BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 29^TH DAY OF JANUARY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to refund the advance sum of Rs.15,00,000/- paid to him during performance of the Job works assigned to him.
2. Pass such other order, including but not limited to the payment of costs incurred by the complainant in instituting the present suit, as it may deem fit and appropriate in light of the facts and circumstances set out herein above.
3.  

2. The case set up by the complainant in brief is as under:-

The complainant is the soul and absolute owner of residential premises bearing No.C-301, Prestige Leela Residencies, HAL Road, Old Airport Road, Bangalore. The complainant purchased the said apartment unit under the registered sale deed dated 19.04.2023. Subsequently the complainant decided to furnish his apartment unit and engage Mrs.Smruthi Mohan, the Architect to design and develop his apartment unit and undertake certain interior works in relation to it. The OP was approached to contribute his services and assistance in creating and developing certain furniture. The OP had been engaged to design and develop three ward robe unit, two TV unit, one study unit and various pieces of free standing furniture(22 pieces in all) including an up holstered bed, a hunter bed a shoe rack, credenza and a dining table. The complainant has paid an advance amount of Rs.15,00,000/- via online transactions.

3. The OP had been assigned with the job work on 2/3.04.2023 and he was agreed to complete the said work within a span of 55 days. The invoice issued by the OP captures not only delivery period of 55 days as agreed upon but also provides the complainant with a five year warranty period against any manufacturing defects in respect of the services provided.  

4. The OP had been provided with specific instructions along with design drawings and reference images of the details in respect of the job works to be performed from the commencement of the projects.  The OP was clearly instructed by the architect to refer to the design drawings and images in performing the job works and to convey to the complainant and architect any discrepancies or deviations might occurred during the course of the job works that were to be performed.

5. To the shock and surprise of the complainant the OP and his team of labourers not only failed at accurately comprehending the drawings that were provided to them but also committed multiple reckless and negligent mistake in creating and developing furniture which thereby resulted in poor build quality and also necessitated numerous re-works on the same. More over such constant reworking resulted in shoddy furniture. The OP fail to supervise his workers and the same reflected his incompetency and lack of professionalism in performing the job work.  The OP utterly failed to co-ordinate and to direct and supervise his team of workers inspite of the complainant informed the OP on numerous occasions.

6. The OP further failed to provide regular updates as agreed by him in respect of the progress in developing the furniture and performing the interior works and he also failed in rectifying the several errors that were brought to his attention. There were several defects in designing and developing the furniture (cabinetry) and the material and the hardware that were used was not of approved quality. The polish sample which had been agreed upon by the architect was not utilized despite instructed to do so. Several defects were not rectified. At last the complainant decided to terminate the OP and has also given a final opportunity to rectify the defects and deficiency in services but the OP failed at rectifying any of the defects and also abdonded the job work and left them unfinished. Hence the complainant has got issued legal notice on 10.07.2023 after service of the same the OP issued a reply dated 20.07.2023 seeking time till 05.08.2023 to respond to the same. The OP has not taken any measures of amicably resolving the dispute. Hence the complainant has filed this complaint.

7. In response to the notice, OP has not appeared before this commission. Hence OP placed exparte.

8. The complainant has filed his affidavit evidence and relies on 17 documents. 

9. Heard the arguments of advocate for the complainant.  Perused the written arguments filed by the complainant.

10. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

11. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

12. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence of the complainant, written arguments and documents. Inspite of issue of notice OP remained absent. Hence OP neither challenged the allegations made in the complaint and also documents and they remained unchallenged.

13. The complainant in order to prove all his contentions has filed his affidavit and also filed the affidavit evidence of one witness PW2 and relied on 17 documents.
14. It is clear from the evidence and documents that the complainant engaged the services of the OP who is a contractor to perform certain interior works and also paid an advance amount of Rs.15,00,000/-.  As per the agreement the OP has to design and develop three ward robe unit, two TV unit, one study unit and various pieces of free standing furniture(22 pieces in all) including an up holstered bed, a hunter bed a shoe rack, credenza and a dining table. The complainant has paid an advance amount of Rs.15,00,000/- via online transactions as per Ex.P4.   As per the invoice the OP has agreed to complete the work within 55 days with five year warranty period against any manufacturing defect in respect of the services provided. He has also produced the invoice as per Ex.P5. As per Ex.P7 the OP has agreed upon mutually the delivery date was agreed on 17.05.2023.

15. The architect of the complainant has also provided the OP with specific instructions with detailed specifications and reference images to perform the said job work as Ex.P6.  The OP was further instructed to perform the tasks assigned only upon receiving information of the same and was informed to convey to both complainant and architect in respect of any deviations or discrepancies occurred but the OP failed to adhere to the instructions and it is clear from Ex.P7 the email communications.

16. The OP not only failed to comply with the instructions of the complainant and his architect but also contributed his services inefficiently which results in poor workmanship and caused utter disappointment to the complainant and architect. The OP was not supervising or coordinating with his team of workers and he failed to cover the flooring inspite of repeatedly reminding by the complainant and architect and it is also clear from Ex.P7.  When the OP was not complied with the instructions of the complainant and architect the complainant was constrained to issue legal notice as Ex.P8 calling upon the OP to refund the advance amount.  The OP has issued a reply as Ex.P10 requested time till 05.08.2023 to respond to the legal notice. After that the OP has not completed the work and abondoned the work.

17. Inspite of service of the notice the OP remained absent. The entire evidence and the documents filed by the complainant and the allegations made in the complaint are remained unchallenged. There is no reason to disbelieve the evidence and documents of the complainant.
18. When the OP has agreed to complete the job work taken by him as per the instructions of the complainant and architect PW2 the OP has to do the work as per the instructions.  It is clear that even though the OP was provided with specific and detailed instructions the OP has failed to complete the job work within the specified period.  The work done by the OP was wholly unsatisfactory and there was several defects in developing the furniture and performing the job work. Inspite of the specific instructions given by the complainant the OP has not instructed his labourers to do the work as per the design and instructions given by the architect PW2 and it caused the poor quality of the work. The OP has received an advance amount of Rs.15,00,000/- inspite of that the OP has not at all engaged the competent and skilled labourers to carry out the job work as per the instructions of the architect and the complainant and abandoned the work without completing the same and thereby committed deficiency and unfair trade practice which caused disappointment, monitory loss to the complainant.

19. The OP would have completed the work as agreed by him. Due to incompletion of the work the complainant was made to engage another contractor to complete the incomplete work left by the OP.  
20. The complainant has also relied on the decisions of the Hon’ble Supreme Court in Lucknow Development Authority –vs- M.K.Gupta and also Experion Developers Pvt. Ltd., -vs- Sushma Ashok Shiroor.

21. The complainant has clearly established the deficiency in service and also the negligence and unfair trade practice on the part of the OP, therefore the complainant is entitle for the relief. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

22. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is hereby directed to refund Rs.15,00,000/- with interest at 10% p.a., from the respective payment till realization.
3. The OP is further directed to pay litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.15,00,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^TH day of JANUARY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL