IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 17th Day of September 2021
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
CC.222/19
Boby Thomas Panicker : Complainant
S/o Thomas Panicker
Kallarackal Thekkepurayil
South of LMS Hospital, Kundara.
[By Adv. M I Alexander Panicker, Adv.Manu Jayaprakash&
Adv.Seema Chitrangathan]
V/s
- Mr.Mithun Raj : Opposite parties
S/o Daniel@ Rajan
Vettilil Charuvila Veedu
Edavattom, Vellimon
Kollam-691 511.
- Mr.Daniel @ Rajan
Vettilil Charuvila Veedu
Edavattom, Vellimon
Kollam- 691 511.
[By Adv.R.Sreeraj&Adv.Jiju Babu.S]
FINAL ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
The complainant is an Engineer by profession and working in Infopark, Kochi. The complainant decided to have a massive renovation of Flat No.7A, Skyline Riverdale, Petta, Kochi where he has been residing with his family. The 1st opposite party is the son of the 2nd opposite party and they are engaged in the business interior works of buildings. Both the opposite parties were well acquainted with the family of the complainant and they proposed to undertake all renovation works of the flat of the complainant with a time frame by deputing technically skilled, expert and experienced professionals. Both the opposite parties after inspecting the flat prepared their own estimate. The complainant and his father who is also an Engineer by profession agreed the proposal and estimate made by the opposite parties and executed an agreement for the same. The complainant was very particular on work performance and time frame for completing all work since he has to shift to an alternate accommodation and has to pay for it. Hence time and work perfection was made as the essence of the contract and by agreeing the terms of the agreement both the opposite parties signed on the agreement by agreeing to commence the work on 14.01.2019 and to complete the whole work within 45 days of commencement date. As per the terms of contract the total amount was estimated approximately as Rs.5,76,869/- and an advance amount of Rs.2,00,000/- paid on 03.01.2019 by cheque and after receipt of the advance amount the opposite parties were not keen to follow the terms of contract and only on repeated requests they commenced the work. Later opposite parties started demand for money to do purchase of building materials and fittings in breach of the agreement. The complainant was compelled to make further payment on each and every item in contravention of the terms of the agreement. The 1st opposite party had received an amount of Rs.3,77,200/- by different occasions by e transfer and cheque payment as on 02.04.2019. The work ought to have been finished on 28.02.2019 but on which date it was only started. Even after receiving so much amount the 1st opposite party was not engaging anyone to do any work in the flat. Though the complainant contacted the opposite parties over phone they evaded the call was diverted to unknown non functioning numbers. On a rough estimate the work done by the opposite parties was assessed to be only Rs.1,24,830/- and the excess amount in their hands is Rs.2,52,370/-. The complainant and his father negotiated both the opposite parties through their uncle C.K.John but both of them pleaded lame excuses and promised to complete the work and requested time for another 30 days. All the parties who involved in the issue suggested for executing another agreement for extension of the contract for another period of 30 days with a work performance guarantee of Rs.1,00,000/-. Hence in the presence of both the opposite parties on 29.06.2019 another agreement was executed by undertaking that the work will be completed on 30.07.2019 and failure of which a cheque will be issued for work performance guarantee and it can be encashed after 30.07.2019. Even in spite of agreeing and signing an extension contract agreement dated 29.06.2019, the opposite parties have not turned up and no work was done and it still remains where it stood. Further the 2nd opposite party was sent to Kochi to assess the stage of work completed at the expenses of the complainant, but on that trip both the opposite parties very cunningly collected all the tools kept in the flat and left Kochi. The complainant believes that both the opposite parties were under a conspiracy and was deliberate and willful to approach the complainant with offers and had extorted money on misrepresentation. The opposite parties have committed grave criminal negligence and were cheating the complainant by collecting excess funds and not doing any proper work, ie, every work done is in-complete and requires serious re-work. On every purchase of materials and fittings also the 1st opposite party was caught red hand on showing false bills and estimates from reputed shops but not collecting materials from there. Substandard fittings and materials were tried to be fitted which is also a breach of trust and cheating. Also, all work done for all the three bathrooms are with serious issues and a complete re-work is required to fix the bathroom fittings. Also, none of the local purchases were approved by the complainant which is a breach of the contract terms. The complainant had hires the services of the opposite parties as a consumer but opposite parties were indulging in unfair trade practice and there is deficiency in service rendered by them. So the complainant is entitled to realize compensation for the damages caused to the complainant. The complainant was compelled to shift his residence to another flat having rent above Rs.15,000/- per month and the loss sustained to the complainant per month by way of rent itself is Rs.15,000/- and the opposite parties are liable to compensate the same till the complainant able to re occupy the flat after completion of renovation work. On that head itself now the opposite parties are liable to pay Rs.90,000/-(15000x6 months). The mental agony and injuries caused to the complainant cannot be equated with money but for litigation it is fixed as Rs.1,50,000/-. Altogether the opposite parties are liable to pay an amount of Rs.4,92,370/- to the complainant with future liability of rent to be paid by the complainant till reoccupation of the flat. Hence the complaint.
