IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 31st day of August, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 118/2018 (filed on 13-06-2018)
Petitioners : 1) Mrs. Jessiyamma Mullankuzhy,
W/o. M.C. Thomas,
Mullankuzhy Rose Villa House,
Kattachira P.O.
Kottayam – 686572.
2) Mr. M.C. Thomas,
Mullankuzhy Rose Villa House,
Kattachira P.O.
Kottayam – 686572.
(Adv. Nithin Sunny Alex and Nithin M.K.)
Vs.
Opposite Party : Mr. Ratheesh Issac,
S/o. Joseph T.A.
Malam Thattappallil,
Velloor P.O. Pampady,
Kottayam – 686514.
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows.
Complainants are wife and husband and now residing at Switzerland for employment purpose. Opposite party is a contractor and proprietor of A-One painting and decorations, Pampady. Believing the words of the opposite party, the complainants had entrusted polishing and putty work of their newly constructed house to the opposite party. Believing the words of the opposite party and the oral agreement entered with, the complainants entrusted the work of painting, polishing work of doors, windows, mosquito net frames and grills of the window of newly constructed house with the opposite party and he started the work from March 2016 and later on 05-04-2016, the terms of the work were written down into an agreement signed by the 1st complainant and opposite party. While carrying out the said work the opposite party made the complainants to believe that he is experienced in putty work also and submitted a quotation for the said work and thereby canvased the complainants to entrust putty work of the said house with him. Thus another agreement dtd.10-04-2016 for putty work was entered into between the 1st complainant and opposite party and the opposite party was carrying out the said work along with the polishing work. The stipulations and conditions so as to carry out the painting and polishing works were clearly mentioned in the agreement and the specification and quality of the products to be used and their applications as well as remuneration of laborers per sq.ft. was also agreed by the said agreement. The complainant had provided all the raw materials for carrying out the work as contemplated in the agreements.
Since the complainants were working at Switzerland, the key of the whole building was handed over to the opposite party along with his workers for carrying out the work. The opposite party made the complainants to believe that along with the work undertook by the agreement he shall also carry out the additional polishing / painting work of cupboard frames of bedrooms at the same rate and final amount will be calculated by measuring the area of work done. Since the opposite party has already started carrying out the other work in the house and the oral agreement entered between the complainant and then entrusted the said work also with the opposite party. After obtaining the contract, the opposite party informed the complainants that since he is under financial constraints, he is not in a position to pay the fellow workers and hence the workers have to be paid by the complainants on weekends and the amount can be settled or deducted while making the final payment. The complainants agreed for the same and the opposite party himself has collected the amount from the caretakers of the complainants by giving the number of workers per day. At the initial days the opposite party was carried out the work properly along with the sufficient workers. However later the number of workers came down and the opposite party informed the complainant that the work undertook could not be carried out within the agreed time due to the shortage of workers and the time consumed to carry out the work is more than he had expected. Since the opposite party carried out the work of the cupboards also the complainant agreed for the same and when the complainant used to contact the opposite party he used to convince the complainants that the work was going smoothly.
When the 2nd complainant came on vacation, it is seen that the work was not properly carried out by the opposite party, more over the workers actually coming for the work were less compared to the amount weekly collected and the whole work carried out in the house. When the complainant asked about the same, the opposite party managed to convince the complainant and promised that the work would be finished soon. On verification of account, it is seen that the opposite party has collected around 5,06,938/- as labour charges which is much higher than the agreed amount and the work done at the house. On verification it is came to the notice of the complainant that not even a single work started or finished by the opposite party was without any quality or workmanship. Most of the works were done against the terms of the agreement. Since the works entrusted were not completed within the time agreed and amount collected were exorbitant the complainants asked the opposite party to measure the area of work completed as per the terms of the agreement and settle the amount and return the amount which was collected exorbitantly. The opposite party had informed the complainant that he would measure the area of work done and settle the accounts. But after that the opposite party stopped the work and evaded calls from the complainants by saying lame excuses. In the circumstances, the complainant issued a legal notice to the opposite party demanding to measure the area of work completed and convince the account of amount received in excess to the work done. Though the notice was received by the opposite party, he has not complied with the demand or sent any reply till date. The complainants through an expert made measurements of work done by the opposite party and it has come to the knowledge that only labour works for an amount of Rs.2,64,715.52/- were carried out and most of the works were incomplete and it will incur a huge amount to complete those parts. The acts from the opposite party is a clear violation of the terms of contract whereby caused heavy loss to the complainants and amounts to deficiency in service. The work of the house of the complainants got delayed and thus the complainants have undergone severe mental agony, inconvenience and loss. Thus this complaint is filed praying for an order to direct the opposite party to refund Rs.2,42,222/- along with compensation of Rs.2,00,000/- and cost of litigations.
Though the notice was served with the opposite party, the opposite party did not care to appear before this Commission and conduct his case. Thus opposite party is set exparte.
M.C. Thomas, who is the 2nd complainant filed proof affidavit in lieu of chief examination and Ext.A1 to A7 were got marked.
