work and that the complainant failed to establish his allegation that opp.party committed default in the work. PW.1 had stated in cross exam that the actual position cannot be traced out now because rework was done by the complainant on his own choice.
Ext. C1 is a clear proof in this regard. It is stated by the expert commission Dr. Venkatesh Prasad after thorough examination of whole polishing in the wood paneling of complainant’s house that the polishing is found uneven in Colum texture. No uniformity in entire polishing. Yellow and Red shades is at different position is seen at patches. It may due to the mixing yellow or Red enamel paints with wood polishing materials. Gap between teak paneling wood joints not filled properly using adequate joint fillers. In many gaps the fillers seen ejected and uneven and the same can be noted at the very 1st view itself. Surface of the wood is seen rough and it may be as a result of the improper cleaning work. Proper cleaning work not done in order to remove the dust particles before polishing All the surface of polished area seem to be defective and it is stated that the fault has occurred may due to uneven mixing proportion of finishing coat or may be due to application or addition of some kind of enamel painting material which after application of final finishing coat has occurred in some uneven patches and yellow shade. The surface is much rough on examining by palm touch or finger touch. The surface with unevenness and roughness is obtained at almost 90% of the total finished surface of teak wood. In most of the area, the entire applied polishing coat has been swollen and bubbled and is gradually peeled off
Suggestions of curing techniques also described in C1. The polishing should be removed scrubbing off entire surface and filling joints properly with adequate join fillers and applying the necessary primary coats and thus cleaning the surface and after that finally a finishing coat is to be applied to attain the required polished finish.
In the expert report it is also mentioned that approximate amount of cost expecting may be Rs.4,75,000/- including material and labour charges and the total loss sustained by the complainant is Rs.4,75,000/-
From this speaking report of the Expert commissioner it is obvious that there is default in the polishing works. It is also worth pointing out that he commission report was not challenged by the opp.party
Based on Ext.P1, the learned counsel for opp.party further argued that as per the last para of the agreement even if the opp.party failed to complete the work satisfactorily, the consequence is only to the extent of the loss of the retention amount and discontinuation of further works. The Forum has no right to entertain the complaint as the contract involved in this case is a contract of personal service and such service is not a service under Section 2[1] a [d] of Consumer Protection Act 1986.
As per para 3 of of Ext.P2 the complainant had right to approach before the Civil or Criminal court and hence the complainant has no right to approach the Forum.
Regarding the aspect we are of the opinion that the Forum has ample jurisdiction to entertain the complaint. The allegation contained is the complaint is related to deficiency in service performed by the opp.party .
It is further argued by the learned counsel for the complainant that the complainant is premature as the complainant failed to give sufficient opportunity to cure the defects within the agreed timelimit. In our opinion the complainant can be justified for filing this complaint before the expiry of agreed time limit because the opp.party failed rectify the works in the time span ie. between 7th June 2009 and 17.3.2010.
We are of the opinion that the complainant is having a genuine case. The opp.party is not consistent in his case. For the 1st instance he had totally denied the agreements [Ext.P1 to P3] and alleged that the documents are fabricated. But further he had forwarded his arguments relying on these agreements. Even though the opp.party claimed that he had completed the works properly, further admitted that he had undertaken curing works also. From the inconsistency of his stand points itself it is clear that there is deficiency in service from his part . The opp.party miserably failed to prove his case.
Based on the above discussed points and on perusal of all the relevant records produced and marked in this case, we find that there is deficiency in service from the part of opp.party and the acts of opp.party caused much mental agony and financial loss to the complainant. The points found accordingly. The loss should be reasonably compensated.
The expert commissioner assessed the approximate financial loss sustained to the complainant as Rs.4,75,000/-[ Four lakhs and seventy five thousand]. We are of the opinion that it is reasonable to fix the compensation amount for financial loss as Rs.3,50,000/-
In the result the complaint is allowed in part. The opp.party is directed to pay compensation for financial loss Rs.3,50,000/- and compensation for mental agony Rs.50,000/- to the complainant. The opp.party is further directed to pay cost Rs.1,500/- to the complainant.
Dated this the 30th day of November, 2012.
I N D E X
List of witnesses for the complainant
PW.1. – Santhosh
PW.2. – James Pappachan
PW.3. – Mohammed Basheer
List of documents for the complainant
P1. – Agreement dt. 7.6.09
P2. – Agreement dt. 9.11.2009
P3. – Agreement dated 3.3.2010
P4. – Bill
P5. – Speed post receipt
