Haryana

Panchkula

CC/165/2018

DR.SHIKHA GUPTA - Complainant(s)

Versus

MANISH KAPOOR - Opp.Party(s)

SAURAV VERMA & AKASH SONI

07 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

                                                       

Consumer Complaint No	:	165 of 2018
Date of Institution	:	11.09.2018
Date of Decision	:	07.10.2019

 

Dr. Shikha Gupta aged 36 years w/o Dr. Sumeet Rajpal, R/o House No.436-A, Sector-2, Panchkula.

                                                                           ….Complainant

 

Versus

1.     Manish Kapoor, Proprietor/Partner M/s Atul Glass Co. Shop No.5, Sector-12-A, Panchkula.

2.     M/s Atul Glass Co. Shop No.5, Sector-12-A, Panchkula through its Proprietor/Partner.

….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Sh. Saurav Verma, Advocate for complainant.        

None for OPs.

 

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant and her husband namely Sumeet Rajpal after purchasing House No.436-A, Sector-2, Panchkula in the month of December, 2016 started renovation the house No.436-A, OP No.1 approached complainant for selling Glass products through one Ms.Harish Malhotra who is neighbourer of complainant and OP No.1 is proprietor/partner/ Authorized signatory of OP No.2. At that time, OP No.1 promised that he will provide Glass products at reasonable costs and also install/fix the Glass products on reasonable charges. Complainant after believing the OP No.1 placed work order for which OP No.1 gave a  verbal estimate of Rs. 2,32,000/- for the entire work(including installation) and further promised to complete  the work within 3 months  latest by April, 2017 and further promised that final bill would be given after completion of work and receipt of full and final payment.  On the asking of OP No.1 on 11.12.2016 complainant paid Rs.85,000/-in cash as earnest amount, thereafter OP No.1 started the work in phased manner and several payments through cash and cheque were made by the complainant to OP No.1 and as per record maintained by complainant  entire payment of Rs.2,32,000/- has been paid to the OPNo.1. Despite of the fact that last payment of Rs.50,000/- was made by complainant way back on 22.04.2017. However shockingly OP No.1 has failed to complete the above mentioned work till date and also done the work with poor workmanship. Further, till date Ops have not issued any valid bill except for handwritten receipts. The Glass workmanship done by the Ops was defective and he was asked many times to rectify/repair and complete the remaining work, and after repeated reminders by the complainant with regard to defective workmanship and incomplete work done upto 03.09.2017 OP No.1 personally visited the residential premises of complainant to inspect the defective work done by him, after inspection OPNo.1 admitted his fault.  OP No.1  on 03.09.2017 in his own handwriting  gave an undertaking that he will rectify the entire  defective  glass work  and complete  the remaining  work in next 10-12 days, further  OP No.1 issued  a cheque dated 20.09.2017 amounting to Rs.20,000/- in favour of complainant and further categorically underlook that in case he fails to complete the glasswork, then complainant would be entitled to encash the cheque in question. Further, in the writing/undertaking dated 03.09.2017 OP No.1 has unequivocally admitted that entire payment for the job work has already been received by him. Despite of the above said undertaking OP No.1 failed to complete the glasswork, therefore complainant presented the above said cheque through her banker i.e. SBI, Sector-6, Panchkula for clearance. The said cheque has been returned dishonoured on the ground of “Insufficient funds” vide memo dated 03.10.2017 issued by the banker. The complainant has also served a legal notice dated 09.10.2017 upon the OPs. During the pendency of the case OP No.1 approached the complainant for compromise, stating that he would complete the pending work within three month. However, on 10.06.2018 complainant has refused to  complete the glasswork, therefore the complainant had to approach  S.K.Glass, Shop No.8C-D, Goyat Complex, Rally, Sector-12A, Panchkula for completion of the work and S.K.Glass has now given an estimate price of Rs.53,076/- which would be incurred for completion of the glasswork. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment. Hence the present complaint.

