Karnataka

StateCommission

A/1297/2018

M/s Vastushilpa Constructions and PMC - Complainant(s)

Versus

R.Krishna Kumar - Opp.Party(s)

Mari Gowda

25 Jan 2022

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 25^TH DAY OF JANUARY 2022

 

 

PRESENT

 

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH    : PRESIDENT

MR. K.B. SANGANNAVAR                                 : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Appeal No. 1297/2018 &

Consumer Complaint No.605/2018

 

M/s. Vasthushilpa Construction and PMC No. 104, 1st Floor, East Park Street 8th Cross, Malleshwaram Bengaluru 560 003 Rep. by its Proprietor, Ramesh C.C. S/o. Channegowda   (By Sri. Mari Gowda) V/s	……Appellant & Complainant
R. Krishnakumar S/o. Late R. Ramarao No.20, MIG KHB Colony 1st Cross, 2nd Stage, Basaveshwaranagar Bengaluru 560 079	..…Respondent / Opposite party

 

C O M M O N    O R D E R

 

BY MR. K.B. SANGANNAVAR, JUDICIAL MEMBER

The appeal is filed by OP aggrieved by the order dated 22.06.2018 passed in C.C.No. 2453/2017 by II Additional District Consumer Disputes Redressal Forum, Bangalore and he also raised Consumer Complaint on 13.12.2018 under Section 17 of the Consumer Protection Act, 1986. 

2. The brief facts of the case raised before District Forum under Section 12 of Consumer Protection Act, 1986 in C.C.No.2453/2017 stated as below:

Complainant is the owner of house bearing No. 20, MIG 1^st Cross, 2^nd Stage, KHB Colony, Basaveshwara Nagar, Bangalore.  He had an intention of constructing first floor to the building and hence was looking for a good Architect and Civil Contractor for developing a suitable plan and undertaking construction work.  In this regard availed service of OP and they entered into an agreement on 01.11.2015 at the rate of Rs.1,65,000/- per sq. i.e., for 100 sq.ft. of construction taking into consideration of roof to roof area including main building, balconies, staircase, overhead tank slab and roof projection connected.  The work was started from 04.11.2015 and completed within 10 months from the date of commencement.  The work order was issued accordingly.  A separate working plan was prepared on mutual consent on 21.01.2016, however, OP failed to complete the work in time.  Though OP has collected full amount, has abandoned the work half done putting the complainant in great difficulties.  He failed to reply the letter sent by way of registered post dated 08.03.2017 wherein sought OP to complete all the pending works by 15.03.2017.  Yet another reminder letter dated 17.03.2017 asking OP to complete the pending works by 25.03.2017 was sent, but, not complied with.  As the complainant noticed cracks in the wall, consulted an engineer to know the quality of work and materials used.  He was surprised to know that work was substandard and he used inferior quality materials.  He engaged Mr.K.V.Srinivasan, Civil Engineer and Evaluator and expert in the field to assess the work done and test the materials used with regard to quality. He conducted various tests on civil works as well as quality of materials used including comparative study of the materials used with the materials agreed upon apart from their market rates submitted a detailed report after inspection and testing noted short comings in detail.  He got issued legal notice dated 17.06.2017 calling upon OP to refund excess amount collected and correct the construction irregularities.  OP has collected excess amount of Rs.10,64,269/- which has been worked out by Mr. K.V. Srinivasan.  He has paid Rs.36,33,000/- to OP for the full works as per the agreement clause and the work completed is evaluated around Rs.25,68,731/-.  He is liable to Rs.10,64,269/- and Rs.8.00 lakhs for using substandard materials.  In this regard sought for award along with interest at the rate of Rs.18% p.a. from the date of complaint till realisation.

