West Bengal

South 24 Parganas

CC/306/2014

SANJIB MUKHOPADHYAY - Complainant(s)

Versus

M/S. PROTECTOR, Proprietor: Biswajit Patra. - Opp.Party(s)

15 Nov 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _306   OF ___2014____

 

DATE OF FILING : 14.7.2014     DATE OF PASSING JUDGEMENT:      15/11/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu & Subrata Sarker              

 

COMPLAINANT                  :  Sanjib Mukhopadhyay, South Horizon, Flat no.7, Block-8, 108 Raja S.C. Mullick Road, P.S. Patuli, Kolkata -47.

 

-VERSUS  -

 

O.P/O.Ps                                :     M/s Protector, Proprietor:Biswajit Patra, 18/1, Central park (East), Jadavpur, Kolkata – 32. P.S Jadavpur.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that he handed over the repairing work for the roof area of his flat  to the O.P with a contractual amount of Rs.79,672.00 @Rs.92.00 per sq.ft for 866 sq.ft with  an warranty of ten years vide quotation dated 7.10.2013 . The O.P started construction of the repairing work by using worst and low cost materials with engagement of unskilled workforce for such type of delicate work with must unprofessional attitude. Though the complainant pointed out the faulty process for such work but the O.P turned a deaf ear to his opinion and continued the work. Complainant already paid Rs.60,000/- in three equal installments . All on a sudden the O.P declared that the work is completed and demanded Rs.19,652.00 . But a sudden rainfall revealed the ground reality. Water seepage started from all over the repaired area, numerous deep cracks revealed throughout the roof, intensity of dampness profound in many areas, water remained stagnant in various areas of roof. Under compulsion, complainant again contacted the O.P who also engaged unskilled labour and made some patch works on the roof  but the condition of the roof has not been changed at all. Hence, this case praying for direction upon the O.P to refund Rs.60,000/-, Rs.20,000/- compensation and Rs.10,000/- towards litigation cost etc.

            The O.P contested the case by filing written version and denied all the material allegations contained therein. The positive case of the O.P is that after completion of the entire work it was inspected by the Engineer appointed by the complainant who after inspection also approved the work

 

and during aforesaid repairing work the complainant insisted to do some additional work apart from the description of work which was also done on good faith . The O.P states that when the final bill was raised, complainant flatly refused to pay the balance amount on frivolous and vexatious pretext and complainant demanded refund of the amount . The O.P also has stated that complainant has filed the instant complaint with full knowledge and with intention to mislead this Ld. Court deliberately and mostly falsely producing forged documents and prays for dismissal of the case.

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

            All the points are taken for sake of convenience together as they are interlinked. 

            After perusing the complaint petition which is filed on affidavit through Notary, written version, evidence, questionnaire and reply of both the parties it is crystal clear that the complainant of the instant case paid Rs.60,000/- to the O.P for repairing the ceiling of the roof. Admittedly the O.P has given warranty of 10 years for repairing of the roof Annexure 1 filed by the complainant i.e. “Warranty:TEN years after completion of the job”.

            But immediately after completion of the repairing work it was found by the complainant that the water is pouring from here and there of the ceiling and the repairing work  is not at all satisfactory. In this regard as per order of this Forum ld. Engineer Commissioner was appointed by this Forum who has submitted his report on 12.11.2014. The qualification of the Engineer Commissioner is B Arch. (Cal), MTRP (Cal), Architect & valuer Regn. No.CA/77/374J. From the aforesaid facts and circumstances it is friendly undoubtedly opined by this Forum that as the complainant paid Rs.,60,000/- towards the repairing of the ceiling  in question to the O.P, complainant is a “Consumer” of the O.P under section 2(1)(d)(ii) of the C.P Act 1986. Thus point no.1 is discussed and it is in favour of the complainant.

            Now to decide whether the O.P is liable for deficiency in service and/or unfair trade practice and also whether the complainant is eligible to be compensated by the O.P following discussion is advanced.

            From the aforesaid report of the Engineer Commissioner dated 12.11.2014  it is perused that Engineer Commissioner has specifically mentioned that“….It is seen that the areas of roof has no monolithic concreting. It has several junction lines which are sealed by white sealant over the joint for protection of water seepage. The executed surface is found uneven and proper slope is not maintained as a result the water flow for outing of the heavy rain water through mouth of outlet is insufficient. So, water remains stagnant on certain areas of roof and water percolates through joints during rainy season. Moreover, the joints between parapet wall and roof (i.e. hallor) has been avoided during water proofing treatment. Therefore, precaution and restoration of damages are needed for longevity of roof from further decay”.

