BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 08^th JUNE 2015

PRESENT

 SMT. ASHA SHETTY             :   HON’BLE  PRESIDENT

   SRI T.C. RAJASHEKAR       :   HON’BLE  MEMBER                                        

COMPLAINT NO.67/2015

(Admitted on 13.02.2015)

Mr. Jayaprakash M,

S/O Late Mahalinga,

Aged 39 years,

R/A Ashirvada Nilaya,

Krishna Nagar I cross,

Kampala, post Kottekar,

Mangalore Taluk

                                                         …….. COMPLAINANT

(Advocate for Complainant: Sri K.B.Arasa)

 VERSUS

The Proprietor,

M/S Comfort design,

3^rd Floor, Classique Arcade,

K.S.Rao Road, Mangalore                ……OPPOSITE PARTY

(Opposite Parties: Ex-parte)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR

I.      This complaint is filed under Section 12 of the Consumer Protection Act 1986, wherein the complainant alleges deficiency in service from the opposite party in under taking the work of leakage repair in the house of the complainant and seeks the refund of the amount paid to opposite party on the failure of the opposite party’s in performing the job of repairing the leakage of concrete house.                                                                                                                                                                                                                  

The brief facts of the case are as under:

The complainant after seeing the advertisement in the Vijaya Karnataka News Paper Daily and also in the website of the opposite party about the undertaking of the repair work of leakage in concrete house approached the opposite party. Entered into terms with the opposite party, on 07.08.2014 to repair the leakage in the RCC house of the complainant through the opposite party marketing executive one Mr. Satish Kumar. The amount agreed is       ₹ 60000/- and an amount of ₹ 30000/- paid in advance and the remaining balance amount was paid on 13.08.2014.

The complainant noticed the leakage in the roof on 29.08.2014 and the leakage is worse than the prior to leakage repair work undertaken. On contacting and informing the opposite party, nothing was done from 01.09.2014 to 25.09.2014 and on 11.10.2014 has stated that the repair work will be taken up from 13.10.2014. The complainant, after waiting till 17.10.2014 written a letter and asked the opposite party to attend the repair work before 30.10.2014. The said letter was not claimed by the opposite party which was returned to him, and legal notice was sent on 01.01.2015 which was also not claimed by the opposite party intentionally and returned to the complainant advocate. Hence alleges deficiency in service and prays for

1. Directing the opposite party for refund of ₹ 60000/- with an interest of 12% per annum w.e.f. 07.08.2014.
2. Directing the opposite party for payment of             ₹ 40000/- as damages for mental tension and agony.
3. Cost of the complaint.
4. For such other and further relief.

II      Version notice served to the Opposite Party by R.P.A.D. The notice issued to opposite party returned with UNCLAIMED remark by the post office. Hence, treated his version or contest the complaint. Hence we proceeded on merit by placing the opposite party as EX-PARTE and postal cover returned unclaimed marked as Court Doc.No.1. 

III.   In support of the complaint, Mr. Jayaprakash M. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C4. Opposite Party ex-parte.

IV   On perusal of the complaint averment and the documents produced, we are of the opinion that the following points may be considered in resolving this dispute:

1. Whether the complainant is a consumer as per Consumer Protection Act 1986?
2. Whether there is any deficiency of service on the part of the opposite party?
3. Whether the complainant is entitled to get prayed relief?
4. What order?

V.     On considering the evidence and the documents on record we answered the above points as under;

1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. As per final order.

REASON

POINT NO 1: The complainant has produced a Bill dated 12.08.2014 which discloses the complaint has paid                              ₹ 60000/- for having undertaken the water proofing work by the opposite party which is in the name of the complainant herein. Hence there established the relation of consumer and service provider between the complainant and the opposite party. However the opposite party did not present himself to deny the complainant as consumer. Hence we answered the point No 1 in the affirmative.

POINT NO 2: It is evident from the record that the opposite party has undertaken the work of water proofing for the complainant’s house and as per Ex-C1 opposite party has given a warranty of 5 years. The complainant in his sworn in affidavit alleged that the water proofing work not proper and it is worse than before repair done, he has complained to the opposite party number of times but no result. The opposite party not responded to the complaint even though promised to repair it. The letter written and the notice issued were returned as it is unclaimed intentionally. The complainant alleged deficiency in service and has claimed aforesaid relief. It is observed that the Opposite Party not received the version notice and it returned as unclaimed. It shows disrespect to law and proceedings. The opposite party neither appeared to deny nor contested the complainant allegations.   It shows the gross negligence on the part of the opposite party. It is a clear admission of facts alleged by the complainant.   The Opposite Party not led any evidence to defend against the Complainant allegation. Hence in our considered opinion the opposite party has admitted the facts of allegation and there is deficiency of service on the part of the opposite party. Hence we answered the point No.2 in the affirmative.

POINT NO 3: In view of above discussion we hold the opposite party is liable for not performing his promise and there is deficiency of service on the part of the opposite party. The complainant is entitled to get refund of              ₹ 60000/- with an interest of 9% per annum from the date of 12.08.2014 till the date of payment. The complaint has stated in his affidavit that the leakage problem is worse than before and it is not denied also. There is gross negligence on the part of the opposite party because the opposite party instead of repairing the leakage made it still worse, and declined to claim the notice issued by this Forum and absent from appearance. It is observed that the opposite party had also declined to claim the legal notice served by the complainant. There is flagrant negligence on the part of the opposite party. In our considered opinion the complainant is entitled to get an amount of ₹ 20000/- as compensation including compensation for damage done to the RCC roofing while repairing of the complainant’s house. Complainant is also entitled to get an amount of     ₹ 3000/- towards legal expenses.  

POINT NO 4: In the result of the above discussion we deliver the following

ORDER

The complaint is allowed. The opposite party shall pay the complainant an amount of ₹ 60000/- with interest at 9% per annum from the date of 12.08.2014 till the date of payment and an amount of ₹ 20000/- towards compensation and ₹ 3000/- towards cost of litigation. The order shall be complied within 30 days of from the date of the order received.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 08^th day of JUNE 2015)

                   PRESIDENT                               MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW-1  :       Mr. Jayaprakash M – Complainant.

Documents produced on behalf of the Complainant:

Ex. C1 :      Original bill with warranty for five years

dated 12.08.2014.

Ex. C2 :      Original letter written by the complainant

dated 17.10.2014.

Ex. C3 :      The Office copy of the Lawyer’s Notice

dated 01.01.2015.

Ex. C4 :      The unclaimed postal cover with acknowledgment.

Court document No. 1 unclaimed postal cover of version notice

Witnesses examined on behalf of the Opposite Party:

- Nil -

Documents produced on behalf of the Opposite Party:      

- Nil -

Dated: 08.06.2015.                                 PRESIDENT