SMT. RAVI SUSHA: PRESIDENT
Complainant has filed complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order directing opposite party to return Rs.15,00,000/- lakh to the complainant which was illegally received by the opposite party from the complainant together with Rs.5,00,000/- towards damage, pain and sufferings happened to the complainant alleging deficiency in service on the part of opposite parties.
The facts in brief of the complaint are that complainant is the owner and in possession of house bearing No. N P V 27/B near Varam Road, Kannadiparmaba, Narath Gramapanchayath. In the year 2011 September OPs were approached the complainant in connection with the interior works of above said house and offered to complete the flooring work, sealing work and other interior works of doors and windows of the house. Complainant’s brother in law P P Shynu , power of attorney holder of complainant, OPs submitted a quotation on 11/10/2011 for Rs.22,55,800/- to the complainant regarding the work to be done by them. When submitting the quotation, OP assured the complainant quotation will be completed within stipulated time in good manner. Thereafter complaint paid the advance amount to OPs. While the work which was undertaken as per the quotation was going on Ops were approached the complainant and further offered their willingness to complete the work of tiles, Granites etc. There after a new quotation for Rs.38,90,757/- which was also agreed by the complainant. Later as per the above terms OPs were continued their work. While OPs were again approached the complainant and submitted a new quotation for Rs.48,95,797/-. At that time OPs assured that entire work will be completed on or before 1st day of 2012 December. Complainant agreed and thereafter made arrangement for the house warming ceremony. But OP works were not completed as they promised. Moreover the work of the OPs were become damaged due to the poor quality of work done by them. On the above context complainant has to make alternative arrangements to complete the work before house warming ceremony. He has to spend huge amount to rectify the defects in the work which was done by the OP. Thereafter on 25/12/2012 a new agreement was executed by the complainant and OP by which OP agreed that entire remaining work will be completed within 15/04/2023. But again OPs were not completed the work within stipulated time. Moreover Rs.15,00,000/- were received by the OPs, as an additional amount for which the work was not done by them. As per the stipulation of agreement dated 25/12/2012, OP is bound to pay penalty of 20% of the total amount received by them till 25/12/2012. On 11/10/2013 complainant issued a lawyer notice to the OPs and required them to compensate the complainant for their deficiency and for the act done by them. OP No.1 received the notice and sent a false and fabricated reply. The entire allegation in the reply notice is denied here with. OP2 even though received notice neither sent any reply nor taken any action to compensate the complainant. Complainant prayed that Hon’ble Forum to direct the OPs that to return Rs.15,00,000/- to him which was illegally received by the OP from the complainant and to pay Rs.5,00,000/- to the complainant towards the damage, pain and suffering by the complainant due to the act of OPs. Hence the complaint.
OP has filed version denying the allegations in the complaint. OP1 submitted that the complainant has approached the OP and word has been done to the satisfaction of the complainant. The complainant was satisfied with the work, ie the reason why the OP was entrusted with the work apart from the work entrusted to him earlier. Since the complainant was employed in gulf, long delay happened in payments and that is the reason why the work of the house was prolonged. As stated in the complaint no quotation for an amount of Rs.22,55,800/- dated 11/10/2011 was given to the complainant. The OP has completed the work as assured by him, if any delay is occurred in completion of work that has been happened due to the indifferent approach of the OP. Equally, the allegation in the complaint that the work suffers from poor workmen ship, damages were occurred and the complainant has made alternative arrangements to complete the work and the complainant had spent huge amount to rectify the defects are utter lie and hence denied. Further, submitted that this OP had never received any amount excess of the work done by him. The averment in the complaint that while the work was going on this OP had received an amount of Rs.38,90,757/- from the complainant and a new quotation was executed in this regard is not at all correct. In the same manner an another quotation was issued by this OP for an amount of Rs.48,95,797/- is also a concocted story. No such assurance of completion of work had been given by this OP. The house warming ceremony was never delayed due to the irresponsible attitude of this OP in completing the work. The allegation in the complaint that this OP had received an amount of Rs. 15,00,000/- in excess in various installments and he has not done the work corresponding to the amount paid is lie. He has completed the work as promised by him. The materials were purchased according to the taste and financial capacity of the complainant. Further allegation in the complaint that this OP is bound to pay penalty of 20% for the total amount received by him till 25/12/2012 is an unreasonable claim. It is submitted that the quotations referred in the complaint are not genuine one and all such documents should be subjected to strict proof. The work was lagged due to the non-payment of money. OP submitted that the completion of the work, an amount of Rs.16,00,000/- was in due and when this OP demanded for the money, the complainant became furious and refused to part with the money. When this OP demanded for the money, the complainant had lodged a complaint against this OP before the Mayyil Police Station alleging cheating. Since on enquiry. It was found that the complainant’s case is frivolous and no criminal prosecution initiated against the OP. Now this OP reasonably believes that the present complaint is an aftermath of the provocation which resulted on account of OPs frequent request of money. There is no deficiency of service on the part of this OP. Hence, prayed for the dismissal of the complaint.
