DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.263 of 2017
Date of institution: 03.04.2017 Date of decision : 27.02.2019
Dr. Ashit Syngle, resident of House No.111, Sector 23-A, Chandigarh.
…….Complainant
Versus
Raj Kumar Harish, S-A, EKA Building, 3rd A Cross, Nanjundappa Road, Kammanhalli, Bangalore, Karnatka 560084,
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Sahil Khunger, counsel for complainant.
OP ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant for serving society and for earning livelihood planned to open a multi specialty hospital at Mohali and that is why he availed services of OP as Architect w.e.f. 30.10.2015. Work on the project for covering area of 60,000 to 70,000 sq. ft. was to be carried. Deadline date for submission of drawings was mentioned as 30.12.2015. Detailed building norms prevailing in Punjab were made available by complainant to OP through GMADA website and email. Letter appointing OP as Architect dated 30.10.2015 was issued. Advance payment of Rs.10.00 lakhs on 10.11.2015 was made. At that time details of building norms, project detail and regular feed back through phone and email were provided to OP. On requirement of OP, a fresh digital survey was again done at an additional cost borne by complainant. All the queries raised by OP were satisfactorily answered by complainant, but OP failed to prepare appropriate drawings requisite for availing time bound CLU permission from Town & Country Planning Department, a Govt. agency. Despite repeated requests, OP failed to work on the project drawings. Rather OP delegated the work to juniors against the spirit of appointment because OP was appointed as a sole Architect for the project. Regular communications and feedback were sent to OP. Complainant even arranged for air travel, ground transportation and stay facility for OP in Chandigarh and Mohali, on 24th and 25th December, 2015. On 24.12.2015 complainant specially arranged a meeting in Chandigarh with senior and experienced local architect, who provided print outs of sample plan to OP. Even a meeting of senior GMADA officials with OP was arranged by complainant for getting provided requisite information to OP. Special arrangements as desired by OP were made for having round of Fortis Hospital, Mohali on 24.12.2015, but to Max Hospital on 25.12.2015, so as to get provided a good architectural plan. Due to non fulfillment of professional commitment by OP, complainant had to go through the avoidable and painful process of seeking extension of CLU because earlier sought permission was to expire on 30.12.2015. Again complainant arranged for visit of OP at Mohali and Chandigarh on 23.03.2015. The concept drawings brought by OP at that time were not fulfilling the local norms and OP failed to take cognizance of the provided to him by complainant, senior local architect and officials of GMADA. Complainant kept on reminding OP of its professional commitments. OP finally provided first cuts of Phase-1 drawings on 22.09.2016 i.e. after lapse of one year from the date of appointment, despite the fact that deadline of validity of extended CLU was upto 20.11.2016 as per information provided by complainant to OP. These provided drawings again did not meet the guidelines provided to OP by complainant. On numerous requests made by complainant, he again received incomplete concept drawings on 08.11.2016, but without ECS calculations. So complainant was compelled to avail professional assistance of three different architects, out of which one was from Dubai. Manual power engaged by complainant in the project moved out from the project and as such complainant had to bear loss on account of delay of the project caused by OP due to improper submission of drawings. Though complainant contacted office of OP in Bengaluru, but no convincing reply received. Rather complainant got information through one of the relative of OP as if they are not knowing whereabouts of OP. Due to unprofessional and uncalled for behavior of OP, complainant suffered a lot and stood cheated virtually and that is why this complaint filed after serving legal notice dated 19.12.2016 and reminder dated 23.01.2017 for seeking refund of professional fee of Rs.10,53,000/- paid by complainant in advance alongwith interest @ 18% per annum and deposited 14% service tax. Refund of non agreed expenditure incurred on the visit of OP, but paid by complainant even sought alongwith compensation for mental agony and harassment of Rs.5.00 lakhs and litigation expenses of Rs.33,000/-.
2. As none appeared for OP despite service and as such he was proceeded against ex-parte vide orders dated 19.09.2017.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-5 and then closed evidence.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. Contents of affidavit Ex.CW-1/1 of complainant alongwith appointment letter Ex.C-1 dated 30.10.2015 establishes that complainant availed architectural consultancy services of OP for the proposed multi specialty hospital at Mohali. This hospital was to be constructed by complainant for earning livelihood by way of self employment and as such complainant is a consumer within meaning of Section 2 (1) (d) of Consumer Protection Act.
6. Scope of work regarding architectural design/structural design/interior design etc. specified in Ex.C-1 in detail. 10% of the amount was to be paid in advance. Timeline for the project for meeting deadline of 30.12.2015 for submission of project drawings to the local authorities is envisaged through appointment letter Ex.C-1 itself. So certainly submission advanced by counsel for complainant has force that time was essence of the contract under which Architectural/ Structural design services were to be provided by OP to complainant. Those services not provided upto mark by OP. Rather OP provided drawings not in time or inappropriate drawings not suiting to local norms framed by GMADA or other authorities and as such certainly deficient services were rendered by OP to complainant.
7. Claim of complainant regarding payment of Rs.10,53,000/- to OP established by copy of statement of account Ex.C-2, where entry of transfer of this amount through RTGS on 10.11.2015 is specifically incorporated. Complainant as a joint account holder of M/s. Eternity Healthcare held saving account with Punjab and Sind Bank in respect of which copy of account statement produced as Ex.C-2.
8. As OP failed to render promised services and that is why complainant served legal notice Ex.C-3 dated 19.12.2016 through counsel and thereafter even sent reminder Ex.C-4 dated 23.01.2017 through postal receipt. As promised services not rendered despite the fact that complainant provided to OP through meetings arranged with GMADA officials and local architects and as such certainly OP rendered deficient services. Rather drawings prepared by OP were not acceptable to local authorities and moreover drawings were not provided by stipulated dates, due to which complainant had to seek extension of CLU from authorities by bearing expenses and as such certainly complainant stood mentally harassed due to inaction of OP in not rendering due services.
9. During course of arguments, counsel for complainant submitted calculation sheet of claimed amount. Perusal of such calculation sheet shows that professional fee of Rs.9,24,000/- was paid on 10.11.2015 and service tax @ 14% of amount of Rs.1,29,000/- was also deposited on that date itself. Amount of service tax goes to Govt. exchequer and not to be retained by OP. OP rendered some of the services, albeit those were not to the satisfaction of complainant or as per contractual obligation and as such certainly OP not entitled to retain professional fee of Rs.9,24,000/-. Complainant will be suitably compensated for illegally retaining professional fee of Rs.9,24,000/- in case refund of same ordered with interest @ 8% per annum from the date of deposit namely 10.11.2015 till payment. Usually FDRs bear interest @ 8% per annum now a days and that is why this rate of interest is allowed.
10. Through calculation sheet non agreed expenditure borne on purchase of air tickets etc. of amount of Rs.15,000/-, is claimed. For the non agreed expenditure, complainant is not entitled for any claim because such expenditure borne by complainant for his own convenience without seeking concurrence of OP. Had there been concurrence of OP in bearing of such non agreed expenditure, only then OP could have been held liable for refund of this expenditure borne on purchase of air tickets.
11. As a sequel of above discussion, complaint allowed with direction to OP to refund received amount of Rs.9,24,000/- (Rs. Nine Lakhs Twenty Four Thousand only) with interest @ 8% per annum w.e.f. 10.11.2015 till payment. Compensation for mental agony and harassment of Rs.25,000/- (Rs. Twenty Five thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against OP. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order, failing which complainant will be entitled to interest @ 7% per annum on the amounts of compensation and litigation expenses w.e.f. today till payment. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
February 27, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