2.             Upon notice OPs No.1 and 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; no locus standi and suppressed the material and relevant facts; On merits, OPs No.1 and 2 stated that a total payment of Rs.1,72,549/-was settled between the parties out of Rs. 1,30,000/- has been made and balance payment of Rs. 42,549/- is still payable. The bill of Rs.77,156/- has not been received by the complainant. The Op has replaced and affixed the whole glasses and completed all the work in the house of the complainant. The complainant himself told to the OP that he did not want to affix clip to avoid vibration in the glasses and will himself  got affix  the wooden  or steel scatting on the glasses  fix/cover the railing so the OP did not fix the glasses  with hole because the clip  would have not fixed to avoid vibration and the glasses  on the railing has fixed without hole. The vibration on the glasses over the railing is not due to any defect on the part of the OP but on the part of the complainant. OP has also denied that on the asking of OP No.1 on 11.12.2016 complainant  paid Rs.85,000/- in cash as earnest amount, thereafter OP No.1  started  the work in phased  manner and thereafter, several payments through  cash and cheque  were made by complainant to OP No.1 and as per  record  maintained by complainant entire payment of Rs. 2,32,000/- has been paid to the OP No.1. Despite of the fact that last payment of Rs.50,000/- was made by complainant way back on 22.04.2017. However, shockingly OP No.1 has failed to complete the above mentioned work till dated, and have done the work with poor workmanship, resulting in loss of Glass Material and Delay in completion of work has further harassed  complainant mentally,  further  when the complainant  demanded  valid  bills,  accused had given bills only for a short amount. However, the complainant paid only Rs.80,000/- and later on only Rs.50,000/- was paid to the OP and that till date OPs have not issued any valid bill except for handwritten receipts as mentioned above. However, the bill of Rs.77,156/- has not received by the complainant. Further denied that the Glass workmanship done by the OPs was defective and he was  asked to rectify/repair and complete  the remaining  work time  and again,  and after repeated reminders by complainant with regard to defective workmanship and incomplete work done on 03.09.2017 OP No.1 personally visited  the Residential  premises  of complainant  to inspect  the defective  work done by him, after  inspection  OP No.1 admitted his fault  of doing poor workmanship and doing  incomplete work. OP No.1 on 03.09.2017  in his on handwriting  gave an undertaking  that he will rectify the entire defective glass work and complete the remaining  work in next 10-12 days without any further default, further OP No.1 issued a cheque dated 20.09.2017 amounting to Rs.20,000/- in favour of complainant  and further categorically  underlook  that in case he fails  to complete  the glasswork, then complainant would be entitled  to encash  the cheque without  prejudice to legal right of the complainant. It is also denied that despite  of the above  said undertaking  OP No.1 failed to complete the glasswork, therefore complainant presented the above said cheque in the bank for clearance but the said  cheque has been returned dishonoured on the ground of “INSUFFICIENT FUNDS” VIDE memo dated 03.10.2017 issued by the banker. The complainant filed false complaint U/s 138 of Negotiable Instruments Act against the OPs and the same is pending before the court of Ld. JMIC, Panchkula.  During the pendency of the case OP No.1 approached the complainant for compromise, stating that he would complete the pending work within three months and on 10.06.2018 complainant has refused to complete the glasswork. So, there is no deficiency in service on the part of OPs No.1 & 2 and prayed for dismissal of the present complaint.

3.     Replication/Rejoinder to the written statement of the Ops No.1 & 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the Ops.  

4.             To prove her case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, evidence of the OPs was closed by the Forum vide its order dated 08.07.2019.  

                During the course of arguments, the learned counsel for the complainant has produced the order dated 20.02.2019 passed by Sh. Tarun Kumar Verma, JMIC, Panchkula and photographs which  we take on record for the proper and fair adjudication case as Mark ‘A’ and MarK ‘B’ to Mark ‘I’ respectively.

5.             We have heard the learned counsel for the complainant and gone through record carefully and minutely.

6.             It is evident that OP No.1 was engaged by the complainant for installation of the toughened glass and mirrors etc at her house No.436, Sector-2, Panchkula. It is also evident that the complainant purchased the toughened glass and mirrors from OP No.2 vide bill dated 18.12.2016 (Annexure C-1)(Colly).

