PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Party as he did not complete the renovation work of the flat of the Complainant and whatever, renovation he did, was of a substandard.
2) The facts of the complaint as stated by the Complainant are that the Opposite Party is Architect and an Interior designer. As per the suggestion of his daughter and her husband the Complainant decided to carry out some interior designing/renovation work in the Complainant’s flat – 103, Atmaj Apartment, 94/C, August Kranti Marg, Opp.-Kumballa Hill Hospital, Kemps Corner. Accordingly, the renovation work was assigned to the Opposite Party. In 2nd week of March, 2007, Opposite Party visited the Complainant’s flat & assessed the renovation work to be carried out. In next week, Opposite Party took measurement of the flat. The Complainant stated that the Opposite Party offered the cost of Rs.9,25,962/- for the renovation. Here also the Complainant does not state that he consented to this offer but in next para states that after deciding the price the Complainant visited the Opposite Party office in May, 07. The Complainant discussed about the material to be used and particular patterns to be used at specific place. The Complainant has not mention what material & what was the pattern.
3) The Complainant gave certain specific instructions to Opposite Party. The Complainant does not mention these instructions in his averment. Thus, the averments in the complaint are badly affected by vagueness and ambiguity.
4) The Complainant has further stated that the renovation work was to be completed within 4 months form June, 07 for total consideration of Rs.9,25,962/-.
5) It is further stated that the Complainant decided to hand over the keys of the flat to Opposite Party for renovation so that he could do his work without interruptions & disturbance. The Complainant left India to stay in USA with his son. His daughter & her husband were to supervise the renovation in absence of the Complainant. The Complainant returned to India on 03/11/07 but the work done by the Opposite Party was unfurnished, incomplete and unsatisfactory. The flat was in dirty condition, loose materials were kept here and there. The Opposite Party did not inform the Complainant that the work is incomplete. Some of the antique articles such as, utensils were missing from flat. Whatever work, that was done by the Opposite Party, was defective and of poor workmanship. It is the allegation of the Complainant that the custody of the flat was given to the Opposite Party but it was misused.
6) Tiling, furniture, plumbing, electric work, box window grill, painting, polishing, etc. was incomplete.
7) The expensive items were misused by the workers.
8) When the Complainant tallied the bills of material, with material used, there was a mismatch. Thus, the Opposite Party extracted huge amount by fraud from the Complainant. The instructions of the Complainant were not followed and many patterns suggested by the Complainant. Specific brand of wood, marine block board, marine ply, and commercial ply were not as per instructions.
9) It is further averred by the Complainant that the Complainant sought explanation from Opposite Party about the above said deficiency and defect when he had already made a payment to Opposite Party. The Complainant has stated that the Opposite Party admitted his mistake and assured to complete the remaining work and rectify the defective work. But Opposite Party did not comply with his assurance.
10) It is further stated that latter on again the Opposite Party admitted his mistakes & defects in his work and again promised to restart the unfinished work in April, 04, but till date he has not completed the remaining work.
11) The Complainant has further submitted that he had made a payment of Rs.8,96,874/- to Opposite Party as and when demanded. (However, there is nothing on record that this payment was made to Opposite Party except this averment). It is alleged by the Complainant that the flat was left unfit for staying.
12) The Complainant has further alleged that the following works were not touched by the Opposite Party –
I Living Room.
i) Dining table set.
ii) TV Unit with glass divider & shoe rack.
iii) Centre Table & side table.
iv) Sofa with fixed sealing.
II Bed Room
i) Side table.
ii) Dressing mirror & shelves.
