BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 24^TH DAY OF JANUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

Direct the OP to pay a sum of Rs.7,00,000/- paid by the complainants in lieu of the agreement dated 10.08.2019 along with interest at 24% p.a., from the date of receipt of the amount to till the realization and also direct the OP to pay a sum of Rs.10,00,000/- as compensation for deficiency of service to the complainants towards loss of income of the complainants due to staying in a rented flat in order to get the interior work done and towards loss of mental peace of the complainants and for any other reliefs as this Hon’ble Court/commission may deem fit.

2.       The case set up by the complainant in brief is as under:-

It is the case of the complainant they are the absolute owners of the flat No.204 in II Floor, Blooming Dales Block in Concorde Manhattans Apartments, Doddatoguru Village, Bangalore South Taluk, Bangalore, having purchased the same on 06.07.2019 under the sale deed executed by the previous owner.

3.       After purchase of the said flat the complainants wanted to renovate their flat to suit their tastes, so they found the OP propriety concern online. The complainants have approached the OP for interior work, after getting to know about them online.  The complainant has reliably learnt that the name of the OP is changed from the design house to elegant homes and realtors.  

4.       Later the complainants have entered into an agreement with the OP on 10.08.2019.  The complainants had entrusted the OP to do the interior works of the flat as enumerated in the agreement. The duration for completion of the said interior work was fixed for 90 days from 10.08.2019 to 09.11.2019.  It was further agreed that in case of delay the OP would be liable to pay penalty of Rs.3,000/- per day.  

5.       It is further case of the complainants that they had also mentioned that they are residing in a rented house and have a burden of paying rent for the said plot along with maintenance and other charges for both the plots. The OP have assured them that they would deliver the fully furnished flat in 90 days. As per the agreement the consideration for completion of entrusted work was mutually and fixed for Rs.12,50,000/- and an advance amount of Rs.7,00,000/- was paid to the OP by the complainants.  

6.       Though the OP have assured the complainant that they would complete the work within the agreed time period they did not fulfill their part of the agreement.  They have only dumped six bags of cement and heaps of M-sand and removed some of tiles in kitchen and bathrooms, dismantled existing wardrobe and existing kitchen cabinet and existing chimney ad exhaust pipe and toilet door shutters and removed electrical work fittings. Despite the continuous follow-ups by the complainants the OP had not done any work except the above dismantling work which only caused inconvenience to the complainant.  

7.       The complainants were forced to terminate the agreement due to non performance of the terms of the agreement by the OP and they have no other choice. The OP in lieu of part settlement of the claim had issued two cheques for Rs.2,50,000/- each totally for a sum of Rs.5,00,000/- and also further assured the complainant that they would clear all the dues to the complainant.

8.       As per the request of the OP the complainant 1 presented the said cheque for collection on 23.01.2019 at ICICI bank, Bangalore i.e., his banker on 24.12.2019 and the said cheque was dishonored due to insufficient funds.  The complainant has collected returned cheque with endorsement from his banker. The complainant has informed to the OP and on apology the OP has directed the complainant to re-present the same for collection.  The complainant has represented the cheque on 04.01.2020 and it was also dishonored due to insufficient funds.  After that the complainant has issued legal notice on 10.01.2020 and u/s 138 of N.I. Act and initiated the legal action against the OP before the 19 ACMM at Bangalore in CC No.4876/2020 on 15.02.2020. 

9.       The OP appeared through his counsel and contested the case before ACMM Court.

10.     It is further case of the complainant that they have appointed an independent evaluator GCA cost consultants to estimate the work done by the OP and it was reported that the work done by the OP amounted only Rs.64,313/-.

11.     In view of this the complainant was forced to avail the services of other interior designer with much difficulty for completion of the work started by the OP.  The OP have not done even the dismantling job efficiently as the other interior designer has trouble in undoing the damage done by the OP.  The work which was supposed to be done in 90 days was extended to almost 10 to 11 months starting from December 2019 to October 2020.  At last the complainants have got the furnished apartment in October 2020. Due to deficiency in service of the OP the complainants have to pay rent of Rs.25,000/- for 11 months amounting to Rs.2,75,000/- along with maintenance charges.

12.     The complainants had issued a legal notice through their counsel on 17.03.2022 which was duly served on the OP but the OP did not respond to the said notice.  The complainants have faced immense hardship physically mentally and financially due to the serious default committed by the OP in rendering services.  There is a gross negligence on the part of the OP in delivering the services. Hence the complainants have filed this complaint.

