SMT. RAVI SUSHA: PRESIDENT
The complainant has been filed U/s 35 of Consumer Protection Act 2019 against the opposite party for getting a direction to return Rs.2,00,000/- for the remaining work which had to be completed in the complainant’s site, Rs. 17,00,000/- towards the poor quality work for amount spend to the 2nd contractor, Rs.3,00,000/- amount spent for house warming and Rs.10,00,000/- as compensation towards mental agony, stress and loss and other sufferings to the complainant together with interest @10% per annum till the date of payment along with cost of proceedings.
In brief the facts of the case are that the complainant is a professional at aboard. In order to fulfill his dream complainant contacted the OP for doing the interior design and certain incidental work of his home by selecting the firm of OP as it was introduced as one of the main professional in this field in Kannur district. The parties entered into an agreement for a sum of Rs.36,50,000/- for completing the work on or before 10/06/2019. As per the terms of the agreement the complainant paid Rs.10,00,000/- on 06/02/2019, Rs.10,00,000/- on 11/02/2019 and Rs.2,00,000/- on 12/02/2019 to OP. In total, the complainant paid the advance amount of Rs.22,00,000/- as requested by the OP. The OP assured their full team to complete the project before 10th June as per his working schedule attached to the agreement and repeated it by a mail sent after obtaining the signed agreement. The complainant paid Rs.10,00,000/- and obtained receipt on 11/02/2019. Though the OP started the work but it was running in very slow. He received Rs.32,00,000/- even before the agreed date even before agreed date of completion and on 18/06/2019, another Rs.3,00,000/- was also collected from the complainant. But the OP could not complete the project as agreed due to his own faults. All the other contract work like flooring and some other works not in the scope of work of OP were complete by the complaint as scheduled. The OP had been doing only name sake work at site due to his financial stringencies. He could not provide sufficient workers and materials in the site of this complainant. The OP on response asked the complaint to lend at least a sum of Rs.5,00,000/- in fourth week of July 2019 to support his financial stringency because according to him an amount of Rs.11,60,000/- was required to complete the complainant’s work. Later he had even stopped the work on 23/07/2019 by not sending the workers to the site and completely abandoned the work site. The OP left the site only by doing 10% of the contracted work b the 3rd week of July 2019. The complainant could not conduct house warming ceremony which he had planned. On 02/09/2019, the complainant texted the OP and described his sufferings. But the OP replied it on 24/09/2019 as his inability to complete work and assured to complete the work at the earliest. Though he had sent workers to the site and started work for GI railings and structure work, it was in poor quality. All most all works done by OP was very low quality. The works done by OP by the end of September and its defects were noticed to him by the complainant as per his mail dated 08/10/2019. As per mediation talk the OP again assured completes the work by 31/01/2020. But at same time the complainant had reported him that any further delay will not be tolerate and it may cause steps for compensating the losses sustained even for the beginning of the transaction. The OP assured good quality of the work and completes the work within the time frame. The complainant had promised to payment to some sort of additional work at the site after completing the earlier contract work. But without completing earlier contracted work, the OP continued to make demands for the additional payment for which no such work was carried out. On 3rd July 2020, the complainant explained the remaining work through his mail and informed his difficulty for not arranging house warming. Even after paying 98% of the project cost in advance the OP could not complete 60% of the work by the month of May 2020. So the complainant could not conduct house warming as scheduled several times. In addition to it the works carried out by the OP was having poor quality. In February 2020 OP stopped the work without completing the entire work as agreed in the agreement dated 21/10/2019. On 03/07/2020, the OP sent intimation to this complainant via E-mail that if the complainant wants to complete the work by the OP he has to pay extra amount. Further he also added that if the complainant is not ready to abide his condition better get the work completed by another contractor and he would not be liable for any loss which will incur in future. The complainant arranged another contractor to complete the work. The complainant had also done certain works by arranging coolie workers from his side. So the said loss will come around rs.25,00,000/-. The OP collected Rs.35,00,000/- from the complainant by falsely representing that the goods and service to be provided by him as per the contract are of good standard, quality and grade. But the promised quality and service were not in picture during his work. Hence this complaint.
