<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 17th DECEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1585/2007<br /> <br /> <br /> COMPLAINANT Mr. Sandeep Kejriwal,<br /> S/o. Mr. Anil Kejriwal,<br /> Aged about 39 years,<br /> R/a, F-1202, Springfields,<br /> Sarjapur Main Road,<br /> Bangalore – 560 102.<br /> <br /> <br /> Advocate (S. Vinod)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Ms. Sirisha Damisetty &<br /> Ms. Aarti Pasoria,<br /> # 502, SMR Heights,<br /> 8th Cross, Church Road,<br /> Thippasandra,<br /> Bangalore – 560 075.<br /> Represented by its Partners<br /> Ms. Sirisha Damisetty &<br /> Ms. Aarti Pasoria.<br /> <br /> <br /> Advocate (K.P. Thrimurthy)<br /> <br /> <br /> 2. M/s. K.G.N. Baba Contractors,<br /> #55, 2nd Cross,<br /> Pragathipura, <br /> Bharat Nursing Home,<br /> Kanakapura Main Road,<br /> Bangalore – 560 078.<br /> Represented by its Proprietor<br /> Mr. Nisar. B.<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.2,92,600/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant availed the services of the civil work contractor OP.2 at the instance of OP.1 the interior designer and consultant to have the interior work done at his duplex apartment. An agreement for interior improvement work came to be executed by the OP’s in favour of the complainant on 15.09.2006. The total cost was for Rs.7,66,160/-. Complainant went on paying the said amount as and when demanded by OP as the work progressed. Unfortunately OP could not keep up their promise and complete the work within the stipulated time that is by 15.11.2006. The repeated requests and demands made by the complainant, have gone in vain. OP used the substandard quality material and they have not completed the said interior work as per the specification. Though they collected the entire cost of the work as per the agreement including the consultation fees, they failed to complete the work. The work that is done by the OP’s is only 75% as against the promise under the agreement. Hence OP’s are liable to refund 25% of the total amount paid by the complainant. Complainant did make repeated requests and demands to OP’s either to complete the said work or refund 25%, but it went in vain. That is why he felt the deficiency in service on the part of the OP’s. For no fault of his, he is made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On admission and registration of the complaint, notices were sent to the OP.1 and 2. Unfortunately inspite of information being dropped OP.1 and 2 remained absent. Hence OP.1 and 2 are placed ex-parte on 24th September 2007, complaint was partly allowed directing OP.1 and 2 jointly and severally to pay Rs.1,90,000/- to the complainant within 4 weeks from the date of communication of the order with a litigation cost of Rs.2,000/-.<br /> <br /> 3. Against the said order OP.1 preferred an Appeal No. 2589/2007 before the Hon’ble State Consumer Disputes Redressal Commission, Bangalore. The Hon’ble State Commission allowed the Appeal on payment of cost of Rs.10,000/- and remanded the matter to this Forum to dispose of the matter afresh after due notice to all the parties. On receipt of the kind order this Forum issued notice to both the parties. OP.1 appeared and paid cost of Rs.10,000/- to the complainant. Notice sent to OP.2 returned with an endorsement “no such person in this address”. OP.2 remained absent evenafter the notice by way of paper publication. We find that the service of the notice is sufficient. The absence of the OP.2 does not appears to be as bonafide and reasonable. Hence OP.2 is placed ex-parte.<br /> <br /> 4. On appearance OP.1 filed version mainly contending that complainant purchased a four bedroom duplex apartment at F-1202, spring fields, Sarjapur Main Road, Bangalore and engaged the services of the OP.1 for interior designing of his apartment. At the request of the complainant OP.1 recommended OP.2 a contractor for execution of the work. Complainant and OP’s entered into a tripartite agreement dated 15.09.2006. As per the agreement over all costs for interior improvement work, purchase of accessories, electrical fittings was fixed at Rs.7,66,160/- and consultation fee of Rs.55,000/- to be paid to OP.1 and last date fixed for completion of work was 15.11.2006. It was the responsibility of the OP.2 to complete the work specified by the complainant subject to complainant making timely payment to both the OP as per the schedule. He is not aware of payment of Rs.50,000/- on 15.09.2006 to OP.2 by the complainant. It is true complainant disbursed money through online to OP.1. He is not aware of the fact that complainant was living in leased apartment due to delay in completion of the work in his newly bought apartment. On 18.12.2006 complainant moved into his apartment. Complainant frequently use to change the specifications during the progress of the work. So 47% of the work listed in annexure A to the agreement was retained by complainant, 53% of work carried out by OP.2. Delay in completion of work was due to delay in payment of instalment by complainant. Complainant has not stated on what basis he came to the conclusion that the materials used were of sub-standard quality nor obtained any expert opinion in this regard. Wooden flooring by its very nature needs a season to settle, cracks, if they develop need to be filled and re-polished uneven surface if any was within acceptable ranges 3rd party who executed the wooden flooring was engaged by complainant himself. <br /> <br /> 5. It is further contended by OP.1 that only 4 vitrified floor tiles were damaged by the OP.2. As mentioned in the complaint such incidents are within acceptable damages at site in practice. Door’s handles are selected by complainant, mother and OP.2. As far as polishing work is concerned it is complainant who changed his mind and asked to change the polish colour which affected the quality to some extent for which OP.1 is not liable. At the instance of the complainant only electrical work was increased at site. OP.1 further contended that polishing of the furniture is not part of the contract. Complainant directly appointed Mr. Mujeeb. Complainant got the work done by OP.1 and has withheld a sum of Rs.10,000/- out of Rs.55,000/-. There is no allegation of deficiency in service on the part of OP.1. Among these grounds OP.1 prayed for dismissal of the complaint.