Punjab

Rupnagar

CC/18/65

Satish Kumar Sharma - Complainant(s)

Versus

M/S Oak Super Block Industries - Opp.Party(s)

Sh.Vivek Kumar ,Adv

06 Feb 2019

ORDER

THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                  Consumer Complaint No. : 65 of 06.08.2018

                                  Date of decision           :    06.02.2019

 

Satish Kumar Sharma, aged about 54 years, son of Sh. Ram Asra, resident of Village Bainspur, PO Sukhsal, Tehsil Nangal, District Ropar.  

                                                                    ......Complainant

                                             Versus

1. M/s Oak Super Block Industries Plot No.28, IFP Naya Nangal, Tehsil Nangal, District Ropar (Pb.) through its Managing Director 
2. Amandeep @ Aman Gupta Manager/Vendor of M/s Oak Super Block Industries Plot No.28, IFP Naya Nangal, Tehsil Nangal, District Ropar (Pb)   

   ....Opposite Parties

                                    Complaint under Section 12 of the                                               Consumer Protection Act, 1986

QUORUM

 

                         SH. KARNAIL SINGH AHHI, PRESIDENT

                         CAPT. YUVINDER SINGH MATTA, MEMBER

 

ARGUED BY

 

Sh. V.K. Soni, Adv. counsel for complainant  

Sh. Anuj Thakur, Adv. counsel for Ops 

 

                                             ORDER

               SH. KARNAIL SINGH AHHI, PRESIDENT

1. Sh. Satish Kumar, son of Ram Asra, resident of Village Bainspur, PO Sukhsal, Tehsil Nangal, District Ropar, has filed the present complaint seeking directions to the opposite parties to reinstall the cemented pavers after levelling the surface/earth with solid base; to pay Rs.2,00,000/- for harassing the complainant mentally as well as financially; to pay Rs.20,000/- as litigation expenses; any other relief which this Hon’ble Forum deems fit in the special circumstances of the case may also be granted to the complainant and as against the O.Ps., in the interest of justice. 
2. Brief facts made out from the complaint are that O.P. No.1 is running an industry under the name and style of M/s Oak Super Block Industries Plot No.28, IFP Naya Nangal, Tehsil Nangal, District Ropar, which deals with the manufacture and installation of different types of cemented pavers. In the month of July, 2016, the complainant decided to get installed the cemented pavers in the outside area of his newly built residential house and the area of the pavers was approximately 1500 Sq. Ft. For the purpose of above said installation of cemented pavers, the complainant approached OP No.2 and on spot discussions were carried out regarding the technical, commercial and financial aspects of laying of pavers.  Consequently, in the first week of August, 2016, the OP No.2 along with another person visited the spot. After detailed inspection and measurement of the said area, OP NO.2 told the complainant that the installation of pavers would cost him Rs.1,10,000/- in lump sum, which included the leveling of surface with solid base as it is necessary for the strength of installation of cemented pavers. On that occasion, he also assured him that after levelling the surface with earth with solid base the paver will get the requisite strength and even the heavy tipper could easily move on the said installation without any effect. As per the said assurance of OP No.2 for installation of pavers, the complainant agreed to his proposal and gave him Rs.1,10,000/- in advance and after receiving the same in the last week of August, 2016, the technical team of above said industry started the agreed work. During the pendency of the said work the complainant had to leave for Australia on 3^rd of September 2016 and in his absence the above said team completed the work of the said installation and OP No.2 intimated  about the same to the complainant telephonically. It is further stated that after returning from Australia, in the last week of June 2018, the complainant initiated the pending work of his house i.e. plastering concrete flooring etc, and for removing the waste soil, malba etc. which was stocked by the labourers and mason of O.Ps. in the above said outside area and also by other masons in rooms of his house. When the tractor towed the trolley loaded with the earth, malba, waste material and drove over the said pavers on the passage, the pavers gave way and the passage was depressed by two to four inches at different places. On that occasion the complainant immediately intimated OP No.2 about the said facts telephonically and by sending the photographs of the spot with a request to visit the spot and inspect the pavers installed by him but the OP neither visited the spot nor did he make any efforts to resolve the above said issue till date inspite of repeated requests. Hence, this complaint. 
3. On notice, O.Ps. No.1 &2 appeared through counsel and filed written reply taking preliminary objections; that the present complaint is not maintainable; that the complaint is not consumer; that the complainant has no locus standi to file the present complaint; that the complainant has not come to court with clean hands and has suppressed the real and material facts from this Hon’ble Forum; that the complainant has filed the present complaint only to harass and humiliate the answering O.Ps.; that the complaint of the complainant is bad for mis joinder and non joinder of the necessary parties; that the complaint is hopelessly time barred and same is liable to be dismissed; that there is no contract/agreement between the complainant and answering O.Ps. regarding the installation of pavers. On merits, it is stated that the OP No. 1 is proprietor of M/s Oak Super Block Industries and OP No.2 is the son of OP No.1. It is clear that the answering OP No.1 is doing the business of manufacturing and selling the pavers only and she is not doing any work of installation of pavers. The answering OP No.1 has supplied only pavers to the complainant as per the choice and demand of the complainant in the month of July 2016 and the answering OP No.1 has not installed the pavers. In the month of July 2016, the complainant contacted the OP No.2 to provide him a person who could install the pavers as the complainant is residing abroad and he has no knowledge of a local person for the installation of the pavers, then the answering OP No.2 contacted Sh. Vinod and introduced him to the complainant and then the complainant had discussed with him for the installation of pavers and settled the amount for the installation of the pavers at the site of complainant as per the instructions and material provided by the complainant. There is no dispute regarding the manufacturing of the material of the answering O.Ps. However, the alleged dispute is regarding installation of pavers only and not regarding the manufacturing defect of the pavers. So there is no deficiency in service on the part of the answering O.P. No.1. The complainant had given Rs.75,000/-  as cost of the pavers and Rs.35,000/- of labour work totaling to Rs.1,10,000/- to OP No.2 for giving the same to Sh. Vinod  as labour charges after completion of work and requested the answering OP NO.2 to check the work of fixation of pavers as the complainant was in hurry to go abroad. The O.P. No.2 gave the said amount to Sh. Vinod as per instructions of the complainant after the completion of the work. O.P. No.2 alleged that the complainant had not provided the proper material as per the specification for the installation of pavers nor made surface levelled and due to this reason the complainant had suffered with the said problem. All the work had been done in the presence of the family members of the complainant and as per the material provided by the family of the complainant and as per the instructions and specification of the complainant and his family. There is no defect in the manufacturing of pavers supplied by the answering OP No.1 to the complainant. The O.Ps. were cooperating with the complainant being a customer of O.P. No.1 only with regard to purchase of pavers. The procedure for installation of the pavers is duly shown in the site plan. But the complainant has not installed the pavers as per the site plan. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