The complainant filed his affidavit evidence reiterating the facts stated in the complaint and relied on Ext.A1 to A7. Along with the complaint, complainant has filed an application to appoint an expert commissioner. The application was allowed and an expert commissioner was appointed. He has filed report. The expert commissioner was examined as Pw2 and his report was marked as Ext.X1, while pending of this complaint another petition to appoint expert was filed and the second expert commissioner has filed report, which was marked as Ext.X2. OP No.1 filed his affidavit evidence.
After that learned counsels of both parties have made oral argument and the learned counsel of OP has filed written argument note also.
We have gone through the documents submitted by the complainant, both expert report and carefully considered the submissions made by the learned counsel of both parties.
The complaint pertained essentially to alleged deficiency in service on the part of OPs in the construction of the interior work of his newly constructed house, entrusted by the complainant to the OP. It is the case of the complainant that the OPs failed to complete the work within the stipulated time in accordance with the agreed specifications. Moreover, Rs.15,00,000/- were received by the OPs, as an additional amount for which the work was not done by them. Further pleaded that as per the stipulation of the agreement dated 25/12/2012, OP is bound to pay penalty of 20% of the total amount received by them till 25/12/2012. The complainant has taken steps to appoint two expert commissioner – one is consultant Engineer, and another one is Assistant Engineer, PWD building section to visit the site, who inspect the site and filed detailed reports Ext.X1 and X2. The expert Civil Engineer in Ext.X2 report opinioned that the contractors associated in the work used inferior quality materials fittings and accessories and employed unskilled labours. Therefore complainant has to suffer a lot. Further reported that as far as the revised work agreement dated 25/12/2012, nothing was found done to satisfy the equality of the work. Further the expenditure in relation to the Correction work mentioned in the agreement is a mere waste. The applicant has to do all those things again to make the work standard and esthetically good.
The other expert Assistant Engineer PDW in Ext.X1 report also reported that the complainant’s house seemed in finished condition. On analyzing the report, it is revealed that most of the work done by OP are not perfectly finished and fixed. It is also evident that the OP has not done revised work as per the agreement dated 25/12/2012. So according to the opinions of these independent experts, the work done by OP had many defects and not perfectly finished.
The complainant also alleged that the OPs withdrew from the work many times and thereafter on 25/12/2012 a new agreement was executed between complainant and OP by which OP agreed that entire remaining work will be completed within 15/04/2013. But again OPs were not completed the work within the stipulated time, which is evidenced from expert report. Complainant further alleged that Rs.15,00,000/- were received by the OPs, as an additional amount for which the work was not done by them. On the basis of reports of experts, the complainant claimed that there were major flaws in the interior works carried out by the OPs which would require repairs and modifications.
In this complaint, the complainant therefore prayed to return an amount of Rs.15,00,000/- paid by him to OP to which no work was done along with Rs.5,00,000/- towards compensation towards mental agony and personal harassment etc.
The complaint was strongly contested by the OP1 on each point. OP submitted that the expert commissioner Assistant Engineer, PWD reported that the nature of remaining work is repairs. Further submitted that nature of complainant in giving of quotation again and again to the OP clearly reveals that the complainant has satisfied the work of OP and the delay if any caused in completion of work is the financial difficulties of the complainant. OP1 alleged that the complainant has still to pay an amount of Rs.16,00,000/- to the OP as due in the labour charges. OP stated that complainant has failed to prove his case that OP had received Rs.15,00,000/- in excess from him.
