Date of Filing 23.09.2022

                                                                                                       Date of Disposal: 16.10.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

CC.No.171/2022

THIS MONDAY, THE 16^th DAY OF OCTOBER 2023

Mr.K.Pushpanathan,

S/o.D.Kailasanathan,

No.A-304, AKS Serenity,

Kil Ayanambakkam,

Maduravoyal,

 Chennai 600 095.                                                                               ......Complainant.

                                                                        //Vs//

1.Venus Kitchen,

    Rep. by its Proprietor, Brighton,

    No.410/10, Vanniyar Street,

    Kolapakkam,

    Chennai – 600 128.

2.Mr.Brighton,

    No.410/10, Vanniyar Street,

    Kolapakkam,

    Chennai – 600 128.                                                                .…..Opposite Parties.

Counsel for the complainant                              : M/s.M.Karpagam, Advocate.

Counsel for the opposite parties                       : M/s.Y.Arul Manickam, Advocate.

This complaint coming before us on various dates and finally on 06.10.2023 in the presence of M/s.M.Karpagam, counsel for the complainant and M/s.Y.Arul Manickam, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with respect to the interior design work to his house and direct the opposite parties to pay a sum of Rs.6,73,728/- for deficiency in service on the part of the opposite parties and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.1,00,000/- towards cost of the proceedings.

Summary of facts culminating into complaint:-

2. That the complainant engaged the service of the opposite parties to do interior designing works in his apartment at Perumbakkam.  After several discussions with the complainant and his architect the opposite parties had sent the quotation on 24.01.2022.  Final quotation was shared on 03.02.2022.  After several repeated follow ups the opposite parties commenced the work on 16.02.2022.  The opposite parties were never regular and perfect in their work.  The opposite parties gave the initial production drawings on 21.02.2022 which did not have appropriate measurements.  The complainant himself drafted the agreement and shared the same to the opposite parties on 22.02.2022.  The opposite parties shared the revised production drawing on 28.02.2022, which also had errors in the measurement.  The false ceiling work was only partially completed on 11.03.2022, but the same was substandard and not up to the mark.  The drawing shared by the opposite parties did not have proper measurements and hence the complainant’s architect finalized the 3D drawings on 24.03.2022.  The complainant shared the second draft agreement with the 2^nd opposite party on 05.04.2022 and after frequent follow ups, the 2^nd opposite party shared the revised draft on 13.04.2022.  Due to lot of errors in the measurements the complainant with the help of his architect rectified the errors and shared the 3^rd revised agreement to the 2^nd opposite party on 06.05.2022.  Mean while the opposite parties stopped the work and refused to move ahead even after several reminders from the complainant.  The opposite parties refused to fix the kitchen accessories brought by the complainant.  The 2^nd opposite party initially had agreed verbally to fix the kitchen accessories provided by the complainant, subsequently the opposite party did not respond to the request and hence causing further delay in fixation. That on 14.04.2022 since the opposite party was dragging on without signing the agreement and delaying the work, the complainant made a phone call to the 2^ndopposite party to discuss the matters causing delay of work and to approve the agreement.  During the said phone call, the 2^nd opposite party had said the complainant that he cannot change the measurements as per the requirements of the complainant and it will differ from what Architect drawing shows. Based on the request of complainant the opposite party sent a revised estimation on 18.05.2022 for finishing the interior works for Bedrooms (3nos), Dining and Living. However, the complainant had found that the cost incurred for the false ceiling work has been wantonly increased with almost no technical basis to almost twice the amount than what was originally agreed and there was a condition attached to that quotation stating that only if the complainant agrees to the increased change of cost of the false ceiling, the revised agreement will be signed by the opposite party.  The 2^nd opposite party had sent his team for measuring the area of false ceiling on 19.05.2022.  During the time of taking measurement the complainant and their Architect were present at the place for taking measurement.  After the measurement, it was found that the 2^nd opposite party has increased the area from 475 square feet to 754 square feet which is different from what was agreed in the beginning. Hence the complainant had requested the opposite party on 19.05.2022 to stop the work and hand over the key and refund the amount after deducting the cost incurred for the false ceiling for which the opposite party had refused stating that they could not refund and you could not unilaterally cancel the project midway.  Ever since the time of this response, there was no other communication on the part of opposite party nor had made any attempts to settle this issue amicably. That despite having paid the half the advance amount and repeated follow ups the complainant had to rush to the site often to sort the issues with the opposite party and team for the repeated errors made by the opposite party.  The complainant states that, due to change in the key contact, assigning incompetent team at site and intentional disregards shows by the opposite party towards the completion of the work has resulted in various complications and financial loss to the complainant. That the very purpose of buying the property in Embassy Residency, Perumbakkm is for the travel convenience of his wife, as her office is in Taramani and due to the undue delay caused by the opposite party, the very purpose was defeated and the complainant’s wife is compelled to commute from KilAyanambakkam to Taramani till date which is nearly 4 hours of travel every day. The complainant through his counsel sent a legal notice dated 14.07.2022 which was received by the opposite party.  Complainant have requested to opposite party and visited their factory on 26.07.2022 to take possession of the flat keys, for the complainant was asked to sign a declaration stating that the flat has been handed over without any damages which was a shock to the complainant because the flat has been severely damaged and as indicated, the works has been stopped. The opposite parties committed unfair trade practice and deficiency in service. Hence the complaint.