13) The following work was done but were not satisfactory -
i) Main door & safety door with grills in total.
ii) Indian style Diwan used spoiled tiles inside the Diwan and tiles are of unusual sizes.
iii) No painting work in living room.
iv) Polishing of wooden furniture’s beds, doors, painting defective on Box Grills & Kitchen grills (window) & bed room.
v) Kitchen – space under platform is mostly spoiled. Channel drawers are not properly fitted. One big corner space is spoiled. It could have been used for strong kitchen articles.
vi) Costly sliding windows are unfinished, instead of clout glasses, used transparent glasses.
vii) Glass partition between living room & kitchen is of bigger size & causing inconvenience while entering & leaving kitchen.
viii) Ward robes are without alignment & there are defects in assembling key latches.
ix) In bed rooms painting & polishing of bolt is not done.
x) All new furniture drawers are not working well. When drawer is open, other two drawers comes out automatically. The fitting is defective.
xi) Book unit & mandeer – Glasses are improper in size two glasses are broken.
xii) In bathrooms, architect made fixed window & exhaust fans. While the Complainant had specifically asked to use cover type window & wall fan to be fixed above the shower space.
xiii) In bathrooms mirror glasses are spoilt.
xiv) Box grills are not painted & finished & are rusty.
xv) Instead of stainless steel rod a rusted rod was put for drying clothes.
14) In order to prove the above allegations the Complainant appointed an architect Mr. Shrikant Hadke, for inspection, verification evaluation of the work done by the Opposite Party. He submitted his report dtd.07/06/08 alongwith affidavit. It is alleged by the Complainant that, from this report it is seen that Opposite Party failed to complete various works. The work done was of poor quality. Material was not used as per the instructions of the Complainant. The Complainant stated that as per this report the cost of the work done, by the Opposite Party will not exceed Rs.3,45,988/- still the work assigned to the Opposite Party was not completed by him. The Complainant has already paid to the Opposite Party the sum of Rs.8,96,874/- for the work. Under such circumstances, the Opposite Party is liable to refund the amount of Rs.6,92,500/- to the Complainant or he should finish all the work assigned to him.
15) Finally the Complainant has prayed that the Opposite Party be directed to reimburse Rs.5,72,022.75 to the Complainant with interest @ 18 % p.a. The Opposite Party also be directed to pay Rs.75,000/- to the Complainant as the expenses for appointing the architect. The Opposite Party also be directed to pay Rs.2,50,000/- to the Complainant towards the compensation for mental & physical harassment caused to the Complainant and Rs.50,000/- towards the legal charges.
16) The Complainant has attached the xerox copies of the following documents alongwith the complaint –
i) Estimate of work & price list given by Opposite Party.
ii) List of material required dtd.23/03/08. Report of Architect Shri. Shrikant Hadke, dtd.07/06/08.
iii) Affidavit of Shri. Hadke.
17) The complaint was admitted and notice was served on the Opposite Party who filed his written statement wherein he denied almost all the allegations mentioned in the complaint and specifically stated that, he is only an architect, and interior designer. He is not a contractor or an interior decorator. His job is only to certify the work. He has emphatically denied that his job is an interior decorator or doing an renovation work. He has further stated that the dispute has arisen between the Complainant and the Contractors and/or material Suppliers. There has been non joinder and misjoinder of the parties in the present complaint.
18) The main allegation of the Opposite Party is that the Complainant has defaulted in making payment of dues of Opposite Party, the contractors and suppliers as well as in making payments of the labourers who has carried out the renovation work. Further, the Opposite Party has admitted that, the daughter of the Complainant and his son-in-law proposed the name of the Opposite Party for carrying out the work of interior designing of the flat of the Complainant. Due to good relationship Opposite Party did not enter into signing of any terms & conditions with regard to the scope of services and terms for payment of professional charges with the Complainant and hence, the terms & conditions with regard to the scope of services and terms of payment of professional charges were not singed between the Complainant and the Opposite Party.
19) The Opposite Party has further stated that the Complainant has suggested that the interior designing was required to be done at his residence. The nature of the work of the Opposite Party is that of a consultant in respect of designing works. The Opposite Party has brought to the notice of the Complainant that the renovation work to be carried out in the Complainant’s flat was to be carried out by the contractors and workers of the contractors. It was the responsibility of the supplier of the material, required for renovation work to supply the material as per the requirement & selection of the Complainant. The material required for the renovation was to be purchased by the Complainant himself as per his choice and the same was to be supplied to the contractor.