On perusal of evidence, no objection to the above expert reports has been filed by any of the parties. The above reports clearly brings out the details of the work which had been carried out and the nature of the work carried out by OP and also the work which remains to be completed. As per the report OP had not done most of the revised work as per the agreement executed between complainant and OP 1 on 25/12/2012. The materials used for the work are of inferior quality and employed unskilled labours. Further reported that complainant has to do all the work again to make the work standard as stated in the revised agreement dated 25/12/2012.
From the evidence of OP1 examined as Dw1, admitted that he had been entrusted additional work of Rs.48,95,795/- and as per the condition the work should be completed within 1st December 2012. Dw1 deposed that the delay in work was due to nonpayment of cash by complainant and also stated that the complainant has to give him an amount Rs.16,00,000/- on the account of work done by him. But he admitted that he has not taken any legal action against the complainant for receiving the amount as alleged. Further on analyzing the evidence of Dw1, we can see that he had denied the signature in Ext.A3 quotation dated 25/12/2012 and also signature in the chief-affidavit and stated that the signature seen in his vakalath is seems to be of him. His evidence further reveals that the most of the questions put forward by the learned counsel of complainant, his answering ‘no remembering’. Further he was answered that he has not taken any legal steps to reveal that the signature shown in Ext.A3 quotation is not to his signature. Hence on overall analysis of the evidence of Dw1, it is clear that the signature shown in Ext.A3 belongs to the OP No.1 and he has not entitled to get any due amount from the complainant. Further the work entrusted to him was not completed within the stipulation time after receiving money from the complainant. The expert commissioner in Ext.X2 report categorically stated that in the work, OP has used inferior quality material fitting and accessories and employed unskilled labours. Further in Ext X1 report, the expert engineer stated that most of the work done by OP were not in perfectly finished condition and portions not fixed properly and has not done as per the revised agreement A2 dated 25/12/2012. So from the evidence we are of the view that there is deficiency in service and dereliction of duty on the part of OPs.
From the records available, though complainant has taken step to assess the quantity of expense for the remaining work, Pw2 had not assessed the quantity of rectification work. He has stated that he cannot assess for actual valuation as the nature of work is repairs. The labour and material cost can be assessed then and there from the actual payment made for labour and materials during the execution. From the expert report X2, the expert Civil Engineer reported that “Expenditure in relation to the correction work mentioned in the agreement(Ext.A2, A3) is a mere waste. The applicant has to do all those things again to make the work standard and esthetically good. Hence from the expert report and from other evidence we are of the view that OPs have to pay Rs.10,00,000/- to the complainant as additional amount received and also for the further rectification work.
In the result, complaint is allowed in part. Opposite parties are directed to pay Rs.10,00,000 to the complainant which was illegally received by opposite parties and for the further rectification work. Opposite parties are further directed to pay Rs.1,00,000/- to the complainant towards compensation for the mental pain and sufferings and also Rs.20,000/- towards cost of proceedings of this case. Opposite parties are jointly and severally liable to comply the order within 30 days after receiving copies of this order. Failing which the amount Rs.10,00,000+1,00,000 carries interest @9% per annum from the date of order till realization. Complainant is at liberty to execute the order as per the provisions in Consumer Protection Act 2019.
Exts.
A1-Copy of quotation dated 11/10/2011(marked with objection)
A2-Agreement dated 25/12/2012(marked with objection)
A3-Copy of quotation dated 25/12/2012(marked with objection)
A4-Lawyer notice dated 10/10/2013
A5-Postal receipt (2 in numbers)
A6-Acknowledgement card (2 in numbers)
A7- Reply notice dated 04/11/2013
X1-Expert report issued by Assistant Engineer (Sunil Koyileri)
X2-Expert report issued by Radhakrishnan
Pw2- Expert commissioner
Pw3- P O Radhakrishnan-Witness of complainant
Dw1-OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