 

            As per that report of the ld. Engineer Commissioner we have no hesitation to hold that the roof in question is not properly repaired and repairing is faulty in every aspect. In this regard it is needed to be mentioned here that it is not desirable from any service provider to perform in the manner so that immediately after repairing of the object in question and moreover the O.P has given warranty of 10 years after completion of the job, whereas within a few days from the completion of the work water has started to be pouring in many sides of the roof. Therefore, it is crystal clear that this act of the O.P tantamount to not only deficiency in service under section 2(1)( o ) but also unfair trade practice  under section 2(1)® of the COPRA 1986 towards the complainant/consumer.  

            Ld. Advocate for the O.P has mentioned that the complainant himself engaged an Engineer and O.P performed repairing work as per his suggestion and so O.P is not liable for any deficiency in service. But in this regard it is our observation that the O.P himself has entered into an agreement with the complainant for repairing the roof  of the complainant and gave 10 years warranty after completion of the job. Therefore, O.P should not shrug off his responsibility shifting the burden of liabilities upon that engineer. Moreover, it is also fact that the O.P has miserably failed to submit a scrap of paper from where it could be established that he has done the job in question as per suggestion and direction of that Engineer.

            Therefore, in light of the above discussion we have no hesitation to hold that the O.P is liable for deficiency in rendering services towards the complainant/consumer and should refund the amount which was paid by the complainant as an advance for repairing of the roof to the O.P. Regarding the prayer of the complainant for compensation, it is opined by this Forum that due to the aforesaid inaction and deficiency in service of the O.P complainant has to suffer not only profuse loss but also it is very difficult for the complainant with his family to stay in that house, because water is pouring frequently from the roof causing tremendous harassment to the complainant with his family. Therefore, in this regard we are strictly of the opinion that complainant should be aptly compensated by the O.P.  and also refund the (consideration) which was paid by the Complainant to the O.P.

            Moreover, it is needed to be discussed that this instant case is a glaring example of deficiency in rendering services under section 2(1)( o ) of COPRA 1986 by the unscrupulous O.P  and also  unfair trade practice under section 2(1) (  r  ) of the COPRA 1986 adopted by the O.P who even after offering warranty of 10 years after completion of the job, performed in such a way so that  just within a few days from the completion of the job water has started pouring from the ceiling in question and even after repeated requests of the complainant the unruly unscrupulous O.P has denied to refund the amount which is paid by the complainant for repairing of the roof. Therefore, we feel this is a fit case to direct the O.P to pay punitive damage under section 14 of the C.P Act, 1986 to give a message to the service providers to restrain themselves from doing such type of act which amounts to deficiency in service and/or unfair trade practice any more for the interest of the consumer at large in the society, otherwise, usufructs of the Consumer Protection Act, 1986 will be highly frustrated.

            Thus all the points are discussed and all are in favour of the complainant and complaint case succeeds.

 

 

 

 

 

 

 

 

            Hence,

                                                                                    Ordered

That the case be and the same is allowed on contest with cost.

The O.P is directed to refund Rs.60,000/- to the complainant and also to pay compensation to the tune of Rs.20,000/- and litigation cost of Rs.5000/- within 30 days from the date of this order.

O.P is further directed to pay Rs.50,000/- towards punitive damage within 30 days from this date ,out of which, 50% will be paid to the complainant and the rest of the amount will be deposited in the Consumer Legal Aid Fund, failing which O.P shall pay accrued interest @10% p.a on the total decreetal amount to the complainant after the statutory period till full and final compliance of the order in its entirety.

Complainant is at liberty to execute the order through this Forum.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

Member                                   Member                                                                                   President                                

 

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

                                                                                                                                                                                                                        Ordered

That the case be and the same is allowed on contest with cost.

The O.P is directed to refund Rs.60,000/- to the complainant and also to pay compensation to the tune of Rs.20,000/- and litigation cost of Rs.5000/- within 30 days from the date of this order.

O.P is further directed to pay Rs.50,000/- towards punitive damage within 30 days from this date ,out of which, 50% will be paid to the complainant and the rest of the amount will be deposited in the Consumer Legal Aid Fund, failing which O.P shall pay accrued interest @10% p.a on the total decreetal amount to the complainant after the statutory period till full and final compliance of the order in its entirety.

Complainant is at liberty to execute the order through this Forum.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

Member                                   Member                                                                                   President