Date of Filing : 09.04.2019
Date of Disposal: 28.10.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L., ....MEMBER-II
CC. No.23/2019
THIS FRIDAY, THE 28th DAY OF OCTOBER 2022
M/s.Annai Aravindh Herbals,
Rep. by its partner B.Selvaraj,
S/o.Bhimaraja,
No.1,2 & 3, Seemanthamman Colony,
Maduravoyal, Chennai -600 095. .........Complainant.
//Vs//
M/s.Offcentered Infracturcture,
Rep. by its partner Mr.J.Jerry Meshac,
Flat –G, Gilly Flower Apartments,
No.46/6, L-Block, 23rd Street,
Anna Nagar East, Chennai 102. ...Opposite party.
Counsel for the complainant : M/s.J.Franklin, Advocate.
Counsel for the opposite party : M/s.R.Karunakaran, Advocate
The complaint was heard by us on various dates and finally on 11.10.2022 in the presence M/s.J.Franklin Advocate, counsel for complainant and M/s.R.Karunakaran Advocate, counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service in the construction made by the opposite party along with a prayer to direct the opposite party to pay a sum of Rs.5,00,000/- towards compensation for the mental agony cuased to the complainant due to the deficiency of service.
Summary of facts culminating into complaint:-
It was the case of the complainant that the opposite party was an interior contract company and for the purpose of constructing a yoga studio the complainant had availed their service. On November 2017, the opposite party gave an initial quotation for construction for Rs.10,65,300/- for which the complainant never negotiated the amount due to complete trust on the opposite party. Since 08.12.2017 the opposite party started the work but the initial galvalume frame work did not look strong and it was trembling. However, when questioned by the complainant, the opposite party assured that they would complete the work in a good condition. The gauge thickness was only 2mm whereas it was mentioned as 4mm in the quotation. When the same was questioned the opposite party abandoned and left the work in unfinished stage from 16.02.2018. In this regard on 10.03.2018 the complainant conducted an inspection by a private consultant viz. Murugu Consultant and they reported that the steel roof was deflecting in its dead load itself and was not designed for as per any Indian standard code. The observation made by Murugu Consultant was informed by the complainant to the opposite party. Further the complainant compelled the opposite party to finish the work with quality and standards. The complainant made repeated requests with the opposite party but the opposite party need extra amount after only they would rectify the defective work. The complainant believed opposite party’s words and paid Rs.1,02,246/- on 27.04.2018. Hence the complainant had paid the entire amount which was estimated by the opposite party for the structure. Still the opposite party did not come forward to rectify the defective work. When questioned the opposite party, they threatened the complainant. Thus aggrieved by the act of the opposite party the present complaint was filed to direct the opposite party to pay a sum of Rs.5,00,000/- towards compensation for the mental agony.
