IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 16thday of December, 2021.
Filed on 13-02-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.43/2020
between
Complainant:- Opposite party:-
Sri.B.Krishna Reddyar Sri.T.R Arunbabu
(B.Krishnan), A.R Balakrishna- Managing Partner, Super Secular
Reddyar & Sons, Mullackal Systems, 45/2278, Aiswarya
Alappuzha Sobha Road, N.H Bye-pass
(Adv. A.Francis) Vennala P.O., Kochi- 28
(Adv. T.K.Usharani)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
Complainant is a C&F agent of M/s Hindustan Uniliver. Complainant obtained a quotation from the opposite party to change the address board in front of the shop for Rs.89,760/-. On 04.06.19 Rs.30,000/- was paid as advance and requested to complete the work immediately. However opposite party had done only 10% of the work and he is not continuing the work inspite of repeated request over phone and directly. Complainant also requested to return the balance amount after deducting the amount of work from the advance amount which was also denied. On 10.12.19 though complainant filed a petition before the South police station there was no action. The act of the opposite party is causing harassment to the complainant. Hence the complaint is filed to realise an amount of Rs.30,000/- along with interest. Complainant is also seeking an amount of Rs.1,00,000/- as compensation for mental agony.
2. Opposite party filed a version mainly contenting as follows:-
The complaint is filed without any bona fides and the complainant has no locus standi to file this complaint because he is not a consumer. Complainant invited a quotation for removal and re-fixing of Aluminium composite panel in his commercial building at Mullackal, Alleppey. The complainant demands the service from the opposite party without making proper payment and he has so far not even given the admitted advance amount. The quotation was given by the institution of the opposite party but institution is not made as a party.
3. Opposite party had very clearly mentioned their payment terms in quotation that 50% of the total amount including tax is the advance and he has not made the same till this date. Without getting the payment the opposite party is not bound to continue the work and complainant has no right to compel the opposite party.
4. The quotation sought for and had given by the opposite party on 3-6-19 is for removing and re-fixing aluminium composite panel (ACP) for the complainant’s shop at Mullackal. The total amount mutually agreed by the parties was Rs.89.760/- for materials labour and transportation and taxes extra as applicable. As per the terms of the payment complainant is bound to pay 50% of total amount as advance. But the complainant paid only Rs.20,000/- on 04.06.19when he sent the scaffolding and other initial material materials for work at site and agreed to pay the balance of advance amount before the starting of work. Opposite party started his work by engaging six skilled workers from Ernakulam early in the morning on 06.06.19. The shop building of the complainant is at the road edge of crowded Mullackal junction and the front portion of the building is very old and in a dilapidated condition and is encroaching the road boundary. So it was very difficult to put scaffolding in the front side of the shop and also very much risky to climb over the dilapidated roof. However the skilled workers removed all the old ACP sheets and cut and removed the encroached portions and the sheets were stored safely in the complainant’s place as per his directions. For continuing the work materials are required but the complainant is not even ready to give the admitted balance of advance amount and after waited up to 6.30 PM in the evening he paid Rs.10,000/-. At that time the total amount due including GST and cess is Rs.53407.20/- as advance.
5. Opposite party had done more than 50% of the work on 06.06.19 and for continuing the work money is required for purchasing the materials. The work was delayed or stopped only due to the complainant’s reluctant attitude towards payment. For the complaint filed before the police station opposite party had given sufficient clarification. Opposite party though tried to contact the complainant for several times through telephone he was reluctant to co-operate. He approached the opposite party when he received a notice from Alappuzha Municipality to remove the encroached portion of the building abutting up to the road. The intention of the complainant was only to remove the encroachment. When the encroachment was cleared by the workers of opposite party complainant voluntarily withdrawn from the admitted terms of payment. Opposite party is not bound to give any amount to the complainant but the opposite party is entitled to get an amount of Rs.29532.15/-. Hence the frivolous complaint may be dismissed allowing the opposite party to collect the amount and compensation of Rs.1,00,000/-.
6. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service on the part of opposite party as prayed for ?
- Whether the complainant is entitled to realize an amount of Rs.30,000/- along with interest from the opposite party as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.1,00,000/- as compensation?
- Reliefs and cost?
7. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A4 from the side of the complainant and the oral evidence of RW1 from the side of opposite party.
8. Point No.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4.
RW1 is the opposite party in this case. He filed an affidavit in tune with the version.
9. PW1, the complainant is the C & F agent of M/s Hidustan Unilever and he is having a shop at Mullackal Jn. Alappuzha. He entered into a contract with RW1, the opposite party to change the name board of the building for an amount of Rs. 89,760/- + Tax. Ext.A1 is the quotation dtd. 3/6/2019. On 4/6/2019 an amount of Rs.20,000/- was paid. On 6/6/2019 scaffoldings were brought from Ernakulam and 6 labourers removed the old board. An amount of Rs. 10,000/- was paid on that day. Thereafter opposite party has not completed the work. Hence complaint is filed for realizing Rs. 30,000/- which was given to the opposite party along with interest and he is also seeking an amount of Rs. 1 Lakh as compensation. Complainant got examined as PW1 and Ext.A1 to A4 were marked. Opposite party filed a version contenting that as per the terms and conditions 50% of the amount was to be given in advance. An amount of Rs. 20,000/- was paid on 4/6/2019. On 6/6/2019 six labourers came from Ernakulam with scaffoldings and removed the old board and on that day Rs. 10,000/- was given. Inspite of repeated demands the remaining amount was not given and so the work was not completed. According to them the total amount including GST and Cess will come to Rs. 1,06,814. 40/-. 50% of the same will amount to Rs. 53,407.20/-. As per the terms and conditions PW1 had to pay 50%. He had only paid Rs.30,000/- though 50% of the work was completed. Hence according to them there is no deficiency of service from their part and the work could not be completed since PW1 did not pay the balance amount as agreed in the quotation. Opposite party got examined as RW1.
