Ex-P A R T E O R D E R
PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant is working as Executive Health Officer in Municipal Corporation of Greater Mumbai. The Complainant was intending to renovate and repair his old house/flat situated at 323, Haji Ali, Municipal Officers Society Ltd. Opposite Party who is Proprietor of Vishal Interior Decorators, approached the Complainant to do work of renovation and repairs of the flat. The Opposite Party assured the Complainant that he would use best available material and further assured that entire contract of repair and interior work of the said flat as per design estimates given by the Complainant would be completed within a period of 6 months.
2) According to the Complainant, Opposite Party had given the entire estimated cost of repairs and interior work at Rs.14 Lacs including labour and cost of material of standard quality. The estimates of the contract as provided by Opposite Party was Rs.9 Lacs for Civil Work and 5 Lacs for Carpentry Work. In the complaint, the Complainant has given particulars of proposed civil work, carpentry work and electric work agreed to be carried out by Opposite Party. The Complainant has produced copies of quotations given by Opposite Party alongwith his complaint.
3) It is submitted by the Complainant that Opposite Party commenced the work from 1st January, 09. Till filing of the complaint from time to time the Complainant paid to the Opposite Party total sum of Rs.11,50,000/-. However, Opposite Party has hardly completed work about 65% that is too, below-standard quality. The Opposite Party had given assurance and undertaking to complete the work within period of 6 months i.e. upto the end of Jun, 09. Therefore, the Complainant and his family had shifted from the said flat to the rental flat which was engaged for the period of 6 months at very high rent. Under the garb of purchase of material from time to time obtained total amount of Rs.11,50,000/- from the Complainant. The Opposite Party failed to complete the work within stipulated period therefore, the Complainant constrained to extend period of rental flat.
4) It is submitted that from 1st July, 09, the Opposite Party deliberately removed all the labourers from the site and stopped the further execution of work. The Complainant tried to contact Opposite Party on his available address and telephone numbers, but, Opposite Party deliberately avoided and remained absconding. In such circumstances the Complainant suffered heavy stress and his family members also put in very uncomfortable situation. As Opposite Party was absconding, there was no alternative before the Complainant to engage new contractor at a very high cost to complete remaining civil work as well as carpentry works.
5) It is submitted that Opposite Party issued to the Complainant bills worth Rs.6,66,069/- for Civil and Carpentry Works which was less than 65% of the total works and that was too of sub-standard. Whereas Opposite Party has received Rs.11,50,000/- from the Complainant. According to the Complainant, the Opposite Party has done work worth Rs.4,23,055.75 paise as per Architect’s report. The Complainant tried to contact Opposite Party personally but he could not trace out the Opposite Party and then the Complainant send notice to the Opposite Party through his advocate. Opposite Party did not comply with the notice and therefore, the Complainant has filed this complaint.
6) The Complainant has requested to direct Opposite Party to compensate/refund the excess amount of Rs.4,83,931/- to the Complainant. He has further requested to direct Opposite Party to pay to the Complainant Rs.2,43,013.25 paise towards extra expenditure and loss incurred by the Complainant because of sub-standard work, increase in cost of work due to the pendency of work for long time. The Complainant has further requested to direct Opposite Party to pay Rs.2,50,000/- as compensation for mental agony to the Complainant and Rs.10,000/- towards cost of proceeding. Total claim of the Complainant is Rs.9,86,944.25 paise.
7) The Complainant has filed his affidavit in support of the complaint. The Complainant has produced xerox copies of the quotations given by the Opposite Party. Xerox copies of the receipts of payment made to the Opposite Party, Report of interior work, Assessment prepared by DIOSITY Architect, Copy of notice sent to the Opposite Party, Copy of complaint lodged with Tardeo Police Station, etc.
8) Notice of this complaint was issued to the Opposite Party and the notice was dully served with the Opposite Party by RPAD. Postal acknowledgment is on the record. Inspite of service with the notice, Opposite Party has not appeared before this Forum. Therefore, on 30/06/2010, ex-parte order was passed against Opposite Party.
9) The Complainant has filed affidavit-in-chief/evidence and produced original documents as per list of document dtd.05/04/2011. He has produced report of Diosity Architect regarding quantity of the work done by the Opposite Party and its valuation, etc. We heard oral submission Ld.Advocate Joshi for the Complainant.
10) It is submitted on behalf of Complainant that the Complainant was intending to repair and renovate his flat situated at 323, Haji Ali Municipal Officers Society Ltd. The Opposite Party Harishchandra Katalkar, Proprietor of Vishal Interior Decorators had approached the Complainant and assured the Complainant to do the work of renovation and repairs of the flat by using best valuable material. The Opposite Party prepared estimated cost of the repair, interior work and submitted quotations of Rs.14 Lacs including labour and cost of material of standard quality. Alongwith complaint the Complainant has produced original quotation at Exh.‘A’ at page1-14. It is submitted that the Opposite Party started work of repairs and renovations on 1st January, 09. The Opposite Party had given assurance to complete the work till 30 June,09. Therefore, the Complainant had vacated the said flat and took another flat on rental basis for the period of 6 months by paying high rent. According to the Complainant, from time to time, the Opposite Party obtained money from the Complainant under garb of purchase of material for further work. From time to time the Complainant paid total Rs.11,50,000/- to the Opposite Party and Opposite Party issued receipts for the same. The Complainant had produced original receipt in all 10 of payment of total amount Rs.11,50,000/- issued by Opposite Party. It is submitted that inspite of receipt of Rs.11,50,000/-, the Opposite Party had carried out only 65% work. Then from 1st July, 09, the Opposite Party deliberately removed all labourers from the site and stopped further execution of work. The Complainant in his affidavit has stated that he tried to contact Opposite Party, but, Opposite Party was not found at the given address. Opposite Party was also not available on telephone. It is submitted that Opposite Party was absconding. The Complainant had no alternative to engage another contractor to complete the work. According to the Complainant, the work carried out the work by the Opposite Party was only 65% and it was of sub standard quality. He had appointed Architect – Diosity to assess quantity of work done by the Opposite Party and value of the work done. The Complainant had produced on record the report of Diosity Architect dtd.06/07/09.
