IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 21st day of October, 2016
Filed on 16.04.2014
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.108/2014
between
Complainants:- Opposite Party:-
- Sri. Kurian K. Jacob The Proprietor
Kattampallil House Melrose Kitchenette
Kozhimukku, Pandenkary P.O. Gowri Krishna Building
Edathua Village Muthoor P.O.
Alappuzha District Muthoor Junction
- Sri. Jacob Kurian -do- Thiruvalla
Presently residing at 82 Diamond Road (By Adv. Cheriyan Kuruvila)
Coventry, C56, 4JZ, U.K.
Represented by his Power of Attorney Holder –
the first complainant
(By Adv. M. Chandrasekharan Nair)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainants is as follows:-
The first complainant is the father of the 2nd complainant and he is represented in the complaint as a Power of Attorney Holder of the 2nd complainant. During the year 2012 the 2nd complainant constructed a building in the property owned by the first complainant. The opposite party approached the complainants and offered to do the kitchen work covering an area of 116 sq. ft. @ Rs.1995/- per sq. ft. Complainants accepted the offer made by the opposite party and done the work in the building. Thereafter it has also been formed that the work done by the opposite party became fainted and is fetching fungus. The complainants approached the opposite party to rectify the defects committed by them, but they have not paid any heed to the said request made by the complainants. Alleging deficiency in service on the part of the opposite party, the complaint is filed.
2. The version of the opposite party is as follows:-
The opposite party never approached the complainant seeking engagement for the kitchen work. On the other hand, the complainant has approached the opposite party at their office at Thiruvalla, made enquiries regarding the modular kitchen and after negotiations, engaged the opposite party to carry out the work. The opposite party didn’t give any bill on 17.04.2012 claiming cash. It was only an estimate prepared and submitted by the opposite party, specifying the terms and conditions of the work, the rate, the warranty period and the period required for the completion of the work. On a reading of the estimate it is quite apparent that the opposite party has agreed to execute the work for a total cost of Rs.2 ½ lakhs. The warranty period provided for shutters is 5 years, for inside boxes it is 10 years. The 2nd complainant has accepted the same and affixed his signature in the estimate presented for approval. The opposite party is only a sub-dealer of M/s CASA Italia, Ernakulam and the materials required for the kitchen work was supplied by M/s CASA Italia. The opposite party agreed to carry out the work for a fixed sum of Rs.2 ½ lakhs. The 2nd complainant is working abroad he was present throughout the period of work and it was executed under his supervision, in accordance with the instructions from time to time on every day. After the completion of the work, he has again signed the estimate dated 17.4.2012 admitting satisfactory completion of the work as per the terms agreed and paid the balance amount since the work was executed agreeably. 116 sq. ft. mentioned in the estimate is not wall area. The amount payable for the execution of the work was fixed at Rs.2 ½ lakhs, which is lump sum payment and not the cost calculated for 116 sq. ft. wall area @ Rs.1995/sq. ft. After the commencement and while the work was in progress, considering the suggestions of the 2nd complainant, several change were made to the estimate and the plan. The opposite party never obtained any excess payment from the complainants. The materials used for making the modular kitchen of the complainants are high quality marine plywood manufactured by a Gujarati manufacturing unit and there is no possibility for the material sustaining damage for years. The opposite party is ready and willing to repair the damages if any caused to the material used for the erection of the modular kitchen. There is no deficiency in service on the part of the opposite party.
3. The first complainant was examined as PW1. Documents produced were marked as Ext. A1 to A6. The expert commissioner examined as CW1. The commission report is marked as Ext.C1. Opposite party was examined as RW1. Documents produced marked as Ext.B1 series.
4. The points came up for considerations are:-
- Whether there is any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to get relief and cost?