<br /> <br /> 6. In order to substantiate the complaint averments, the complainant filed memo adopting the complainant’s affidavit evidence filed earlier along with the documents. OP.1 filed affidavit evidence and produced some documents. Both the parties have submitted their written arguments. OP.2 did not contest the matter.<br /> <br /> 7. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP’s?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> 8. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative <br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 9. At the outset it is not at dispute that the complainant availed the services of the civil work contractor. OP.2 at the instance of the OP.1 the interior designer and consultant to have the interior improvement work to be done at his duplex apartment. An agreement for interior improvement work came to be executed by the OP’s in favour of the complainant on 15.09.2006. The total cost was for Rs.7,66,160/-. Complainant went on paying the said amount as and when demanded by OP as the work progressed. Unfortunately OP’s could not keep up their promise and complete the work within the stipulated time i.e. on 15.11.2006. OP.1 shifted the burden on the OP.2 to complete the work to escape its liability. OP.1 accepts the damages to the vitrified tiles to some extent and also change in using the colour polish.<br /> <br /> 10. After the matter has been remanded to this Forum, complainant has not lead any fresh evidence. OP has not sought for appointment of a Commissioner to support its defence. If at all they have performed their part of contract as per agreement. When there is a proof of payment of huge amount by complainant, now duty cast upon OP to show that they did complete the work with specification as per agreement. We think OP failed in its attempt.<br /> <br /> 11. It is further contended by the complainant that he availed the services of both the OP’s jointly and severally for the interior improvement work of his duplex apartment. OP.1 being the interior designer and consultant introduced OP.2 who is the civil work contractor. Both of them agreed to carry out the said interior improvement work. An agreement to that effect came to be executed on 15.09.2006 for a total cost of Rs.7,66,160/- including the electrical fittings, consultation fee, etc. The agreement copy, copy of the receipts, photographs, copy of the estimate for rectification of defects are produced by the complainant.<br /> <br /> 12. It is further contended by the complainant that though he paid Rs.7,60,000/- on various dates, OP’s failed to complete the work as undertaken and promised. As against this the contention of the OP.1 that complainant use to change the specifications every now and then so 47% of the work was retained by the complainant could be not be accepted. OP.1 wants to breathe hot and cold. At one breathe he accepts damages caused use of inferior quality material in another breathe he blames OP.2 for that. Hence the approach of OP.1 does not appears to be fair. The defence set out is only for defence sake just to save its skin out of sin and avoid liability. <br /> <br /> 13. It is further contended by the complainant that OP’s failed to use the good quality material accessories as per the agreement. OP’s raised the bill for fully finished work and collected the payment. Because of non-completion of the interior work complainant was unable to occupy the said flat in time. For no fault of his, he was made to face both mental agony and financial loss. Even the 75% of the work done by the OP is not as per the specification, there are major deficiencies like cracks, uneven surface, inferior compartments, damages caused to the floor tiles, poor quality of plywood, vendors and accessories are not as per the specification. Further OP.1 admits that complainant moved into the apartment on 18.12.2006.<br /> <br /> 14. The complainant is able to establish that OP’s completed only 75% of the work as per the agreement and there is a proof of use of sub-standard quality material and damages being caused as contended by the complainant. Though complainant invested his hard earned money to the extent of Rs.7,60,000/- to get the interiors, he is unable to reap the fruits of his investment because of the carelessness, negligence and hostile attitude of the OP’s including breach of promise and agreement. The evidence of the complainant finds full corroboration with the contents of the complaint and the undisputed documents. <br /> <br /> 15. The very fact of the non-appearance of the OP.2 evenafter paper publication about the filing of the complaint leads us to draw an inference that OP.2 admits all the allegations made by the complainant. We are satisfied that the complainant is able to prove the deficiency in service on the part of the OP’s. The complainant is able to establish that 25% of the work as per the agreement is not done and his estimation of the cost of the remaining 25% of the work is Rs.1,90,000/- appears to be reasonable and genuine. Hence he is entitled for the relief claimed. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP.1 and 2 are jointly and severally directed to pay Rs.1,90,000/- to the complainant within 4 weeks from the date of communication of this order and also pay a litigation cost of Rs.2,000/-.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 17th day of December 2008.) <br /> <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> p.n.g. <br />