The complainant has the following grievances against the OPs No.1 & 2 which are as under:-

1. That the OP No.1 did not adhere to the time schedule as promised by him for carrying out the installation work of toughened glass and mirrors etc at her house.
2. That the OP no.1 installed the toughened glass and mirrors in a defective manner and left the work incomplete.

 

7.              The OPs No.1 & 2 has resisted the claim of the complainant stating that the complainant has filed the present complaint so as to avoid his liability with regard to the balance payment of Rs.42,549/-. It is denied that the OP No.1 gave an estimate of Rs.2,32,000/- for  entire work including installation. It is contended that the complainant has suppressed the material facts and filed the present complaint with malafide intention just to misuse the cheque to blackmail the OP. The learned counsel asserted that there was no defect in the installation of the toughened glass and mirrors etc and the OP has replaced and affixed the glasses as per wishes and requirement of the complainant.

8.             Having perused the entire record available on the file, it has been revealed that the OP No.1 vide his undertaking(Annexure C-2) has undertaken to install the remaining glasses within 12 days from the date of the said undertaking. We also find that the complainant vide his said undertaking (Annexure C-2) has also admitted that the entire payment of the glasses had already been received by him. Thus, we find that the undertaking (Annexure C-2) is of utmost importance which may  throws light on the issues involved in the present complaint  between the parties. For the sake of convenience, the undertaking is reproduced as under:-

“I Manish Kapoor Prop. Atul Glass Co., Shop No.5, Sector-12A Rally. Today i.e. 03.09.2017 has visited House No.436A/2, Pkl where I had installed and have given workmanship of Glass in the month of Jan. 2017. Today on inspection I have found that 9 pcs of Glass on the Railing are not properly fitted because of defect in the Glass.  1 pcs of 5mm which was to be installed in the door is also defective. I have taken proper measurement of 9 glasses of Railing and 1 pcs of door. I undertake to install all the pending glasses which 10-12 days from today. The entire payment of these glasses has already been received by me. I have written this out of my free consent without any pressure. I am giving security cheque of Rs.20,000/- to the party  which they may in cash in case of default  without prejudice to their rights to prosecute  me.

9.             A perusal of above also reveals that the OPs had given a cheque amounting of Rs.20,000/- (Annexure C-3)(colly) to the complainant as a security. It is further revealed from (Annexure C-3) that the said cheque was dishonoured by the bank on the ground of “Insufficient Funds” in the account of the complainant. The OP No.1 has adduced no evidence to controvert or rebut the evidence of the complainant. It means that the evidence of the complainant goes unrebutted and uncontroverted. It is well settled propositions of law that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

10.            On the other hand, a perusal of order dated 20.02.2019 passed by Sh.Tarun Kumar Verma, JMIC, Panchkula, which is available on record as Mark ‘A’, clearly proves beyond any doubt that there has been lapse and deficiency on the part of OPs as the OP No.1 has accepted the liability of cheque in question by suffering a statement in the court of Sh.Tarun Kumar Verma, JMIC, Panchkula. The complainant’s case is further fortified by the photographs which are available on record as Mark ‘B’ to Mark ‘I’; hence, the denial by the OPs with regard to the liability in the matter is incorrect and baseless.

11.            In view of above discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the OPs while delivering services to the complainant. Hence, the complainant is entitled to relief. With regard to relief the complainant has prayed that OP No.1 be directed to pay Rs.53,076/- alongwith interest or in the alternative OPs be directed to complete the glasswork  forthwith at her residence. In support of her contention the complainant has submitted   the estimate dated 04.02.2018 prepared by M/s S.K.Glass (Annexure C-4). Since we find no rebuttal of the aforementioned estimate (Annexure C-4), the same is taken as just and reasonable.

12.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs:-

i)      The OPs shall pay an amount of Rs.53,076/- along with interest @ 9% per annum w.e.f. filing of present complaint till realization. 

ii)      To pay a lump sum compensation of Rs.5,500/- to the complainant on account of mental agony, harassment and litigation charges.

13.            The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 07.10.2019

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal  

                                           President