The crux of the defence put forth by the opposite parties:-

3. The opposite party is in the business of interior decoration and installing modular kitchen for the past 20 years.  The opposite party has already done interior work for the complainant a few years back. Thereafter the same complainant has referred the 1^st opposite party to new clients also. After having accommodated the changes suggested by the complainant and his architect the 1^st opposite party sent the final quotation cum agreement on 03.02.2022 for Rs.6,97,601/- including GST.  It is pertinent to note that the opposite parties had clearly stated in the quotation the terms and conditions including the provisions regarding warranty in the quotation.  Opposite parties admitted that it is true that they received advance of Rs.3,00,000/- on 31.01.2022 even though the amount was less than 50% of the amount payable as advance as per the condition of the quotation. The 2^nd opposite party had clearly stated in the quotation cum agreement dated 03.02.2022 that materials would be delivered within 40 days from the date of 50% advance.  The opposite party had clearly explained to the complainant that the materials would be made ready in the factory of the 1^st opposite party as per the approved design drawing and thereafter those materials would be fixed in the site.  Even prior to the commencement of the false ceiling work the 2^ndopposite party visited the site and informed the complainant that the design made by his architect would not cover the pipes that was running below the ceiling and suggested for the design correction. However, the complainant insisted that the work should be commenced based on the drawing supplied by his architect.  After the frames, channels and Gypsum Board were fixed the architect and the complainant inspected the site and realized the mistake in the design and requested re-do the work based on the changed design. That the change of design caused increase of area and removal of the frames and Gypsum board.  Consequently, it resulted in the additional cost. It was made abundantly clear to the complainant that the all the terms and condition are usually stated in the quotation and that must be treated as the agreement. It is actually the complainant who made changes every time a design was sent to him.  Several changes and modifications occurred in drawings because of the indecisiveness of the complainant and his architect. Whenever the complainant and his architect change the design there would be additional burden on the opposite parties as they have to pay additional charges to the design engineers.  The complainant would send a draft agreement one day and he himself would change again and prepare another drat and change that too.  The 2^nd opposite party clarifies that he was not evading signing the agreement, on the other hand it was the complainant who was not willing to sign the agreement sent by the 2^nd opposite party. The complainant all of a sudden insisted that he would supply kitchen accessories and the opposite party should only collect the fixing charges. The 2^nd opposite party states that even though he felt belittled by the complainant, he accepted to the plan of accessories being supplied by the complainant. It is clarified that the works were stopped as the complainant did not come to the conclusion regarding additional charges for removing the already fixed false ceiling and replacing the same with new one according to the changed design.  The 2^nd opposite party sent revised quotation cum agreement on 26.04.2022.  It was not on 18.052022.  In fact as usual the complainant was making many changes in the types of materials without understanding the change of materials would result in change of design too and consequently makes impact on the cost as well. It is because of the faulty design made by the architect of the complainant the ceiling works had to be re-designed several times. The opposite parties cannot be blamed for the repeated changes made in the design and delay caused by such changes. Thus they sought for the complaint to be dismissed.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A21 were submitted. On the side of opposite parties proof affidavit was filed and documents marked as Ex.B1 to Ex.B4 were submitted.

Points for consideration:-

1) Whether there is any deficiency in service as alleged by the complainant against the opposite parties has been successfully proved by the complainant with admissible evidence?

2) If so, to what reliefs the complainant is entitled?

5. It is the case of the complainant that he had availed the services of the opposite parties to do interior design works in his home at Perumbakkam.  Based on the quotation submitted by the opposite parties the complainant had paid then 50% advance amount of Rs.3,00,000/- to the opposite parties.  The opposite parties had not come forwarded to execute the agreement with the complainant.  The opposite parties commenced the false ceiling works with several errors in the measurement.  The opposite parties conformed that they cannot charge the measurements as per the requirements of the complainant.  Hence the complainant restricted the works with respect to the advance amount paid to the opposite parties.  The opposite parties had sent a revised quotation for finishing the bedrooms (3numbers), Dining and living.  The complainant came to know that the opposite parties had taken wrong measurements and charged exorbitantly from the complainant.  Hence the complainant asked the opposite parties to stop the works and hand over the keys and refund the amount after deducting the cost incurred for the false ceiling and thereafter no communication from the opposite parties.  Hence he issued a legal notice to the opposite parties on 14.07.2022 the opposite parties had not chosen to reply the notice even after receipt of the same.  Hence the complaint.