5. The first complainant is the father of 2nd complainant. The 2nd complainant executed a Power of Attorney deed in favour of the first complainant. It is an admitted fact that the opposite party executed a modular kitchen work in the building owned by the 2nd complainant for a total cost of Rs.2,50,000/-. According to the complainant, opposite party agreed to work covering an area of 116 sq. ft. of the said building for Rs.2,26,200/-. The opposite party after doing the work in the building represented the complainant that they have completed the work covering a total area of 116 sq. ft. at the kitchen room of the building and received the amount from the first complainant. In order to substantiate this allegation, complainant produced the bill dated 17.4.2012 executed by the opposite party and it marked as Ext.A3. The opposite party also produced the said bill and it marked as Ext.B1. On verifying this document it is seen that under the title description it is stated as follows:-
“MAIN KITCHEN + hinges + handle + pellet + skirting/116 sq. ft. – Rs. 2,26,200/-”
According to the opposite party 116 sq. ft. mentioned in the estimate is not wall area. The amount payable for the execution of the work was fixed at Rs.2,50,000/- which is lump sum payment and not the cost calculated for 116 sq. ft. wall area @ Rs.1995/- per sq. ft. The case of the complainant is that opposite party has not done the work covering a total area of 116 sq. ft. But the opposite party done the work in the kitchen room covering an area only 82 sq. ft. In order to substantiate this allegation an expert commissioner was appointed to investigate the work done by the opposite party. The expert commissioner produced the commission report which marked as Ext.C1. In the commission report, he stated that, “ 1. ….............................................................................................
- …............................................................................................”
But according to the opposite party 116 sq. ft. mentioned in the estimate is the total area of the kitchen. While cross examining the RW1 he stated that, “116 sq. ft. F¶Xv kitchen room-sâ hnkvXoÀ®amWv.” The point to be considered is 116 sq. ft. endorsed in the agreement is applicable for the wall area of the kitchen. It is pertinent to see that in Ext.A3 agreement, it is clearly stated that, “MAIN KITCHEN + hinges + handle + pellet + skirting/116 sq. ft. – Rs. 2,26,200/-” The means the opposite party agreed to do the work covering 116 sq. ft. for Rs.2,26,200/-. It doesn’t show that the opposite party has to do the work in the kitchen which has an area of 116 sq. ft. More over as per the commission report the kitchen has an area of 117.543 sq. ft. Hence the contention of the opposite party that 116 sq. ft. shown mentioning in the agreement shows the area for the contention of the complainant and noted the wall area is not sustainable. Another allegation of the complainant is that the work done by the opposite party became fainted and is fetching fungus. According to the complainant, the said defects occurred due to the usage of the low quality material by the opposite party. The opposite party filed version stating that the materials used for making the modular kitchen of the complainant are highly quality marine plywood manufactured by a Gujarati manufacturing unit and there is no possibility for the material sustaining damage for years. But in Ext.C1 commission report it is stated that the materials used for construction the cupboard is in low quality. He also stated that some portions of the skirting were also damaged. Ext.A3 document shows that shutters warranty for 5 years. More over in the version the opposite party admitted that they are ready and willing to repair the damages, if any caused to the material used for the erection of the modular kitchen. As per the commission report, the damages occurred due to the low quality of the materials used for the construction. From the above discussions, it is clear that opposite party has committed defect and deficiency in service in doing the modular kitchen work in the house of the complainant. The opposite party is bound to refund the excess amount received by them. Opposite party has received total cost of construction for 116 sq. ft. kitchen cabin. The work done covers only 82.883 sq. ft. Hence the opposite party is bound to refund the proportionate cost that he has received in excess of 82.883 sq. ft., he has constructed which amount to cost of construction for 33.12 sq. ft. to the tune of Rs.64,584/-.
In the result, the complaint is allowed. The opposite party is directed to refund an amount of Rs.64,584/- (Rupees sixty four thousand five hundred and eighty four only) with 8% interest per annum from the date of filing the complaint till realization to the complainant. The opposite party is also directed to repair the damages at free of cost. The opposite party is further directed to pay an amount of Rs.1,000/- (Rupees one thousand only) towards costs of this proceedings to the complainant. Since primary relief is granted, no further amount as to compensation. The order shall comply within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 21st day of October, 2016. Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Kurian K. Joseph (Witness)
Ext.A1 - Special Power of attorney deed dated 10.8.2012
Ext.A2 - Cash Voucher No.133 dated 10.8.2012 issued by the opposite party
Ext.A3 - Bill dated 17.4.2012 issued by the opposite party
Ext.A4 - True copy of the legal notice 12.1.2013
Ext.A5 - Postal receipt dated 12.1.2013
Ext.A6 - Acknowledgement card dated 15.1.2013
CW1 - Expert Commissioner (Court Witness)
Ext.C1 - Commission report
Evidence of the opposite party:-
RW1 - K.A. Thomas (Witness)
Ext.B1 series - Copy of the estimate, terms and conditions, Bill dated 2.6.2012
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