13. In response to the notice, OP has not appeared before this Commission hence OP placed exparte.
14. The complainant has filed his affidavit evidence and relies on 10 documents. 
15. Heard the arguments of advocate for the complainant. Perused the written argument filed by the complainant.
16. The following points arise for our consideration as are:-

1. Whether the complainants prove deficiency of service on the part of OP?
2. Whether the complainants are entitled to relief mentioned in the complaint?
3. What order?

17. Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

18.    Point No.1 AND 2: These two points are inter related to each other and hence they have taken up for common discussion.

19.     Perused the complaint, evidence and documents produced by the complainant. The evidence and the documents produced by the complainant remained unchallenged since the OP remained absent and placed exparte and not disputed the documents.

20.     it is undisputed fact that the complainants being the absolute owner of flat No.204 in II floor in Concorde Manhattans Apartments, have approached the OP for interior work and entered into an agreement on 10.08.2019 as per Ex.P5 and entrusted the OP to do the interior work. As per Ex.P5 the duration for completion of the said interior work was fixed for 90 days i.e., from 10.08.2019 to 09.11.2019 and in case of default of delay the OP would be liable to pay penalty of Rs.3,000/- per day.  

21.     The complainants are also residing in a rented house and they are paying Rs.25,000/- and also they are paying maintenance charges for both the apartments.  

22.     The complainants have made an advance amount of Rs.7,00,000/- to the OP as per Ex.P10, which reflects the transactions.

23.     Even though the OP had assured the complainants that they would complete the work within the agreed period they did not fulfill their part of the agreement.  They have simply dumped six bags of cement and heaps of M-sand and removed the tiles from kitchen and bathrooms and dismantled the existing wardrobes kitchen cabinets and chimney exhaust pipe and toilet door shutters and also removed electrical work fittings.  Despite continuous follow-ups of the complainants, the OP had not done any work except the above mentioned dismantling work and caused inconvenience to the complainant.

24.     The complainants have decided to terminate the agreement due to non performance of the terms of the agreement by the OP and in view of the part settlement the OP has issued two cheques amounting to Rs.5,00,000/- towards refund but both the cheques were dishonored.  The complainants were forced to initiate legal action against the OP u/s 138 of N.I. Act in CC No.4876/2020 before 19 ACMM Court, Bangalore. The case is still pending before the ACMM Court.  The complainant have appointed evaluator GCA cost consultants to estimate the work done by the OP and it amounts to only Rs.64,313/- as per Ex.P6.  In view of the non completion of the work by the OP the complainant was forced to entrust the work to another interior designer and in view of this the interior works has taken 10 to 11 months and at last it was completed in October 2020. The complainants had to pay Rs.25,000/- p.m., for 11 months rent amounting to Rs.2,75,000/-.  

25.     In view of the non completion of the work and non performance of the terms of the agreement by the OP the complainants have suffered immense hardship and mentally and financially.  At last they have issued a legal notice and even after service of the notice the OP has not refunded the amount.

26.     There is no reason to disbelieve the evidence of the complainant and the documents. The complainant has suffered financial loss including mental harassment in view of the non completion of the work by the OP.  The OP has left the work only after dismantling the interiors in the house of the complainant which caused much hardship to the complainant in entrusting the work to the other interior designers. Under these circumstances the complainant has clearly established the deficiency of service on the part of the OP.  Therefore the complainant are entitled for the relief claimed in this complaint. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

27.     Point No.3:- In view the discussion referred above the OP is directed to pay Rs.7,00,000/- along with interest at 12% p.a., from the date of receipt of the amount till realization and further directed the OP to pay a compensation of Rs.3,00,000/- for deficiency of service and for loss of income of the complainant and for loss of mental peace and OP is further directed to pay a sum of Rs.10,000/- towards litigation expenses to the complainant and we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to pay Rs.7,00,000/- along with interest at 12% p.a., from the date of receipt of the amount till realization to the complainant.
3. OP is also directed to pay a compensation of Rs.3,00,000/- for deficiency of service and for loss of income of the complainant and for loss of mental peace along with litigation cost of Rs.10,000/- to the complainants.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 15% p.a. after expiry of 60 days on Rs.7,00,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 24^TH day of JANUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party;

NIL