OP admitting the engagement of work of the complainant’s Home Interior as described in Ext.A1, but opposed the allegations of the complainant arised in the present complaint. OP has filed written version stating that the entire claim of the complainant is false and fabricated and not supported by any data. OP contended that the averment in the complaint that there was an agreement to complete the work either by 10/06/2019 or any other specified date is denied. There was no written time bound contract between the complainant and OP. Time was not the essence of the undertaking entered into between the complainant and the OP. Many works agreed to be carried out by the OP, depended upon the other civil works to be completed by the complainant such as completion of the flooring work, the staircase slab grinding work, erection of the gate and many such civil works. Many finishing works which came under the scope of the OP could not be done as the OP wanted to, due to the default on the civil works completion which was at the total control and risk of the complainant. At the time of entrustment of the work itself the OP had made it clear that if there is any delay in the ongoing contract works like flooring and such other works which was given to the 3rd parties, strike, hartal, lack of water and electricity etc, the OP will be restrained in the smooth execution of his agreed works. OP submitted that the complainant is still liable to pay an amount of Rs.1,83,240/- towards the balance agreed amount and the extra works don by the OP such as Nich unit with mirror, box for CCTV, additional boxes for switch boards and micro oven, It is to defeat the legitimated claim of the OP that the complainant preferred this complaint with bald and hollow allegations. The OP had sent enough workers and construction materials to the work site to complete the construction work according to the schedule he fixed and no delay was made from the OPs end. OP demanded only the money legally due to him which the complainant was hesitant to release according to the progress of the work. The house warming ceremony was never fixed by complainant as pleaded in the complaint and the complainant never invited his friends and relatives, etc. from abroad and never booked their flight tickets. The OP had never diverted the payment received from the complainant and had used the money only for the construction purposes and had regularly paid wages to his employees. The estimate quoted by the OP was far below the actual amount to be spent in the work site. When discussed about the same the complainant had a feeling that the OP may abandon the work entrusted and when talked about the same the complainant brought some unruly elements to the work site and forced the OP to sign some blank papers. This OP apprehends that such blank signed papers might have been converted into some documents by the complainant. The OP was working on the site till the end of February 2020 in full swing. Due to Covid-19 restrictions, there was an implementation of lockdown and the construction was constrained to be in low pace from March 2020 till the lockdown lifts, according to the lockdown guidelines. Even prior to the lockdown, 99% of the work undertaken by the OP was over. The OP had intimated the complainant to pay the balance amount that is pending, as the complainant had verbally promised to pay the balance amount by February 2020 but didn’t pay till 2020. It was complainant himself who wanted other contractors to take up the construction and complete it. It is submitted that since the complainant did not pay the money in time the OP had to pay penalty to the material suppliers which affected the business of the OP. OP is not liable to pay any compensation to the complainant on the account of deficiency in service and unfair trade practice rendered by him to the complainant. Hence prayed to dismiss the complaint with cost of the OP.
The parties led evidence, in support of their case. The complainant in proof of his case filed his affidavit evidence and got the documents marked as Exts.A1 to A17. In order to proof the allegations of the complainant against OP, 3 more witnesses were examined from the side of complainant as Pws 2 to 4. All witnesses have been subjected to cross-examination for the OP. On the side of OP, the supervisor of OP Company has filed his affidavit evidence and has been examined as Dw1.
After that the learned counsel of both parties filed their written argument notes.
