FACTS The fact leading to the complaint case, in short, is that on being appointed as a PCC or Blood Collection Centre Franchise, the complainant being the proprietor of “Alo” situated at P- 24 CIT Scheme VIIM, Block- I, Kolkata- 700054 in order to do some renovation and interior decoration work in his said premises engaged the Opposite Parties who on 03/05/2021 sent one project estimate through email. Subsequently, one Revised Project estimate amounting to Rs.3,00,811.50/- was issued to him by the Opposite Parties. There being no formal agreement between them and both the parties did all their communications through emails. Complainant agreed to the revised estimate and paid Rs.1,50,000/- through NEFT. Opposite Parties required 20 working days to complete the work. On May 5, 2021, Opposite Parties started their work. Complainant again paid Rs.75,000/- for which invoice was issued by the Opposite Parties. Subsequently, due to Covid-19 pandemic no work could be done during lockdown after May 15, 2021. However, since July 6, 2021, the Opposite Parties worked for only 3 to 4 days but thereafter, they did not resume their work despite repeated request. According to complainant, Opposite Parties failed to render the services as agreed upon and there was intentional delay in completing the project which led to financial loss to him. Thereafter, he could get the unfinished job completed with some local workers by incurring a cost of huge amount. So, complainant by filing this case, prayed for several reliefs including refund of the amount paid by him, compensation and cost of litigation etc. Opposite Parties contested the case by filing a written statement raising dispute about maintainability of the instant complaint. According to them, complainant did not follow the terms and conditions of payment though they completed 80% of the project work and 20% of the painting work. They further contended that flooring work and branding work worth Rs.57,060/- were still due and as complainant failed to make any further payment, they could not do their work swiftly. They further claimed to have no deficiency in service on their part. So, they prayed for dismissal of the instant complaint and also prayed for compensation for harassment and cost of ligation. Both parties filed their evidence on affidavit. They also exchanged interrogatories and replies thereto and also filed brief notes of argument. The points for consideration are- - Is the instant complaint maintainable?
- Is the complainant entitled to any relief (s) as prayed for?
FINDINGS Both the points are taken up together for discussion for convenience. Admittedly, Opposite Parties were engaged by the complainant for renovation and interior decoration work for his Blood Collection Centre. Opposite Parties issued one Project Estimate amounting to Rs.3,00,811.50/- including GST. Admittedly, complainant paid initially Rs.1,50,000/- and then on demand by the Opposite Parties Rs.75,000/-. Thus, the amount of Rs.2,25,000/- in total was paid by the complainant. It is also admitted that Opposite Parties started their work on 05/05/2021 and continued till 15/05/2021 and thereafter, due to lockdown for Covid- 19 pandemic, they stopped work from 16/05/2021 and resumed their work on 06/07/2021. According to complainant, this time Opposite Parties worked only for 3-4 days. Thereafter, they did not work even on repeated requests. Now, according to Opposite Parties, as the complainant failed to clear the dues, they stopped work. They alleged that he did not comply with the terms and conditions regarding payment which was denied by him. It is true that the Project Estimate issued by the Opposite Parties (Annexure- B) on 03/05/2021 also indicates the payment schedule which is found to be @60 % of the quotation amount to start the project, conceptualization and design and then, 35 % and 5 % at the two subsequent stages. The materials on record revealed that complainant made the first payment of Rs.1,50,000/- which is roughly 50 % of the Project Estimate on 04/05/2021 and from the next date i.e. 05/05/2021 Opposite Parties started working. It is further revealed that by a mail dated 04/05/2021, complainant informed that he had communication with the Opposite Parties that 50 % of the estimated amount would be paid as advance, 25 % at the time of work and balance 25 % on site delivery. Opposite Parties did not object to this communication by informing the complainant that they were not agreeable to his said proposal in the matter of making payment and what is found that they started work from the very next date i.e. 05/05/2021 after getting advance of Rs.1,50,000/-. Thereafter, they complained about payment only on 24/07/2021 which is after more than two months and that too, after they stopped work. So, at this stage, Opposite Parties cannot insist on the payment policy as shown in the Project Estimate. It is found vide email message of the Opposite Parties dated 03/05/2021 that the entire work would be completed within 20 days approximately. Out of the said 20 days, Opposite Parties worked for 11 days continuously from 05/05/2021 to 15/05/2021 and then for 3-4 days from 06/07/2021 as claimed by the complainant. So, Opposite Parties worked for about 14-15 days in the project. Thereafter, as Opposite Parties withdrew their workers and did not complete the work, complainant claimed to have got the unfinished work done by employing some local workers at a huge cost. But he failed to state about how much work remaining unfinished or the percentage thereof which he was compelled to get done through local workers. He is also absolutely silent about the amount he had to spend for getting the remaining work done. No document even has been produced by him in this regard. On the other hand, Opposite Parties claimed that they completed 80 % of the project work and also finished 20 % of the painting work with pending work amounting to Rs.23,100/-. According to them, only the flooring and branding work worth Rs.25,440/- were still due. We find complainant paid about 75 % of the entire estimated project cost. So, he was to pay the remaining amount of Rs.75,811.50/- [ Rs.3,00,811.50 – Rs.2,25,000/-] if the work had been completed by the Opposite Parties. Therefore, it is clear that the Opposite Parties completed the project work substantially. But complainant failed to show about the volume of remaining work which the Opposite Parties allegedly did not complete and in this situation, the complainant’s prayer for refund of the entire amount paid by him along with compensation etc. which, in our view, is not at all entertainable. He is also not even entitled to a proportionate amount as he failed to produce sufficient evidence in this regard. On behalf of the Opposite Parties, it is claimed that the instant complaint is not at all maintainable as it is a commercial transaction and complainant is found to be a franchise of the Apollo Healthcare and Lifestyle Limited. Therefore, he is an employee of the said concern and a mere employee does not have a right to sue in his name against other person. As against this, we find complainant claimed that he is the proprietor of “Alo” which is a Blood Collection Centre and complainant got franchise of it from the Apollo Healthcare and Lifestyle Limited and in order to renovate an interior decoration of the said Centre, he had engaged the Opposite Parties. He further claimed that through this franchise he is earning his livelihood. Though no document has been produced before us regarding the relationship of the complainant and the said Healthcare Ltd. however, on the facts and circumstances of the case, we think that the instant complaint is maintainable. Having, thus, gone through the entire materials on record and following our discussion as made above, the instant complaint is liable to be dismissed. Hence, it is ORDERED That the instant case be and the same is dismissed on contest. No order as to costs. |
