DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.375/18
Anubhav Jain
S/o Sri Deepak Jain
R/o D-31, Press Enclave
Saket, New Delhi-110017. .…Complainant
VERSUS
M/s In Deccor Solutions Pvt.Ltd.
198/30, Fali No. 5, 4th Floor
Ramesh Market
East of Kailash
New Delhi-110065.
M/s Asian Paints Pvt. Ltd.
Asian Pains House
6A, Shantinagar, Santacruz (E)
Mumbai-400055. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Salil Bhattarcharya for complainant.
Present: Adv. Rishay Raj, proxy counsel for Adv. Prithivi Gulati for OP.
ORDER
Date of Institution:17.12.2018
Date of Order :10.10.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking reimburse Rs.1,74,000/- paid by the complainant; pay Rs.1,00,000/- as damages for sufferings and Rs.30,000/- towards legal expenses. OP-1 is M/s Deccor Solutions Pvt. Ltd. and OP-2 is Asian Paints Pvt. Ltd.
- It is stated by the complainant that the complainant contacted OP-2 for home renovation work and then one Mohd. Ali from OP-1 on behalf of OP-2 contacted the complainant and informed him that he will be executing the renovation work.
- It is the case of the complainant that the sole grievance of the complainant is that even after receiving the full payment of Rs.1,74,000/- OP did not complete the home renovation/ painting work undertaken by them and left the job unfinished and did not complete it even after assuring the complainant for the same on several occasions through emails and through verbal communications as well. It is stated that both the OPs have accepted in their respective written statements that they have received the complete payment of Rs.1,74,000/- from the complainant.
- It is stated by the complainant that it has been mentioned in various emails sent in the month of November 2017 by the OPs that pain work done by them is defective and they will send the applicator/painter and the “rectification work” will be approximately take three days. But nobody came up for rectification work. It is further stated that since then the OPs have even stopped responding to the emails of the complainant.
- It is further stated that being unsatisfied with the quality of work and unreasonable time duration consumed, the complainant on various occasions brought his grievances to the knowledge of the OP-2 through emails. On each occasion false promises were made by the OP-1 & 2 but all reliance and cooperation made by the complainant went in vain as the quality work as promised was not delivered.
- It is stated that since then neither anyone has turned up for the repair work nor is anyone answering the calls of the complainant. That even after charging such a huge amount, the OPs have failed to deliver the promised quality of work. The essence of refurnishing the house and enjoy the property was tarnished by the professional misconduct of OPs which has caused huge mental agony to the complainant.
- Further it is stated that on account of the failure of the OPs in delivering the renovation/painting services as promised by them and leaving the house of the complainant unfinished, the complainant had to hire new painters to complete the paint job let unfinished by the OPs which added to the financial and mental agony of the complainant.
- Complainant has further stated that it is apposite to mention here that to support their spurious claims of finishing the work, the OPs have pasted a few anonymous photographs but at the same time forgot to mention as and when pictures were taken and there is no Section 65-B of the Evidence Act certificate to substantiate their claim.
- It is stated that pertinently after filing of the present complaint Mr. Ali called the complainant over his phone and asked the complainant to withdraw and also assured to complete the remaining paint job.
- It is further stated that Mr. Ali from OP-1 to cover up his wrong doings and to escape his responsibilities, sent an email dated 14.11.2017 stating that the work has been completed but on the other hand, Head Customer Service – South Delhi wrote an email dated 21.12.2017 and assured the complainant that Mr. Ankit and Mr. Ali will visit the house of the complainant and based upon their assessment, correction job will be done. Thereafter Mr. Ankit alone visited the house but since then the OPs stopped interacting and responding to calls and emails of the complainant.
- In their reply, OP-1 submitted that the present complaint filed by the complainant is frivolous and is not based on any evidence presented by the complainant. It is submitted that the complainant has suppressed the material facts before the Commission and has approached this Commission with unclean hands. It is submitted that the complainant has also engaged carpenters and electricians to work simultaneously at the site, which was not informed by the complainant to OP-1 at the time of contract. OP-1 must get unhindered access to the premises of the complainant to complete the work on time. It is further not disclosed by the complainant in his complaint that he has made changes to the original proposal from time to time due to which the revised estimates were given to him. Further it is pertinent to mention that the complaint of the complainant is based on false and incorrect statements and does not disclose any cause of action.
- It is stated by the OP-1 that the complainant has on numerous occasions revised the application area and the products to be used which was the reason for giving the revised quotation to the complainant. All these material facts were not disclosed by the complainant with the malafide intent to mislead this Hon’ble Commission. Hence the present complaint is liable to be dismissed on this ground alone.
- It is stated by the OP-1 that it has extended due and proper support to the complainant. The OPs have faced numerous challenges while working at the site of the complainant which includes the difficulties faced by the OPs to do repair works due to damages caused by simultaneous functioning of the electricians and other works which was conducted by the complainant in clear contravention of the terms of the contract.