4.     On being called upon to do so, the learned counsel for the complainant has tendered original photographs Ex.C1 to Ex.C3, copy of mail conversation between the complainant and OP2 vide Ex.C4 and closed the evidence. The learned counsel for the O.Ps. tendred copy of Registration Certificate Ex.OP1, Original Certificate of Base Development Section of Pavers Ex.OP2 and closed the evidence.    

5.     We have heard the learned counsel for the parties and have gone through the record of the file, carefully.

6.     Complainant counsel Sh. V.K. Soni, had argued that in the month of July, 2016, complainant visited the O.Ps. to get installed the cement pavers outside area of his newly built residential house at the given address, which is about 1500 Sq. Ft. For this purpose complainant approached the O.ps. and it was settled between the complainant O.P. No.2, who visited the spot that the total expenses would be Rs.1,10,000/- in lum sum with the division of Rs.75,000/- towards brick pavers and Rs.35,000/- towards labour for laying of concrete base/raw materials etc. As per the settlement, O.P. No.2 in his supervision started the work by charging Rs.1,10,000/-. When the complainant returned from Australia in the last week of June 2018, he saw the malba material was stocked on the brick pavers and when his driver drove the tractor/trolley loaded with the malba towards main gate then pavers got depressed 2 to 4 inches at different places. Complainant informed these facts to the O.Ps. through mail. O.Ps. initially denied then agreed for fresh paving with the rider that the charges/expenses whatsoever occurred would be shared equally but this proposal of the O.Ps. was declined by the complainant. Learned counsel of the complainant by referring to the documentary evidence, argued that deficiency on the part of O.Ps. stands established. O.P. No.2 did the labour of fixation of pavers work under his supervision not to the satisfaction of the complainant/as per the oral settlement and the deficiency admitted through Ex.C4. Lastly prayed to allow the complaint with costs.

7.     Sh. Anuj Thakur, Advocate, appeared for the O.Ps., contested the complaint by tendering evidence by way of affidavit and the learned counsel argued that O.P. No.1 only supplied the material i.e. brick pavers of the price of Rs.75,000/-. Whereas, the labour charges are paid to one Vinod Kumar, who is not impleaded as party in this complaint. The complaint is bad for non impleading the necessary parties i.e.  Vinod Kumar. He also argued that O.P. No.2 was unnecessarily dragged in this litigation as O.P. No.2 i.e Aman Gupta has facilitated the complainant's work by further engaging one Vinod Kumar. Complainant made the payment of Rs.35,000/- as labour charges that was further entrusted to Vinod Kumar and lastly prayed that no deficiency has been proved by the complainant on the file, moreso, out of the way O.Ps. had agreed for the repair by bearing 50% expenses but this proposal was declined by the complainant. Lastly prayed that complaint is without merit and same be dismissed.