20) The Opposite Party has further stated that he had prepared a necessary rough approximate estimate of list of works to be carried out in each room of the Complainant and estimated price giving detail breakup. The total amount being Rs.10,052,230/- plus professional charges at the rate of 10 % i.e. being Rs.1,05,223/-. The aggregate cost being Rs.11,57,453/- as requested by the Complainant. This estimate is dtd.09/04/07. It is annexed to the complaint. At the same time it was also made very clear to the Complainant that this cost will depend upon the material chosen by the Complainant and the rates quoted by the contractors. Any item not included in the estimate would be additionally charged. Extra charges would be levied as per actuals for clearing the debris.
21) The list of the material required for the renovation was given to the Complainant so that he could put the order for the same. The Opposite Party has further averred that, the period of 4 months for completing the said work was approximate time for the entire vacant flat but the Complainant did not make available one bedroom and kitchen because all the belongings of the Complainant were packed and stacked upto the brim in both rooms and living room. It was difficult for the contractor to carry out the work. Only one bedroom and two bathrooms were made available for the work. Similarly there was a frequent stoppage of work by the society as the Complainant has not taken any permission from society for the so renovation work.
22) Further, the Opposite Party has vehemently denied that the keys of the flat were given to Opposite Party. He has clarified that the keys were handed over to the contractors so that they could carry out the renovation work. It is also stated that these contractors were well known to the daughter and son-in-law of the Complainant who were looking after the progress of the work and under whom the work was being carried out.
23) The Opposite Party has further stated that the material required for the renovation work was selected by the daughters & son-in-law of the Complainant. The payment for the same was also made by them only. The contractors doing the work were also paid by the daughter and son in law of the Complainant upon issue of certificate of payment by the Opposite Party. However, a month prior to Diwali, all payments due to the contractors and suppliers were put on hold. These contractors complained about the non payment but they were not paid.
24) The Opposite Party has further stated that, during course of renovation the Complainant has left India for U.S.A. to stay with his son and his daughter & son-in-law were looking after the renovation work as stated earlier. When the Complainant returned from U.S.A. one bedroom and two bathrooms and kitchen were made available for his stay and use. The Complainant was residing in these rooms since his return from U.S.A. The Opposite Party has also denied that the antique articles were missing from the Complainant’s flat. The Opposite Party explained that, the representatives who were supervising the work, (daughter & her husband) have not raised this point but actually when the contractors started demanding their dues, the Complainant started the blame game.
25) The Opposite Party has further denied that the work was incomplete and the workmanship was poor. He also denied that the tiling, furniture, plumbing electric box, window grill, sliding window aluminum polishing were incomplete, defective etc.
The Opposite Party has also denied that any specific instructions were given by the Complainant with regard to patterns and specific materials to be used at specific place.
26) The Opposite Party submitted that, the Complainant asked his daughter & her husband to look after and supervise the progress of the renovations work, procurement of the material required for the renovation, when the Complainant was out of the country. It is alleged by the Opposite Party that the Complainant has accused the Opposite Party of incomplete work and poor workmanship because the Complainant does not want to pay the legitimate dues of the labours, and payment of the material used in the renovation of the fact of the Complainant.
27) Opposite Party has further stated that, two bedrooms, two toilets and a kitchen was handed over to the Complainant in a clean condition. The Opposite Party has admitted that only a living room could not be cleaned as the Complainant had stacked all the belongings & other materials in the said room. The Opposite Party has further stated that the Complainant is using the premises since more than a year and now he is pointing out the cleaning issue.
28) The Opposite Party has further submitted that he has prepared a list of payment made by the Complainant and the list of payments to be paid by the Complainant. As per the list prepared by the Opposite Party, the Complainant has paid total payment of Rs.8,88,874/- directly to the Suppliers, Contractors/Architect. And balance payment is of Rs.3,13,347/- (However, this is only the list prepared by the Opposite Party. He has not produced any receipt or payment documents in this respect). The Opposite Party has stated that these lists were handed over to the Complainant’s son-in-law in presence of the Complainant.
