Counsel For Complainant : Mr. B. Krishnakumar, Advocate
Counsel For Opposite Part : Exparte
This Complaint is coming upon before us finally on 02.07.2015 in the presence of Mr. B. Krishnakumar, Advocate on the side of the complainant and for non- appearance on the side of the Opposite Party, he was Set Exparte and upon hearing arguments on the side of the Complainant and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
District Consumer Disputes Redressal Forum, Thiruvallur District.
This complaint is filed by the complainant U/S 12 consumer protection Act 1986 against the opposite party seeking direction to return the advance amount of Rs.1,00,000/- to the petitioner after deducting the cost of work done and to pay a compensation of Rs.1,00,000/- for mental agony and deficiency of service with a cost of Rs.10,000/-.
1. The complainant has engaged the opposite party as an Interior decorator for the newly purchased flat situated at Madipakkam, Chennai and he has contacted him over phone and engaged him to do the interim decoration work as a carpenter and a written contract was also entered in to between them on 21.12.2014 stipulating certain terms and conditions. The cost of work for a sum for a sum of Rs.2,74,040/- initially which amount has to be distributed in to three installments and the 1st installment of Rs.82,212/- was paid to him by cheque Dt.24.12.2013 under the cheque No.222411 by the complainant on that day itself as an advance. It was so agreed that the said two installment amounts was meant for the purchases of raw materials of wood to start the said work as soon as possible without any delay. But to the surprise and astonishment of the complainant the opposite party kept silent and mum for two weeks after realization of the said cheque amount without purchasing the raw materials from and out of the advance amount received by him. Instead he has come forward with another set of enhanced quotation on 9.1.2014 arriving to the tune of Rs.3,05,710/- and making it to a round figure of Rs.3 lakhs after deducting the fraction amount. Then the complainant without any hesitation even agreed for such enhanced quotation but with a stipulation confirmed with him that the work should be completed with a short period of two months. Then he has made a demand for some more amount of additional advance and for which the complainant has agreed and again a 2nd installment amount of Rs.1,30,000/- was paid to him by the complainant by cheque Dt.17.1.14 under the cheque No. 222413. But it so happened that he has taken the fullest undue advantage of it and maliciously dragging the work endlessly without completing the work for no fault to him there by paving the way for rumbling over phone with him repeatedly and unnecessarily to make him mend for doing the agreed work. The Opposite Party without completing the agreed work in time that too after swallowing the advance amount of Rs.2 Lakhs from the complainant. Which act is unsustainable in Law. The complainant is an engineer by profession and it has become a stumbling block for his official work and because of mental agony he is unable to concentrate on his official work because of prolonged delay of work caused by the opposite party without any rhyme or reason having received the 3/ 4th of the agreed amount. He has started his work only in the month march that too a delay of 2 months at the initial stage itself and he has done the work now completed only to the extent of less than 50% of the total work as agreed upon that too after strained verbal interaction with him through phone calls. Hence, he has issued a legal notice also on 09.06.2014 calling upon the opposite party to do the work as agreed upon but he has evoked no response till now nor completed the work. Therefore he is liable for compensating the damages caused to the complainant due to the delay and mental agony pain. Hence the complaint.
2. Initially the opposite party Represented though counsel and subsequently not appeared and in spite of sufficient time given for appearance and filing of written version, the opposite party has not utilized the same the opposite party was set Exparte. Eventhough, this forum wants to decide this case on merits.
3. On the side of the complainant, the proof affidavit is filed for his evidence and ExA1 to ExA8 are marked.
4. At the juncture, the main point for consideration before this forum is,
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
- To what other relief the complainant is entitled to?
5. Written arguments submitted by the complaint and the additional to that oral arguments also adduced.
6. Point No.1:- Regarding this point, on perusal of the complainant as well as the proof affidavit it is stated by the complainant that he has engaged the opposite party as an interior decorator for his newly purchased flat at Madipakkam, Chennai through internet and to that effect he entered into written contract with the opposite party on 21.12.2014 stipulating terms and conditions which is marked as ExA1. It is further stated that the opposite party has given the quotation ExA2 to the tune of Rs.2,74,040/- for the materials and cost of work and the additional quotation dated 9.1.2014 is marked as ExA3 for Rs. 3,05,710/- and the same was accepted by the complainant without any hesitation. ExA4 is the copy of computer design of interior decoration. Further, it is learnt that as per ExA1 agreement the complainant has paid Rs.82,212/- towards first installment by means of cheque bearing the No.222411 and paid Rs.1,30,000/- as 2nd installment through the cheque No.222413 and the same were encashed by the opposite party and the same has been proved by ExA7 &ExA8.