Sheeja Divakaran, who is the Expert Commissioner filed a commission report and marked as Ext.C1.
On evaluation of complaint, and evidence on record, we would like to consider following points.
- Whether the complainant had succeeded to prove any deficiency in service from the part of opposite party?
- If any, what are reliefs and costs?
For the sake of convenience, we would like to consider point no.1 and 2 together.
Point No.1 and 2
The specific case of the complainant is that on believing the words of the opposite party, who is a contractor and proprietor of A-One painting and decorations, they entrusted the work of painting, polishing work of the doors, windows, mosquito net frames and grills of the window of their newly constructing house with the opposite party. According to the complainant, the opposite party has started carrying out the said work from March 2016 and later on 05-04-2016. they have entered into Ext.A1 agreement with the opposite party for polishing and painting work of the said house. It is further submitted by the complainants that while carrying out the said work, the opposite party made the complainants believe that he was experienced in the putty work also and submitted a quotation for the same and thus canvassed them to entrust the putty work to him. Ext.A2 proves that on 10-04-2016 the 1st complainant and the opposite party entered into an agreement for carrying out the putty work and painting work. On perusal of Ext.A1, it was agreed by the opposite party that he would finish all the works except the work described in Clause No.4 of Ext.A1 on or before 10th April, 2016. Going through the recitals of Ext.A1 we can see that the total area covered under Ext.A1 for the work is 2,196 sq.ft. and the rate for the same is Rs.100/- per sq.ft. And it is also agreed by both parties that the total amount payable by the complainants to the opposite party after the completion of work is Rs.2,20,000/-. Ext.A2 is the agreement for putty work and painting for the residential building of the complainant. On going through Ext.A2 we can see that the opposite party agreed to complete the putty and painting works of the said house in 20 days and he had agreed to complete the same on or before 01-05-2016. As per the ext.A2, the opposite party has agreed to carryout the putty and painting work of a total area of 3,680 sq.ft. @ 15 per sq.ft. On perusal of Ext.A2 we can see that the total amount agreed by both parties for the completion of work is Rs.55,200/- and out of which Rs.25,000/- is paid by the complainant to the opposite party as an advance. It is further agreed by the parties that the remaining amount of Rs.30,200/- would be paid by the complainant to the opposite party after the completion of the work to the satisfaction of the complainants. The specific case of the complainants is that after receiving an amount of Rs.5,06,938/- as labour charges the opposite party did not completed the polishing and painting works which were undertaken by him vide Ext.A1 and A2 agreement. According to the complainants works which were already carried out by the opposite party were without any quality and poor workmanship and against the terms and conditions of the Ext.A1 and A2 agreements. In order to prove his case, he applied for appointing an Expert Commissioner to ascertain the present conditions and nature of works which were carried out by the opposite party. The Expert Commissioner filed her report and the same is marked as Ext.C1. In Ext.C1, it is reported by the Expert Commissioner that putty work were not completed for the whole area of the building as per the agreement. It is done only over inside wall, ceiling and outside front area. It is further reported in Ext.C1that polishing work done was only partially finished and she reported that painting, polishing and putty works were still pending. The Expert Commissioner further reported that the quality of the work which were carried out by the opposite party was not satisfactory and not as per the quality and standard. It is further reported by the Expert Commissioner that the cost of labour which were carried out by the opposite party amounts to Rs.2,62,972.68/- and the labour cost so as to complete the remaining work which were undertook by the opposite party would amount to Rs.6,86,580.24/-.
Ongoing through Ext.C1 report we can see that the opposite party failed to complete the works which were undertaken by him vide Ext.A1 and A2 agreement. Any fault, imperfection, forthcoming inadequacy in quality, which is required to be maintained by a person in pursuance of contract amounts to deficiency in service under the Consumer Protection Act, 1986. Thus we are of the opinion that the opposite party has committed deficiency in service by not completing the works which were undertaken by him in accordance with the terms and conditions Ext.A1 and A2 agreements. No doubt the complainants had suffered much mental agony and loss due to the deficient act of the opposite party for which opposite party is liable to compensate. In these circumstances, we allow the complaint and pass the following order.
- Opposite party is directed to refund Rs.2,42,222/- to the complainants.
- Opposite party is directed to pay Rs.1,00,000/- as compensation for the mental agony due to deficiency in service.
- Opposite party is also directed to pay Rs.2,500/- as cost of litigation.
Order shall be complied with within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 31st day of August, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Exhibits marked on the side of the complainant
A1 : Agreement dtd.10-04-16 between the 1st complainant and opposite party
A2- Agreement dtd.05-04-16 between the 1st complainant and opposite party
A3- Copy of relevant pages of diary showing date and amount received.
A4- Copy of lawyers notice dtd.22-11-17
A5- Postal receipt
A6- Postal acknowledgement card
A7 – Report along with work cost by Mr.Surajkumar P.S. (ray’s interiors)
dtd.25-01-18
Commission Report
C1 – Commission report dtd.27-03-21 by Sheeja Divakaran
By Order
Senior Superintendent