Complainant’s allegation is that though there was an agreement of contract to do the interior design and certain incident work of his house between the complainant and OP, agreed to complete the work before may 2019 and after obtaining 35,00,000/- out of 36,50,000/- for total work, OP failed to do the work as agreed within stipulated time, he had done the work for name sake only. Later OP abandoned the work. Complainant further alleged that after some discussions between complainant and OP with mediators, OP agreed to complete the work on or before 31/01/2000. OP sent some workers to the site and done some work. But those works are poor in quality and failed to complete the work and stopped the work in February 2020. Hence complainant was constrained to complete the balance work with other workers. For the said works he had incurred Rs.25,00,000/- to the another contractor.
On the other hand OP submitted that he had sent enough workers and construction material to the work site to complete the work according to the schedule he fixed and no delay was made from his side. OP contended that the complainant was hesitant to release money according to the progress of the work. According to OP complainant is still liable to pay an amount of Rs.1,83,240/- towards balance agreed amount and the extra works done by the OP such as Nich unit with mirror, box for CCTV, additional boxes for switch boards and micro oven. Then learned counsel OP submitted in the argument note that the complainant did not take out an inventory commission to assess the quantum of investment made by the OP in the site and also the quality and quantity of material used by OP. According to OP about 99% of the work undertaken by him as per Ext.A1 was done but complainant did not pay the amount and the complainant himself made the balance work with other contractors and complete it.
In this case we have to decide whether there was any dereliction of duty from the side of OP and whether there was any deficiency in service on the part of OP. Further to ascertain whether the work done by OP was defective and OP have to repay any amount to complainant?
As per evidenced by Ext.A1, for the complainant, OP Design Interiors prepared a written description of Item engaged by him to do in the house of complainant, as per contract dated 04/02/2019, the type of work in the house has been taken for total amount of Rs.36,50,000/-. The G mail attached to Ext.A1, shows that OP sent an email to complainant stating that the completion date will be on or before June 10th. The other condition mentioned in the mail is that the completion date may effect if there is any delay in ongoing contract works like flooring and some other works given to other contractor, and able to carry the interior works only after the completion of flooring works, mean time exterior works will start. Further strike, Harthal, water, electricity all are factors which may affect in completion. Ext.A4 series shows that payment made by complainant to OP in different dates through bank. Ext.A series are the receipts issued from the OP’s company. Total amount as per Ext.A4 series is 35,00,000/-. Thus OP has received Rs.35,00,000/- from the complainant. Ext.A5 is the statement of account of the complainant which also shows that the payment as shown in Ext.A4 series are correct. From Ext.A4 series and Ext.A5, it is evident that there is no delayed payment from the side of complainant. To prove deficiency in service or dereliction of duty on the side of OP, complainant has examined Pw2 to 4. Pw2 is the person who had taken over the work after the OP. He has deposed that he had done painting, so far curtain, cupboard, coat, Kitchen work, glass work. Ext.A3 prepared by the complainant also reveals that the above said works were not done by OP. Pw2 further stated that when he took over the work, only half of the total works were pending and he had given estimate for the work after completing the work. The estimate given by Pw2 is marked as Ext.A17. The total amount is stated is Rs.22,24,500/- . Pw2 deposed that out of which Rs.15,60,600/- has been paid by complainant and the balance 6 lakh is pending. Ext.A9 is the receipt of Rs.15,60,600/-. Though OP has cross examined Pw2 in detail, nothing can be come out, to disbelieve the evidence of Pw2. So through Pw2, it is evident that the work items mentioned in Ext A17 were not done by OP after receiving almost full amount as per agreement. Ext.A10 is the bill in respect of purchase of AC and its stabilizer by Pw2. From the deposition of Pw2 connected with Exts. A9, A10 to A14 and A17, the evidence given by Pw2 can be believed and accepted.
Pw3 is person who carried out electrical and plumbing work to the complainant’s home. He has deposed that he was entrusted the work by the OP and he was paid only a sum of Rs.10,000/- by OP and balance amount of Rs.50,000/- was given by the complainant. All the electrical and plumbing works left by the OP as carried out by Pw3 and as per Ext.A16 he has received a sum of Rs.3,17,000/- Only a sum of Rs.45,000/- was given by OP and the rest by the complainant. He has admitted that the electrical and water connection was granted as per his license.
