PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of May 2012
Filed on : 12/09/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 484/11
Between
V.K. Radhakrishnan Nair, : Complainant
Varanethu house, Sophia (By Adv. Tom Joseph, Court road,
Sunshine Villa No. 6, Muvattupuzha)
Sasthmugal, Varikoli P.O.,
Ernakulam-682 308.
And
Praveen Palathingal, : Opposite parties
Alapatt Design, Mather Nagar, (By Adv. Roy Varghese,
Pathadippalam, Olimolath house, Pancode P.O.
Kalamassery-683 104. Pin – 682 310)
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant entered into an agreement with the opposite party on 30-07-2010 for the installation of semi modular Kitchen, work area in the house of his daughter Dr. Resmi. The opposite party had agreed to complete the work before 20-09-2010. He collected Rs. 84,000/- on 30-07-2010 and Rs. 16,000/- on 03-08-2010 towards advance. The work was started only after 2 months after repeated requests made by the complainant. The only work done was the fixation of cabinet frame. Thereafter no information received from the opposite party. The work done was defective and the quality of the plywood used is inferior and the back portion of the frame is having wide gap. The actual cost for the said work is only around Rs. 20,000/-. Subsequently the complainant was compelled to entrust the work with another carpenter. Thereafter the complainant located the new office of the opposite party. The opposite party agreed to refund the amount received by him, no payment was made by him so far. The said act of the opposite party amounts to deficiency in service. The complainant is entitled to get the refund of Rs. 80,000/- excessively collected from him along with interest and litigation costs. Hence this complaint.
2. The version of the opposite party is as follows:
The opposite party had completed the major portions of the works for the semi-modular kitchen. He had used marine plywood for the construction ;of the kitchen cabinets and it were installed after assembling. Water paper and putty & primer were applied and the same were painted. The opposite party he had incurred Rs. 55,640/- for the work done by him. The works were done by skilled labourers under the supervision of experts. The only work remaining is the installation of the cabinet doors. The opposite party had entrusted the materials for the construction of the doors with a carpentry workshop. It was at this juncture the complainant intimated the opposite party that he is unilaterally backtracking from the agreement. The works could not be completed owing to the non payment of the balance amount due to the opposite party as per the agreement. There is no deficiency of service on the part of the opposite party. The complainant is not entitled to get any amount as prayed for.
3. The complainant and the opposite party represented through counsel. The complainant adduced only documentary evidence. Exts. A1, A2 series and C1 were marked. Neither oral nor documentary evidence was adduced by the opposite party. Heard the counsel for both sides.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get refund of Rs.
80,000/- from the opposite party or not?
ii. Costs of the proceedings
5. Points Nos. i&ii. The complainant contented that the opposite party failed to complete the work as per Ext. A1 agreement. The opposite party received Rs. 84,000/- on 30/07/2010 and Rs. 16,000/- on 08-08-2010 from the complainant and issued Exts. A2 series receipts. He further contented that the opposite party had done only a portion of the work which he had undertaken as per the agreement. According to him the expenses incurred by the opposite party for the said work is around Rs. 20,000/- since inferior quality materials were used for the work.
The opposite party refuted all those contentions and averred that he had completed major portion of the work by spending Rs. 55,640/-.
6. At the instance of the complaint an expert commissioner was appointed by the Forum and his report was marked as Ext. C1 which reads as follows:
“On inspection it is found that only inside cabinet work and painting (pl refer to the photos attached) was done”
And the commissioner further reported that the work to be completed as per the work order
“All doors and its frame with teak would, kitchen shelves, pelmet, comice, etc has to be completed.”
In the Ext. C1 report the quality of the materials were assessed. It is mentioned that “The quality of the work is very poor and the marine plywood used is of very law quality as per the sample inspected at site”. The commissioner calculated the cost incurred on a sq.ft basis and reported that the no. of marine ply used, its labour etc an came to an assumption of Rs. 400.00 per sq.ft. inclusive of profit, transportation, all labour & material cost.
1. 79.00 sq.ft X Rs.400.00 per sq. ft Rs. 31.600.00”
Even though opposite party filed objection to Ext. C1 report the opposite party failed to take any steps to substantiate their contentions. The report was marked without any objection on the side of the opposite party there is no reason to discard the findings in Ext. C1. Admittedly the opposite party received a sum of Rs. One lakh from the complainant. As per Ext. C1 the opposite party had incurred only Rs. 31,600/-. The complainant is entitled to gather remaining amount from the opposite party (i.e.Rs. 1,00,000/- Rs. 31,600/- = Rs.68,400/-. The complainant is entitled to get interest for the said amount since the commissioner reported that the present cost for completion of the remaining work would be around Rs. 3,000/- per sq.ft. In the facts and circumstances we are not ordering the costs of the proceedings.
7. Accordingly, we partly allow the complaint and direct that the opposite party shall refund Rs. 68,400/- to the complainant together with interest @ 12% p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 31st day of May 2012.
Sd/-
C.K. Lekhamma, Member.
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of agreement dt. 30/07/2010
A2 series : Copy of receipt dt. 30-07-2010
C1 : Commission report
Opposite party’s Exhibits : : Nil