In response to the notice opposite party No.1&2 entered appearance and filed vakalath. Though sufficient opportunity was granted. The opposite parties have not filed any version. On 29.07.2011 when the case was called in the roll call opposite party’s Advocate expressed no instruction from the opposite parties. In the circumstances opposite parties were set exparte and posted for recording exparte evidence. The complainant filed proof affidavit and got marked Ext.P1 to P9 and Ext.C1 series documents. Heard the counsel for the complainant.
The complainant filed affidavit by re-iterating the averments in the complaint and got marked Ext.P1 to P9 series documents and Ext.C1 series expert report. Ext.P1 is the original agreement executed between the complainant and the 1st opposite party stating the contract price Rs.5,76,896/- and date of commencement of the scheduled work and payment of advance amount of Rs.2,00,000/-. Ext.P2 is the subsequent agreement dated 29.06.19 between the 1st opposite party and the complainant extending time by 30 days for completing the work. Ext.P3 series is the details of payment effected by the complainant including supporting documents. Ext.P4 series are photographs showing the state of work done by the opposite parties. Ext.P5 is the photocopy of the cheque for Rs.1,00,000/- issued by the 1st opposite party in favor of the complainant for due performance of the contract. Ext.P6 is the cheque return memo. Ext.P7 is the copy of the lawyer notice sent to opposite parties No.1&2 on behalf of the complainant. Ext.P8 is the postal receipt evidencing the sending of lawyer notice. Ext.P9 series is the postal acknowledgement card evidencing the receipt of lawyer notice by the opposite parties No.1&2. Ext.C1 series is the expert report regarding the cost of work not done along with supporting documents and photographs. The averments in the affidavit coupled with Ext.P1 to P9 series documents and Ext.C1 series expert report and connected records would establish that there is deficiency in service and unfair trade practice on the part of the opposite parties No.1&2. That the opposite parties have not carried out the work the total cost which agreed was Rs.5,76,869/- . However out of the said work the opposite parties have carried out the work only worth Rs.1,39,179/- and the work not done is for Rs.4,62,586/-. Admittedly the complainant has paid and 1st opposite party has received the total amount of Rs.3,77,200/- as on 02.04.2019. Hence the excess amount received by the 1st opposite party is Rs.3,77,200-1,39,179=2,38,021/-. However the complainant has claimed Rs.4,92,370/- in Para 16 of the proof affidavit the complainant would claim Rs.15000/- per month for 6 months as loss sustained to him per month by way of rent and opposite parties are liable to compensate the same till the complainant is able to reoccupy the flat after completion of renovation work. But there is no such clause in Ext.P1 agreement or on P2 subsequent agreement. The complainant has also not adduced any documentary evidence to show that he paid rent @ Rs.15,000/- per month for 6 months as stated in the complaint and proof affidavit. The complainant would also claim Rs.1,50,000/- as compensation for the mental agony sustained to the complainant. It is true that as the complainant has not carried out the work as agreed within the stipulated period the complainant has sustained mental agony apart from financial loss. But the compensation claimed on this count is Rs.1,50,000/- which is highly exorbitant. In view of the facts and circumstances of the case including the amount involved in the contract work we are of the view that compensation to the tune of Rs.50,000/- will meet the ends of justice.
On evaluating the entire materials available on record we come to the conclusion that the complainant is entitled to get Rs.238021/- being the excess amount received by the opposite party and Rs.50000/- as compensation for mental agony. But the complainant is not entitled to get loss on account of payment of rent or future rent for want of documentary evidence to prove primafacie the payment of rent and also for no stipulation in both the agreements alleged to have been executed between the parties.
In the result complaint stands allowed directing the opposite parties No.1&2 are directed to pay Rs.2,88,021/- along with interest @ 6% p.a from the date of complaint till realization.
The opposite parties are also directed to pay Rs.50,000/- as compensation with interest @ 6% p.a from the date of complaint till realization.
The opposite parties are further directed to pay costs Rs.5000/- to the complainant.
The opposite parties No.1&2 are directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is allowed to realize Rs.2,88,021/- with interest @ 9% p.a from the opposite party No.1&2 and their assets along with costs Rs.5000/- as ordered above.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 17th day of September 2021.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:- Nil
Documents marked for the complainant
Ext.P1 : Contract for renovation of apartment
Ext.P2 : Final extension agreement as on June 2019
Ext.P3series : Copy of details of payment effected by the complainant including supporting
document.
Ext.P4 : Copy of Photographs showing the state of work done by the opposite parties
Ext.P5 : Photo Copy of the cheque for Rs.1,00,000/- issued by the 1st opposite party in favor
of the complainant for due performance of the contract.
Ext.P6 : Copy of cheque return memo
Ext.P7 : Copy of Advocate notice
Ext.P8 : Postal receipt
Ext.P9 series: Acknowledgement cards
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:- Nil
Ext.C1 series : Commission expert report
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