3. The OP failed to participate in the complaint enquiry, despite service of notice, he has  not claimed, as such  the commission below held service sufficient, accordingly,   placed him  exparte and proceed to hold an enquiry by receiving affidavit evidence and documents thereon, thereby in appreciation of such materials recorded an affirmative finding holding complainant has proved alleged deficiency in service by the OP, directed OP to refund Rs.10,64,269/- along with interest at the rate of 10% p.a. from the date of complaint till realisation and do pay Rs.15,000/- towards litigation expenses within 45 days of passing impugned order which is assailed in this appeal contending that the postman colluded  with the complainant and made a wrong shara as door locked and on such report Commission below placed OP/ appellant exparte.  Appellant was working from 9.30 a.m. to 6.00 p.m. and five out of ten employees were working on 18.09.2017 and on 19.09.2017 seven out of ten employees were working, still the postman has made such an endorsement, as such the impugned order is liable to be set aside.
4. And further  raised a consumer complaint against complainant on 13.12.2018 with a prayer to direct complainant/OP to pay a sum of Rs.33,39,555/- with interest at the rate of 18% p.a. from the date of complaint till the date of realisation and to grant such other reliefs as Commission deems fit.
5. The Commission concluded enquiry in the complaint raised before the Commission and heard the appellant and complainant.
6.   Now we have to examine whether the impugned order passed by the District Forum below in C.C.No.2453/2017 dated 22.06.2018 calls for any interference under Section 15 of the consumer Protection Act, 1986 and also to decide whether complaint raised before this Commission is maintainable for the relief sought for ?
7. At the very outset Commission to make mention of certain facts which would play a vital importance.  The complainant in Complaint No.2453/2017 is admittedly a ‘Consumer’ and OP is a ‘service provider’ and to that effect there is no conflict of opinion.  However, it is wonder that the OP M/s. Vastushilpa Construction & PMC as service provider raised a consumer complaint before this Commission under Section 15 of Consumer Protection Act, 1986 on 13.12.2018 to direct the ‘consumer’ to pay a sum of Rs.33,39,555/- with interest at the rate of 18% p.a. from the date of complaint till the date of realisation and grant such other reliefs as Commission deems fit on the cause of action said to have been arose on 04.11.2015 when contract work agreement was entered  between the complainant and the OP (Service Provider and Consumer) and subsequently, when on 5.10.2018 when the legal notice issued to the OP (consumer).  Whether such complaint could be entertained before the Commission has to be examined by this Commission since Section 2 (1)(d)  defined “Consumer means any person who, (i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but, does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid any partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purpose.” is one thing and second vital aspect would be the service provider who pressing himself as a complainant / consumer in this consumer complaint filed before the consumer commission raised complaint on 13.12.2018 only after passing of the impugned order dated 22.06.2018, for the reasons best known to him.  In other words, as he is facing an award of the District Forum and he raised complaint before this Commission almost six months after has to be held either perverse or mischief which needs no further discussion.  As such this Commission concludes that his complaint C.C.No.605/2018 filed under Section 17 of Consumer Protection Act is liable to be dismissed with costs.
8. Let us come to examine impugned order and the proceedings of the said case wherein could see that Mr.R.Krishna Kumar raised a Consumer Complaint on 01.09.2017 which came to be admitted by District Forum below, issued notice to OP which is returned with an endorsement ‘door lock’.  It is to be noted herein that on 21.10.2017 District Forum below on verification of the said endorsement adjourned the matter for steps by 04.11.2017 and on 04.11.2017 complainant has taken steps for service of complaint notice on OP by way of RPAD returnable by 08.12.2017.  Since on 08.12.2017 as postal acknowledgement discloses ‘returned as not claimed’, hence, OP placed exparte is the known procedure to be followed by any of the authority much alone the District Forum below.  If we examine, notice issued at the first instance could see postman visited twice on 18.09.2017 and 19.09.2017.  He reported door lock and visited on all the four days.  The OPs arrayed as M/s. Vastushilpa Construction & PMC. 
9. Learned Counsel for appellant would submit that on such dates his employees were very much present and to that effect produced copy of register of attendance and fees for the month of September 2017.  In this regard we have to observe herein that it is their documents and we could not see here in this register of attendance entries the name of proprietor, Ramesh C.C., S/o.Channegowda.  It is therefore such document could not come to the assistance of appellant herein to substantiate that postman in collusion with complainant made   report ‘door lock’ and ‘not claimed’.  Even on this aspect the visa-versa to allege in the same pasion could not be ruled out.
10. Let us examine impugned order passed by Commission below.  The complainant has shown before the District Forum about payment of Rs.36,33,000/- pursuance to agreement dated 01.11.2015.  The rate quoted was Rs.1,65,000/- per sq.  The OP/ service provider neither replied 2 letters addressed by the complainant and even the legal notice dated 17.06.2017.  It is found from the impugned order that Mr. K.V. Srinivasan, Chartered Engineer and evaluator in the field of assessing the work done and test the materials used with regard to quality, upon conducting various tests on civil works as well as quality of materials used has reported that sub-standard materials used and the quality materials are not at all used.  He has evaluated that Rs.25,68,731/- work done by OP, since, complainant has proved payment of Rs.36,33,000/- is bound to return Rs.10,64,269/- which was considered by Commission below while directing to return Rs.10,64,269/- has taken into account Rs.1.00 lakh towards Professional fee payable to OP as it was agreed under 01.11.2015 agreement.  Further in consideration of the relationship between complainant and OP being consumer and service provider rightly not considered to award damages to the tune of Rs.8.00 lakhs for using sub-standard materials in the construction, since to that effect an experts evidence is required.  It has come in the enquiry that the amount utilized for construction of first floor to the building of complainant is not raised by any loan from financial institutions or the banks and in consideration of  drastic reduction of  bank rate of interest, in our view award of interest at 10% p.a. on refund amount has to be held on higher side,  which has to be reduced to 6% p.a.
11.   In the above such conclusion Commission does not find any good grounds either of facts or on law to interfere in the impugned order except to the extent of rate of interest as stated above.
12.   Accordingly, we proceed to dismiss Complaint No.605/2018 filed under Section 17 of the Consumer Protection Act, 1986 with costs of Rs.10,000/- payable to OP in this case and order to modify the impugned order dated 22.06.2018 passed in C.C.No.2453/2017 by II Additional District Consumer Disputes Redressal Forum, Bangalore directing OP/Appellant to refund Rs.10,64,269/- along with interest at the rate of 6% p.a. from the date of complaint till the date of realisation to the complainant and do pay Rs.15,000/- towards litigation expenses within 60 days from the date of this order.
13. The amount in deposit in Appeal No.1297/2018 is directed to transfer to the District Commission for needful.
14. Keep the copy of this order in Appeal No.1297/2018 and copy thereon in connected file.

 

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President

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