29) The Opposite Party has repeatedly alleged against the Complainant that the Contractors were disgusted of the tactice played by the Complainant as he had not paid the dues of the contractors. The Opposite Party has further clarified regarding the amount of Rs.8,96,874/- that this amount was partly paid towards the purchase of material by the Complainant’s daughter and son-in-law and partly towards the part payment made to the contractors, for labour work. All the charges for the material and labour charges were paid by the Complainant’s daughter and son-in-law, directly to the supplier of the material and the contractors. The role of the Opposite Party was only verification of the bills & certifying the payments because in absence of such verification & certification, no payment could have been made. However, the Opposite Party has admitted that he has received only Rs.40,000/- towards the designing and coordinating the interior designing work. Still payment of Rs.81,430.71 p. is yet to be received form the Complainant towards professional fees of Opposite Party as agreed between the Complainant and Opposite Party.
30) The Opposite Party has denied that the safety door with grills was spoilt by the Opposite Party. The work in respect of main door & grill door was done as per the selection of the Complainant. It is further stated by the Opposite Party that the flooring under the fixed Indian styled Diwan, was done with tiles of choice of the daughter & son-in-law of the Complainant as no new tiles & material was supplied by the Complainant.
31) It is denied by the Opposite Party that the polishing of wooden furniture, beds, doors and painting on box grills, kitchen grill windows is defective. On the contrary the Opposite Party has made it very clear to the Complainant that, all final touch up work would be carried out only when the Complainant removes all the stacked material from the relevant area. However, the Complainant did not shift the material. It was also denied that the space under the platform was spoilt; channel drawers were not properly fitted, etc. It is further alleged that the payment for sliding windows was not made to the contractor.
32) It is further submitted by the Opposite Party that painting and polishing in bedrooms, bathrooms and kitchen was finalized and these rooms were handed over to the Complainant from that time, the Complainant is using these rooms, after he returned to India.
33) Regarding the book units and mandir, two to three glasses were not properly aligned. In this respect the glass supplier had sent his persons who were willing to take back the glasses to carryout the changes and rectify the same but the Complainant did not pay the dues to the suppliers and the Complainant also did not hand over the glasses to the suppliers.
34) It is denied that the box grills were not painted and the finishing was rusty. All the box grills were painted from inside the contractor tried to paint external surfaces but it was not possible to paint the said grills form inside. The contractor tried to paint external surface but it was not possible as no permission was sought from the society in this respect by the Complainant and no interest was shown by the Complainant to get the touch up paint from outside.
35) It is further stated that a stainless steel hollow rods with solid m-s-bars inside have been put in consultation with the Complainant in bedroom by the contractor.
36) It is further alleged by the Opposite Party that the Complainant is a veteran litigant. He is in habit of taking advantage of the service rendered and when it comes to making payment for the services availed of, he raises false and frivolous objection.
37) Regarding the Architect report of Shri. Shrikant Dahake, the Opposite Party has stated that this report is ambiguous, false and baseless. The report is not prepared with consultation of the Opposite Party.
38) It is also explained by the Opposite Party that, all the material required for the renovation was procured by the daughter and son-in-law of the Complainant. Therefore, there is no question of using the interior type of materials in the said work as mentioned by the new Architect, Mr.Hadke in his report. The report of Mr. Hadke is hypothetical & biased & hence, Opposite Party disagree with Mr. Hadke’s report. This Architect- Mr. Dahake has mentioned that he arrived at the cost by consulting his own contractors who work for him but he has not enclosed their rates and still arrived at the cost of the work. Therefore, the cost given by the Architect- Hadke is hypothetical and imaginary & should not be entertained. Finally the Opposite Party has requested to dismiss the complaint with cost.
39) The Opposite Party has attached the xerox copies of the following documents alongwith the written statement –
a) Professional charges for providing architect and & interior designing – charge – without signature of the client.
b)List of payment made with no signature and date.
c)List of balance payment with no signature, no dates. List of total expenses with no any date and no signature.