8.     Complainant is resident of District Ropar, Tehsil Nangal, O.Ps. are also of the same district. Complainant approached the O.Ps. for brickpaving and paid Rs.1,10,000/-. O.Ps. in reply admitted the payment and admitted the work done. Though, qua the work there is no document on the file but oral assertions are admitted by the O.Ps. made by the complainant. Further O.Ps. admitted for repair bearing 50% expenses. In this way, it is a consumer dispute, complaint is maintainable and this forum has territorial jurisdiction.

9.     Coming to the deficiency part, whether the complainant has been able to prove deficiency on the part of O.Ps. or not. As discussed in earlier part of the order, complainant paid Rs.1,10,000/- to the O.Ps and O.Ps. supplied the brick pavers for Rs.75,000/- and then received payment of Rs.35,000/- towards labour expenses. So, O.Ps. admitted the receipt of Rs.1,10,000/- from the complainant.

10.   O.Ps. pleaded in the reply as well in arguments that one Vinod Kumar did work to the satisfaction of the complainant to whom paid Rs.35,000/- but the main conversation is silent qua the name of Vinod Kumar. Moreso, the complainant paid Rs.35,000/- to O.P. No.2, (Aman Gupta) and no evidence has come on file by either of the O.Ps. regarding payment of Rs.35,000/- to Vinod Kumar, whether it was Rs.35,000/- or more than or less than Rs.35,000/-. So no benefit can be extended to the O.Ps. on the ground of non impleading Vinod Kumar. arguments on this issue is without merit. The Complainant has placed on file photographs of the brick paving Ex.C1 to Ex.C3. Even photographs are not denied by the OPs. counsel as well as the proprietor of O.P. No.1. From the close scrutiny of the photographs the deep wedges between the brick pavers are visible. Further some pavers are full of sand and some are broken too. The material documents, which is placed on file by complainant is Ex.C4 (mail conversation) and this document is not denied by the O.Ps. Complainant from time to time informed the OPs. and pointed out deficiency. From the email conversation it is seen that initially the OPs. denied but lateron at page No.2 of Ex.C4, Aman Pavers O.P. No.2 has given the consent which is as follows:

        Aman Pavers: “Sir the repair will be paid we can share 50% the only base is not the reason for pavers to settle. Base was laid only a layer of gatka how can one assure what is below the gatka and who laid it how laid it how much compacted what were the specifications followed. Please confirm we can share 50% as a gesture after two years".

        "Aman Pavers: if you confirm I will send a person to check and share estimate subject to availability of labor we will share date of repair"

        In reply to the above said request, complainant denied by way of following conversation.

        "Why should I had to hire another agency and labour to know specifications & laying of gatka etc. I don't need any gesture, it is matter of business deal/professional ethics. No, I will not spend even a penny on it until unless law agency would find fault with me or the place of Pavers installation and order me to pay. And you just see the amount I had paid for it. You never said, life of work was two years".

11.   This forum has closely securitized pleadings, reply/affidavit of O.Ps. and the star document Ex.C4. Its relevant portion has already been reproduced in earlier part of the order. The forum after discussion has come to the conclusion that deficiency on the part of O.Ps. stands fully established. O.Ps. sold the pavers of 1500 Sq.Ft along with cost of its paving including mason charges as well as the material and Rs.1,10,000/- received by the O.P. No.2 from the complainant. When such a huge amount has already been received and the area is only of 1500 Sq.Ft then why the complainant has to bear again 50% of the expenses either for its repair or for fixation for fresh pavers. So complaint is having a merit, whereas O.Ps. remain unable in satisfying the forum.

12.   In the light of discussion made above, the complaint stands allowed with the directions to the OPs. that OPs shall refix the brick pavers by the relaying concrete/base, reuse the unbroken pavers and replace the broken pavers to the satisfaction of the complainant within a period of 60 days from the date of receipt of certified copy of this order. The entire expenses shall be borne by the O.Ps, failing which the complainant is entitled Rs.1,10,000/- along with interest @ 8% per annum from July, 2016 with cost of Rs.25,000/-.   

13. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.          

 

                      ANNOUNCED                                   (KARNAIL SINGH AHHI)

                      Dated.21.12.2018                              PRESIDENT
 

 

 

 

                                                (CAPT. YUVINDER SINGH MATTA)

                                                                      MEMBER