Crux of the defence put forth by the opposite party:-
The opposite party filed version stating that the complainant and his daughter jointly approached the opposite party for erecting a single skin galvalume roof structure with glass roof partially done at their open yoga studio in their commercial building and he had given a quotation for the same on 04.09.2017 with specification and unit rate costing with a tentative area statement and the same has been finalized, signed and approved by the complainant and his daughter. It is submitted that he had received a part payment of advance on 06.11.2017 and the balance payment of advance on 15.12.2017 whereas the work started as per agreed terms and conditions on 16.12.2017. Further the opposite party had completed all the stages as per the design approved by the complainant and the Architect as per the schedule. The opposite party had originally completed the entire project on 16.12.2018 which was much before the promised delivery date. It was further submitted that he asked for the completion certificate for raising the final bill for which the complainant and the architect asked the opposite party to redo the glass roofing part to be sloped down from existing 3”slope to 6” which is an additional work which incurs additional costing from the opposite party’s scope and the same has also been intimated to the complainant and the same was agreed by him. The re-work as per the revised design requirement was started on 23.03.2018 and the same has been completed with the glass re-work on 05.04.2018. Initially, during signing the agreement on 04.12.2018 an estimate was given for Rs.10,41,940/- out off which Rs.9,39,194/- is been paid by the complainant during the progress of work. When the actual work and the re-work has been completed, the total bill for the actual work along with additional cost was generated on 10.04.2018 for an amount of Rs.12,87,816.60/- and was handed over to the complainant in person for which the complainant had promised to pay the balance amount sum of Rs.3,83,622.60/- on 10.04.2018 but the complainant did not pay the balance amount. After continuous calls an amount of Rs. 1,02,246/- was paid by the complainant on 27.04.2018 out off Rs.3,83,622.60/-. It is submitted that he has a photocopy of the work done by him and also can prove that the complainant has been using the product till date single skin galvalume roofing and glass roofing erected by the opposite party. In these circumstances the opposite party filed a recovery of money suit against the complainant before the Hon’ble Poonamallee Subordinate Court in O.S.No.315 /2018. When the matter was referred to the Lok Adalat the complainant agreed to pay half of the amount but the opposite party did not agree as it would lead him and his concern to huge loss. Thus the opposite party sought for the dismissal of the complaint.
The complainant filed proof affidavit and documents Ex.A1 to Ex.A10 were marked on their side. On the side of opposite party proof affidavit was filed and documents Ex.B1 & Ex.B8 were filed by them.
Points for consideration:-
Whether the alleged deficiency in service in the matter of construction of galvalume by the opposite party and leaving the work in half way even after receipt of entire amount has been successfully proved by the complainant?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Estimation given by the opposite party to the complainant was marked as Ex.A1;
Final bill dated 27.04.2018 was marked as Ex.A2;
Letter to complainant by the opposite party requesting final payment dated 27.04.2018 was marked as Ex.A3;
Plan sketch for yoga studio given by the opposite party was marked as Ex.A4;
Legal notice sent by the complainant to the opposite party dated 13.12.2018 was marked as Ex.A5;
Reply notice sent by the opposite party to the complainant dated 28.12.2018 was marked as Ex.A6;
Letter of authorization was marked as Ex.A7;
Aadhar Card of the complainant was marked as Ex.A8;
Certificate of registration was marked as Ex.A9;
Murugu consultant observation dated 12.03.2018 was marked as Ex.A10;
On the side of the opposite party the following documents were filed in support of their contentions;
Estimation given by the opposite party was marked as Ex.B1;
Final bill dated 27.04.2018 was marked as Ex.B2;
Request letter for final payment dated 27.04.2018 was marked as Ex.B3;
Legal notice issued by the opposite party to the complainant dated 19.05.2018 was marked as Ex.B4;
Plaint copy in O.S.No.315/2018 was marked as Ex.B5;
Affidavit and petition to leave to defend in O.S.No.315/2018 filed by the complainant was marked as Ex.B6;
Counter for leave to defend petition filed by the opposite party was marked as Ex.B7;
Photos of the galvalume roof structure work done by the opposite party was marked as Ex.A8;
We perused the written arguments, pleadings and material evidences submitted by both the parties. As both the learned counsels endorsed that the written arguments filed by them may be treated as oral arguments, we decided to consider the written arguments filed by both the parities as oral arguments for disposal of the case on merit.
The crux of the case filed by the complainant is that the opposite party accepted for erection of galvalume roof with steel structure work for an amount of Rs.10,65,300/- and received entire amount but the opposite party had abandoned and left the work in unfinished stage when questioned by the complainant about the gauge thickness. Thus the complainant sought for compensation of Rs.5,00,000/- as damages from the opposite party.
However on the side of the opposite party it is contended that the complainant had committed default in payment and still there was a balance amount of Rs.2,46,377/- to be paid by the complainant for which a Civil Suit for recovery of money has been filed by the opposite party and the same is pending. Thus he prayed for the complaint to be dismissed contending that there is no deficiency in service on his part.