40) Thereafter, the Complainant filed its affidavit of evidence in reply to the written statement of the Opposite Party wherein the Complainant denied the contentions of the Opposite Party and reiterated the facts mentioned in the complaint. The Opposite Party also filed his affidavit wherein he reiterated the whole contentions mentioned in his written statement. The Opposite Party has again filed a reply on 25/09/09 alongwith copy of certificate dtd.17/08/09, plan of the flat without any sign or date, photographs – letter dtd.12/03/09 etc. Thereafter both the parties submitted their written arguments wherein they reiterated the facts mentioned in their complaint and written statement respectively.
41) We heard the Ld.Advocates of both the parties and perused all the papers submitted by them. Our findings are as follows-
The Complainant wanted to renovate his flat at Kems corner. Therefore, as per the Complainant’s version, he entrusted the work of renovation and interior designing to the Opposite Party. The Complainant has not mentioned specifically as what was the renovation and interior designing exactly. At the same time it is the contention of the Opposite Party that he is an architect and a interior designer. His work is only to design the work to be done and actual work was done through the contractor, labours and the material required was to be provided by the material suppliers. Therefore, in the selection of material used in the work, the Opposite Party does not have the role to play.
In order to know what was the nature of renovation & interior designing, we referred the annexure of renovation & estimate prepared by the Opposite Party. It contained 52 items like breaking of brick walls to tiling, carpentry work. Plaster of Paris work, plastering, plumbing, etc. Even in making averment regarding the total cost of the entire renovation work the Complainant is vague in his statement. The Complainant does not clearly state that the cost of entire renovation was Rs.9,25,962/- Therefore, it is not clear whether the cost decided between the two parties was Rs.9,25,962/- or some other figure.
42) On the other hand, the Opposite Party in his written statement has stated that he has prepared a rough approximate estimate list of work to be done and estimated the price giving detail break up. The total amount being Rs.10,52,230/- plus professional charges at the rate of 10 % of total cost of work i.e. Rs.1,05,223/-. The total cost being Rs.11,57,453/-. The Complainant has attached these estimates alongwith his complaint. However, there is no any contract signed between the Complainant and the Opposite Party in this request. The cost of the work though conflicting, is a huge amount i.e. between 9 Lacs and 11 Lacs. Still both the parties, particularly the Complainant who has come before this Forum for the deficiency in service, have not entered into a formal contract and prepared a document for the same. Under such circumstances it cannot be concluded whether the entire work alongwith the material, labour charges was entrusted to the Opposite Party or only a designing work was entrusted to the Opposite Party.
43) Further the Complainant has vigorously used the vague terms throughout the complaint like “The Complainant discussed about materials to be used, particular patterns to be used at specific place but the Complainant has miserably failed to mention as to what was the material ? what were the patterns exactly ? The Complainant has further averred that certain specific instructions were given to Opposite Party. These are all vague statements used by the Complainant throughout the complaint making it difficult for us to come to the conclusion. The entire complaint is affected by vagueness and ambiguity with regard to allegation that, the entire work was to be completed within 4 months but it was not completed in this period, the Opposite Party has replied that the Complainant did not pay the dues to of the contractors, labourers and material suppliers so the work was not completed within the period of 4 months.
It was also alleged by the Complainant that some of the antique articles were missing from his flat. In this respect there is no any cognate evidence regarding the missing of these articles. Even the Complainant has not given any police complaint in this behalf. Only bare averment in the complaint does substantiate the allegation.