10. The fact that as per Ext.A1 quotation RW1 agreed to remove the existing board and install a new board for Rs. 89,760/- + Taxes is admitted by both sides. It is also an admitted fact that on 4/6/2019 RW1 received Rs. 20,000/-. On 6/6/2019 employees of RW1 came from Ernakulam along with scaffoldings and removed the old board on that day. They had received Rs.10,000/- from PW1. This is borne out from Ext.A2. During cross examination PW1 admitted execution of Ext.A1 quotation. However he denied the condition in Ext.A1 that 50% is to be given as advance. According to him he paid Rs. 30,000/- as two instalments. PW1 admitted that on 4/6/2019 opposite party brought materials and scaffolding and six labourers did the initial work of removing the old board. He denied that 50% of the work was completed. He pretended ignorance regarding scaffolding kept at his premises.
11. Admittedly as per Ext.A1 quotation executed on 3/6/2019 the total amount was Rs. 89760 + Taxes. Regarding the terms of payment 50% is to be paid as advance along with work order, 30% on the completion of frame work and 20% on completion of entire work. PW1 has paid only Rs. 30,000/- to the opposite party whereas as per Ext.A1 he had to pay 50% advance along with work order. Though RW1 has got a contention that the intention of PW1 was to remove the encroachment as per the notice of Municipality there is no evidence for the same and it remains only as an allegation. The fact that on 6/6/2019 six labourers came from Ernakulam along with scaffolding and removed the old board is an admitted fact. Here both parties alleges that the other party withdrew from the agreement. As discussed earlier according to PW1 Rs. 30,000/- was collected from him as 2 instalments and the work was not completed. However he admitted that six labourers did the work for one day. Per contra the contention taken by RW1 is that PW1 had paid only an amount of Rs. 30,000/- as 2 intalments. As per Ext.A1 quotation the total amount is Rs. 89760 + Taxes which will come to Rs.1,06,814.40/-. So 50% of the said amount will be Rs. 53,407.20/-. PW1 had paid only Rs. 30,000/- as two instalments. RW1 had done work for one day with six labourers and removed the old board. Going by Ext.A1 it can be seen that as per the terms of payment 50% is to be given as advance along with work order. Admittedly PW1 had paid only Rs. 30,000/- as two instalments. RW1 had done work for one day using six labourers and according to him even the scaffoldings are lying at the premises of the shop. During cross examination PW1 pretended ignorance about the scaffolding lying in his premises, which will show that he has no respect for truth. If the scaffoldings are lying at the premises definitely PW1 will be knowing it and he purposefully suppressed the same during cross examination. Here both parties are alleging each other regarding withdrawing from the agreement. According to PW1 though Rs. 30,000/- was collected the work was not completed and it amounts to deficiency of service and for getting the advance amount along with compensation this complaint is filed. According to RW1 as per terms of agreement 50% was to be given as advance with work order. He had done work for one day using six labourers and old board was removed. When he demanded the balance amount PW1 denied the same and so the work could not be completed. As per terms of Ext.A1 quotation 50% has to be given in advance. The amount shown in Ext.A1 is Rs. 89,760/- + Taxes. According to Rw1 the Tax is 18% +1% Cess and so the total amount will be Rs.1,06,814.40/-. 50% of the same will be Rs. 53,407.20/- out of which PW1 had paid onlyRs. 30,000/-. So as per Ext.A1 quotation PW1 has to pay Rs. 53,407.20/- being 50% of the amount, where as PW1 had paid only Rs.30,000/- as two instalments. In said circumstances it cannot be held that there was deficiency of service from the part of opposite party enabling PW1 to realise the advance amount along with compenstion. Since RW1 brought six labourers along with scaffoldings on 6/6/2019 and removed the old board it can be seen that he had done part performance of the agreement though 50% advance was not given as per terms of Ext.A1 quotation. In said circumstances it can be seen that PW1 is at fault by not giving 50% of the amount as stated in the Ext.A1 quotation. Hence there was no deficiency of service from the part of opposite party and so the complainant is not entitled to realize the advanced amount and compensation. It is to be noted that RW1 had done work using six labourers though 50% as agreed in Ext.A1 was not given. In said circumstances PW1 is not entitled to get any relief as claimed in the complaint and so these points are found against him.
12. Point No. 4:-
In the result complaint is dismissed with cost of Rs.2000/-
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 16th day of December, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/- Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - B.Krishna Reddyar (Complainant)
Ext.A1 - Quotation dtd. 3/6/2019
Ext.A2 - Cash Receipt dtd. 4/6/2019
Ext.A3 - Petition dtd. 10/12/2019
Ext.A4 - Receipt dtd. 10/12/2019
Evidence of the opposite parties:-
RW1 - Arun Babu .T.R (Opposite party)
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