On appreciation of the material evidences we could see that the estimation given by the opposite party was Rs.12,57,054.00/- including GST. Final bill issued by the opposite party for yoga studio roofing work dated 27.04.2018 for an amount of Rs.12,87,816.60/-was filed as Ex.A2 and it is also found in the said document that the payment was received for Rs.10,41,440/- and an amount of Rs.2,46,376/- was the balance to be payable by the complainant. Further the letter issued by the opposite party requesting for final payment of Rs.2,46,377/- dated 27.04.2018 has also been filed as Ex.A3. In the said document it is mentioned that the project was completed on 15.03.2018 and is available for measurement checking. The plan sketch for yoga studio was also marked as Ex.A4. The alleged Murugu consultant structural observation has been filed as Ex.A10 in which it is seen that the site had an issue with the newly erected steel roof and there was leak and further the steel roof was not designed for as per any Indian Standard Code. It is obviously seen from Ex.A2 and Ex.A3 that the opposite party had completed the construction and an amount of Rs.2,46,377/- was yet to be payable by the complainant. Ex B5 filed by the opposite party shows that a suit was filed for recovery of Rs.2,46,377/- from the complainant with 24% interest in which the complainant has also filed a petition seeking leave to defend. The opposite party also filed the photo of the galvalume roof structure work done for the complainant. When it is specifically alleged by the complainant that the structure made by the opposite party is not up to the satisfaction, merely filing a report by another consultant would not be helpful to conclude that the opposite party had made defective construction. No independent surveyor was appointed to assess the project and to file a report on the work done by the opposite party. An interested person’s Report who is not appointed by the commission could not be accepted by this commission. Further with regard to the payment, suit was filed as early as on 27.06.2018 much before the present complaint which was filed on 22.03.2019. As the complaint was filed only with regard to deficiency in service on the part of the opposite party with regard to construction we have no hesitation to hold that the said allegation was not proved by the complainant to the satisfaction of this commission by leading any acceptable evidence. In such circumstance we hold that the opposite party has not committed any deficiency in service to the complainant. Thus we answer the point accordingly.
Point No.2:-
As we have held above that the complainant had failed to prove any deficiency in service on the part of the opposite party, he is not entitled to any reliefs as claimed in the complaint from the opposite party. Thus we answer the point accordingly.
In the result, the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 28th day of October 2022.
Sd/- Sd/-
MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 .............. Estimation given by the opposite party to the complainant. Xerox
Ex.A2 27.04.2018 Final Bill. Xerox
Ex.A3 27.04.2018 Letter to complainant by the opposite party requesting final payment. Xerox
Ex.A4 .............. Plan sketch for yoga studio given by the opposite party. Xerox
Ex.A5 13.12.2018 Legal notice sent by the complainant to the opposite party. Xerox
Ex.A6 28.12.2018 Reply notice sent by the opposite party to the complainant. Xerox
Ex.A7 ............. Letter of Authorization. Xerox
Ex.A8 ............ Aadhar Card. Xerox
Ex.A9 ............. Certificate of Registration. Xerox
Ex.A10 12.03.2018 Murugu Consultant obseration. Xerox
List of documents filed by the opposite party:-
Ex.B1 ............. Copy of estimation. Xerox
Ex.B2 27.04.2017 Final Bill. Xerox
Ex.B3 27.04.2018 Request letter for final payment. Xerox
Ex.B4 19.05.2018 Legal notice issued by the opposite party to the complainant. Xerox
Ex.B5 .............. Plaint copy in O.S.No.315/2018. Xerox
Ex.B6 ........... Affidavit and petition to leave to defend in O.S.No.315/2018 filed by the complainant. Xerox
Ex.B7 .............. Counter for leave to defend petition filed by the opposite party. Xerox
Ex.B8 .............. Photos of the galvalume roof structure work done by the opposite party. Xerox
Sd/- Sd/-
MEMBER-II PRESIDENT