44) The other important allegation of the Complainant is that whatever work that was done by the Opposite Party, was defective, and of poor workmen ship. In this respect the Complainant has submitted xerox copy of a report of Architect – Shri.Shrikant Hadke. It is dtd.07/06/08. In about 17 items the architect has shown poor quality of work and poor workman ship as per his view. The Opposite Party has taken strong objection to this report and averred that this report is false and baseless and got up report. From this report it appears that the work done is incomplete to a certain extent. However, the Opposite Party has also admitted at certain extent that the work is incomplete but it is because of non payment of the dues to the contractors, labourers and the material suppliers. Even the Opposite Party has alleged that he received only Rs.40,000/- towards his professional charges and an amount Rs.81,430.71 p. was yet to be received form the Complainant. Therefore, the entire renovation work was not completed by the contractors and labourers. No material was supplied by the material suppliers.
45) It is also alleged by the Complainant that the expensive items were misused by the workers. This is only an averment not supported by any evidence. Even the Complainant has not mentioned which expensive items were misused and how they were misused.
46) It is also a serious allegation of the Complainant that when he tallied the bills of the materials with the material used, there was a mismatch. The Opposite Party extracted huge amount by fraud. In this connection the Complainant has miserably failed to produce the bills for materials. It is not mentioned who had supplied the material. Everything is in dark. The Opposite Party clarifies in this respect that the material was selected by the daughter and her husband. It is the Complainant who should procure the material and give it to the contractors. The Opposite Party is no way concerned with the selection, quality of the material to be purchased, the purchase & payment against the purchases. Therefore, this allegation of this Complainant is also not substantiated.
47) Further it is alleged that the Complainant paid Rs.8,96,874/- to Opposite Party but the Complainant has not produced anything on record or any receipt showing that he paid this amount to the Opposite Party. On the other hand, the Opposite Party explained that, the above said amount was partly paid towards the purchase of material by Complainant’s daughter and son-in-law and partly towards part payment to the contractors. In this respect also the Complainant has not produced any receipt or document showing the payment of Rs.8,96,874/- which would have clarified as to who was the exact recipient of this amount, whether the Opposite Party or the contractors and the material suppliers. The Complainant has thus suppressed very import documents being produced before this Forum.
48) Further it was alleged that certain works like dining table TV Unit, shoe racks, centre table, side table, sofa, dressing room were not done at all by the Opposite Party. In this connection there is nothing on record to show that these works was entrusted to the Opposite Party. Regarding the incomplete work mentioned by the Complainant, also it is not clear whether the work was to be done by the Opposite Party or whether material was to be provided to the Opposite Party and he was to get it done from the concerned persons. Even there is no any document to show that this was given to the Opposite Party. There is no document to show that the cost of the material was paid to the Opposite Party. There is nothing to show that the work was to be supervised day to day basis by the Opposite Party. The Opposite Party has specifically averred that the day to day work was looked after by the daughter and her husband only. They used to make payment to the contractors and the material suppliers. He has defined his work as designing and certifying the payment only. It is nowhere mentioned in any document that it was the Opposite Party to get the work done.
49) Finally it is the contention of the Complainant that as per the report of the Architect – Shri. Shrikant Hadke, the cost of the work done by the Opposite Party amounts to only Rs.3,45,988/-. However, he has paid to the Opposite Party Rs.8,96,874/-. Under these circumstances, the Opposite Party is liable to refund the Complainant an amount of Rs.6,92,500/-. At one place the Complainant wants Rs.6,92,500/- in a subsequent para the Complainant has prayed for an amount of Rs.5,72,022.75 p. We personally substracted Rs.3,45,988/- form Rs.8,96,874/-. The amount comes to be Rs.5,50,886/-. However, the basic issue whether this amount of Rs.8,96,874/- was paid to the Opposite Party, is not substantiated by and document.
50) In view of the observations made in the aforesaid paragraphs from para no.42 to 50, in our candid opinion the Complainant has failed to produce documentary evidence to show that there was a contract between the Complainant & the Opposite Party that the entire renovation work was entrusted to the Opposite Party and the amount Rs.8,96,874/- was paid to Opposite Party. In absence of the said proof, it will be unjustifiable to hold the Opposite Party liable for deficiency in service rendered by him to the Complainant.
51) In view of the above said observations, we pass the following order -
O R D E R
i)Complaint No.239/2008 is hereby dismissed.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties.