7. The complainant further averred that he has fullest belief over the opposite party trust him to complete the work in time but per contra, the opposite party without completing the work in time and swallowing the advance amount of Rs.2 lakhs and there by the action of him is highly reprehensible in law and it amounts to gross deficiency of service which is an unfair trade practice. More over whenever the complainant contacted the opposite party over phone, the opposite party has given evasive reply by stating that on completion of wood work, the decorates work will be completed soon and there by caused mental agony. The complainant stated further that only 50% of work only done now in spite of the hectic steps taken, the complainant was constrained to issue ExA5 legal notice to the opposite party and ExA6 is the acknowledgement card for the receipt of the same.
8. At the outset, on further perusal, it is crystal clear that the complainant proved fact of allegation made in the complaint against the opposite party. At the same time, regarding the fact of, “how much amount of work completed by the opposite party,” has not been fully pictured before this forum by the complainant. Therefore it is the duty of the complainant to prove the quantum of work done on taking steps to fix some of the technical person or expert in the field of interior decoration or any civil engineer, to inspect the property and obtained the expert report about the actual quantum of work done and the same to be brought into the knowledge of this forum, then only it can be easily to arrive the correct conclusion. But in fact, the complainant failed to do so. Therefore, in this aspect i.e. the quantum of 50% work only done by the opposite party, the complainant has not proved as contemplated.
9. While being so, the other aspects have been proved without any doubt by means of available documents and evidence. Not only that, the opposite party though received the ExA5 notice he was kept quiet and not replied till date, which can be taken as the opposite party has admitted all things. Moreover, in spite of sufficient time and opportunity given to the opposite party, he has not come forward to rebut the allegations made in the complaint and hence, it goes without saying that there is no contra evidence. Therefore, this forum can easily be drawn the adverse inference against the opposite party. Thus the point No. 1 is answered accordingly.
10. Point No.2:- In view of the conclusion arrived in the point No.1, the opposite party has committed the deficiency of service and reveals the unfair trade practice due to the non- completion of work undertaken in time as agreed by him. But at the same time, as discussed in the point No.1 the actual amount of work done by the opposite party has not been completely proved by the complainant through reliable evidence and hence, regarding the return of advance amount of Rs.1,00,000/- is not sustainable. Regarding other reliefs, the complainant is entitled to get as contemplated under law.
11. In such circumstances, on considering the above discussion and observation, it is concluded that the complainant is entitled to get the reasonable compensation towards mental agony and sufferings and the cost. Thus the point No. 1 is answered accordingly.
In the Result, this complaint is allowed in part. Accordingly, the Opposite party is directed to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards Compensation and a cost of Rs.3,000/- (Rupees Three Thousand Only) Total Rs.23,000/- (Rupees Twenty Three Thousand Only).
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% P.A. till the date of payment.
Dictated directly by the president to the Steno-typist, transcribed and computerized by her, corrected by the president and pronounced by us in the open forum on this the 6th July – 2015.
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MEMBER-I MEMBER-II PRESIDENT
List Of Complainant Documents:
Ex.A1. Dt.21.12.2013 - Xerox Copy of Letter of Agreement between
the Complainant and Opposite Party
Ex.A2. Dt. 21.12.2013 - Xerox Copy of List Quotation for the cost of
work
Ex.A3. Dt. 09.01.2014 - Xerox Copy of Additional Quotation for the
cost of work
Ex.A4. Dt. - - Xerox Copy of Interior Computer Design
work
Ex.A5. Dt. 09.06.2014 - Xerox Copy of Legal Notice
Ex.A6. Dt. - - Xerox Copy of Notice with Acknowledge
- ment Card
Ex.A7. Dt. - - Xerox Copy of Statement Account
Ex.A8. Dt. - - Xerox Copy of interior designer &
Decorators
List of Opposite Party Document: - Nil –
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MEMBER –I MEMBER –II PRESIDENT