- It is further stated that painting work is done after all the electrical and other works are completed in case the paintwork is done before completing such works which has the potential of damaging the painted wall and will result in the damage to the painted surface and the said surface will then have to be again repainted and rectified which is a time consuming and labour intensive process. It is further submitted that the defects as alleged by the complainant which were unlevelled POP, plaster cracks, POP cracks are not covered under the purview of the painting defect and the same resulted from the structural defects in the application surface (provided in annexure A of the reply filed by OP-2).
- It is further submitted that the change in the quotation was due to the changes in the products by the complainant and the same does not display any unfair practice on the part of the OPs the same was also agreed by the complainant and he has made payment against the same. The first quotation was revised due to the change in the product previously selected. Subsequently the complainant again changed the wood polish in the third quotation. The quotation was sent to the complainant after revision of rates in quotation which was duly agreed by the complainant. It is stated that the complainant has not produced any evidence to establish that he raised any objection to the change in quotation. Further he also made payment to that effect, which confirms that he was agreeable to the changed quotation which was changed at the behest of the complainant. It is pertinent to mention that the story regarding the discount coupon is incorrect and is an afterthought.
- It is further stated by the OP that when the complainant has raised the complaint regarding the service provided by OP-1. OP-1 duly sent its employees to the address the concerns of the complainant. The complainant however, refused to allow the applicator to look into the concerns raised by the complainant. It is further pertinent to mention here that the ambit of the contract between the OP-1 and the complainant did not include repair work to be done once the painting work is completed.
- The OP has relied on the case of The branch Manager, Indigo Airlines, Kokata & Anr. Vs. Kalpana Rani Debbarma & Ors. Civil Appeal Nos.778-779/2020, Hon’ble Apex Court held that the deficiency in service must be established in terms of the stated Contractual obligation.
“The present appeals emanate from the complaint filed before the consumer fora. While dealing with such a complaint, the jurisdiction or the nature of enquiry to be undertaken by the consumer fora is limited to the factum of deficiency in service and to award compensation only if that fact is substantiated by the party alleging the same….at the cost of repetition, we hold that the deficiency in service must be ascribed only in respect of the stated contractual obligations of the parties.”
- It is further stated that the painting work contracted by the OPs did not contain in its ambit the repair works hence there is no deficiency of service on the part of the OPs. As the complainant has not duly completed the work as per the contract and the damages done to the application surface by the simultaneous or subsequent working of fitting and fixtures by the complainant can in no way be attributed to the OPs, if any. It is the sole liability of the complainant and the OPs have no role to pay in the same.
- It is further stated that it is the complainant who has acted in contravention of the contractual terms by not handing over the site to the OP-1 without any hindrance, cannot claim damages for deficiency in service. It is submitted that due to the act of the complainant OP-1 could not discharge its part of the contract within stipulated time and there was minor delay in completing the work which was the direct result of the action of the complainant. The party which has acted and contributed to the cause of the delay and the damage to the already painted surface cannot claim any damages for the same.
- It is stated that the essential element of the deficiency of service has not been established by the complainant by leading evidence. Before a finding of deficiency of service is made it has to be established that the action of the OP was deliberate and malafide. A genuine attempt to address the concerns raised by the complainant cannot be used to establish the deficiency of service. In case of bona fide action, no finding of deficiency of service can be made by the Consumer Commission.
- OP has relied on Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr (2000) 1 SCC 66 wherein Hon’ble SC established the principle to assess and determine deficiency in service.
- In his rejoinder, complainant has mostly denied the averments made by OPs in the reply and has stated that OP is just trying to hide its fault by shifting blame to the complainant. It is stated that the painters who were deployed were highly incapable and unprofessional who could not complete the work and stopped coming all of a sudden. It is stated that the workers/painters were irregular in attending the working and there was irregular supply of painting material. It is further stated that the worker to leave on the festival of Eid and did not come to complete the work.
- It is noticed that though the reply was filed by both the OPs and it was apprised later that OP-1 who was authorised dealer of OP-2 closed their business in October, 2022. OP 2 has filed its evidence. Both the parties have their respective evidence affidavits as well as written arguments. This Commission has gone through the entire material on record. Complainant has placed on record four quotations provided by the OPs including the service providers M/s Deccor Solutions Pvt. Ltd. i.e. OP-1. Complainant has placed on record the proof of payments made by him.
- It is seen from the emails placed on record by the complainant whereby the complainant has complained to OP regarding unfinished work was accepted by the OP and further assurance was given by the OP that the work would be completed however, the work was not completed within time. The complainant had raised the issue with the OP sometimes yet the work was not completed in time. It is also noticed that the complainant has not placed on record any bills etc reflecting that the pending work was completed through an independent agency. OP has also not placed on record any proof to show that the work suffered on account of independent works undertaken by the complaint like electricity etc.
Considering the said facts, this Commission is of the opinion that some deficiency of not completing the work in provided time frame and not competing the work in its entirety on the part of the OPs is made out and therefore OP 2 is directed to pay Rs. 20,000/- as compensation to the complainant for the said deficiency. This amount is to be paid within three months from the date of the pronouncement of the order failing which the said amount shall carry interest @ 4 % p.a till realization.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