11) Diosity Architect’s in its report has stated that on 05/07/09, their engineers have thoroughly assessed the entire work done before 05/07/09 by the Contractor appointed by the Complainant (i.e. Opposite Party) and reported that the work done by Opposite Party is worth Rs.4,23,055.75 paise only. Architect Diosity has given item wise assessment and submitted that actual amount of work done is Rs.4,23,055.75 paise.
12) It is submitted on behalf of Complainant as the Opposite Party has not completed work as assured the Complainant was constrained to engage another contractor at very high cost to complete remaining civil as well as carpentry works. The Complainant had initially rented flat for 6 months but as Opposite Party could not complete the work, the Complainant was required to extend rental period of the said flat and it caused inconvenience to the Complainant and his family members. Complainant’s case is supported by documentary evidence on record. The Complainants evidence is remained unchallenged. It appears that the Complainant had sent notice to the Opposite Party on 17/08/09 through his advocate. Copy of the notice is produced on record in which the Complainant had called upon the Opposite Party to pay sum of Rs.5 Lacs within period of 14 days. Further it appears that the Complainant had filed complaint to the Tardeo Police Station against Opposite Party. Copy of the complaint application is produced by the Complainant. There is no reason to disbelieve unchallenged evidence of the Complainant.
13) It appears from the evidence on record that the Opposite Party had given quotation of Rs.14 Lacs to the Complainant for repairs and renovation works of the Complainant flat. The Opposite Party started the work on 01/01/09. As per the demand of Opposite Party, from time to time Complainant had paid total amount Rs.11,50,000/- to the Opposite Party. However, the Opposite Party completed only 65% work till the end of June, 09. Architect was appointed by the Complainant to assess the entire work done by Opposite Party. The Architect has reported that Opposite Party has done work Rs.4,23,055.75 paise. After deducting amount of Rs.4,23,055.75 paise of the work done by Opposite Party from total amount of Rs.11,50,000/- paid by the Complainant, excess amount of Rs.7,26,944.25 paise is remained with the Opposite Party. According to the Complainant, the Opposite Party carried out only 65% till 30/06/2009 and received more than 82% amount of work. By notice dtd.11/08/09, the Complainant has called upon Opposite Party and pay Rs.5 Lacs. The Opposite Party did not comply with the notice and therefore, the Complainant had filed this complaint.
14) In the complaint the Complainant has requested to direct Opposite Party to compensate/refund the excess amount of Rs.4,83,931/-. Therefore, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.4,83,931/-.
15) It is submitted on behalf of Complainant as Opposite Party has only completed 65% of work. The Complainant was constrained to engage new contractor and to complete the work and for that purpose the Complainant was required incurred extra expenditure of Rs.2,43,013.25 paise. The Complainant requested for cost of incomplete work appears to be reasonable. Therefore, we think it just to direct Opposite Party to pay Rs. 2,43,013.25 paise to the Complainant.
16) The Complainant has claimed Rs.2,50,000/- towards compensation for breach of promise and for mental agony. It is true that as the Opposite Party had left incomplete repair and renovation of flat of the Complainant, it must have caused inconvenience to the Complainant and his family members and they have suffered mental agony. However, the amount of compensation of Rs.2,50,000/- claimed by the Complainant is exorbitant. Considering facts and circumstances of the case, we think it just to direct Opposite Party to pay to the Complainant compensation of Rs.50,000/-. Further we think it just to direct Opposite Party to pay Rs.2,000/- as cost of this proceeding. As such, Opposite Party is liable to pay Rs.4,83,931/- + 2,43,013.25 paise besides compensation of Rs.50,000/- and cost of proceeding, Rs.2,000/- to the Complainant. Hence, we pass following order -
O R D E R
i. Complaint No.150/2010 is partly allowed.
ii. Opposite Party shall pay an amount of Rs.7,26,944.25 (Rs. Seven Lacs Twenty Six Thousand Nine Hundred
Forty Four & Twenty Five Paise Only) to the Complainant within 1 month from the date of receipt of this order.
iii.In case default in making payment of aforesaid amount within 1 month, the Opposite Party shall be liable to pay
interest @ 9% p.a. on aforesaid amount till realization of entire amount to the Complainant.
iv. Opposite Party shall pay Rs.50,000/- (Rs. Fifty Thousand Only) as compensation and Rs.2,000/- (Rs. Ten
Thousand Only) as cost of this proceeding.
v. Certified copies of this order be furnished to the parties.