From the evidence of Pw4 it is clear that the staircase work has not done by OP as agreed to make hand rail with stainless steel. Pw4 deposed that he had made the rail of staircase with wood and the labour and material cost amounts to Rs.76928 (Ext.A14) paid by complainant.
Hence through Pws 2 to 4 and from the documents, evident that OP has left the work without completing and the major part of the remaining work as per Ext.A1 was done by complainant by engaging other workers. Complainant further alleged that the materials used by for the work was of substandard quality and work done was defective. In order to succeed, the said allegation, the complainant should establish, the standard, quality of materials, said to have been used, requiring rectification by an expert. According to OP the delay caused wade to Covid 19 pandemic. Further there is no evidence adduced from the side of OP that the flooring work of the house done by other workers were not completed within time and that caused delay to OP’s work. Though the above said fact caused some delay to OP’s work, in Ext.A8 OP agreed to complete the work within 31/01/2020. OP contented that the balance amount to be paid to OP amounts to Rs.1,83,240/-. From this contention of OP, the allegation that the complainant was hesitant to release money according to the progress of the work cannot be accepted. Moreover OP failed to enter into witness box to give evidence for proving his contention in the version. The person examined from the side of OP(Dw1) did have any idea evenabout quotation given by OP to complainant. Then the evidence of DW1 about the completion of 99% of work by OP as per quotation cannot be believed. On analysis of Dw1’s evidence, it will not help the OP to establish his contentions in version.
Here though complainant could not prove the low quality of material used and defective work by OP, as alleged by the complainant, by giving through the documents available, as well as the conditions agreed between parties, through witness Pw2 to 4. We feel that the complainant has succeeded to prove that the OP has not done major part of work as he agreed and thus there is deficiency in service and dereliction of duty on the part of OP.
Hence considering all the facts as stated above, we are of the view that there is gross deficiency of service and dereliction of duty on the side of OP, which caused monetary loss, hardship and mental agony to the complainant. So OP has to compensate the complainant for the said matters.
In the result complaint is allowed in part. Opposite party is directed to return Rs.20,00,000/- to complainant for the remaining work which OP had to be completed as per Ext.A1 in the complainant’s house in dispute. Opposite party is further directed to pay Rs.2,00,000/- as compensation towards mental agony, stress caused to the complainant and Rs.10,000/- towards cost of the proceedings of this case. Opposite
party shall comply the order within 45 days after receiving the copy of this order, failing which the amount Rs.22,00,000/-(20 lakh+ 2 lakh) carries interest @ 7% per annum from the date of order till realization. Complainant is at liberty to execute the order as per the provisions envisaged in Consumer Protection Act 2019.
Exts
A1-Computer print out of the project work sent via e-mail and its reply dated 04/02/2019
A2-Specification of work agreed to be done by OP
A3-Status of work done by design
A4(series)-Receipt voucher (6 in Nos)
A5- Statement of account
A6-Print out of e-mail dated 02/07/2019
A7-Print out of the message via e-mail dated 29/07/2019 to 29/09/2019
A8-Hand written agreement
A9-Receipt issued by OP dated 20/03/2021
A10-Tax invoice by Nikshan electronics dated 07/01/2021
A11- Tax invoice by Nikshan electronics dated 06/01/2021
A12(series)- Cash receipt issued by Peekay Trading Agency dated 16/02/2020
A13-Receipt issued by Sunitha furniture dated 09/02/2021
A14-Cash receipt issued Sabu dated 13/07/2020
A15- Cash receipt issued for purchase of libmer dated 20/03/2020
A16-Bill for plumbing work dated 14/02/2021
A17-Estimate issued by OP 11/01/2021
Pw1-Complainant
Pw2-Haridasan-Witness of complainant
Pw3-Sminith P-Witness of complainant
Pw4-Sabu-Witness of complainant
Dw1- Prajeesh K P- Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