6. To prove the case, the complainant deposed proof affidavit with 19 documents which were marked as Ex.A1 to Ex.A21.  Ex.A1 is the letter regarding handing over of possession of B161 Embassy residency, Ex.A2 is the draft agreement, Ex.A3 is the first revised draft agreement, Ex.A4 is the second revised draft agreement, Ex.A5 is the third revised draft agreement, Ex.A6 is the payment receipt for the advance amount, Ex.A7 is the first quotation, Ex.A8 is the construction design, Ex.A9 is the final revised drawing, Ex.A10 is the draft of agreement, Ex.A11 is the draft agreement sent by the complainant to the opposite party, Ex.12 is the revised quotation with increased amount, Ex.A13 is the Whatsapp chat, Ex.A14 Whatsapp messages, Ex.A15 is the legal notice sent by the complainant to the opposite party, Ex.A16 is the copy of maintenance charges paid by the complainant, Ex.A17 is the receipt for the maintenance charges by the complainant, Ex.A18 is the proof of payment given to the opposite party, Ex.A19 is the copy of quotation, Ex.A20 is the photographs of the unfinished apartment and Ex.A21 is the copy of agreement with another vendor to complete the work.

7. Per contra, the opposite parties disputing all the allegations interalia contended that the opposite parties had sent the final quotation cum agreement on 03.02.2022 for Rs.6,97,601/-.  The opposite parties had received the advance amount on 31.01.2022.  The opposite parties had started the false ceiling works on 16.02.2022.  At the time the 2^nd opposite party informed that the design made by his architect would not cover the pipes and suggested drawing correction.  The complainant insisted that the work should be commenced based on the drawing submitted by his architect.  After fixing the frames, channels the complainant and his architect realized the mistake and changed the design.  It was informed by the opposite parties that the change of design caused increase of area.  The complainant and his architect made changes every time a design was sent to him.  Several changes and modifications occurred in drawings because of the in decisiveness of the complainant and his architect.  More over the complainant keep on changing the agreement drafts.  The complainant reduced the scope of work and asked the opposite parties to continue with interior works in the bedrooms (3nos), dining and living rooms.  On 26.04.2022 the opposite parties sent a revised quotation to do the same.  The complainant did not accept the same and unilaterally stopped the work.  There was no deficiency in service and unfair trade practice on the part of the opposite parties and prays to dismiss the complaint.

8. To refute the claim of the complainant, the opposite parties deposed proof affidavit with 4 documents which were marked as Ex.B1 to Ex.B4.  Ex.B1&Ex.B2 are the quotation with terms and conditions, Ex.B3 is the transcript of whatsapp messages and Ex.B4 is the Discharge summary of the 2^nd opposite party.

9. We have perused the documents and arguments advanced by the both the parties.  It is not disputed that the complainant had paid Rs.3,00,000/- towards advance amount to carry out interior design works in his house.  It is an admitted fact that the complainant and the opposite parties had not entered into any agreements.  The complainant filed draft agreements vide Exs.A2, A3, Ex.A10 and All.  Ex.A5 is the cost estimation given by the opposite parties.  Ex.A6 is the payment receipt of Rs.3,00,000/-.

10. The opposite parties also not disputed the receipt of advance amount.  The opposite parties alleged that it is the complainant who used to change the design every time.  Moreover the complainant insisted that the work should be done as per the drawings of the architect.  The architect and the complainant used to change the design submitted by the opposite parties.

11. On perusal of the whatsapp chats in Ex.A14, Ex.A15 and Ex.B3 there is a dispute with regard to measurements of the designs submitted by the complainant.  The complainant had not filed a single document to show that the designs submitted by the opposite parties having errors in measurement. Moreover the complainant had not valued the false ceiling works carried out by the opposite parties with the help of independent valuer to substantiate his claim. He had not chosen to file any photographs of the same.  During the pending of the proceedings, the complainant had not chosen to appoint Advocate Commissioner to inspect the property.  Hence the complainant had not established the case against the opposite parties with conclusive proofs.

12. Therefore we have come to the conclusion that opposite parties had not committed any deficiency in service and unfair trade practice.  This point is answered accordingly.

Point No.2:-

13. Since we have held that the opposite parties had not committed any of the deficiency in service, the complainant is not entitled for any reliefs claimed by him.  It is open to the complainant to recover the balance sum of Rs.65,000/- after deducting the cost incurred by opposite parties from appropriate forum.  The complaint is liable to be dismissed and accordingly dismissed.  This point is answered accordingly.

In the result, the complaint is dismissed.  No order as to cost.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 16^th day of October 2023

   Sd/-                                                                                                                      Sd/-

MEMBER-I                                                                                                      PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

    Sd/-                                                                                                                       Sd/-

MEMBER-I                                                                                                      PRESIDENT